Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 1 of 34

CITY OF SEATTLE,

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

Plaintiff,

i Case No.

►M
DONALD J. TRUMP, in his official capacity as PRESIDENT OF THE UNITED STATES; JEFFERSON B. SESSIONS, III, in his official capacity as ATTORNEY GENERAL; and JOHN F. KELLY, in his official capacity as SECRETARY OF HOMELAND SECURITY,
Defendants.

COMPLAINT FOR DECLARATORY RELIEF

I. INTRODUCTION 1. Within days of taking office, President Donald J. Trump promulgated Executive Order No. 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (the "Executive Order" or "Order"). This Order purports to strip virtually all federal funding from cities and other local governments that refuse to assist the federal government in effectuating its immigration enforcement policies. The Order is premised on a misreading of federal statutory law and departs dramatically from settled

COMPLAINT FOR DECLARATORY RELIEF - 1

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 2 of 34

1 constitutional principles. In this suit, the City of Seattle, Washington, seeks a declaration that it is

2 acting consistently with federal law and that the U.S. Constitution precludes application of the

3 Order to deny it federal funds to which it is otherwise entitled.

4

2. Many municipalities, including Seattle, have decided as a matter of strongly felt

5 local policy that their law enforcement personnel and other employees should not inquire into the

6 immigration status of any person unless specifically required to do so by law or court order. Seattle,

7 like other local governments that have adopted similar "sanctuary" policies, has concluded that a

8 rule precluding inquiry into immigration status furthers public safety and health: such an approach

9 encourages members of immigrant communities both to cooperate with law enforcement personnel

10 in preventing and solving crime, and to seek health assistance when necessary. These policies are

11 overwhelmingly supported by local law enforcement personnel across the nation.

12

3. The Executive Order avowedly is designed to induce local governments to change

13 these policies, and to force municipalities instead to assist the federal government in enforcing the

14 very different immigration policies of the current federal administration.

15

4. To accomplish this goal, the Executive Order directs the Secretary of Homeland

16 Security ("the Secretary") to designate so-called "sanctuary jurisdictions," which the Order

17 identifies as those that "willfully refuse to comply with 8 U.S.C. 1373." 82 Fed. Reg. at 8801. That

18 statute provides in relevant part that "a Federal, State, or local government entity or official may

19 not prohibit, or in any way restrict, any government entity or official from sending to, or receiving

20 from, the Immigration and Naturalization Service information regarding the citizenship or

21 immigration status, lawful or unlawful, of any individual." 8 U.S.C. § 1373(a). The Executive

22 Order then purports to direct the Secretary and the U.S. Attorney General to ensure that these

23 "sanctuary jurisdictions" are denied most federal funds. It also directs the Attorney General to take

COMPLAINT FOR DECLARATORY RELIEF - 2

PETER S. HOLMES
Seattle City Attorney
701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 3 of 34

1 further enforcement action against "any entity" that either violates Section 1373 or "has in effec

2 a statute, policy, or practice that prevents or hinders the enforcement of federal law." 82 Fed. Reg

3 at 8801.

4

5. Although Seattle believes that it complies with Section 1373 and all other

5 applicable federal legal requirements, past statements of the President and of other federal

6 Executive Branch officials suggest that Seattle will be treated as a "sanctuary jurisdiction" under

7 the Executive Order. Such a designation would have a devastating effect on Seattle, denying it

8 significant funding that it uses for such essential purposes as home care for the disabled elderly

9 and nutrition assistance for needy children. The prospect of that impact is having an immediate

10 effect on Seattle, as it affects the choices that the City is now making in determining the allocation

11' of funds in its annual budget.

12

6. The ultimate effect of the Executive Order will be to impose significant penalties

13 on Seattle so long as the City fails to assist the federal government in its immigration enforcement

14 efforts. That outcome is illegal, for several reasons.

15

7. First, Seattle complies with Section 1373. It therefore is not a "sanctuary

16 jurisdiction" as defined by the Executive Order and, for that reason, may not be subjected to the

17 punitive denial of federal funding pursuant to the Order.

18

8. Second, insofar as Section 1373 or other provisions of federal law are thought to

19 require Seattle affirmatively to assist in federal immigration enforcement efforts, the Executive

20 Order is unconstitutional in several respects when it seeks to penalize Seattle for failing to comply

21 with that law:

22

• The Executive Order violates the Tenth Amendment. It is fundamental that the federal

23 government may not direct state and local governments to regulate in a particular way or to enforce

COMPLAINT FOR DECLARATORY RELIEF - 3

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206)684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 4 of 34

1 a federal regulatory prograin. Yet that is just what the Executive Order does.

2

® The Executive Order violates the U.S. Constitution's Spending Clause. U.S. Const., Art.

3 1 I, § 8, cl. 1. It is fundamental that the federal government may neither coerce state or local action

4 through the denial of federal funds, nor seek to affect such action by denying funds that are not

5 germane to the federal program at issue. Yet that is just what the Executive Order does.

6

® The Executive Order is fatally ambiguous. It is fundamental that state and local

7 governments are not bound by conditions attached to federal grants unless those conditions are

8 clearly stated. Yet the Executive Order is incomprehensibly imprecise in the obligations that it

9 purports to impose on municipalities, as is Section 1373 if that statute is thought to require

10 affirmative acts of immigration enforcement.

11

9.

Seattle accordingly seeks a declaration that it complies with Section 1373 and that

12 application of the Executive Order to deny it federal funds would violate the U.S. Constitution.

13

IL PARTIES

14

10. Plaintiff City of Seattle is a municipal corporation and a city of the first class

15 existing under the laws of the State of Washington.

16

11. Defendant Donald J. Trump is the President of the United States of America. He is

17 sued in his official capacity.

18

12. Defendant Jefferson B. Sessions, III, is the Attorney General of the United States.

19 Attorney General Sessions is responsible for implementing elements of the Executive Order. He

20 is sued in his official capacity.

21

13. Defendant John F. Kelly is the Secretary of the U.S. Department of Homeland

22 Security. Secretary Kelly is responsible for implementing elements of the Executive Oder. He is

23 sued in his official capacity.

COMPLAINT FOR DECLARATORY RELIEF - 4

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 5 of 34

1

III. JURISDICTION AND VENUE

2

14. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1346. The

3 Court has further remedial authority pursuant to 28 U.S.C. §§ 2201 and 2202.

4

15. Venue in this Court is proper under 28 U.S.C. § 1391(e).

5

FACTUAL ASSERTIONS

6

IV. THE CITY OF SEATTLE AND ITS SANCTUARY CITY POLICIES

7

A. Immigrants Make Essential Contributions to Seattle and Its Economy

8

16. The City of Seattle has a population of over 680,000 people, according to the 2016

9 census. Seattle accounts for over 30% of the total population of King County, Washington, and is

10 located on 143 square miles.

11

17. The population of Seattle's metropolitan area, including the Seattle-Tacoma-

12 Bellevue Metropolitan Statistical Area, exceeds 3,700,000. This includes residents from at least

13 137 foreign countries. More than sixteen percent of these residents are foreign born.

14

18. These immigrants make essential contributions to Seattle. Almost twenty percent

15 of Seattle's business owners are immigrants, and more than 39,000 immigrant entrepreneurs have

16 been identified in the City.

17

19. Seattle's status as a welcoming and internationally minded city is central to its

18 identity and economy. In 2016, Seattle welcomed approximately 2.7 million foreign visitors. In

19 2015, the direct spending of foreign visitors in the City is estimated at $1.2 billion. Tourism

20 supports approximately 78,000 jobs in the City, and the tourism sector accounts for almost $700

21 million in tax revenue.

22

20. The Seattle City Council recently, and unanimously, passed Resolution 31730,

23 which states: "Seattle benefits tremendously from the large number of diverse immigrants and

COMPLAINT FOR DECLARATORY RELIEF - 5

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206)684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 6 of 34

1 refugees who contribute to the development of a culturally and economically diverse and enriched

2 community." Welcoming Cities Resolution, Seattle City Council, https:Hgoo.gl/IFpFln.

3

B. Seattle Municipal Code Provisions Governing Immigration Status

4

21. Since 1986, the Seattle Municipal Code has provided that "[c]ity officers and

5 employees are directed to cooperate with, and not hinder, enforcement of federal immigration

6 laws." Seattle Mun. Code § 4.18.010.

7

22. In 2003, the Seattle City Council unanimously adopted Ordinance 121063.

8'

23. Ordinance 121063 enacted section 4.18.015 of the Municipal Code, which provides

9' that, notwithstanding Section 4.18.010, and unless otherwise required by law or by court order,

10 "no Seattle City officer or employee shall inquire into the immigration status of any person, or

11 engage in activities designed to ascertain the immigration status of any person." Seattle Mun. Code

12 § 4.18.015(A).

13

24. The prohibition in Section 4.18.015(A) does not apply to Seattle police officers

14 when the officer has reason to believe that an individual (1) has previously been deported from the

15 United States; (2) is again present in the United States; and (3) is committing or has committed a

16 felony. Seattle Mun. Code § 4.18.015(B).

17

25. Ordinance 121063 recognized that Seattle is home to immigrants from around the

18 world who contribute to the city's cultural richness and economic vitality. Like many other

19 jurisdictions in the United States that have adopted similar provisions, Seattle enacted Ordinance

20 121063 out of a belief that municipal officers and employees should play a limited role in inquiring

21 into the immigration status of its residents.

22

26. Ordinance 121063 also recognized that amending the Municipal Code to bar

23 inquiry into the immigration status of any person is "an effective way to guide city officials and

COMPLAINT FOR DECLARATORY RELIEF - 6

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 7 of 34

1 employees to adhere to federal law while helping to protect the safety and health of all members

2 of [the] community."

3

27. Accordingly, although the Municipal Code historically had provided that city

4 officers and employees were to cooperate with federal officials in their enforcement of federal

5 immigration laws, Ordinance 121063 ensured that such cooperation will not harm legitimate public

6 policy goals of the city.

7

28. In addition, Ordinance 1210.63 enacted a provision making clear that nothing in

8 Chapter 4 of the Municipal Code "shall be construed to prohibit any Seattle City officer or

9 employee from cooperating with federal immigration authorities as required by law." Seattle Mun. 10 Code § 4.18.035.

11

C. Seattle Police Department Practice

12

29. Consistent with the Municipal Code, the Seattle Police Department Manual

13 provides that:

14

It is the intent of the Seattle Police Department to foster trust and cooperation with

all people served by the Department. Complainants, witnesses and victims are

15

encouraged to communicate with Seattle Police officers without fear of inquiry

regarding their immigration or alien status. Being an undocumented person in this

16

country, barring any criminal activity, is a federal civil violation not enforced by the

Seattle Police Department. In Seattle, only ICE (Immigration and Customs

17

Enforcement) and other federal agencies can enforce federal laws relating to illegal

entry and residence within the United States.

18 It is the policy of the Department that officers will not request specific documents

19

for the sole purpose of determining someone's immigration or alien status....

20

Officers will not initiate police action based solely on an individual's immigration or

alien status, nor shall they ask for identification or documents to establish the persons

21

immigration or alien status.

22 Seattle Police Dep't Manual § 6.020,'https://goo.gl/V4e7KX.

23

COMPLAINT FOR DECLARATORY RELIEF - 7

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 8 of 34

1 V. SANCTUARY CITY POLICIES BENEFIT CITIES AND THEIR RESIDENTS.

2

30. Seattle is not the only municipality to conclude that community involvement and

3 cooperation with police is critical in helping reduce crime, maintain a healthy populace, and

4 I safeguard public funds.

5

31. Because of variations in how a sanctuary jurisdiction is defined, researchers have

6 identified between 165 and 608 such jurisdictions across the United States. Michelle Ye Hee Lee,

7 Trump's Claim that Sanctuary Cities "Breed Crime, " Wash. Post, Feb. 8, 2017.

8

32. The Seattle City Council enacted the ordinance described above with the firm

9 conviction that encouraging community members to report crimes and cooperate with police

10 contributes to public safety. Policies restricting local police from inquiring into a person's

11 immigration status foster such cooperation.

12

33. In May 2015, the President's Task Force on 21st Century Policing recommended

13 that "[flaw enforcement agencies should build relationships based on trust with immigrant

14 communities. This is central to overall public safety." The Task Force noted that:

15'

Immigrants often fear. approaching police officers when they are victims of

and witnesses to crimes and when local police are entangled with federal

16

immigration enforcement. At all levels of government, it is important that

laws, policies, and practices not hinder the ability of local law enforcement

17 II

to build the strong relationships necessary to public safety and community

well-being. It is the view of this task force that whenever possible, state and

18

local law enforcement should not be involved in immigration enforcement.

19 I Final Report of the President's Task Force on 21st Century Policing at 18 (2015),

20 https:Hgoo. gl/acnR68.

21

34. Numerous law enforcement organizations have publicly recognized the dangers of

22 I commingling local public safety responsibilities with federal immigration enforcement.

23

COMPLAINT FOR DECLARATORY RELIEF - 8

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 9 of 34

1

35. The Major Cities Chiefs Association, a professional association of Chiefs and

2 Sheriffs representing the largest cities in the United States, Canada, and the United Kingdom, has 3 . recognized that "[a] ssistance and cooperation from immigrant communities is especially important

4 when an immigrant, whether documented or undocumented, is the victim of or witness to a crime.

5 These persons must be encouraged to file reports and come forward with information. Their

6 cooperation is needed to prevent and solve crimes and maintain public order, safety, and security

7 in the whole community.... Immigration enforcement by local police would likely negatively

8 effect and undermine the level of trust and cooperation between local police and immigrant

9 communities. If the undocumented immigrant's primary concern is that they will be deported or

10 subjected to an immigration status investigation, then they will not come forward and provide

11 needed assistance and cooperation.... Such a divide between the local police and immigrant groups

12 would result in increased crime against immigrants and in the broader community, create a class

13 of silent victims and eliminate the potential for assistance from immigrants in solving crimes or

14 preventing future terroristic acts." M.C.C. Immigration Committee Recommendation for

15 Enforcement of Immigration Laws by Local Police Agencies: Adopted by MCC June 2006, at 5-

16 6, https:Hgoo.gl/SvTaAC.

17

36. The Law Enforcement Immigration Task Force, consisting of the Chiefs of Police

18 of two dozen jurisdictions, opposes proposals that impose federal immigration enforcement

19 responsibilities on local law enforcement personnel. Letter from Law Enforcement Immigration

20 Task Force to Senate Judiciary Committee Chairman Chuck Grassley and Ranking Member

21 Patrick J. Leahy (July 20, 2015), https://goo.gl/moXjfV.

22

37. The National Fraternal Order of Police and the Major County Sheriffs' Association

23 both oppose withholding federal funds from jurisdictions that adopt "sanctuary city" laws. Letter

COMPLAINT FOR DECLARATORY RELIEF - 9

PETER S. HOLMES
Seattle City Attorney
701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 10 of 34

1 from National Fraternal Order of Police to Senate Majority Leader Mitch McConnell, Senate 2 Minority Leader Harry M. Reid, Speaker of the House John A. Boehner, and House Minority

3 Leader Nancy P. Pelosi (July 15, 2015), https://goo.gl/WpRJWg; Letter from Major County

4 Sheriffs' Association to Senate Judiciary Committee Chairinan Chuck Grassley and Ranking

5 Member Patrick Leahy (July 21, 2015), https://goo.gl/QgSxWS; Major County Sheriffs' Ass'n,

6 Sheriffs Respond to Sanctuary City Executive Order (Jan. 28, 2017), https://goo.gl/IF4xZB.

7

38. The vast majority of law enforcement agencies do not support policies like those

8 articulated in the Executive Order.

9

39. There are approximately 18,000 local law enforcement agencies in the United

10 States. Final Report of the President's Task Force on 21 st Century Policing, supra, at 29. Yet only

11 thirty-seven law enforcement agencies in sixteen states have signed so-called "287(g) agreements"

12 with U.S. Immigration and Customs Enforcement (ICE) to facilitate enforcement of federal

13 immigration law. Delegation of Immigration Authority Section 287(g) Immigration and

14 Nationality Act, https://goo.gl/HacxLR. Fewer than one percent of all local law enforcement

15 agencies in the country have deemed it advantageous, wise, or desirable to mix their public safety

16 duties with immigration enforcement.

17

40. Social science research demonstrates the benefits of "sanctuary city" laws. Using

18 an ICE dataset, Professor Torn K. Wong compared crime, income, poverty, and unemployment

19 across counties based on their willingness to honor ICE detainer requests regarding persons

20 suspected of immigration violations. Professor Wong matched sanctuary counties (unwilling to 21 accept ICE detainers) to comparable nonsanctuary counties (willing to accept ICE detainers). He 22 concluded that "[c]rime is statistically lower in sanctuary counties compared to nonsanctuary

23 counties." Sanctuary jurisdictions experience, "on average, 35.5 fewer crimes committed per

COMPLAINT FOR DECLARATORY RELIEF - 10

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206)684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 11 of 34

1 10,000 people" as compared to non-sanctuary counties. Tom K. Wong, The Effects of Sanctuary

2 Policies on Crime and the Economy, Ctr. for Am. Prog. 1 (Jan. 26. 2017), https://goo.gl/ewN3tO.

3

41. Seattle police officials have not been silent in this national debate. For example,

4 former Chief R. Gil Kerlikowske stated in 2004 that "[t]raditionally we have seen that reporting

5 of crime is much lower in immigrant communities because many are leaving countries where the

6 police cannot be trusted for good reason. Adding the fear of arrest or deportation to this could have

7 a tremendous impact on the rate of reporting." .152 Cong. Rec. 18867 (Sept. 21, 2006). King

8 County, Washington, in which Seattle is located, has had a similar experience with its sanctuary

9 policy. "These policies are critical to public safety," said then-King County Sheriff's spokesman

10 Sgt. John Urquhart, who added that the County policy follows the Sheriff's operations manual.

11 "This policy has worked very well for the Sheriff's Office for 20 years. We could not do our job

12 if people were afraid to come to us as witnesses or victims. We have to have that cooperation to

13 do effective investigations and protect the public." King County Council Protects Public Safety

14 and Health by Ensuring All Residents Have Access to Services, King Cty. Council News (Nov. 9,

15 2009), https://goo.gl/EWIvFr.

16

42. In addition to fostering effective policing, there are other significant public policy

17 interests that sanctuary policies advance. For example, such policies eliminate the fear that

18 collection of information about immigration status may discourage undocumented individuals 19 from seeking necessary medical care. This too, has been the experience in King County: Dr. David 20 Fleming, then-Director and Chief Health Officer of Public Health — Seattle & King County, 21 explained that "[t]he preventive care we provide through pre-natal care and immunizations,

22 regardless of immigration status, saves us medical resources and tax dollars in the long term." Id.

23

COMPLAINT FOR DECLARATORY RELIEF - 11

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 12 of 34

1

VL SEATTLE'S RECEIPT OF FEDERAL FUNDS

2

43. The City of Seattle employs over 12,000 people in full-time or part-time positions

3 through the 2017 Adopted Budget. This includes over 2,000 employees of the Police Department,

4 over 1,100 employees of the Fire Department, and over 1,300 employees of Seattle Public Utilities.

5

44. For fiscal year 2017, the City has an operating budget with total appropriations of

6 approximately $5.71 billion. Of this total, over $55 million is derived directly from federal funds.

7 This operating total includes $2.46 billion supporting the City's utility operations. The City's total

8 appropriations in its non-utility operating budget is $3.25 billion, of which approximately $51

9 million in 2017 is derived from federal funds. This amount omits additional federal contributions 10 that are not used in the City's operating budget, but instead fund multi-year capital expenditures.

11 The federal government is contributing over $99 million in such capital funds to Seattle in 2017

12 alone. Between both capital and operating funds, the City will receive over $155 million from the

13 federal government in 2017.

14

45. Much of the City's federal funding is provided on a reimbursable basis. This means

15 that Seattle expends funds to provide programs and services that the federal government has agreed

16 to reimburse. Seattle is currently engaged in substantial capital projects, including those for public

17 infrastructure, and also is running a variety of essential programs for residents, based on the federal 18 government's commitment to reimburse the City for these costs. The Executive Order raises

19 significant doubts about whether the federal government will, in fact, reimburse Seattle for the 20 substantial sums it is expending every day on federally funded programs.

21

A. Human Services Department

22

46. The Seattle Human Services Department (HSD) is responsible for administering

23 approximately 400 contracts with more than 170 community-based providers that offer services to

COMPLAINT FOR DECLARATORY RELIEF - 12

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 13 of 34

1 the City's most vulnerable residents and communities every year. These programs ensure that all

2 Seattle residents have access to adequate food and shelter, educational and professional

3 opportunities, health care, pathways to social and economic independence, and the basic

4 necessities of life. Human Services, City of Seattle, https:Hgoo.gl/fVBPYz.

5

47. HSD pursues vital objectives including: "ending homelessness, hunger and

6 violence in [the] community and improving the health and well-being of everyone who calls the 7 Seattle area home." Human Services —About Us, City of Seattle, https:Hgoo.gl/uyYHiH. Specific 8 initiatives include programs such as: "Addressing Homelessness, Affordability and Livability,

9 Public Health, Preparing Youth for the Future, Addressing Domestic Violence and Sexual Assault,

10 [and] Promoting Healthy Aging." M.

11

48. To further these missions, HSD employs over 300 individuals in part-time or full-

12 time positions. In 2017, almost 100 individuals employed by HSD are supported by federal grants.

13

49. In 2017, HSD has an Adopted Budget of approximately $150 million. Of this

14 amount, over $42 million or 28% is derived from federal funding sources.

15

50. Federal funds are essential to numerous HSD initiatives that serve Seattle residents.

16 For example, the federal government provides over $11 million to the city to support home-based

17 care for elderly residents with disabilities, allowing them to remain in their own homes. This

18 contribution represents almost 50% of the budget for such services. Federal funds also provide 19 support for a continuum of services for homeless residents, including prevention activities, housing 20 services, and survival interventions that provide shelter, outreach, hygiene, and health care. The 21 $15 million provided by the federal government represents 28% of the budget for such activities 22 of the Homeless Strategy and Investment Division. The federal government provides an addition 23 $4 million through a Community Development Block Grant to fund a Homeless Intervention

COMPLAINT FOR DECLARATORY RELIEF - 13

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 14 of 34

1 program that provides emergency shelter and transitional housing for homeless single men,

2 women, and families, hygiene services, housing counseling, and rent assistance. Federal funds

3 totaling over $1 million also account for over 20% of the budget for a nutrition assistance program

4 that provides both high-quality food and nutritional education to children and families.

5

51. The reach of federal funding into the social services provided by the City of Seattle

6 is expansive. In addition to the above examples, funds that support low-income housing, meals for

7 children in child-care homes and at school, college readiness programs for low-income, first

8 generation teenagers, youth violence prevention programs, and Medicaid all derive from the

9 federal government.

10

52. The loss of the federal funds supporting these programs would harm all Seattle

11 residents. Without this funding, many programs will be diminished, less effective, or cease

12 functioning entirely.

13

D. Seattle Police Department

14

53. The Seattle Police Department (SPD) is responsible for "prevent[ing] crime,

15 enforc[ing] the law, and support[ing] quality public safety by delivering respectful, professional

16 and dependable police services." Seattle Police Department Manual, Mission Statement,

17 https:Hgoo. gl/oeAFiw.

18

54. To accomplish this mission, SPD had over 1,400 sworn police officers in 2016 and

19 has a 2017 budget totaling over $320 million. See Department Overview, Seattle Police Dep't,

20 https:Hgoo.gl/La3b3S; Seattle Police Department, Open Budget, https:Hgoo.gl/kSWIef. This

21 represents approximately 10% of the city's annual non-utility operating budget.

22

55. The Department is scheduled to receive over $2.8 million in federal funds in 2017,

23 part of over $10.5 million in federal funds allocated over a multi-year period. The impact of the

COMPLAINT FOR DECLARATORY RELIEF - 14

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206)684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 15 of 34

1 1 2017 annual federal award amount is augmented by a matching commitment from the city totaling

2 1 $2.6 million.

3

56. Federal grants support numerous public safety initiatives and programs that are

4 essential to public safety. Such funds enable SPD to purchase emergency response equipment such

5 as bomb suits, investigate human trafficking, reduce drunk and distracted driving, achieve

6 department-wide deployment of body cameras, secure port facilities, prevent child sexual

7 exploitation over the Internet, combat terrorism, and build ties with local communities through

8 community policing efforts, among many other activities.

9

57. The impact of losing all .federal funding would be substantial. The Department

10 would need either to find alternative funds or forgo purchasing vital equipment, dismiss staff

11 responsible for critical public safety functions, or shut down entire programs.

12

C. Seattle Department of Transportation

13

58. "The Seattle Department of Transportation (SDOT) develops, maintains, and

14 operates a transportation system that promotes the safe and efficient mobility of people and goods,

15 and enhances the quality of life, environment, and economy of Seattle and the surrounding region."

16 SDOT Budgets, Seattle Dep't of Transp., https:Hgoo.gl/ck5QL6.

17

59. SDOT manages an infrastructure that is valued at over $20 billion and includes:

18 1 "1,547 lane-miles of arterial streets, 2,407 lane-miles of nonarterial streets, 118 bridges, 498

19 stairways, 590 retaining walls, [and] 22 miles of seawalls." Id.

20

60. To accomplish this task, SDOT employs over 900 individuals in full-time or part-

21 time positions and has a 2017 operating budget of over $448 million. Seattle Department of

22 Transportation, Open Budget, https:Hgoo.gl/mkkrjF.

23

COMPLAINT FOR DECLARATORY RELIEF - 15

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206)684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 16 of 34

1

61. The federal government is set to contribute over $63 million to capital expenditures

2 supporting multi-year projects in 2017 alone. Across multiple time periods, the federal government

3. is contributing over $250 million to capital expenditures undertaken by SDOT.

4

62. Federal funds directly support numerous SDOT activities that keep Seattle residents

5 both mobile and safe. These include preventative and significant maintenance, replacing bridges,

6 undertaking seismic retrofitting to protect against earthquakes, bike path and pedestrian area

7 improvements, and even purchasing streetcars.

8

63. Without the allotted federal funds, projects will be delayed or cancelled,

9 maintenance will be deferred, and other city resources would need to be repurposed to satisfy vital

10 transportation needs.

11

VII. 18 U.S.C. § 1373

12

64. Section 1373(a) of Title 8 of the U.S. Code provides that "a Federal, State, or local

13 government entity or official may not prohibit, or in any way restrict, any government entity or

14 official from sending to, or receiving from, the Immigration and Naturalization Service

15 information regarding the citizenship or immigration status, lawful or unlawful, of any individual."

16 By its plain terms, this statute does not require the collection by state or local officials of

17 information regarding citizenship or immigration status, but does purport to bar policies that

18 preclude local entities or individuals from sending such information in their possession to federal

19 officials.

20

65. On May 31, 2016, the Inspector General of the U.S. Department of Justice issued a

21 memorandum stating that policies prohibiting local officials from sharing information with the

22 federal government are "inconsistent with the plain language of Section 1373." Memorandum from

23 Michael E. Horowitz, Inspector General, to Karol V. Mason, Ass't Att'y Gen., Office of Justice

COMPLAINT FOR DECLARATORY RELIEF - 16

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206)684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 17 of 34

1 Programs (May 31, 2016), at 5, https:Hgoo.gl/7bhFHd. At the same time, however, the Inspector

2 General confirmed that Section 1373 "does not `require' the disclosure of immigration status

3 information." Id. at 5 n.7. It also does not expressly mandate other forms of cooperation, such as

4 "cooperation with ICE regarding detainers." Id. at 4

5

66. But the Inspector General also concluded that even policies that do not "explicitly

6 proscribe sharing information with ICE" might be construed to violate Section 1373 to the extent

7 they can be read by local officials as prohibiting such communications. Id. at 7. Likewise, he

8 determined that Section 1373 would be violated where "actions of local officials result in

9 prohibitions or restrictions" on information-sharing, even where the local jurisdiction has no

10 express policy against information-sharing. Id. at 7 n.9.

11

67. On July 7, 2016, the U.S. Department of Justice Office of Justice Programs issued

12 guidance concerning federal grants and compliance with Section 1373. Office of Justice Programs,

13 Guidance Regarding Coinpliance with 8 U.S.C. § 1373 (July 7, 2016), https:Hgoo.gl/YPD 1 Li.

14

68. The guidance explained that Section 1373 does not require localities "to collect

15 information," nor to "take specific actions upon obtaining such information." Id. at 1. But Section

16 1373, as interpreted in the guidance, does prohibit localities from "taking action to prohibit or in 17 any way restrict the maintenance or intergovernmental exchange of such information, including 18 through written or unwritten policies or practices." Id.

19

69. The guidance further instructed localities that "[y]our personnel must be informed

20 that ... federal law does not allow any government entity or official to prohibit the sending or

21 receiving of information about an individual's citizenship or immigration status" (id.)—i. e., it 22 declares that localities must affirmatively tell their employees that they have the right to relay

23

COMPLAINT FOR DECLARATORY RELIEF - 17

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 18 of 34

1 information to the federal government, even though no such requirement is stated in the text of

2 Section 1373.

3

70. By its terms, however, Section 1373(a) does not establish any penalties or other

4 legal consequences for a local government's decision to prohibit its employees from sharing

5 immigration information with the federal government. Nor does any other provision of federal law.

6 See Villas atParkside Partners v. City of Farmers Brancli, Tex., 726 F.3d 524, 573 (5th Cir. 2013)
7 ("Congress passed no law concerning ... `sanctuary cities."').

8

VIII. THE EXECUTIVE ORDER

9

71. On January 25, 2017, Defendant Trump signed Executive Order No. 13768, titled

10' "Enhancing Public Safety in the Interior of the United States." Executive Order No. 13768, 82

11 Fed. Reg. 8799 (Jan. 25, 2017).

12

72. The Executive Order is directed at "[s]anctuary jurisdictions across the United

13 States [that] willfully violate Federal law in an attempt to shield aliens from removal from the

14 United States." Id. § 1. The Order asserts that "[t]hese jurisdictions have caused immeasurable

15 harm to the American people and to the very fabric of our Republic" (id), although it recites no

16 factual support for this proposition and disregards the contrary conclusions of the state and local

17 jurisdictions that have primary responsibility for law enforcement and public safety in the United

18 States.

19

73. The Executive Order states that it is the policy of the federal Executive Branch to

20 "[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal

21 funds, except as mandated by law." Id. § 2(c).

22

23

COMPLAINT FOR DECLARATORY RELIEF - 18

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206)684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 19 of 34

1

74. To that end, the Executive Order "direct[s] [federal] agencies to employ all lawful

2 means to ensure the faithful execution of the immigration laws of the United States against all

3 removable aliens." Id. § 4.

4

75. In particular, Section 9 of the Executive Order states that "[i]t is the policy of the

5 executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision

6 of a State, shall comply with 8 U.S.C. § 1373."

7

76. In furtherance of this policy, the Executive Order provides that the Attorney

8 General and Secretary "shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C.

9 1373 (sanctuary jurisdictions) are not eligible to receive federal grants, except as deemed necessary

10 for law enforcement purposes by the Attorney General or the Secretary." Id. § 9(a). For this

11 purpose, the Secretary is given the unreviewable "authority to designate ... a jurisdiction as a

12 sanctuary jurisdiction." Id.

13

77. In addition, the Executive Order provides that the Attorney General "shall take

14 appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in

15 effect a statute, policy, or practice that prevents or hinders the enforcement of federal law." Id.

16

78. It appears that the Executive Order contemplates withholding all federal funds from

17 these "sanctuary jurisdictions," with the exception of unspecified funds "deemed necessary for law

18 enforcement purposes." This seems to be the import of the blanket directive that the Attorney

19 General and Secretary "ensure" that sanctuary jurisdictions "are not eligible to receive Federal

20 grants." The expansive scope of the Order's limitation on federal funding is confirmed by the

21 Executive Order's directive that the Director of the federal Office of Management and Budget

22 "obtain and provide relevant and responsive information on all federal grant money that currently

23 is received by any sanctuary jurisdiction." Id. §9(c).

COMPLAINT FOR DECLARATORY RELIEF - 19

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104. (206)684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 20 of 34

1

79. Although written in broad terms, the Executive Order's particular import is unclear

2 in significant respects because the Order does not define any of its terms.

3

80. Thus, although the Executive Order, through use of a parenthetical, evidently

4 means to define "sanctuary jurisdiction[s]" as those that "willfully refuse to comply with 8 U.S.C.

5 1373," the Order does not define what constitutes a "willful[] refus[al] to comply with 8 U.S.C. §

6 1373," and therefore may encompass jurisdictions that permit their employees to share

7 immigration information with the federal government but prohibit their employees from collecting

8 or maintaining that information in the first place.

9

81. The terms "sanctuary jurisdiction" and "sanctuary city" are not defined, or

10 otherwise used, in any other provision of federal law. See United States v. Juarez-Escobar, 25 F.

11 Supp. 3d 774, 777 (W.D. Pa. 2014) ("There is very little `official' information concerning

12 `sanctuary cities' or `sanctuary states. "'); Unidad Latina en Accion v. U. S. Dept of Justice, 2010

13 WL 7856573, at *I n.2 (D. Conn. 2010) (referring to "sanctuary city" as a "non-legal term")

14

82. Indeed, when asked to define the term "sanctuary city," Defendant Kelly—the

15 official charged by the Executive Order with determining whether a city is a "sanctuary

16 jurisdiction"—responded: "I don't have a clue." Elliot Spagat, Assoc. Press, Homeland Security 17 Head Is Pressed to Define "Sanctuary City," Feb. 11, 2017, https://goo.gl/5rkNCQ.

18

83. Similarly, the Executive Order does not specify what sorts of grants serve "law

19 enforcement purposes" that are exempt from the Order's ban on federal funding, or when the

20 Attorney General or Secretary permissibly may withhold funds serving such "law enforcement"

21 purposes.

22

84. In addition, the Executive Order directs the Attorney General to "take appropriate

23 enforcement action against any entity that violates 8 U.S.C. § 1373, or which has in effect a statute,

COMPLAINT FOR DECLARATORY RELIEF - 20

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206)684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 21 of 34

1 policy, or practice that prevents or hinders the enforcement of Federal law." Executive Order, §

2 9(a). But the Order does not identify the type of "enforcement action" that the Attorney General

3 may take against such entities, including whether the Attorney General's enforcement power is

4 limited to declaring sanctuary jurisdictions ineligible to receive federal grants. The Order also does

5 not define what it means for an entity to "prevent[] or hinder[] the enforcement of Federal law,"

6 an omission that creates particular uncertainty because, by its terms, Section 9(a) applies to any

7 provision of Federal law, not simply 8 U.S.C. § 1373 or other provisions of federal immigration

8 law.

9

IX. DEFENDANTS HAVE THREATENED SEATTLE WITH THE LOSS OF

FEDERAL FUNDS

10 85. Defendants have made statements indicating that they intend to take punitive

11 actions against Seattle because they regard the City to be a "sanctuary jurisdiction."

12 86. During his presidential campaign, Defendant Trump repeatedly "said he ... would

13 withhold federal funds to punish so-called sanctuary cities ... for their lenient policies toward

14 illegal immigration." Cindy Carcamo et al., Trump's Crackdown on Illegal Immigration Leaves A

15 Lot Unanswered for Sanctuary Cities like L.A., L.A. Times, Nov. 15, 2016, https://goo.gl/FgFuf4.

16 87. Among other statements, in a speech on immigration on August 31, 2016,

17 Defendant Trump claimed that "[c]ountless innocent American lives" have been lost because of

18 "sanctuary cities and open borders." Donald J. Trump, Speech on Immigration in Phoeniz, Ariz.

19 (Aug. 31, 2016), https:Hgoo.gl/RxlPks. He declared that he would "block funding for sanctuary

20 cities," "end the sanctuary cities that have resulted in so many needless deaths," and ensure that

21 "[c]ities that refuse to cooperate with federal authorities will not receive taxpayer dollars." Id.

22

23

COMPLAINT FOR DECLARATORY RELIEF - 21

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206)684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 22 of 34

1

88. Defendant Trump referred to Seattle in particular as a "sanctuary city" that would

2 be a target of his administration. For instance, "[o]n the campaign trail, [Defendant] Trump

3 referenced a 2007 Seattle homicide in his dislike for sanctuary cities." Mayor: Seattle Could Lose

4 1 $85 Million by Remaining a Sanctuary City, KIR07 (Jan. 25, 2017, 9:09 PM),

5 https : //goo . gl/euC S TN.

6

89. In an interview with a Seattle radio station on August 29, 2016, Defendant Trump

7 was asked about Seattle's sanctuary city policy. He responded that "sanctuary cities are out ... 8 sanctuary cities are over." He added that "[t]he federal government is going to have to get involved

9 and they're going to have to get involved very sharply." Donald Trump on Colin Kaepernick: He

10 Should Find Another Country, MYNorthwest (Aug. 29, 2016, 5:03 PM), https://goo.gl/JidxYJ.

11

90. In a speech in Everett, Washington, on August 30, 2016, Defendant Trump stated

12 that "[w]e are also going to secure our border to stop the drugs from pouring in," and specifically

13 referenced the Seattle area. Trump: Party of Lincoln Promises Hope to Every Forgotten Stretch of

14 America (Aug. 30, 2016), https:Hgoo.gl/Cn84rQ.

15

91. Defendant Trump has continued to attack sanctuary cities since his inauguration. In

16 a speech to congressional Republicans, Defendant Trump declared: "And finally, at long last,

17 cracking down on Sanctuary Cities." President Trump Remarks at Congressional Republican

18 Retreat, C-Span (Jan 26, 2017), https://goo.gl/7Gya3O.

19

92. In an interview with Fox News host Bill O'Reilly, Defendant Trump reiterated that

20 he is "very much opposed to sanctuary cities," and that "[i]f we have to, we'll defund." Trump:

21 California `Out of Control' and Defunding Could Be In Store, KQED News (Feb. 6, 2017),

22 https://goo. gl/TgLAkL.

23

COMPLAINT FOR DECLARATORY RELIEF - 22

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206)684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 23 of 34

1

93. In a news conference on February 16, Defendant Trump explained that he had

2 "ordered a crackdown on sanctuary cities." Glenn Kessler & Michelle Ye Hee Lee, Fact-Checking

3 President Trump's News Conference, Wash. Post., Feb. 16, 2017, https://goo.gl/tT4oWx.

4

94. In a tweet sent on February 21, Defendant Trump referenced a poll on Americans'

5 attitudes toward sanctuary cities, presumably in support of his executive order. See Teresa Welch,

6 Today in Trump Tweets, Feb. 21, 2017: Sanctuary Cities and "So-Called Angry Crowds,"

7 McClatchy DC Bureau, Feb. 21, 2017, https:Hgoo.gl/lQtnIR.

8

95. Similarly, Defendant Trump's press secretary, Sean Spicer, has insisted that "the

9 President is going to do everything he can within the scope of the executive order to make sure

10 that cities who don't comply with it--counties and other institutions that remain sanctuary cities

11 don't get federal government funding in compliance with the executive order." Press Briefing by

12 Press Secretary Sean Spicer (Feb. 8, 2017), https:Hgoo.gl/yrulyo; see also Priscilla Alvarez,

13 Trump Cracks Down. on Sanctuary Cities, The Atlantic (Jan. 25, 2017), https:Hgoo.gl/pKllmJD

14 (quoting Sean Spicer as saying "We're going to strip federal grant money from the sanctuary states

15 and cities that harbor illegal immigrants. The American people are no longer going to have to be

16 forced to subsidize this disregard for our laws.").

17

96. Other defendants have likewise referred to the need to take action against sanctuary

18 cities, including by stripping them of their federal funding. In a speech to Congress on July 9,

19 2015, Defendant Sessions called on Congress "to make its first item of business the immediate

20 passage of legislation to cut off relevant federal monies to sanctuary cities." Senator Sessions Calls

21 on Congress to Take Up Immigration Reform for Americans (July 9, 2015), https://goo.gl/l 15ov7.

22 Indeed, at the ceremony where he was sworn in as Attorney General, Defendant Sessions

23 emphasized that the Department of Justice would "end th[e] lawlessness" of illegal immigration

COMPLAINT FOR DECLARATORY RELIEF - 23

PETER S. HOLMES
Seattle City Attorney
701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206)684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 24 of 34

1 and "defend the lawful orders of the President of the United States with vigor and determination."

2 President Trump Participates in the Swearing-In of the Attorney General, Jeff Sessions, YouTube,

3 https://goo.gl/GTK15I (last visited Feb. 9, 2017, 12:02 PM).

4

97. More recently, Defendant Sessions appeared at the White House Press Briefing to

5 declare that "the Department of Justice will require that jurisdictions seeking or applying for

6 Department of Justice grants to certify compliance with 1373 as a condition of receiving those

7 awards." Press Briefing By Press Secretary Sean Spicer (Mar. 27, 2017), https:Hgoo.gl/Sfd49z. He

8 likewise threatened that "[t]he Department of Justice will also take all lawful steps to claw back

9 any funds awarded to a jurisdiction that willfully violates 1373." Id. In response to a question about

10 whether other funds might be taken away from sanctuary cities, Defendant Sessions stated that

11 "grants in the future could be issued that have additional requirements." Id.

12

98. Defendants appear to have begun taking action against cities that refuse to comply

13 with their dictates. Defendant Trump's recent budget proposal "was an opening salvo against so-

14 called sanctuary cities, ... slash[ing] $210 million in federal reimbursements to state and local j ails

15 that hold immigrants convicted of crimes while in the country illegally." Brian Bennett, Trump

16 Takes Aim at "Sanctuary Cities" with a Proposal to Cut More than $200 Million in Local Funds,

17 L.A. Times, Mar. 16, 2017, https://goo.gl/sukI6E. And a federal judge recently stated that he had

18 been warned by federal agents "to expect a crackdown on immigrants in response to a new

19 `sanctuary' policy adopted by Travis County," Texas. Federal Judge Says ICE Targeted Austin 20 for Immigrant Raid in Retaliation for "Sanctuary" Policy, The Week, Mar. 21, 2017,

21 https:Hgoo.gVUPvI0l .

22

99. Federal government agencies have also long designated Seattle and other localities

23 in the State of Washington as jurisdictions that fail to comply with federal requests for assistance

COMPLAINT FOR DECLARATORY RELIEF - 24

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 25 of 34

1 in enforcing the immigration laws. A 2014 report from the Department of Homeland Security

2 listed Seattle and other municipalities in Washington as refusing to comply with ICE detainer

3 requests. Dep't of Homeland Security, Declined Detainer Outcome Report 23-25 (Oct. 8, 2014),

4 https:Hgoo.gl/FvCIFW. A 2006 report from the Congressional Research Service identified Seattle

5 as a jurisdiction with a "sanctuary polic[y]." Lisa M. Seghetti et al., Enforcing Immigration Law:

6 The Role of State and Local Law Enforcement, Cong. Res. Serv. 26 n.8 (Aug. 14, 2006),

7 http s: //goo . gl/mY7 W 5 K.

8

100. Indeed, the Department of Homeland Security recently released "its first report

9 listing jurisdictions that refuse cooperation with federal immigration authorities—a step designed 10 to put public pressure on sanctuary cities." Rafael Bernal & Mike Lillis, Trump Moves Sanctuary 11 City Fight to Front Burner, The Hill, Mar. 22, 2017, https://goo.gl/fjlcNvl. That report lists several 12 counties associated.with the Seattle metropolitan area. See Enforcement and Removal Operations: 13' Weekly Declined Detainer Report, U.S. Iminig. & Customs Enforcement 29-31,

14 https:Hgoo.gl/IDCsWd.

15

101. Thus, "Seattle will almost certainly be on [the Attorney General's] list" for punitive

16 action, given that Seattle has "prohibited city employees, including police, from inquiring about

17 someone's immigration status" since 2003, and that Seattle has "roundly condemned the executive

18 order" issued by Defendant Trump. Casey Jaywork, Trump Orders Funding Cuts to Sanctuary

19 Cities, Promising a Showdown with Seattle, Seattle Weekly (Jan. 25, 2017, 1:35 PM),

20 https:Hgoo.gl/ELGxaq; see also David Kroman, As Trump Targets `Sanctuary Cities,' Seattle

21 Plans Budget Cuts, Crosscut (Jan. 25, 2017), https://goo.gl/SrxvzO ("Seattle is a prime target.").

22

23

COMPLAINT FOR DECLARATORY RELIEF - 25

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 26 of 34

1 X. THE EXECUTIVE ORDER IS CAUSING IMMEDIATE HARM TO SEATTLE

2

102. The imminent threat that the Executive Order poses to Seattle's federal funding is

3 having a current impact on the City's budget process and operations.

4

103. Seattle's fiscal year for 2017 began on January 1, and the budget process for 2018

5 is already underway. On March 10, the Mayor and the City Budget Office sent instructions and

6 guidance to city departments about the upcoming budget process. Those same departments must

7 submit budget memoranda for review and guidance by April 5. The multi-step budget process will

8 continue throughout spring and summer, with each step of the process dependent on the materials

9 and plans prepared at the prior steps.

10

104. After receiving departments' budget memoranda, on May 1 the Mayor and the

11 budget office provide guidance for departments to complete their budget submittals, which are due

12 on June 1, with remaining capital budget work due to the budget office by July 1. Additional work

13 in July and August leads to the delivery of a proposed budget to the City Council by September

14 25, with Council action expected on November 20.

15

105. The Executive Order creates irresolvable uncertainty surrounding whether federal

16 funds that currently benefit all Seattle residents will be cut off if the city is deemed a "sanctuary

17 jurisdiction."

18

106. Such uncertainty has a substantial and immediate impact on the City's budget

19 process, as each of the steps described above is dependent on accurate forecasting of available

20 sources of funds. Should federal funding be cut off, the entire budget process would be thrown

21 into disarray given the city's reliance on over $50 million in federal funds for its operating budget

22 and millions more to help fund capital projects.

23

COMPLAINT FOR DECLARATORY RELIEF - 26

PETER S. HOLMES
Seattle City Attorney
701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206)684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 27 of 34

1

2

107. The Executive Order has several characteristics that render it unconstitutional as a

3 general matter and that make its application to Seattle constitutionally impermissible.

4

108. First, given the breadth of the Executive Order's reading of Section 1373 and the

5 expansive terms of the Order, it appears that the Order is designed to punish municipalities like

6 Seattle for not actively assisting the federal government in its enforcement of the immigration

7 laws—and, by doing so, to coerce those municipalities into providing such assistance. This attempt

8 to compel a state or local government to assist in the enforcement of federal law is precluded by

9 the "anti-commandeering principle" of the Tenth Amendment.

10

109. Forbidden "commandeering" occurs when the federal government "require[s] the

11 States in their sovereign capacity to regulate their own citizens." Reno v. Condon, 528 U.S. 141,

12 151 (2000). The Supreme Court has made clear that, under the Tenth Amendment, "[t]he Federal

13 Government may neither issue directives requiring the States to address particular problems, nor

14 command the States' officers, or those of their political subdivisions, to administer or enforce a

15 federal regulatory program." Printz v. United States, 521 U.S. 898, 935 (1997).

16

110. The Executive Order issues just such commands to "sanctuary jurisdictions." It

17 demands compliance with Section 1373, a statute that directs local governments to permit their

18 employees to communicate with the federal government regarding the immigration status of their

19 residents, and thereby interferes with how those governments direct and control the actions of their

20 employees and officials: Cf., e.g., Nevada v. Hicks, 533 U.S. 353, 365 (2001) ("[A] State can act

21 only through its officers and agents."); Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) ("Through

22 the structure of its government, and the character of those who exercise government authority, a

23 State defines itself as a sovereign."). Federal authorities, moreover, have given Section 1373 an

COMPLAINT FOR DECLARATORY RELIEF - 27

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206)684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 28 of 34

1 even broader reading. Seattle maintains that it complies with Section 1373. But wholly apart from

2 whether Section 1373 is itself constitutional and enforceable, the Executive Order, by imposing

3 draconian punishments on noncompliance with that statute in an effort to force state and local

4 officials to assist in federal law enforcement, plainly is not.

5

111. Under Section 1373(a), local governments may not prevent employees from

6 sharing information, even though that "information ... belongs to the State and is available to the[]

7 [employees] only in their official capacity," including via "databases and records that only state

8 officials have access too." Printz, 521 U.S. at 932 n.17.

9

112. Section 1373(a) sweeps broadly to "any government entity or official," and so

10 covers local employees who perform a number of core functions with respect to local governance.

11

113. For example, many of the employees covered by Section 1373(a) are police

12 officers, who "fulfill[] a most fundamental obligation of government to its constituency" and

13 "affect[] members of the public significantly and often in the most sensitive areas of daily life."

14 Foley v. Connelie, 435 U.S. 291, 297 (1978). Under Section 1373(a), local governments must

15 permit police officers who come across immigration information in the course of their duties to

16 relay such information to the federal government.

17

114. Moreover, it appears that the Executive Order purports to impose obligations upon

18 state and local governments that go well beyond those stated in the plain terms of Section 1373.

19 Even prior to issuance of the Executive Order, the federal Executive Branch read duties into the

20 statute that do not appear in its text, including the requirement that state and local employees be

21 instructed on their entitlement to direct immigration information to federal authorities. And the

22 Executive Order goes further yet, providing in Section 9(a) that the Attorney General "shall" take

23 action against any entity that "has in effect a statute, policy, or practice that prevents or hinders

COMPLAINT FOR DECLARATORY RELIEF - 28

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 29 of 34

1 the enforcement of Federal law." Because a policy that fails to provide affirmative support for the

2 enforcement of federal immigration law could well be said to "hinder the enforcement" of that

3 law, this requirement of the Executive Order appears to impose extensive affirmative obligations

4 on state and local officials.

5

115. By punishing noncompliance with Section 1373(a) and other elements of federal

6 law, the Executive Order forces local governments to allow their employees to eschew their

7 essential duties in favor of carrying out the policies of the federal government. Under this regime,

8 "[t]he power of the Federal Government" is "augmented immeasurably" because it can "impress

9 into its service—and at no cost to itself—the police officers of the 50 States," as well as other State

10 and local officials, for the purpose of enforcing the federal immigration laws. Printz, 521 U.S. at

11 922.

12

116. By forcing localities to "absorb the financial burden of implementing" federal

13 immigration law through the Executive Order's effectuation of Section 1373(a), the President and

14 "Members of Congress can take credit for `solving' problems without having to ask their

15 constituents to pay for the solutions with higher federal taxes." Printz, 521 U.S. at 930.

16

117. The Executive Order also leaves local governments "in the position of taking the

17 blame" (Printz, 521 U.S. at 93 0) for any action the federal government takes based on information

18 provided by local officials, including deportations of local residents and immigration enforcement

19 raids. Local governments will likewise be blamed for failing to provide social services to local

20 residents who fear that contacting municipal officials will expose them to immigration authorities.

21 Under the Tenth Amendment, the federal government may not impose such burdens on state and

22 local authorities.

23

COMPLAINT FOR DECLARATORY RELIEF - 29

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 30 of 34

1

118. In this regard, it is irrelevant that the Executive Order and Section 1373 are

2 premised on the federal government's power over immigration. "No matter how powerful the

3 federal interest involved, the Constitution simply does not give Congress the authority to require

4. the States to regulate." Ne14~ York v. United States, 505 U.S. 144, 178 (1992).

5

119. Second, and separately, the Executive Order violates the restrictions on federal

6 authority imposed by the U.S. Constitution's Spending Clause.

7

120. When conditions on the payment to state or local governments of specific federal

8 funds "take the form of threats to terminate other significant independent grants, the conditions are

9 properly viewed as a means of pressuring the States to accept policy changes." Nat'l Fed. of Indep.

10 Bus. v. Sebelius, 132 S. Ct. 2566, 2604 (2012). Here, the Executive Order's funding termination

11 requirement, which threatens to terminate virtually all federal funding for "sanctuary

12 jurisdictions," is specifically imposed for just that purpose. And in doing so, it imposes a condition

13 so severe that it "crosse[s] the line distinguishing encouragement from coercion." Id. at 2603

14 Given the centrality of federal funding to the day-to-day functioning of virtually all municipalities,

15 including Seattle, such a condition "is much more than `relatively mild encouragement'—it is a

16 gun to the head." Id. at 2604. A threat of this sort constitutes "economic dragooning that leaves

17 the States with no real option but to acquiesce" to the federal requirement. Id. at 2605.

18

121. Even setting aside the coerciveness of its threat to strip "sanctuary jurisdictions" of

19 all federal grants, the Executive Order also purports to strip federal funding from local

20 governments even when that funding is unrelated to federal immigration law. The Executive Order

21 therefore violates the Spending Clause requirement that conditions on federal grants to state and

22 local governments must be "[]related `to the federal interest in particular national projects or

23

COMPLAINT FOR DECLARATORY RELIEF - 30

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 31 of 34

1 programs"' that are the subject of the withheld grant. South Dakota v. Dole, 483 U.S. 203, 207

2 (1987).'

3

122. Third, likely because the Executive Order was drafted in extraordinary haste and,

4 most unusually, without any involvement by the responsible Cabinet departments, the Order is

5 fatally ambiguous. It uses terms that are vague and not defined, does not spell out the particular

6 enforcement objectives of the Secretary and Attorney General, and does not describe in an

7 intelligible manner the federal Executive Branch's understanding of the requirements purportedly

8 imposed by Section 1373. The Executive Order therefore does not inform municipalities like

9 Seattle of the consequences if they engage in given "sanctuary" policies.

10

123. The Spending Clause precludes the enforcement of funding conditions of this sort.

11 It is settled that, "if Congress intends to impose a condition on the grant of federal moneys, it must 12 do so unambiguously." Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 17 (1981);

13 see Dole, 483 U.S. at 207. This is because "[t]he legitimacy of Congress' power to legislate under

14 the spending power ... rests on whether the State voluntarily and knowingly accepts" the federal

15 conditions. Pennhurst, 451 U.S. at 17. "There can, of course, be no knowing acceptance if a State

16 is unaware of the conditions or is unable to ascertain what is expected of it." Id.

17

124. Here, neither the plain terms of Section 1373 itself, nor, the additional requirements

18 stated by the Executive Order, adequately informed Seattle at the time it engaged in the relevant

19 conduct of the new and greatly expanded conditions that the Executive Order now purports to

20 impose on the receipt of federal funds. Such conditions may not constitutionally be enforced.

21

22

23

COMPLAINT FOR DECLARATORY RELIEF - 31

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 32 of 34

1

2

3

Declaratory Judgment That Seattle Complies With 8 U.S.C. § 1373

4

125. Seattle repeats and incorporates by reference each allegation that appears in

5 Paragraphs 1-124 above.

6

126. Seattle alleges that it complies with Section 1373 because that statute does not

7 impose an affirmative obligation to collect the citizenship and immigration data of its residents, or

8 to provide such data to federal officials.

9

127. Defendants contend that Seattle does not comply with Section 1373.

10

128. An actual controversy exists between Plaintiff and Defendants about the scope of

11 Section 1373 and Plaintiff's compliance with that statute.

12

129. A judicial determination resolving this controversy is necessary and appropriate at

13 this time.

14

15

The Executive Order Violates The Tenth Amendment's Anti-Commandeering Mule

16

130. Seattle repeats and incorporates by reference each allegation that appears in

17 Paragraphs 1-129 above.

18

131. To the extent that the Executive Order imposes affirmative duties on state and local

19 officials beyond those prescribed in Section 1373, or to the extent that Section 1373 is thought to

20 impose such affirmative duties and the Executive Order penalizes Seattle for failing to perform

21 those duties, the Order is unconstitutional under the Tenth Amendment's anti-commandeering

22 principle. The Supreme Court has made clear that "[t]he Federal Government may neither issue

23 directives requiring the States to address particular problems, nor command the States' officers, or

COMPLAINT FOR DECLARATORY RELIEF - 32

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 33 of 34

1 those of their political subdivisions, to administer or enforce a federal regulatory program." Printz,

2 521 U.S. at 935. On its face and as applied, the Executive Order does just that.

3

4

The Executive Order Violates The Spending Clause

5

132. Seattle repeats and incorporates by reference each allegation that appears in

6 Paragraphs 1-131 above.

7

133. The Executive Order purports to deny "sanctuary jurisdictions" all federal grants.

8 Such an extreme penalty as a consequence of the "sanctuary jurisdiction" designation is

9 unconstitutionally coercive under Sebelius, 132 S. Ct. at 2604.

10

134. Even setting aside the coerciveness of its threat to strip sanctuary cities of all federal

11 grants, the Executive Order is unconstitutional under the Spending Clause for placing conditions

12 on the receipt of federal funds that are not "[]related to the federal interest in particular national

13 projects or programs" paid for by those funds. South Dakota v. Dole, 483 U.S. at 207.

14

135. Moreover, neither Section 1373 nor the Executive Order provides adequately

15 unambiguous notice to municipalities of the conditions that the federal Executive Branch now

16 would attach to the receipt of federal funds. Such conditions may not constitutionally be enforced.

17 !,

XV. REQUEST FOR RELIEF

18

WHEREFORE, Plaintiff prays that this Court:

19

1. Declare that Seattle is in compliance with 8 U.S.C. § 1373;

20

2. Declare that Seattle is not a "sanctuary jurisdiction" as defined in the Executive

21 Order;

22

3. Declare that Section 9 of the Executive Order is unconstitutional on its face and as

23 applied to Seattle, under the Tenth Amendment and the Spending Clause of the United States

COMPLAINT FOR DECLARATORY RELIEF - 33

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-BAT Document 1 Filed 03/29/17 Page 34 of 34

1 11 Constitution;

2

4. Award Seattle its costs in this action, including its reasonable attorneys' fees

3 incurred; and

4

5. Award such other relief as the Court deems just and proper.

5

DATED this 29th day of March, 2017.

6

PETER S. HOLMES

Seattle City Attorney

7

IN

8

Peter S. Holmes, WSBA #15787

Seattle City Attorney

9

Gregory C. Narver, WSBA #18127

Assistant City Attorney

10

Carlton W.M. Seu, WSBA #26830

Assistant City Attorney

11

Michael K. Ryan, WSBA #32091

Assistant City Attorney

12

Gary T. Smith, WSBA #29718

Assistant City Attorney

13

Seattle City Attorney's Office

14

701 Fifth Avenue, Suite 2050

Seattle, WA 98104

15

Phone: (206) 684-8207

Fax: (206) 684-8284

16

Andrew J. Pincus (pro has vice motion to be filed)

17

Charles A. Rothfeld (pro hac vice motion to be filed)

Ori Lev (pro had vice motion to be filed)

18

Travis Crum (pro hac vice motion to be filed)

John T. Lewis (pro hac vice motion to be filed)

19

Joshua M. Silverstein (pro hac vice motion to be filed)

Karianne M. Jones (pro hac vice motion to be filed)

20

MAYER BROWN LLP

1999 K Street, NW

21

Washington, D.C. 20006

Phone: (202) 263-3000

22

Fax: (202) 263-3300

23

Attorneys for Plaintiff

COMPLAINT FOR DECLARATORY RELIEF - 34

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

 
 Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 1 of 31

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10 CITY OF SEATTLE,

11

Plaintiff,

12

v.

No. 17-cv-00497RAJ DEFENDANTS’ MOTION TO DISMISS

13 DONALD J. TRUMP, et al.,

14

Defendants.

15

NOTE ON MOTION CALENDAR: June 30, 2017

16 DEFENDANTS’ MOTION TO DISMISS
17

18

19

20

21

22

23

24

25

26

27

28 Defs.’ Mot. to Dismiss
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 2 of 31

1

TABLE OF CONTENTS

2 INTRODUCTION.........................................................................................................................1

3 LEGAL OVERVIEW ...................................................................................................................4

4

I.

The Executive Enjoys Broad Discretion in Enforcement of Immigration Law.............4

5

II. Executive Order 13,768 .................................................................................................5

6

III. The AG Memorandum ...................................................................................................7

PROCEDURAL BACKGROUND...............................................................................................9
7
LEGAL STANDARD...................................................................................................................9

8 ARGUMENT ..............................................................................................................................10

9

I.

The Court Lacks Jurisdiction to Consider the City’s Claims.......................................10

10

A. The City’s Claims Are Not Ripe for Judicial Review. .................................................11

11

1. The City Has Not Alleged a Genuine Threat of Imminent Prosecution. ..................12

12

2. The City’s Claims Are Not Fit for Judicial Review. ................................................13

3. The City Fails to Establish Harm Sufficient to Justify Delay of Judicial
13
Review. ............................................................................................................................. 14

14

B. The City Lacks Standing Because It Has Failed to Demonstrate That It Has Suffered

15

Concrete and Immediate Injury In Fact. ......................................................................15

16

II. The City Fails to State a Claim for Declaratory Relief Regarding Its Compliance with

17

Section 1373.................................................................................................................16

18

III. The City Fails to State a Viable Tenth Amendment Claim. ........................................18

IV. The City Fails to State a Viable Claim that the Order Exceeds the Spending Power. 22
19
CONCLUSION ...........................................................................................................................24

20

21

22

23

24

25

26

27
Defs.’ Mot. to Dismiss - i
28 17-CV-00497BAT

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 3 of 31

1

2

3
TABLE OF AUTHORITIES

4

CASES
5

Abbott Labs. v. Gardner,

6

387 U.S. 136 (1967)................................................................................................2, 11, 12, 14

7 Alexander v. Sandoval,

8

532 U.S. 275 (2001)................................................................................................................17

9 Arizona Dream Act Coal. v. Brewer,
No. 15-15307, 2017 WL 461503 (9th Cir. Feb. 2, 2017) .........................................................4
10

11

Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492 (2012).......................................................................................4

12
Ashcroft v. Iqbal,

13

556 U.S. 662 (2009)..........................................................................................................10, 18

14 Bldg. & Constr. Trades Dep’t, AFL-CIO v. Allbaugh,

295 F.3d 28 (D.C. Cir. 2002)....................................................................................................6
15

Bova v. City of Medford,

16

564 F.3d 1093 (9th Cir. 2009) ..........................................................................................10, 15

17 Chen v. Schiltgen,

18

No. C-94-4094, 1995 WL 317023 (N.D. Cal. May 19, 1995)................................................20

19 Cty. of Santa Clara v. Trump,

No. 17-CV-00485, 2017 WL 1459081 (N.D. Cal. Apr. 25, 2017)...........................................7
20

Fowler Packing Co., Inc. v. Lanier,

21

844 F.3d 809 (9th Cir. 2016) ..................................................................................................10

22 Golden v. Zwickler,

23

394 U.S. 103 (1969)................................................................................................................17

24 Graham v. U.S. Bank, Nat’l Assn.,

No. 3:15–cv–0990, 2015 WL 10322087 (D. Or. Dec. 2, 2015) .............................................17

25

Legal Aid Soc’y of Alameda County v. Brennan,

26

608 F.2d 1319 (9th Cir.1979) .................................................................................................20

27
Defs.’ Mot. to Dismiss - ii
28 17-CV-00497BAT

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 4 of 31

1 Lopez v. Candaele,
630 F.3d 775 (9th Cir. 2010) ..................................................................................................16
2

3

Love v. United States, 915 F.2d 1242 (9th Cir. 1989) ................................................................................................10

4
Lujan v. Defenders of Wildlife,

5

504 U.S. 555 (1992)................................................................................................................10

6 Mayweathers v. Newland,
314 F.3d 1062 (9th Cir. 2002) ................................................................................................23
7

8

Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012)............................................................................................................23

9 Nat’l Park Hosp. Ass’n v. Dep’t of Interior,

10

538 U.S. 803 (2003)................................................................................................................14

11 Oklevueha Native Am. Church of Hawaii, Inc. v. Holder,

676 F.3d 829 (9th Cir. 2012) ......................................................................................11, 12, 13
12

Portland Police Ass’n v. City of Portland, By & Through Bureau of Police,

13

658 F.2d 1272 (9th Cir. 1981) ................................................................................................15

14 Renne v. Geary,

15

501 U.S. 312 (1991)................................................................................................................10

16 Reno v. Catholic Soc. Servs., Inc.,

509 U.S. 43 (1993)..................................................................................................................11

17

Rincon Band of Mission Indians v. San Diego Cnty.,

18

495 F.2d 1 (9th Cir.1974) .................................................................................................16, 19

19 S. Dakota v. Dole,

20

483 U.S. 203 (1987)..........................................................................................................21, 22

21 Sampson v. Murray,

415 U.S. 61 (1974)..................................................................................................................14

22

Standard Alaska Prod. Co. v. Schaible,

23

874 F.2d 624 (9th Cir. 1989) ..................................................................................................12

24 Steel Co. v. Citizens for a Better Env’t,

25

523 U.S. 83 (1998)..............................................................................................................9, 15

26 Stock W., Inc. v. Confederated Tribes of the Colville Reservation,
873 F.2d 1221 (9th Cir. 1989) ................................................................................................17

27

Defs.’ Mot. to Dismiss - iii
28 17-CV-00497BAT

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 5 of 31

1 Tenaska Washington Partners II, L.P. v. United States,
34 Fed. Cl. 434 (1995) ..............................................................................................................7
2

3

Texas Indus. v. Radcliff Materials, Inc., 451 U.S. 630 (1981)................................................................................................................17

4
Texas v. United States,

5

523 U.S. 296 (1998)....................................................................................................10, 11, 13

6 Thomas v. Anchorage Equal Rights Comm’n,
220 F.3d 1134 (9th Cir. 2000) ....................................................................................11, 12, 13
7

8

Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S. 158 (1967)................................................................................................................14

9 United States v. Guzman-Padilla,

10

573 F.3d 865 (9th Cir. 2009) ..................................................................................................18

11 United States v. Pickard,

100 F. Supp. 3d 981 (E.D. Cal. 2015) ....................................................................................20
12

United States v. Salerno,

13

481 U.S. 739 (1987)........................................................................................................ passim

14 Warth v. Seldin,

15

422 U.S. 490 (1975)................................................................................................................11

16 Wash. State Grange v. Wash. State Republican Party,

552 U.S. 442 (2008)................................................................................................................20

17

Westlands Water Dist. Distribution Dist. v. Nat. Res. Def. Council, Inc.,

18

276 F. Supp. 2d 1046 (E.D. Cal. 2003) ..................................................................................17

19 Whitmore v. Arkansas,

20

495 U.S. 149 (1990)......................................................................................................2, 11, 15

21 Winter v. Cal. Med. Review, Inc.,

900 F.2d 1322 (9th Cir. 1989) ................................................................................................12

22

Wolfson v. Brammer,

23

616 F.3d 1045 (9th Cir. 2010) ................................................................................................12

24 STATUTES

25 28 U.S.C. § 512 .............................................................................................................................7

26
28 U.S.C. § 1331 .........................................................................................................................17
27

Defs.’ Mot. to Dismiss - iv
28 17-CV-00497BAT

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 6 of 31

1 28 U.S.C. § 2201-2202................................................................................................................17

2 8 U.S.C. § 1103 .............................................................................................................................8
3 8 U.S.C. § 1373 ................................................................................................................... passim 4 8 U.S.C. § 1101 .............................................................................................................................4 5 CONSTITUTIONAL LAW 6
U.S. Const. art. II ..........................................................................................................................3
7 ADMINISTRATIVE AND EXECUTIVE MATERIALS

8 28 C.F.R. § 0.5(c)..........................................................................................................................7
9 Exec. Order No. 13,536, 75 Fed. Reg. 19869 (July 20, 2012)......................................................6
10 Exec. Order No. 13,608, 77 Fed. Reg. 26409 ( May 1, 2012) ......................................................4 11
Exec. Order No. 13,726, 81 Fed. Reg. 23559 (April 16, 2016) ....................................................4
12
Exec. Order No. 13,768, 820 Fed. Reg. 8799 (Jan. 25, 2017) ........................................... passim
13
82 Fed. Reg. 8 ...............................................................................................................................1
14 15 OTHER AUTHORITIES
16 Office of Legal Counsel,
52 Admin. L. Rev. 1303 (2000)........................................................................................7, 8, 9
17

18

19

20

21

22

23

24

25

26

27
Defs.’ Mot. to Dismiss - v
28 17-CV-00497BAT

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 7 of 31

1

INTRODUCTION

2

On January 25, 2017, the President signed Executive Order 13,768 for the declared

3
purpose of “direct[ing] executive departments and agencies . . . to employ all lawful means to
4
enforce the immigration laws of the United States.” See Exec. Order No. 13,768, § 1, 82 Fed.
5
6 Reg. 8,799 (Jan. 30, 2017). Section 9(a) of the Order, which is the subject of this litigation,

7 establishes a policy of ensuring that state and local jurisdictions comply with 8 U.S.C. § 1373.

8 Id. § 9. Section 1373 provides, inter alia, that no government entity or official may prohibit or

9 restrict the sending or receiving of information regarding the citizenship or immigration status of
10 any individual to federal immigration authorities. 8 U.S.C. § 1373. 11
The Executive Order is a presidential directive, directed to the Attorney General, the
12
Secretary of Homeland Security (the “Secretary”), and other federal officials. Pursuant to the
13 14 plain language of Section 9(a) of the Order, and as conclusively established through subsequent
15 guidance issued by the Attorney General, the Order does not purport to alter the existing

16 requirements of Section 1373 (or any other federal law), impose new or retroactive burdens on

17 state or local jurisdictions, or expand the legal authority of the Secretary or the Attorney General.
18 See generally Mem. from Att’y Gen. to Dep’t of Justice Grant-Making Components, 19
Implementation of Executive Order 13768 (May 22, 2017) (“AG Memorandum”) (attached hereto
20
as Exhibit 1). Rather, the Executive Order announces the policy of the Executive Branch and
21
22 directs the Secretary and Attorney General, in their discretion and consistent with their existing

23 legal authority, to ensure that jurisdictions that willfully refuse to comply with Section 1373 not

24 be eligible to receive federal grants, except as deemed necessary for law enforcement purposes.

25 Id.; see also Exec. Order No. 13,768, § 9(a).

26
Section 9(a) of the Executive Order is not self-executing, and defendants have taken no

27

action against the City of Seattle (the “City”) under that section. Nevertheless, the City filed the

28 Defs.’ Mot. to Dismiss - 1

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 8 of 31

1 instant lawsuit seeking declaratory and injunctive relief to prevent defendants from taking

2 hypothetical future actions pursuant to that authority. The City’s lawsuit is premature. The City

3
concedes that it has not been the subject of any adverse action, the Secretary has not designated
4
the City as a “sanctuary jurisdiction” in accordance with the process contemplated in Section 9(a),
5
6 and the City affirmatively states that it complies with the requirements of Section 1373.

7

The City cannot show any injury due to the mere existence of the Executive Order, much

8 less establish the “concrete” and “palpable” injury needed to meet the constitutional requirement

9 of standing. Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). Moreover, because defendants
10 have taken no action against the City under the Executive Order, “its effects [have not been] felt 11
in a concrete way,” rendering the City’s pre-enforcement challenge subject to dismissal under the
12
ripeness doctrine. See Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967), abrogated on other
13 14 grounds, Califano v. Sanders, 430 U.S. 99, 97 (1977). The City’s Complaint is based on
15 speculation concerning the Order’s scope, assumptions about the manner in which the Secretary

16 and Attorney General might interpret and implement the Order’s provisions, and conjecture

17 concerning the possibility that the City might one day be designated a “sanctuary jurisdiction”
18 pursuant to the Order and might lose all of its federal grant funding as a result. Such speculative 19
assertions fall short of demonstrating concrete injury. Indeed, the AG Memorandum clarifies that
20
many of the assumptions underlying the City’s claims – such as the City’s contention that the
21
22 Executive Order seeks to terminate all federal funding to sanctuary jurisdictions – are simply

23 inaccurate. Compare Compl. ¶ 78 (ECF No. 1), with AG Mem. at 1-2. The Supreme Court has

24 made clear that the ripeness doctrine exists to prevent courts from issuing decisions based on

25 hypothetical circumstances – like those alleged in the Complaint – that might not occur as
26
anticipated or might not occur at all.
27

28 Defs.’ Mot. to Dismiss - 2
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 9 of 31

1

Additionally, the City has failed to state claims on which relief can be granted for general

2 declaratory relief or under the Tenth Amendment or the Spending Clause of the Constitution.
3
The City’s request for a declaration regarding its compliance with Section 1373 fails because the
4
City identifies no cause of action authorizing such relief, and because the relief it seeks would
5 6 require the Court to render an advisory opinion, which is forbidden under Article III. Its facial
7 Tenth Amendment challenge fails because (1) that claim is based on an interpretation of the

8 Executive Order that the Attorney General has rejected; (2) a facial constitutional claim cannot be

9 sustained against an Executive Order that merely implements executive policy and does not carry
10 the force of law; and (3) in any event, the City’s cannot establish that “no set of circumstances 11
exists under which [the challenged provisions] would be valid.” United States v. Salerno, 481
12
U.S. 739, 745 (1987). Similarly, its Spending Clause challenge fails because the City’s
13 14 allegations that Section 9(a) is unconstitutionally coercive, and that it unilaterally imposes
15 ambiguous grant conditions that are unrelated to the underlying grant funding, all rely on a

16 misinterpretation of that section.

17

The Executive Order does not alter or expand the existing law that governs when the

18 Federal Government may impose or enforce conditions on federal grant programming. Instead,
19
the President – pursuant to his express constitutional authority to ensure that federal agencies
20
“take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3 – has directed agency
21

22 heads to utilize their existing legal authorities “to the extent consistent with law,” see Exec. Order

23 No. 13,768, § 9, in connection with local violations of Section 1373. In other words, the

24 Executive Order does nothing more than set policy priorities and direct certain Executive Branch

25 officials to implement those priorities through the enforcement of preexisting legal authority. The
26
City’s conjecture to the contrary does not satisfy its burden of establishing the justiciability or
27

28 Defs.’ Mot. to Dismiss - 3
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 10 of 31

1 viability of its claims; accordingly, the Court should dismiss the Complaint pursuant to Rules

2 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

3
4
I.
5
6

LEGAL OVERVIEW The Executive Enjoys Broad Discretion in Enforcement of Immigration Law. “The Government of the United States has broad, undoubted power over the subject of

7 immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492,

8 2497 (2012). Through the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq.,

9 Congress granted the Executive Branch significant authority to control the entry, movement, and
10 other conduct of foreign nationals in the United States. Under the INA, the Department of 11
Homeland Security (“DHS”), the Department of Justice (“DOJ”), and other agencies of the
12
Executive Branch administer and enforce the immigration laws. The INA permits the Executive
13 14 Branch to exercise considerable executive discretion to direct enforcement pursuant to federal
15 policy objectives. See Arizona Dream Act Coal. v. Brewer, ___ F.3d ___, No. 15-15307, 2017

16 WL 461503, at *9-10 (9th Cir. Feb. 2, 2017) (“By necessity, the federal statutory and regulatory

17 scheme, as well as federal case law, vest the Executive with very broad discretion to determine
18 enforcement priorities.”). Several Presidents have exercised this discretion by Executive Order, 19
and they have done so in differing ways, reflecting their judgments as to how best to take care
20
that the laws of the United States be faithfully executed. See, e.g., Exec. Order No. 13,726, 81
21
22 Fed. Reg. 23,559 (2016) (“Suspending Entry Into the United States of Persons Contributing to the

23 Situation in Libya”); Exec. Order No. 13,608, 77 Fed. Reg. 26,409 (2012) (“Suspending Entry

24 Into the United States of Foreign Sanctions Evaders With Respect to Iran and Syria”).

25

The INA contains a number of provisions regarding the involvement of state and local

26
authorities in the enforcement of immigration law. One of those provisions, 8 U.S.C. § 1373,

27

ensures the sharing of information between federal and state actors:

28 Defs.’ Mot. to Dismiss - 4

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 11 of 31

1

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

2

restrict, any government entity or official from sending to, or receiving from,

3

[federal immigration authorities] information regarding the citizenship or

immigration status, lawful or unlawful, of any individual.

4
Id. § 1373(a). Section 1373 also proscribes restricting any government entity from “maintaining”
5

6 information regarding the immigration status of any individual. 8 U.S.C. § 1373(b).

7

Well before the issuance of Executive Order 13,768, the compliance of state and local

8 governments with Section 1373 has been of interest to federal agencies because such

9 governments are recipients of federal grants. For example, the DOJ Inspector General issued a
10 memorandum on May 31, 2016, as the City notes (Compl. ¶¶ 65-66), describing a concern that 11
several state and local governments receiving federal grants were not complying with 8 U.S.C. §
12
1373. See Mem. from Michael E. Horowitz, Inspector Gen., to Karol V. Mason, Assistant Att’y
13 14 Gen., Office of Justice Programs, Department of Justice Referral of Allegations of Potential
15 Violations of 8 U.S.C. § 1373 by Grant Recipients (May 31, 2016), available at

16 https://oig.justice.gov/reports/2016/1607.pdf. Although the Inspector General observed that some

17 applications of certain local ordinances might be inconsistent with Section 1373, id. at 4-8, the
18 report nevertheless noted that “no one at DHS . . . has made a formal legal determination whether 19
certain state and local laws or policies violate Section 1373, and we are unaware of any
20
Department of Justice decision in that regard.” Id. at 8 n.12.
21
22 II. Executive Order 13,768

23

Executive Order 13,768 seeks to “[e]nsure the faithful execution of the immigration

24 laws,” including the INA. Exec. Order 13,768 § 2(a). The Order sets forth several policies and

25 priorities regarding enforcement of federal immigration law, and it represents a dramatic

26
departure from the prior administration’s policy of non-enforcement of certain immigration

27

programs. See, e.g., id. § 10(a) (directing the Secretary to reinstitute immediately the

28 Defs.’ Mot. to Dismiss - 5

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 12 of 31

1 immigration program known as “Secure Communities”).

2

As permitted by the INA, Executive Order 13,768 establishes priorities regarding aliens

3
who are subject to removal from the United States under the immigration laws. Id. § 5. Several
4
provisions of the Order instruct officials to take actions directing future conduct, including
5
6 instructions to promulgate certain regulations within one year, to take “all appropriate action” to

7 hire additional immigration officers, to seek agreements with state and local officials under

8 Section 287(g) of the INA (referred to above), to develop a program to ensure adequate

9 prosecution of criminal immigration offenses, and to establish an office to provide certain
10 services to victims of crimes committed by removable aliens. Id. §§ 6, 7, 8, 11, 13. Throughout, 11
the Order specifies that federal officials are to take these actions as “permitted by law” or as
12
“consistent with law.” Id. §§ 7, 8, 9(a), 10(b), 12, 14, 17, 18(b). In this respect, the Order is
13 14 analogous to orders issued by past administrations that have set forth specific priorities and
15 directed federal agencies to implement those priorities, “to the extent permitted by law.” See,

16 e.g., Bldg. & Constr. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28, 32-33 (D.C. Cir. 2002)

17 (holding that the President may instruct his subordinates to follow certain guidance “to the extent
18 permitted by law,” which means that “if an executive agency … may lawfully implement the 19
Executive Order, then it must do so; if the agency is prohibited, by statute or other law, from
20
implementing the Executive Order, then . . . the agency [must] follow the law”); see also Exec.
21
22 Order 13,536, 76 Fed. Reg. 3,821-3,823 (Jan. 18, 2011) (reaffirming as a policy priority certain

23 principles of contemporary regulatory review and directing agencies “to the extent permitted by

24 law” to take steps to promote those principles).

25

Section 9 of the Executive Order provides that “[i]t is the policy of the executive branch to

26
ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall

27

comply with 8 U.S.C. 1373.” Section 9(a) directs federal agencies to achieve that policy:

28 Defs.’ Mot. to Dismiss - 6

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 13 of 31

1

In furtherance of this policy, the Attorney General and the Secretary [of Homeland

Security], in their discretion and to the extent consistent with law, shall ensure that

2

jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary

3

jurisdictions) are not eligible to receive Federal grants, except as deemed

necessary for law enforcement purposes by the Attorney General or the Secretary.

4

The Secretary has the authority to designate, in his discretion and to the extent

consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney

5

General shall take appropriate enforcement action against any entity that violates 8

6

U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

7
Id. § 9(a).

8
III.
9

The AG Memorandum

10

On May 22, 2017, the Attorney General issued a memorandum that sets forth in a formal,

11 conclusive manner the administration’s interpretation of the scope of the grant-eligibility

12 provision of Section 9(a). See AG Mem. at 1-2.1 By longstanding tradition and practice, the

13 Attorney General’s legal opinions are treated as authoritative by the heads of executive agencies.
14 See, e.g., Tenaska Washington Partners II, L.P. v. United States, 34 Fed. Cl. 434, 439 (1995); 15
Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the Office of
16
Legal Counsel, 52 Admin. L. Rev. 1303, 1319-20 (2000). The Attorney General has a statutory
17
18 duty to advise executive department heads on “questions of law,” 28 U.S.C. § 512, and to furnish

19 formal legal opinions to executive agencies, 28 C.F.R. § 0.5(c). And although the Secretary

20

21

22

1 The AG Memorandum issued shortly after a Court in the United States District Court for the Northern District of California entered a nationwide injunction prohibiting DOJ and DHS “from enforcing Section

23

9(a) of the Executive Order against jurisdictions they deem as sanctuary jurisdictions.” Cty. of Santa Clara v. Trump, No. 17-CV-00485-WHO, 2017 WL 1459081, at *29 (N.D. Cal. Apr. 25, 2017). Despite

24

enjoining enforcement of Section 9(a), that Court nevertheless held that DOJ and DHS may “use lawful means to enforce existing conditions of federal grants or 8 U.S.C. 1373[.]” Id. The government does not

25 understand the injunction entered in County of Santa Clara as precluding the government’s ability to
utilize legal authority independent of the Executive Order to advance the government’s law enforcement

26 priorities. Moreover, in light of the clarifications provided in the AG Memorandum, the government has
sought reconsideration of the injunction entered in that case. See Defs.’ Mot for Recons., Cty. of Santa

27 Clara v. Trump, No. 17-CV-00485-WHO, (N.D. Cal. May 23, 2017), ECF No. 113.

28 Defs.’ Mot. to Dismiss - 7
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 14 of 31

1 principally administers the immigration laws, the INA provides that “the determination and ruling

2 by the Attorney General with respect to all questions of law shall be controlling.” 8 U.S.C.

3
§ 1103(c)(1). The AG Memorandum thus conclusively establishes the scope of Section 9(a) and
4
sets clear and consistent guidance for the applicable components of DOJ as to the parameters of
5
6 the grant-eligibility provision.

7

Consistent with Section 9(a)’s plain text, which is directed only to the Attorney General

8 and the Secretary, the AG Memorandum specifies that the grant-eligibility provision of Section

9 9(a) applies “solely to federal grants administered by [DOJ] or [DHS], and not to other sources of
10 federal funding.” AG Mem. at 1. The Memorandum specifies that the Executive Order does not 11
“purport to expand the existing statutory or constitutional authority of the Attorney General and
12
the Secretary . . . in any respect,” but rather instructs those officials to take certain action, “to the
13 14 extent consistent with the law.” Id. at 1-2. The AG Memorandum acknowledges that, “apart
15 from the Executive Order, [DOJ] and [DHS], in certain circumstances, may lawfully exercise

16 discretion over grants they administer[,]” and that Section 9(a) merely “directs the Attorney

17 General and the Secretary . . . to exercise, as appropriate, their lawful discretion to ensure that
18 jurisdictions that willfully refuse to comply with section 1373 are not eligible to receive” federal 19
grants administered by DOJ or DHS. AG Mem. at 2. Thus, the Attorney General has directed
20
that, where authorized, DOJ “will require jurisdictions applying for certain [DOJ] grants to certify
21
22 their compliance with 8 U.S.C. § 1373 as a condition for receiving an award[,]” and that

23 jurisdictions that fail to meet that condition “will be ineligible to receive such awards.” Id. The

24 AG Memorandum also makes clear that, with respect to Section 1373 compliance conditions,

25 DOJ or DHS may impose such conditions only pursuant to the exercise of “existing statutory or

26
constitutional authority,” and only where “grantees will receive notice of their obligation to

27

comply with section 1373.” Id. In short, Section 9(a) directs DOJ and DHS to exercise their

28 Defs.’ Mot. to Dismiss - 8

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 15 of 31

1 existing authority in a lawful manner to encourage jurisdictions receiving DOJ or DHS

2 administered grants to comply with 8 U.S.C. § 1373.
3
PROCEDURAL BACKGROUND
4
The City filed the Complaint in this matter on March 29, 2017, seeking declaratory relief
5 6 regarding the City’s compliance with Section 1373 and the constitutionality of the Executive
7 Order. See generally Compl., Prayer for Relief ¶¶ 1-5. The City does not allege that it has been

8 designated as a “sanctuary jurisdiction” under Section 9(a) of the Order, nor does it allege that

9 any federal funding has been withheld or revoked pursuant to the Order. Rather, relying on a
10 newspaper article, the City alleges that “‘Seattle will almost certainly be on [the Attorney 11
General’s list’ for punitive action[.]” Id. ¶ 101 (quoting Casey Jaywork, Trump Orders Funding
12
Cuts to Sanctuary Cities, Promising a Showdown with Seattle, Seattle Weekly (Jan. 25, 2017)).
13 14 The City further alleges that, following this hypothetical future determination, defendants might
15 decide to withhold an indeterminate amount of federal funding from the City, or take other,

16 unspecified action against it. Id. ¶¶ 4-5. The City also contends that it “complies with Section

17 1373 and all other legal requirements,” id. ¶ 5, and it seeks a declaration from this Court

18 confirming its compliance with that provision and thus confirming that it is not a “sanctuary
19
jurisdiction.” Id., Prayer for Relief ¶¶ 1-2.
20
LEGAL STANDARD
21

22

Defendants seek dismissal of the Complaint pursuant to Rule 12(b)(1) the Federal Rules

23 of Civil Procedure on the grounds that the Court lacks subject-matter jurisdiction to entertain the

24 complaint. The jurisdiction of a federal court is limited to “cases” and “controversies.” U.S.

25 Const., Art. III, § 2. “Jurisdiction is power to declare the law, and when it ceases to exist, the

26
only function remaining to the court is that of announcing the fact and dismissing the cause.”

27

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). The party asserting federal court

28 Defs.’ Mot. to Dismiss - 9

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 16 of 31

1 jurisdiction has the burden of demonstrating its existence. See Lujan v. Defenders of Wildlife,

2 504 U.S. 555, 561 (1992). Courts should “presume that [they] lack jurisdiction unless the
3
contrary appears affirmatively from the record.” Renne v. Geary, 501 U.S. 312, 316 (1991).
4
Defendants also seek dismissal of the Complaint pursuant to Rule 12(b)(6) for failure to
5 6 state a claim on which relief can be granted. In evaluating a Rule 12(b)(6) argument, the Court
7 accepts the material allegations in the Complaint as true and construes reasonable inferences in

8 the complainant’s favor. See Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). To

9 survive a Rule 12(b)(6) motion, the factual allegations in a Complaint must “state a claim to relief

10 that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Fowler Packing Co.,
11
Inc. v. Lanier, 844 F.3d 809, 814 (9th Cir. 2016). “A claim has facial plausibility when the
12
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
13
14 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S at 678.

15

ARGUMENT

16 I. The Court Lacks Jurisdiction to Consider the City’s Claims.

17

Executive Order 13,768 is not self-executing, and no adverse action has been taken

18 against the City under the Order. Nor has the government interpreted or implemented Section
19
9(a) of the Order in the manner that the City predicts in its Complaint; indeed, the guidance
20
contained in the AG Memorandum undermines many of the presumptions on which the City’s
21

22 claims rely. Accordingly, because no action has been taken against the City, and because the

23 City’s claims largely “rest[] upon contingent future events that may not occur as anticipated, or

24 indeed may not occur at all,” those claims are not ripe for adjudication. Texas v. United States,

25 523 U.S. 296, 300 (1998); Bova v. City of Medford, 564 F.3d 1093, 1096 (9th Cir. 2009).

26
Similarly, because defendants have not taken any adverse action against the City, it cannot meet

27

its burden of establishing a “concrete,” “objective,” and “palpable,” injury necessary to satisfy the

28 Defs.’ Mot. to Dismiss - 10

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 17 of 31

1 constitutional requirement of standing. Whitmore, 495 U.S. at 155. Thus, the City’s claims are

2 non-justiciable under both the ripeness doctrine and the standing doctrine, and the Court lacks

3
jurisdiction to entertain those claims.

4
A. The City’s Claims Are Not Ripe for Judicial Review.
5

6

Article III of the United States Constitution requires that a dispute must be ripe for judicial

7 consideration — that is, a controversy must have “matured sufficiently to warrant judicial

8 intervention.” Warth v. Seldin, 422 U.S. 490, 499 n.10 (1975). “A claim is not ripe for

9 adjudication [under the Constitution] if it rests upon contingent future events that may not occur
10 as anticipated, or indeed may not occur at all.” Texas, 523 U.S. at 300; see also Abbott Labs., 387 11
U.S. at 148 (“[I]njunctive and declaratory judgment remedies are discretionary, and courts
12
traditionally have been reluctant to apply them to administrative determinations unless these arise
13 14 in the context of a controversy ‘ripe’ for judicial resolution.”). The ripeness doctrine, like other
15 justiciability doctrines, “is drawn both from Article III limitations on judicial power and from

16 prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Soc. Servs., Inc., 509

17 U.S. 43, 58 n.18 (1993). The doctrine “prevent[s] the courts, through avoidance of premature
18 adjudication, from entangling themselves in abstract disagreements over administrative policies, 19
and . . . protect[s] the agencies from judicial interference until an administrative decision has been
20
formalized and its effects felt in a concrete way by the challenging parties.” Abbott Labs., 387
21
22 U.S. at 148-49.

23

In assessing constitutional ripeness in the context of a pre-enforcement challenge to a

24 statutory or administrative enactment, the Ninth Circuit “require[s] plaintiffs to allege a genuine

25 threat of imminent prosecution.” See Oklevueha Native Am. Church of Hawaii, Inc. v. Holder,

26
676 F.3d 829, 835 (9th Cir. 2012) (citing Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d

27

1134, 1139 (9th Cir. 2000)). In assessing whether a plaintiff has satisfied that requirement, courts

28 Defs.’ Mot. to Dismiss - 11

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 18 of 31

1 consider “(1) whether the plaintiffs have articulated a ‘concrete plan’ to violate the law in

2 question; (2) whether the government has communicated a specific warning or threat to initiate
3
proceedings; and (3) the history of past prosecution or enforcement under the statute.” Id.
4
In addition to that jurisdictional analysis, a case may be unripe for prudential reasons. To
5 6 evaluate the “prudential component of ripeness,” a court considers “the fitness of the issues for
7 judicial decision and the hardship to the parties of withholding court consideration.” Wolfson v.

8 Brammer, 616 F.3d 1045, 1060 (9th Cir. 2010); see also Abbott Labs., 387 U.S. at 149. “A claim

9 is fit for decision if the issues raised are primarily legal, do not require further factual

10 development, and the challenged action is final.” Standard Alaska Prod. Co. v. Schaible, 874
11
F.2d 624, 627 (9th Cir. 1989). “To meet the hardship requirement, a litigant must show that
12
withholding review would result in direct and immediate hardship and would entail more than
13
14 possible financial loss.” Winter v. Cal. Med. Review, Inc., 900 F.2d 1322, 1325 (9th Cir. 1989).

15

1. The City Has Not Alleged a Genuine Threat of Imminent Prosecution.

16

The City has not alleged a “genuine threat of imminent prosecution” under Section 9(a) of

17 the Executive Order, Thomas, 220 F.3d at 1139, nor could it, as the Executive Order does not
18 confer on any Executive Branch official any new authority. See AG Mem. at 2. As mentioned 19
above, the Order serves to set certain policy priorities of the administration and to direct
20
implementation of those priorities in a manner “consistent with the law.” Exec. Order 13,768 § 9.
21
22 Thus, to the extent the officials identified in Section 9(a) can “enforce” that provision against the

23 City at all, they are only capable of doing so by exercising authority that exists apart from the

24 Order itself. See AG Mem. at 2. Moreover, the City has not “articulated a concrete plan to

25 violate” the Executive Order. Oklevueha Native Am. Church of Hawaii, Inc., 676 F.3d at 835.

26
To the contrary, the City contends that it complies with Section 1373. See Compl. ¶ 5. The City

27

also cannot meet the second prong of the “genuine threat” test because it does not allege that the

28 Defs.’ Mot. to Dismiss - 12

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 19 of 31

1 Attorney General or the Secretary has “communicated a specific warning or threat to initiate

2 proceedings” against the City under the Executive Order. Oklevueha Native Am. Church of
3
Hawaii, Inc., 676 F.3d at 835. Finally, the City points to no “history of past prosecution or
4
enforcement” of the Order under similar circumstances, and thus fails to meet the third prong of
5 6 the test. Id. Accordingly, the City has not alleged any facts that would establish a “genuine threat
7 of imminent prosecution,” the Court should decline to consider its pre-enforcement challenge.

8 Thomas, 220 F.3d at 1139.

9

2. The City’s Claims Are Not Fit for Judicial Review.

10

The City’s claims are also subject to dismissal under the prudential component of the

11
ripeness inquiry because those claims are based on several “contingent events that may not occur
12
as anticipated.” Texas, 523 U.S. at 300. Specifically, the City does not allege to have been
13

14 penalized in any manner pursuant to Section 9(a) of the Executive Order, nor does it allege that it

15 has been denied any federal funding pursuant to that provision. The string of hypothetical events

16 on which the allegations in the Complaint rest provides evidence that the City’s claims are not fit

17 for review. To entertain such claims, the Court would be required to engage in layers of
18 speculation, including assuming that: (1) the administration will interpret Section 9(a) of the 19
Executive Order in an unconstitutional manner; (2) the administration will make a factual
20
determination that the City is subject to designation as a “sanctuary jurisdiction” pursuant to that
21
22 section; and (3) the Secretary or the Attorney General or both will rely on those findings to take

23 some form of adverse action against the City. Those events may not transpire as the City

24 anticipates, or may not transpire at all. Indeed, the Attorney General has already issued guidance

25 concerning that the challenged provision of the Executive Order that contradicts the City’s

26
position. Compare AG Mem. at 1-2 (providing that Section 9(a) of the Order applies solely to

27

federal grants administered by DOJ or DHS), with Compl. ¶ 133 (alleging that the Executive

28 Defs.’ Mot. to Dismiss - 13

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 20 of 31

1 Order “purports to deny ‘sanctuary jurisdictions’ all federal grants”) (emphasis in original).

2 Thus, delaying judicial review until there has been some concrete application of the Executive
3
Order would allow an opportunity for factual development of the City’s claims and would avoid
4
judicial speculation. See Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 812 (2003)
5 6 (finding that, even where “the question presented . . . is a purely legal one[,]” the issue may not be
7 fit for review if the court “believe[s] that further factual development would significantly advance

8 [its] ability to deal with the legal issues presented”).

9

3. The City Fails to Establish Harm Sufficient to Justify Delay of Judicial

10

Review.

11

The City also fails to allege harm sufficient to justify pre-enforcement review. To satisfy

12 the hardship prong of the ripeness inquiry in the pre-enforcement review context, a plaintiff must

13 demonstrate that “irremediable adverse consequences” will result from postponing review. Toilet
14 Goods Ass’n, Inc. v. Gardner, 387 U.S. 158, 164 (1967). “[M]ere financial expense . . . is not a 15
justification for pre-enforcement judicial review.” Abbott Labs., 387 U.S. at 153.
16
Here, the primary harm the City alleges is the potential loss of federal grant funding. That
17
18 harm is monetary in nature and thus not “a sufficient interest to sustain a judicial challenge” in the

19 pre-enforcement context. Abbott Labs., 387 U.S. at 153; Sampson v. Murray, 415 U.S. 61, 90

20 (1974) (finding that “[m]ere injuries, however substantial, in terms of money, time and energy

21 necessarily expended . . . are not enough” to justify injunctive relief). Additionally, to allege its
22
injury, the City again relies on a series of contingent future events. Those contingencies include
23
the assumptions (1) that Section 9(a) applies to all federal grant funding, including funding for
24
“infrastructure,” “capital projects,” and “residential programs,” see, e.g., Compl. ¶ 45; (2) that the
25
26 Secretary will designate the City as a “sanctuary jurisdiction” at some future point (despite the

27 City’s simultaneous insistence that it complies with Section 1373), see id. ¶ 5; and (3) that “if the

28 Defs.’ Mot. to Dismiss - 14
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 21 of 31

1 city is designated” the Secretary or the Attorney General might take some form of adverse action

2 as a result of the designation, see id. ¶ 106 (emphasis added). Such allegations of harm are too
3
speculative to justify pre-enforcement review. See, e.g., Portland Police Ass’n v. City of
4
Portland, By & Through Bureau of Police, 658 F.2d 1272, 1274 (9th Cir. 1981) (finding
5 6 allegations of harm too speculative where “it was necessary to assume a series of contingencies”).
7 Moreover, as mentioned above, many of the City’s assumptions, such as the assumption that the

8 Executive Order jeopardizes all of the City’s federal grant funding, are demonstrably inaccurate.

9 See AG Mem. at 1. Accordingly, because the City cannot show that it faces immediate and

10 irremediable adverse consequences from delaying review until the Order has been applied, the

11
Court should dismiss the City’s claims under the ripeness doctrine.

12

B. The City Lacks Standing Because It Has Failed to Demonstrate That It Has

13

Suffered Concrete and Immediate Injury In Fact.

14

Related to the ripeness requirement is the constitutional requirement of standing. See

15
Bova, 564 F.3d at 1096 (“[I]f the contingent events do not occur, the plaintiff likely will not have
16
suffered an injury that is concrete and particularized enough to establish the first element of
17

18 standing . . . [i]n this way, ripeness and standing are intertwined.”). To satisfy the “irreducible

19 constitutional minimum” of standing, a plaintiff must demonstrate an “injury in fact,” a “fairly

20 traceable” causal connection between the injury and defendant’s conduct, and redressability.

21 Steel Co., 523 U.S. at 102-03. The injury needed for constitutional standing must be “concrete,”
22
“objective,” and “palpable,” not merely “abstract” or “subjective.” See Whitmore, 495 U.S. at
23
155. The injury also must be “certainly impending” rather than “speculative.” Id. at 158.
24
Applying these standards here, the City’s alleged injuries are too speculative to meet the
25
26 constitutional standing requirement. Neither the Secretary nor the Attorney General has taken

27 any action against the City pursuant to Section 9 of the Executive Order. Thus, the City cannot

28 Defs.’ Mot. to Dismiss - 15
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 22 of 31

1 assert any actual “concrete,” “objective,” and “palpable” injury. Id. at 155. Rather, the City

2 alleges that it suffers from “irresolvable uncertainty surrounding whether federal funds that
3
currently benefit all Seattle residents will be cut off if the city is deemed a ‘sanctuary
4
jurisdiction.’” See Compl. ¶ 106 (emphasis added). Not only does this allegation of harm rest on
5 6 conjecture, as detailed above, but as the AG Memorandum makes clear, Section 9(a) of the
7 Executive Order does not expand the authority of the Attorney General or the Secretary. Rather,

8 it directs those officials, consistent with the law, to exercise existing authority to ensure

9 compliance with 8 U.S.C. § 1373. See AG Mem. at 1-2. Statements by officials regarding an
10 intention “to enforce those laws which they are charged to administer do not create the necessary 11
injury in fact” under the standing inquiry. Lopez v. Candaele, 630 F.3d 775, 787 (9th Cir. 2010)
12
(citing Rincon Band of Mission Indians v. San Diego Cnty., 495 F.2d 1, 4 (9th Cir.1974)
13 14 (concluding that a sheriff’s statement that “all of the laws of San Diego, State, Federal and
15 County, will be enforced within our jurisdiction” was insufficient to create a justiciable case)).

16 Accordingly, because the City’s claimed injury is insufficient to meet the standing requirement,

17 the Court lacks jurisdiction to review the City’s claims.

18 II. 19

The City Fails to State a Claim for Declaratory Relief Regarding Its Compliance with Section 1373.

20

Beyond the lack of justiciability of all of the City’s claims, the City also fails to state a

21 claim for declaratory relief regarding its compliance with the provisions of Section 1373. See
22
Compl. ¶¶ 125-129. That claim is subject to dismissal because the City cannot identify a cause of
23
action that would allow it to pursue such relief, and because the requested relief would amount to
24
an advisory opinion. See Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001) (absent statutory
25
26 intent to create a cause of action, one “does not exist and courts might not create one, no matter

27 how desirable that may be as a policy matter”); Golden v. Zwickler, 394 U.S. 103, 108 (1969)

28 Defs.’ Mot. to Dismiss - 16
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 23 of 31

1 (“[T]he federal courts . . . do not render advisory opinions. . . . This is as true of declaratory

2 judgments as any other field.”).
3
The general jurisdictional statutes that the City cites, 28 U.S.C. §§ 1331 and 1346, see
4
Compl. ¶ 14, do not create independent causes of action, and whether a court has subject-matter
5 6 jurisdiction is a distinct question from whether a plaintiff has a cause of action. See, e.g., Texas
7 Indus. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981) (“vesting of jurisdiction in the federal

8 courts” does not create a cause of action). Similarly, the Declaratory Judgment Act (“DJA”), 28

9 U.S.C. §§ 2201-2202, which the City cites as a jurisdictional statute, see Compl. ¶ 14, creates a
10 certain remedy that may be available to litigants. That statute does not create a cause of action. 11
See Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th
12
Cir. 1989) (The DJA “only creates a remedy and is not an independent basis for jurisdiction”);
13 14 Graham v. U.S. Bank, Nat’l Assn., No. 3:15–cv–0990–AC, 2015 WL 10322087, at *13 (D. Or.
15 Dec. 2, 2015) (“The [DJA] . . . does not create a cause of action; instead, it creates a remedy for

16 existing causes of action.”). Because the City cannot identify a cause of action to support its

17 request for relief, that claim must be dismissed.

18

Moreover, “regardless of whether the relief sought is monetary, injunctive or declaratory .

19
. . for a case to be more than a request for an advisory opinion, there must be an actual dispute
20

between adverse litigants and a substantial likelihood that a favorable federal court decision will
21

22 have some effect.” Westlands Water Dist. Distribution Dist. v. Nat. Res. Def. Council, Inc., 276

23 F. Supp. 2d 1046, 1050 (E.D. Cal. 2003). Here, defendants have not declared the City to be a

24 “sanctuary jurisdiction” or as being in violation of Section 1373. The City’s claim to the

25 contrary, see Compl. ¶ 127, is an unsupported conclusory statement that is “not entitled to the

26
assumption of truth.” Iqbal, 556 U.S. at 662. The City’s request for declaratory relief, therefore,

27

concerns a hypothetical legal dispute. Thus, rather than adjudicating a concrete and established

28 Defs.’ Mot. to Dismiss - 17

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 24 of 31

1 legal controversy, rendering a declaratory judgment regarding the City’s compliance with Section

2 1373 would constitute an advisory opinion, which is “constitutionally forbidden.” United States

3
v. Guzman-Padilla, 573 F.3d 865, 879 (9th Cir. 2009).

4
III.
5

The City Fails to State a Viable Tenth Amendment Claim.

6

The City also fails to state a claim that the Executive Order on its face violates the Tenth

7 Amendment. The City premises its Tenth Amendment challenge on a misinterpretation of the

8 Executive Order; the Order does not directly impose any requirements on state or local

9 jurisdictions, as the City presumes, and thus it does not “command the States’ officers” in an
10 unconstitutional manner. See Compl. ¶ 131. Moreover, a Tenth Amendment challenge to an 11
Executive Order is not appropriate where, as here, the Order merely announces and directs the
12
implementation of executive policy. Finally, even if a Tenth Amendment challenge to the
13 14 Executive Order could be sustained, the City has failed to state such a claim here because the City
15 does not “establish that no set of circumstances exists under which the [Order] would be valid.”

16 Salerno, 481 U.S. at 745.

17

The City’s Tenth Amendment claim rests on a misreading of the Executive Order. The

18 City presumes that “the Executive Order imposes affirmative duties on state and local officials
19
beyond those prescribed in Section 1373,” and that it “penalizes Seattle for failing to perform
20
those duties[.]” Compl. ¶ 131. The plain language of the Executive Order and the guidance
21

22 contained in the AG Memorandum disprove the City’s presumption. The Executive Order does

23 not impose conditions on federal grants, nor does it impose any requirements on state or local

24 jurisdictions. Rather, the Order “establish[es] immigration enforcement as a priority for this

25 Administration,” see AG Mem. at 1, in an effort to “ensure that our Nation’s immigration laws

26
are faithfully executed.” Exec. Order 13,768 at 1. The Order directs the appropriate executive

27

officials to prioritize, to the fullest extent of the law, means for achieving that priority. Those

28 Defs.’ Mot. to Dismiss - 18

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 25 of 31

1 means may include, for example, more aggressive enforcement of existing grant conditions, or, as

2 the AG Memorandum suggests, tailoring future grant awards in a manner that promotes the
3
administration’s law enforcement priorities. See AG Mem. at 2.
4
At no point, however, does the Order purport to impose directly affirmative obligations on
5 6 state or local jurisdictions. Rather, the Attorney General and the Secretary are to enforce the
7 Order’s directives “to the extent permitted by law.” Exec. Order 13,768, § 9(a). Consistent with

8 that directive, the Executive Order “does not call for the imposition of grant conditions that would

9 violate any applicable constitutional or statutory limitation . . . [n]or does the Executive Order
10 purport to expand the existing statutory or constitutional authority of the Attorney General and 11
the Secretary . . . in any respect.” AG Mem. at 1-2. Rather, in the event the Secretary or
12
Attorney General determine to impose obligations on a grant program pursuant to the directives
13 14 contained the Order, such as a condition certification of compliance with 8 U.S.C. § 1373, that
15 obligation may be imposed only where existing legal authority allows, and only where grantees

16 are given “notice of their obligation[s.]” Id. at 2. Thus, because the Executive Order does not

17 directly impose any affirmative duties on state or local jurisdictions, the Court should reject the
18 City’s contention that the Order violates the Tenth Amendment’s anti-commandeering principle. 19
The Court should reject the City’s Tenth Amendment challenge for the independent
20
reason that such a challenge cannot be sustained against an Executive Order that directs internal
21
22 Executive Branch policy. Courts in this Circuit have distinguished between Executive Orders

23 that are intended to be an internal directive that “implement policy as a product of executive

24 authority,” and those that are promulgated to effectuate an authority explicitly vested in the

25 President through an act of Congress. See Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL

26
317023, at *5 (N.D. Cal. May 19, 1995), aff’d sub nom. Chen v. I.N.S., 95 F.3d 801 (9th Cir.

27

1996); Legal Aid Soc’y of Alameda County v. Brennan, 608 F.2d 1319, 1330 n.14 (9th Cir.1979).

28 Defs.’ Mot. to Dismiss - 19

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 26 of 31

1

The former type of Executive Order does not carry an independent force of law; rather it

2 serves as an internal Executive Branch directive. Executive Order 13,768 falls into that category.
3
As the Attorney General made clear, the challenged provisions of the Order are directives to the
4
Attorney General and the Secretary regarding their exercise of existing statutory and
5 6 constitutional authority. AG Mem. at 1-2. Because the Order is an internal Executive Branch
7 policy directive, the City cannot sustain a claim that the Order commandeers City employees in

8 violation of the Tenth Amendment. Cf. United States v. Pickard, 100 F. Supp. 3d 981, 1011

9 (E.D. Cal. 2015) (rejecting a Tenth Amendment challenge to a statement of agency policy on the
10 grounds that a policy statement “is a very different creature from a statute” in that it does not bind 11
states in the manner that a statute would).
12
Finally, even assuming arguendo that the Executive Order is sufficiently comparable to a
13 14 federal statute to sustain a facial constitutional challenge, the City’s challenge should be
15 dismissed because the City fails to allege that “no set of circumstances exists under which the

16 [Order] would be valid.” Salerno, 481 U.S. at 745. Facial challenges to federal statutes are

17 disfavored because they “often rest on speculation[;]” “they raise the risk of premature
18 interpretation of statutes on the basis of factually barebones records[;]” they “run contrary to the 19
fundamental principle of judicial restraint that courts should neither anticipate a question of
20
constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional
21
22 law broader than is required by the precise facts to which it is to be applied[;]” and they “threaten

23 to short circuit the democratic process by preventing laws embodying the will of the people from

24 being implemented in a manner consistent with the Constitution.” Wash. State Grange v. Wash.

25 State Republican Party, 552 U.S. 442, 450-51 (2008). Thus, the mere possibility that Executive
26
Order could be interpreted in an unconstitutional manner is insufficient to state a facial challenge.
27

28 Defs.’ Mot. to Dismiss - 20
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 27 of 31

1 See Salerno, 481 U.S. at 745 (“The fact that the . . . Act might operate unconstitutionally under

2 some conceivable set of circumstances is insufficient to render it wholly invalid”).
3
Here, the City’s Complaint fails to establish that Section 9(a) of the Executive Order
4
would be invalid under all circumstances. The challenged provision of the Order seeks to ensure,
5 6 to the extent consistent with the law, that jurisdictions that willfully refuse to comply with 8
7 U.S.C. § 1373, are not eligible to receive grants administered by DOJ or DHS. See Exec. Order

8 at § 9; AG Mem. at 2. Thus, where applicants for or recipients of certain DOJ or DHS grants are

9 required (pursuant to authority that exists independent of the Executive Order) to certify their
10 compliance with Section 1373 as a condition for receiving an award, their failure to do so will 11
render them “ineligible to receive such awards.” AG Mem. at 2. Conditioning the receipt of
12
federal funds on whether a state or local jurisdiction complies with a federal statute or takes some
13 14 other action does not violate the Tenth Amendment, so long as the “State could . . . adopt the
15 simple expedient of not yielding to what she urges is federal coercion.” See S. Dakota v. Dole,

16 483 U.S. 203, 210 (1987) (A “perceived Tenth Amendment limitation on congressional regulation

17 of state affairs d[oes] not concomitantly limit the range of conditions legitimately placed on
18 federal grants.”). Thus, if a state or local jurisdiction were disinclined to certify compliance with 19
Section 1373 (or disinclined to comply with any other grant provision), that jurisdiction could
20
simply decline to participate in the grant program. The Tenth Amendment, however, does not
21
22 give States and their subdivisions the right to be free of any federal grant conditions that might be

23 constitutionally impermissible if mandatorily imposed by Congress. Id. Accordingly, because

24 the City fails to establish that “no set of circumstances exists under which [the Executive Order]

25 would be valid,” their facial challenge to the Order must fail. Salerno, 481 U.S. at 745. 26

27

28 Defs.’ Mot. to Dismiss - 21
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 28 of 31

1 IV. The City Fails to State a Viable Claim that the Order Exceeds the Spending Power.

2

The City also fails to state a claim that the directives contained in Section 9(a) violate the

3
requirement under the Spending Clause of the Constitution that conditions on spending be non-
4
coercive, related to the federal interest in the particular program, and unambiguous. Compl. ¶¶
5
6 132-35; Dole, 483 U.S. at 206. Those claims rest on misinterpretation of Section 9(a); the AG

7 Memorandum directly undermines the principle bases of those claims.

8

The Spending Clause provides Congress the power to “lay and collect Taxes, Duties,

9 Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare
10 of the United States.” U.S. Const. art. I, § 8, cl. 1. “Congress may attach conditions on the 11
receipt of federal funds, and has repeatedly employed the power to further broad policy objectives
12
by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory
13 14 and administrative directives.” Dole, 483 U.S. at 206. The spending power is subject to certain
15 limitations, including that conditions on the receipt of federal funds must be stated

16 “unambiguously” so that recipients can “exercise their choice knowingly, cognizant of the

17 consequences of their participation,” that “conditions on federal grants might be illegitimate if

18 they are unrelated to the federal interest in particular national projects or programs,” and that “the
19
financial inducement offered by Congress” must not “be so coercive as to pass the point at which
20
pressure turns into compulsion.” Id. at 207-08, 211.
21

22

As a threshold matter, the City’s Spending Clause claims fail for the simple reason that

23 the Executive Order does not impose conditions on federal grant programming. See AG Mem. at

24 1-2. Rather, as explained above, Section 9(a) directs Executive Branch officials to exercise

25 existing power in a certain manner, which may include “impos[ing] additional conditions on
26
grantees” in the future, consistent with “applicable constitutional or statutory limitations.” Id. at
27

28 Defs.’ Mot. to Dismiss - 22
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 29 of 31

1 1-2. Thus, because the Order does not impose conditions on federal spending, the Supreme

2 Court’s Spending Clause jurisprudence is inapplicable.
3
The City’s claim that Section 9(a) imposes unconstitutionally coercive grant conditions
4
fails not only because that Section does impose conditions at all, but also because the directives
5 6 contained in that Section “will be applied solely” to DOJ and DHS administered grants, see AG
7 Mem. at 1, not to “all federal grants,” as the City alleges. Compl. ¶ 133. Because Section 9(a)

8 applies only to a limited universe of federal grants, and, with respect to DOJ, only to grant

9 programs that “expressly contain[]” certification requirements, AG Mem. at 2, the City cannot
10 establish that Section 9(a) imposes conditions so severe as to coerce compliance. See Nat’l Fed’n 11
of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2664 (2012) (“[C]ourts should not conclude that [an
12
enactment] is unconstitutional on [coercion] ground unless the coercive nature of an offer is
13 14 unmistakably clear” such as where States are subjected to the risk of losing “over 10 percent of a
15 State’s overall budget” if they declined to adopt certain conditions).

16

The City’s claim under the so-called “nexus” requirement similarly fails. That

17 requirement is only a “possible ground” for invalidating an enactment and does not impose an
18 “exacting standard.” Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002). The AG 19
Memorandum makes clear that Section 9(a)’s directives apply only to “certain” grants
20
administered by DOJ (the primary federal law enforcement agency) or DHS (the federal agency
21
22 responsible for the admission and removal of non-citizens), and not, as the City suggests, to “all

23 federal funds,” including those unrelated to Section 9(a)’s directives. Compl. ¶ 133. The City

24 fails to identify any instance in which the defendants have imposed a condition pursuant to

25 Section 9(a) that is unrelated to the underlying grant program. Accordingly, the City has not
26
stated a claim under the nexus requirement.
27

28 Defs.’ Mot. to Dismiss - 23
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 30 of 31

1

Finally, the City’s claim that Section 9(a) violates the requirement that federal grant

2 conditions be stated “unambiguously” fails for the same reason: the City identifies no instance in
3
which defendants imposed an allegedly ambiguous condition on a federal grant program. Further,
4
the AG Memorandum clarifies that grant applicants or recipients will “receive notice” of any
5 6 obligations imposed pursuant to the Executive Order’s directives. Thus, because the City does
7 not identify any allegedly ambiguous condition, it cannot sustain its Spending Clause claim.

8

CONCLUSION

9

For the foregoing reasons, defendants respectfully request the Court dismiss the

10 Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. 11

12 Date: June 5, 2017

Respectfully submitted,

13

CHAD A. READLER

14

Acting Assistant Attorney General

15

JOHN R. TYLER

Assistant Director

16

17

/s/ Stephen J. Buckingham

18

STEPHEN J. BUCKINGHAM (MD Bar) Special Counsel

19

United States Department of Justice

Civil Division, Federal Programs Branch

20

Telephone: (202) 514-3330

Facsimile: (202) 616-8470

21

E-mail: stephen.buckingham@usdoj.gov

22
Mailing Address

23

Post Office Box 883

Washington, D.C. 20044

24

Special Delivery Address

25

950 Pennsylvania Ave. NW

26

Washington, DC 20530

27

28 Defs.’ Mot. to Dismiss - 24
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 24 Filed 06/05/17 Page 31 of 31

1

CERTIFICATE OF SERVICE

2

I hereby certify that on June 5, 2017, I caused the foregoing Motion to Dismiss to be filed

3
electronically and that this document is available for viewing and downloading from the CM/ECF
4
system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF
5
6 system.

7

/s/ Stephen J. Buckingham

Stephen J. Buckingham

8

9

DECLARATION OF COMPLIANCE WITH MEET AND CONFER REQUIREMENT

10

Pursuant to the Court’s Standing Order for Civil Cases (Dkt. No. 22), undersigned counsel

11
hereby declares that, on June 2, 2017, the parties engaged in good faith discussions concerning
12
the substance of the foregoing Motion to Dismiss and potential efforts to resolve the issues raised
13

14 in the Motion. That discussion included the specific bases for the legal arguments contained in

15 the Motion.

16

/s/ Stephen J. Buckingham

Stephen J. Buckingham
17

18

19

20

21

22

23

24

25

26

27

28 Defs.’ Mot. to Dismiss - 25
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

 
 Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 1 of 48

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 CITY OF SEATTLE and CITY OF

)

PORTLAND,

)

10

) Case No. 2:17-cv-00497-RAJ

Plaintiffs,

)

11 vs.

) ) FIRST AMENDED COMPLAINT FOR

12

) DECLARATORY RELIEF

DONALD J. TRUMP, in his official capacity )

13 as PRESIDENT OF THE UNITED STATES; )

JEFFERSON B. SESSIONS, III, in his

)

14 official capacity as ATTORNEY GENERAL; ) and JOHN F. KELLY, in his official capacity )

15 as SECRETARY OF HOMELAND

)

SECURITY,

)

16

)

Defendants. )

17

I. INTRODUCTION

18

1. Within days of taking office, President Donald J. Trump promulgated Executive

19

Order No. 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (the “Executive Order” or “Order”). By its

20

plain terms, this Order purports to strip virtually all federal funding from cities and other local

21

governments that refuse to assist the federal government in effectuating its immigration

22

enforcement policies. The Order is premised on a misreading of federal statutory law and departs

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 1
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 2 of 48

1 dramatically from settled constitutional principles. In this suit, the City of Seattle, Washington,

2 and the City of Portland, Oregon (“Plaintiffs”) seek a declaration that they are acting consistently

3 with federal law and that the U.S. Constitution precludes application of the Order to deny them

4 federal funds to which they are otherwise entitled.

5

2. Many municipalities, including Seattle and Portland, have decided as a matter of

6 strongly felt local policy that their law enforcement personnel and other employees should not

7 inquire into the immigration status of any person unless specifically required to do so by law or

8 court order. Plaintiffs, like other local governments that have adopted similar so-called “sanctuary”

9 policies, have concluded that a rule precluding inquiry into immigration status furthers public

10 safety and health: such an approach encourages members of immigrant communities both to

11 cooperate with law enforcement personnel in preventing and solving crime, and to seek health

12 assistance when necessary. These policies are overwhelmingly supported by local law enforcement

13 personnel across the nation.

14

3. The Executive Order avowedly is designed to induce local governments to change

15 these policies, and to force municipalities instead to assist the federal government in enforcing the

16 very different immigration policies of the current federal administration.

17

4. To accomplish this goal, the Executive Order directs the Secretary of Homeland

18 Security (“the Secretary”) to designate so-called “sanctuary jurisdictions,” which the Order

19 identifies as those that “willfully refuse to comply with 8 U.S.C. 1373.” 82 Fed. Reg. at 8801. That

20 statute provides in relevant part that “a Federal, State, or local government entity or official may

21 not prohibit, or in any way restrict, any government entity or official from sending to, or receiving

22 from, the Immigration and Naturalization Service information regarding the citizenship or

23 immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a). The Executive

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 2
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 3 of 48

1 Order then purports to direct the Secretary and the U.S. Attorney General to ensure that these

2 “sanctuary jurisdictions” are denied federal funds. It also directs the Attorney General to take

3 further enforcement action against “any entity” that either violates Section 1373 or “has in effect

4 a statute, policy, or practice that prevents or hinders the enforcement of federal law.” 82 Fed. Reg.

5 at 8801.

6

5. Although Plaintiffs believe that they comply with Section 1373 and all other

7 applicable federal legal requirements, past statements of the President and of other federal

8 Executive Branch officials suggest that Plaintiffs will be treated as “sanctuary jurisdictions” under

9 the Executive Order. Such a designation would have a devastating effect on both Seattle and

10 Portland, denying significant funding that they use for such essential purposes as home care for

11 the disabled elderly and nutrition assistance for needy children. The prospect of that impact is

12 having an immediate effect on Plaintiffs, as it affects the choices that they are now making in

13 determining the allocation of funds in their annual budgets.

14

6. The ultimate effect of the Executive Order will be to impose significant penalties

15 on Plaintiffs so long as they fail to assist the federal government in its immigration enforcement

16 efforts. That outcome is illegal, for several reasons.

17

7. First, Plaintiffs comply with Section 1373. Therefore they are not “sanctuary

18 jurisdictions” as defined by the Executive Order and, for that reason, may not be subjected to the

19 punitive denial of federal funding pursuant to the Order.

20

8. Second, insofar as Section 1373 or other provisions of federal law are thought to

21 require Plaintiffs affirmatively to assist in federal immigration enforcement efforts, the Executive

22 Order is unconstitutional in several respects when it seeks to penalize Plaintiffs for failing to

23 comply with that law:

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 3
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 4 of 48

1

• The Executive Order violates the Tenth Amendment. It is fundamental that the federal

2 government may not direct state and local governments to regulate in a particular way or to enforce

3 a federal regulatory program. Yet that is just what the Executive Order does.

4

• The Executive Order violates the U.S. Constitution’s Spending Clause. U.S. Const. art. I,

5 § 8, cl. 1. It is fundamental that the federal government may neither coerce state or local action

6 through the denial of federal funds, nor seek to affect such action by denying funds that are not

7 germane to the federal program at issue. Yet that is just what the Executive Order does.

8

• The Executive Order is fatally ambiguous. It is fundamental that state and local

9 governments are not bound by conditions attached to federal grants unless those conditions are

10 clearly stated. Yet the Executive Order is incomprehensibly imprecise in the obligations that it

11 purports to impose on municipalities, as is Section 1373 if that statute is thought to require

12 affirmative acts of immigration enforcement.

13

• The Executive Order also violates the separation of powers. By withholding federal funds

14 without express statutory authorization, the President has failed to “take Care” that the laws be

15 faithfully executed (U.S. Const. art. II, § 3, cl. 5) and has unconstitutionally usurped Congress’s

16 exclusive power over federal spending. U.S. Const. art. I, § 8, cl. 1.

17

9. Plaintiffs accordingly seek a declaration that they comply with Section 1373 and

18 that application of the Executive Order to deny them federal funds would violate the U.S.

19 Constitution.

20

10. On April 25, 2017, the United States District Court for the Northern District of

21 California entered a nationwide injunction against enforcement of the Executive Order, ruling for

22 the plaintiff local governments on all the constitutional claims asserted here. See County of Santa

23 Clara v. Trump, 2017 WL 1459081 (N.D. Cal. Apr. 25, 2017).

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 4
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 5 of 48

1

II. PARTIES

2

11. Plaintiff City of Seattle (“Seattle”) is a municipal corporation and a city of the first

3 class existing under the laws of the State of Washington.

4

12. Plaintiff City of Portland (“Portland”) is a municipal corporation of the State of

5 Oregon duly organized and existing under the laws of the State of Oregon.

6

13. Defendant Donald J. Trump is the President of the United States of America. He is

7 sued in his official capacity.

8

14. Defendant Jefferson B. Sessions, III, is the Attorney General of the United States.

9 Attorney General Sessions is responsible for implementing elements of the Executive Order. He

10 is sued in his official capacity.

11

15. Defendant John F. Kelly is the Secretary of the U.S. Department of Homeland

12 Security. Secretary Kelly is responsible for implementing elements of the Executive Order. He is

13 sued in his official capacity.

14

III. JURISDICTION AND VENUE

15

16. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1346. The

16 Court has further remedial authority pursuant to 28 U.S.C. §§ 2201 and 2202.

17

17. Venue in this Court is proper under 28 U.S.C. § 1391(e).

18

FACTUAL ASSERTIONS

19

IV. THE CITY OF SEATTLE AND ITS SANCTUARY CITY POLICIES

20

A. Immigrants Make Essential Contributions to Seattle and Its Economy

21

18. The City of Seattle has a population of over 680,000 people, according to 2016

22 census data. Seattle accounts for over 30% of the total population of King County, Washington,

23 and is located on 143 square miles.

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 5
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 6 of 48

1

19. The population of Seattle’s metropolitan area, including the Seattle-Tacoma-

2 Bellevue Metropolitan Statistical Area, exceeds 3,700,000. This includes residents from at least

3 137 foreign countries. More than sixteen percent of these residents are foreign born.

4

20. These immigrants make essential contributions to Seattle. Almost twenty percent

5 of Seattle’s business owners are immigrants, and more than 39,000 immigrant entrepreneurs have

6 been identified in the City.

7

21. Seattle’s status as a welcoming and internationally minded city is central to its

8 identity and economy. In 2016, Seattle welcomed approximately 2.7 million foreign visitors. It is

9 estimated that, in 2015, the direct spending of foreign visitors in the City amounted to

10 approximately $1.2 billion. Tourism supports approximately 78,000 jobs in the City, and the

11 tourism sector accounts for almost $700 million in tax revenue.

12

22. The Seattle City Council recently, and unanimously, passed Resolution 31730,

13 which states: “Seattle benefits tremendously from the large number of diverse immigrants and

14 refugees who contribute to the development of a culturally and economically diverse and enriched

15 community.” Welcoming Cities Resolution, Seattle City Council, https://goo.gl/IFpFln.

16

B. Seattle Municipal Code Provisions Governing Immigration Status

17

23. Since 1986, the Seattle Municipal Code has provided that “[c]ity officers and

18 employees are directed to cooperate with, and not hinder, enforcement of federal immigration

19 laws.” Seattle Mun. Code § 4.18.010.

20

24. In 2003, the Seattle City Council unanimously adopted Ordinance 121063.

21

25. Ordinance 121063 enacted Section 4.18.015 of the Municipal Code, which

22 provides that, notwithstanding Section 4.18.010, and unless otherwise required by law or by court

23 order, “no Seattle City officer or employee shall inquire into the immigration status of any person,

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 6
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 7 of 48

1 or engage in activities designed to ascertain the immigration status of any person.” Seattle Mun.

2 Code § 4.18.015(A).

3

26. The prohibition in Section 4.18.015(A) does not apply to Seattle police officers

4 when the officer has reason to believe that an individual (1) has previously been deported from the

5 United States; (2) is again present in the United States; and (3) is committing or has committed a

6 felony. Seattle Mun. Code § 4.18.015(B).

7

27. Ordinance 121063 recognized that Seattle is home to immigrants from around the

8 world who contribute to the city’s cultural richness and economic vitality. Like many other

9 jurisdictions in the United States that have adopted similar provisions, Seattle enacted Ordinance

10 121063 out of a belief that municipal officers and employees should play a limited role in inquiring

11 into the immigration status of its residents.

12

28. Ordinance 121063 also recognized that amending the Municipal Code to bar

13 inquiry into the immigration status of any person is “an effective way to guide city officials and

14 employees to adhere to federal law while helping to protect the safety and health of all members

15 of [the] community.”

16

29. Accordingly, although the Municipal Code historically had provided that city

17 officers and employees were to cooperate with federal officials in their enforcement of federal

18 immigration laws, Ordinance 121063 ensured that such cooperation will not harm legitimate public

19 policy goals of the city.

20

30. In addition, Ordinance 121063 enacted a provision making clear that nothing in

21 Chapter 4 of the Municipal Code “shall be construed to prohibit any Seattle City officer or

22 employee from cooperating with federal immigration authorities as required by law.” Seattle Mun.

23 Code § 4.18.035.

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 7
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 8 of 48

1

C. Seattle Police Department Practice

2

31. Consistent with the Municipal Code, the Seattle Police Department Manual

3 provides that:

4

It is the intent of the Seattle Police Department to foster trust and cooperation with

all people served by the Department. Complainants, witnesses and victims are

5

encouraged to communicate with Seattle Police officers without fear of inquiry

regarding their immigration or alien status. Being an undocumented person in this

6

country, barring any criminal activity, is a federal civil violation not enforced by the

Seattle Police Department. In Seattle, only ICE (Immigration and Customs

7

Enforcement) and other federal agencies can enforce federal laws relating to illegal

entry and residence within the United States.

8 It is the policy of the Department that officers will not request specific documents

9

for the sole purpose of determining someone’s immigration or alien status….

10

Officers will not initiate police action based solely on an individual’s immigration or

alien status, nor shall they ask for identification or documents to establish the persons

11

immigration or alien status.

12 Seattle Police Dep’t Manual § 6.020, https://goo.gl/V4e7KX.

13

V. THE CITY OF PORTLAND AND ITS SANCTUARY CITY POLICIES

14

A. Immigrants Make Essential Contributions To Portland And Its Economy

15

32. The City of Portland has a population of over 630,000 according to 2016 census

16 data. Portland accounts for nearly 80% of the population of Multnomah County, Oregon, and is

17 located on 145 square miles.

18

33. The population of Portland’s metropolitan area, including the Portland-Vancouver-

19 Salem Combined Statistical Area, exceeds 3,100,000.

20

34. Portland ranks 11th among U.S. cities for resettling international refugees. Since

21 1975, 65,832 refugees have resettled in Oregon, including 15,545 since 2002. Most of those

22 refugees initially settle in the Portland metropolitan area. The most common refugee groups

23 arriving in Oregon are from Cuba, Burma, Bhutan, Iran, Iraq, and Somalia.

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 8
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 9 of 48

1

35. Foreign-born workers make up thirteen percent of the state’s civilian employed

2 population, and immigrant and refugee communities contribute significantly to Portland workforce

3 and economy.

4

36. The Portland City Council recently and unanimously passed Resolution 37277,

5 which states that “peoples of all races, colors, national origins, [and] immigration or refugee status

6 . . . contribute to the health, well-being, prosperity, and general welfare of the City as families,

7 neighbors, workers, and taxpayers,” and that “immigrant and refugee communities contribute

8 significantly to our workforce and economy.”

9

B. Oregon State Statutes, Portland City Resolutions, And Portland Police

Bureau Practices

10

37. Thirty years ago, the Oregon state legislature adopted ORS 181A.820, which

11 prohibits state and local law enforcement from using “moneys, equipment, or personnel for the

12 purpose of detecting or apprehending persons whose only violation of law is that they are persons

13 of foreign citizenship present in the United States in violation of federal immigration laws.” That

14 state statute was adopted in 1987 and remains in force today.

15

38. In accordance with ORS 181A.820, the Portland Police Bureau does not enforce

16 federal immigration laws. In January 2017, the Portland Chief of Police explained that compliance

17 with ORS 181A.820, and positive engagement with refugees and immigrants in Portland, improves

18 public safety.

19

39. Portland Police Bureau Policy 810.10 states: “It is the policy of the Bureau to

20 investigate allegations of criminal conduct by suspects regardless of race, national origin, or

21 citizenship status. In such investigations, the Bureau will work with all federal, state and local law

22 enforcement agencies.”

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 9
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 10 of 48

1

40. Portland Police Bureau Procedure 810.10, in a section entitled “Working with

2 Immigration and Customs Enforcement (ICE),” provides in pertinent part: “Members will not

3 assist ICE unless a crime is committed or in case of an emergency.” That section further provides:

4 “Information Exchange: Members may exchange information with ICE in order to further the

5 investigation of any federal, state, or local crimes (i.e., obtaining suspect information or identifying

6 witnesses/victims of a crime).” Finally, that section provides that, in accordance with “Title 8 of

7 the U.S. Code 1357(d),” the Portland Police Bureau will “notify the ICE when an individual is

8 arrested for a controlled substance offense whom [Portland Police officers] reasonably believe

9 may not have been lawfully admitted into the U.S.”

10

41. City Resolution 37277 provides that “the City will continue to, in a manner

11 consistent with state and federal law, prohibit the use of City funds, personnel or equipment to

12 enforce federal immigration law.” That resolution “shall be interpreted and executed in a manner

13 consistent with ORS 181A.820 and with 8 U.S.C. §§ 1373 and 1644.” To the extent there is “any

14 conflict with either state or federal law, state and federal law shall control.”

15

C. ICE Immigration-Enforcement Practices And The Detention Of Portland

Residents In Tacoma, Washington

16

42. According to a 2013 report by TRAC Immigration, ICE detainers have been placed

17 erroneously on U.S. citizens and legal permanent residents or “green card” holders.

18

43. Portland residents detained by ICE routinely are transported to, and held at, the

19 Northwest Detention Center in Tacoma, WA.

20

44. For example, on Sunday, March 26, 2017, ICE agents detained Portland resident

21 Francisco Rodriguez, who had lived in the United States since the age of five and was enrolled in

22 the Deferred Action for Childhood Arrivals (“DACA” or “dreamer”) program. ICE transported

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 10
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 11 of 48

1 Rodriguez to the Northwest Detention Center in Tacoma, WA. After a public outcry, Rodriguez

2 was eventually released on bond pending a hearing before an immigration judge.

3

45. Similarly, on Sunday, March 26, 2017, Emmanuel Ayala Frutos, a 21-year-old

4 “dreamer” enrolled in the DACA program, was taken into custody by ICE agents at his Portland

5 home. He was transported to Tacoma, WA, where he is currently being held at the Northwest

6 Detention Center.

7 VI. SANCTUARY CITY POLICIES BENEFIT CITIES AND THEIR RESIDENTS

8

46. Seattle and Portland are not the only municipalities to conclude that immigrant

9 community involvement and cooperation with police is critical in helping reduce crime,

10 maintaining a healthy populace, and safeguarding public funds.

11

47. Because of variations in how a “sanctuary jurisdiction” is defined, researchers have

12 identified between 165 and 608 such jurisdictions across the United States. Michelle Ye Hee Lee,

13 Trump’s Claim that Sanctuary Cities “Breed Crime,” Wash. Post, Feb. 8, 2017.

14

48. Plaintiffs have enacted the policies described above with the firm conviction that

15 encouraging community members to report crimes and cooperate with police contributes to public

16 safety. Policies restricting local police from inquiring into a person’s immigration status foster

17 such cooperation.

18

49. Social science research supports this conclusion. A 2017 Center for American

19 Progress study entitled The Effects of Sanctuary Policies on Crime and the Economy showed that

20 crime is lower and economies stronger in sanctuary compared to non-sanctuary jurisdictions.

21

50. Using an ICE dataset, Professor Tom K. Wong of the University of California, San

22 Diego, compared crime, income, poverty, and unemployment across counties based on their

23 willingness to honor ICE detainer requests regarding persons suspected of immigration violations.

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 11
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 12 of 48

1 Professor Wong matched sanctuary counties (unwilling to accept ICE detainers) to comparable

2 nonsanctuary counties (willing to accept ICE detainers). He concluded that “[c]rime is statistically

3 lower in sanctuary counties compared to nonsanctuary counties.” Sanctuary jurisdictions

4 experience, “on average, 35.5 fewer crimes committed per 10,000 people” as compared to non-

5 sanctuary counties. Tom K. Wong, The Effects of Sanctuary Policies on Crime and the Economy,

6 Ctr. for Am. Prog. 1 (Jan. 26. 2017), https://goo.gl/ewN3tO.

7

51. In May 2015, the President’s Task Force on 21st Century Policing recommended

8 that “[l]aw enforcement agencies should build relationships based on trust with immigrant

9 communities. This is central to overall public safety.” The Task Force noted that:

10

Immigrants often fear approaching police officers when they are victims of

and witnesses to crimes and when local police are entangled with federal

11

immigration enforcement. At all levels of government, it is important that

laws, policies, and practices not hinder the ability of local law enforcement

12

to build the strong relationships necessary to public safety and community

well-being. It is the view of this task force that whenever possible, state and

13

local law enforcement should not be involved in immigration enforcement.

Final Report of the President’s Task Force on 21st Century Policing at 18 (2015), 14

https://goo.gl/acnR68. 15

52. Numerous law enforcement organizations have publicly recognized the dangers of 16

commingling local public safety responsibilities with federal immigration enforcement. 17

53. The Major Cities Chiefs Association, a professional association of Chiefs and 18

Sheriffs representing the largest cities in the United States, Canada, and the United Kingdom, has 19

recognized that “[a]ssistance and cooperation from immigrant communities is especially important 20

when an immigrant, whether documented or undocumented, is the victim of or witness to a crime. 21

These persons must be encouraged to file reports and come forward with information. Their 22

cooperation is needed to prevent and solve crimes and maintain public order, safety, and security 23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 12
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 13 of 48

1 in the whole community…. Immigration enforcement by local police would likely negatively

2 effect and undermine the level of trust and cooperation between local police and immigrant

3 communities. If the undocumented immigrant’s primary concern is that they will be deported or

4 subjected to an immigration status investigation, then they will not come forward and provide

5 needed assistance and cooperation…. Such a divide between the local police and immigrant groups

6 would result in increased crime against immigrants and in the broader community, create a class

7 of silent victims and eliminate the potential for assistance from immigrants in solving crimes or

8 preventing future terroristic acts.” M.C.C. Immigration Committee Recommendation for

9 Enforcement of Immigration Laws by Local Police Agencies: Adopted by MCC June 2006, at 5-

10 6, https://goo.gl/SvTaAC.

11

54. The Law Enforcement Immigration Task Force, consisting of the Chiefs of Police

12 of two dozen jurisdictions, opposes proposals that impose federal immigration enforcement

13 responsibilities on local law enforcement personnel. Letter from Law Enforcement Immigration

14 Task Force to Senate Judiciary Committee Chairman Chuck Grassley and Ranking Member

15 Patrick J. Leahy (July 20, 2015), https://goo.gl/moXjfV.

16

55. The National Fraternal Order of Police and the Major County Sheriffs’ Association

17 both oppose withholding federal funds from jurisdictions that adopt “sanctuary city” laws. Letter

18 from National Fraternal Order of Police to Senate Majority Leader Mitch McConnell, Senate

19 Minority Leader Harry M. Reid, Speaker of the House John A. Boehner, and House Minority

20 Leader Nancy P. Pelosi (July 15, 2015), https://goo.gl/WpRJWg; Letter from Major County

21 Sheriffs’ Association to Senate Judiciary Committee Chairman Chuck Grassley and Ranking

22 Member Patrick Leahy (July 21, 2015), https://goo.gl/QgSxWS; Major County Sheriffs’ Ass’n,

23 Sheriffs Respond to Sanctuary City Executive Order (Jan. 28, 2017), https://goo.gl/IF4xZB.

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 13
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 14 of 48

1

56. The vast majority of law enforcement agencies do not support policies like those

2 articulated in the Executive Order.

3

57. There are approximately 18,000 local law enforcement agencies in the United

4 States. Final Report of the President’s Task Force on 21st Century Policing, supra, at 29. Yet only

5 forty-five law enforcement agencies in eighteen states have signed so-called “287(g) agreements”

6 with U.S. Immigration and Customs Enforcement (ICE) to facilitate enforcement of federal

7 immigration law. Delegation of Immigration Authority Section 287(g) Immigration and

8 Nationality Act, https://goo.gl/HacxLR (last visited June 26, 2017). Fewer than one percent of all

9 local law enforcement agencies in the country have deemed it advantageous, wise, or desirable to

10 mix their public safety duties with immigration enforcement. Police officials in the Plaintiff Cities

11 have not been silent in this national debate. For example, former Seattle Chief R. Gil Kerlikowske

12 stated in 2004 that “[t]raditionally we have seen that reporting of crime is much lower in immigrant

13 communities because many are leaving countries where the police cannot be trusted for good

14 reason. Adding the fear of arrest or deportation to this could have a tremendous impact on the rate

15 of reporting.” 152 Cong. Rec. 18867 (Sept. 21, 2006). King County, Washington, in which Seattle

16 is located, has had a similar experience with its sanctuary policy. “These policies are critical to

17 public safety,” said then-King County Sheriff’s spokesman Sgt. John Urquhart, who added that

18 the County policy follows the Sheriff’s operations manual. “This policy has worked very well for

19 the Sheriff’s Office for 20 years. We could not do our job if people were afraid to come to us as

20 witnesses or victims. We have to have that cooperation to do effective investigations and protect

21 the public.” King County Council Protects Public Safety and Health by Ensuring All Residents

22 Have Access to Services, King Cty. Council News (Nov. 9, 2009), https://goo.gl/EW1vFr.

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 14
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 15 of 48

1

58. Portland Police Chief Mike Marshman spoke similarly before community leaders

2 in Portland on January 30, 2017 to provide “a source of reassurance to the community.” Chief

3 Marshman stated that the Portland police “are not an extension of Immigration and Customs

4 Enforcement…. We do not enforce federal immigration laws.” Pamplin Media Group, Police

5 Chief: ‘We Do Not Enforce Federal Immigration Laws,’ Portland Trib., Jan. 30, 2017,

6 https://goo.gl/gA8ae8.

7

59. In addition to fostering effective policing, there are other significant public policy

8 interests that sanctuary policies advance. Such policies eliminate the fear that collection of

9 information about immigration status may discourage undocumented individuals from seeking

10 necessary medical care. For example, this has been the experience in King County, Washington:

11 Dr. David Fleming, then-Director and Chief Health Officer of Public Health – Seattle & King

12 County, explained that “[t]he preventive care we provide through pre-natal care and

13 immunizations, regardless of immigration status, saves us medical resources and tax dollars in the

14 long term.” King County Council Protects Public Safety and Health by Ensuring All Residents

15 Have Access to Services, King Cty. Council News (Nov. 9, 2009), https://goo.gl/EW1vFr.

16

VII. SEATTLE’S RECEIPT OF FEDERAL FUNDS

17

60. The City of Seattle employs over 12,000 people in full-time or part-time positions

18 through the 2017 Adopted Budget. This includes over 2,000 employees of the Police Department,

19 over 1,100 employees of the Fire Department, and over 1,300 employees of Seattle Public Utilities.

20

61. For fiscal year 2017, the City has an operating budget with total appropriations of

21 approximately $5.71 billion. Of this total, over $55 million is derived directly from federal funds.

22 This operating total includes $2.46 billion supporting the City’s utility operations. The City’s total

23 appropriations in its non-utility operating budget is $3.25 billion, of which approximately $51

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 15
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 16 of 48

1 million in 2017 is derived from federal funds. This amount omits additional federal contributions

2 that are not used in the City’s operating budget, but instead fund multi-year capital expenditures.

3 The federal government is contributing over $99 million in such capital funds to Seattle in 2017

4 alone. Between both capital and operating funds, the City will receive over $155 million from the

5 federal government in 2017.

6

62. Much of the City’s federal funding is provided on a reimbursable basis. This means

7 that Seattle expends funds to provide programs and services that the federal government has agreed

8 to reimburse. Seattle is currently engaged in substantial capital projects, including those for public

9 infrastructure, and also is running a variety of essential programs for residents, based on the federal

10 government’s commitment to reimburse the City for these costs. The Executive Order raises

11 significant doubts about whether the federal government will, in fact, reimburse Seattle for the

12 substantial sums it is expending every day on federally funded programs.

13

A. Human Services Department

14

63. The Seattle Human Services Department (HSD) is responsible for administering

15 approximately 400 contracts with more than 170 community-based providers that offer services to

16 the City’s most vulnerable residents and communities every year. These programs ensure that all

17 Seattle residents have access to adequate food and shelter, educational and professional

18 opportunities, health care, pathways to social and economic independence, and the basic

19 necessities of life. Human Services, City of Seattle, https://goo.gl/fVBPYz.

20

64. HSD pursues vital objectives including: “ending homelessness, hunger and

21 violence in [the] community and improving the health and well-being of everyone who calls the

22 Seattle area home.” Human Services – About Us, City of Seattle, https://goo.gl/uyYHiH. Specific

23 initiatives include programs such as: “Addressing Homelessness, Affordability and Livability,

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 16
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 17 of 48

1 Public Health, Preparing Youth for the Future, Addressing Domestic Violence and Sexual Assault,

2 [and] Promoting Healthy Aging.” Id.

3

65. To further these missions, HSD employs over 300 individuals in part-time or full-

4 time positions. In 2017, almost 100 individuals employed by HSD are supported by federal grants.

5

66. In 2017, HSD has an Adopted Budget of approximately $150 million. Of this

6 amount, over $42 million, or 28%, is derived from federal funding sources.

7

67. Federal funds are essential to numerous HSD initiatives that serve Seattle residents.

8 For example, the federal government provides over $11 million to the city to support home-based

9 care for elderly residents with disabilities, allowing them to remain in their own homes. This

10 contribution represents almost 50% of the budget for such services. Federal funds also provide

11 support for a continuum of services for homeless residents, including prevention activities, housing

12 services, and survival interventions that provide shelter, outreach, hygiene, and health care. The

13 $15 million provided by the federal government represents 28% of the budget for such activities

14 of the Homeless Strategy and Investment Division. The federal government provides an addition

15 $4 million through a Community Development Block Grant to fund a Homeless Intervention

16 program that provides emergency shelter and transitional housing for homeless single men,

17 women, and families, hygiene services, housing counseling, and rent assistance. Federal funds

18 totaling over $1 million also account for over 20% of the budget for a nutrition assistance program

19 that provides both high-quality food and nutrition education to children and families.

20

68. The reach of federal funding into the social services provided by the City of Seattle

21 is expansive. In addition to the above examples, funds that support low-income housing; meals for

22 children in child-care homes and at school; college readiness programs for low-income, first

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 17
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 18 of 48

1 generation teenagers; youth violence prevention programs; and Medicaid all derive from the

2 federal government.

3

69. The loss of the federal funds supporting these programs would harm all Seattle

4 residents. Without this funding, many programs will be diminished, less effective, or cease

5 functioning entirely.

6

B. Seattle Police Department

7

70. The Seattle Police Department (SPD) is responsible for “prevent[ing] crime,

8 enforc[ing] the law, and support[ing] quality public safety by delivering respectful, professional

9 and dependable police services.” Seattle Police Department Manual, Mission Statement,

10 https://goo.gl/oeAFiw.

11

71. To accomplish this mission, SPD had over 1,400 sworn police officers in 2016 and

12 has a 2017 budget totaling over $320 million. See Department Overview, Seattle Police Dep’t,

13 https://goo.gl/La3b3S; Seattle Police Department, Open Budget, https://goo.gl/kSWIef. This

14 represents approximately 10% of the city’s annual non-utility operating budget.

15

72. The Department is scheduled to receive over $2.8 million in federal funds in 2017,

16 part of over $10.5 million in federal funds allocated over a multi-year period. The impact of the

17 2017 annual federal award amount is augmented by a matching commitment from the city totaling

18 $2.6 million.

19

73. Federal grants support numerous public safety initiatives and programs that are

20 essential to public safety. Such funds enable SPD to purchase emergency response equipment such

21 as bomb suits, investigate human trafficking, reduce drunk and distracted driving, achieve

22 department-wide deployment of body cameras, secure port facilities, prevent child sexual

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 18
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 19 of 48

1 exploitation over the Internet, combat terrorism, and build ties with local communities through

2 community policing efforts, among many other activities.

3

74. The impact of losing all federal funding would be substantial. The Department

4 would need either to find alternative funds or forgo purchasing vital equipment, dismiss staff

5 responsible for critical public safety functions, or shut down entire programs.

6

C. Seattle Department of Transportation

7

75. “The Seattle Department of Transportation (SDOT) develops, maintains, and

8 operates a transportation system that promotes the safe and efficient mobility of people and goods,

9 and enhances the quality of life, environment, and economy of Seattle and the surrounding region.”

10 SDOT Budgets, Seattle Dep’t of Transp., https://goo.gl/ck5QL6.

11

76. SDOT manages an infrastructure that is valued at over $13 billion and includes:

12 “1,540 lane-miles of arterial streets, 2,412 lane-miles of nonarterial streets, 135 bridges, 494

13 stairways, 587 retaining walls, [and] 22 miles of seawalls.” Id.

14

77. To accomplish this task, SDOT employs over 900 individuals in full-time or part-

15 time positions and has a 2017 operating budget of over $440 million. Seattle Department of

16 Transportation, Open Budget, https://goo.gl/mkkrjF.

17

78. The federal government is set to contribute over $63 million to capital expenditures

18 supporting multi-year projects in 2017 alone. Across multiple time periods, the federal government

19 is contributing over $250 million to capital expenditures undertaken by SDOT.

20

79. Federal funds directly support numerous SDOT activities that keep Seattle residents

21 both mobile and safe. These include preventative and significant maintenance, replacing bridges,

22 undertaking seismic retrofitting to protect against earthquakes, bike path and pedestrian area

23 improvements, and even purchasing streetcars.

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 19
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 20 of 48

1

80. Without the allotted federal funds, projects will be delayed or cancelled,

2 maintenance will be deferred, and other city resources would need to be repurposed to satisfy vital

3 transportation needs.

4

VIII. PORTLAND’S RECEIPT OF FEDERAL FUNDS

5

81. The City of Portland employs over 8,700 people in full-time or part-time positions

6 through the 2016-17 City budget. This includes over 1,100 employees of the Police Bureau and

7 over 700 employees of Portland Fire & Rescue. As of February 2017, that workforce comprises

8 25.41 percent full-time employees who are people of color and 34 percent part-time employees

9 who are people of color.

10

82. In the 2015-16 fiscal year, Portland had an operating budget with total

11 appropriations of approximately $3.7 billion. Portland received approximately $49 million in

12 federal funds in that fiscal year.

13

83. For the 2016-17 fiscal year, Portland has an operating budget with total

14 appropriations of approximately $4.1 billion. To date, Portland has received approximately $29

15 million in federal funds in that fiscal year, and is expected to receive a total amount comparable to

16 that received in 2015-16 by the end of the fiscal year.

17

84. Much of Portland’s federal funding is provided on a reimbursable basis. As noted

18 above, this means that Portland expends funds to provide programs and services that the federal

19 government has agreed to reimburse. The Executive Order raises significant doubts about whether

20 the federal government will, in fact, reimburse Portland for the substantial sums it is expending

21 every day on federally-funded programs

22

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 20
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 21 of 48

1

85. Federal funds are essential to many City of Portland programs. Without allotted

2 federal funds, numerous projects will have to be delayed or cancelled, and City resources will have

3 to be redirected to satisfy essential needs.

4

A. Portland Bureau of Transportation

5

86. The Portland Bureau of Transportation (“PBOT”) is responsible for “plan[ning],

6 build[ing], manag[ing] and maintain[ing] an effective and safe transportation system that provides

7 people and businesses access and mobility.” Your PBOT, Portland Bur. of Transp.,

8 https://goo.gl/eA88yM.

9

87. To accomplish this task, PBOT was authorized to employ over 800 individuals in

10 the FY 2016-17 Adopted Budget and was responsible for approximately 9% of the city’s total

11 budget. PBOT’s operating budget is over $280 million for the FY 2016-17. Adopted Budget, City

12 of Portland, Oregon, Fiscal Year 2016-17, Volume One, at 459, https://goo.gl/Qc2a22.

13

88. The federal government has already contributed over $13 million to PBOT through

14 its funding arrangement with the Oregon Department of Transportation, which passes the funds on

15 to the city.

16

89. These funds are vital to support repairs and improvements throughout the City of

17 Portland.

18

90. Without the continued financial support of the federal government, Portland would

19 be unable to complete similar projects in the future, to the detriment of all the city’s residents.

20

B. Portland Housing Bureau

21

91. The Portland Housing Bureau (“PHB”) is responsible for “developing citywide

22 housing policy, delivering programs that increase the supply of affordable housing, preventing and

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 21
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 22 of 48

1 ending homelessness, and promoting stable homeownership.” Who We Are, Portland Housing

2 Bur., https://goo.gl/sa24FR.

3

92. PHB has several investment priorities including providing “more rental housing for

4 the most vulnerable people,” combating homelessness, providing safety net shelters, and assisting

5 “Portlanders from communities of color buy a home or keep the home they already own.” What

6 We Do, Portland Housing Bur., https://goo.gl/sGUQNc.

7

93. To accomplish this task, PHB was authorized to employ over 50 people in the FY

8 2016-17 Adopted Budget and was responsible for approximately 3.5% of the city’s total budget.

9 PHB’s operating budget is over $150 million. Adopted Budget, City of Portland, Oregon, Fiscal

10 Year 2016-17, Volume One at 354, https://goo.gl/Qc2a22.

11

94. The federal government has already contributed over $13.5 million to Portland

12 through the Department of Housing and Urban Development (“HUD”).

13

95. These funds are vital to support a variety of essential services including: providing

14 housing assistance to low-income individuals with HIV/AIDS, supporting the provision of

15 affordable housing, funding anti-poverty programs, rehabilitating and constructing new homes,

16 and rehabilitating and operating emergency shelters.

17

96. Without the continued financial support of the federal government, Portland would

18 be unable to fund similar projects and initiatives in the future, to the detriment of all the city’s

19 residents.

20

IX. 8 U.S.C. § 1373

21

97. Section 1373(a) of Title 8 of the U.S. Code provides that “a Federal, State, or local

22 government entity or official may not prohibit, or in any way restrict, any government entity or

23 official from sending to, or receiving from, the Immigration and Naturalization Service

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 22
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 23 of 48

1 information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”

2 By its plain terms, this statute does not require the collection by state or local officials of

3 information regarding citizenship or immigration status, but does purport to bar policies that

4 preclude local entities or individuals from sending such information in their possession to federal

5 officials.

6

98. On May 31, 2016, the Inspector General of the U.S. Department of Justice issued a

7 memorandum stating that policies prohibiting local officials from sharing information with the

8 federal government are “inconsistent with the plain language of Section 1373.” Memorandum from

9 Michael E. Horowitz, Inspector General, to Karol V. Mason, Ass’t Att’y Gen., Office of Justice

10 Programs (May 31, 2016), at 5, https://goo.gl/7bhFHd. At the same time, however, the Inspector

11 General confirmed that Section 1373 “does not ‘require’ the disclosure of immigration status

12 information.” Id. at 5 n.7. It also does not expressly mandate other forms of cooperation, such as

13 “cooperation with ICE regarding detainers.” Id. at 4.

14

99. But the Inspector General also concluded that even policies that do not “explicitly

15 proscribe sharing information with ICE” might be construed to violate Section 1373 to the extent

16 they can be read by local officials as prohibiting such communications. Id. at 7. Likewise, he

17 determined that Section 1373 would be violated where “actions of local officials result in

18 prohibitions or restrictions” on information-sharing, even where the local jurisdiction has no

19 express policy against information-sharing. Id. at 7 n.9.

20

100. On July 7, 2016, the U.S. Department of Justice Office of Justice Programs issued

21 guidance concerning federal grants and compliance with Section 1373. Office of Justice Programs,

22 Guidance Regarding Compliance with 8 U.S.C. § 1373 (July 7, 2016), https://goo.gl/YPD1Li.

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 23
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 24 of 48

1

101. The guidance explained that Section 1373 does not require localities “to collect

2 information,” nor to “take specific actions upon obtaining such information.” Id. at 1. But Section

3 1373, as interpreted in the guidance, does prohibit localities from “taking action to prohibit or in

4 any way restrict the maintenance or intergovernmental exchange of such information, including

5 through written or unwritten policies or practices.” Id.

6

102. The guidance further instructed localities that “[y]our personnel must be informed

7 that . . . federal law does not allow any government entity or official to prohibit the sending or

8 receiving of information about an individual’s citizenship or immigration status” (id.)—i.e., it

9 declares that localities must affirmatively tell their employees that they have the right to relay

10 information to the federal government, even though no such requirement is stated in the text of

11 Section 1373.

12

103. By its terms, however, Section 1373(a) does not establish any penalties or other

13 legal consequences for a local government’s decision to prohibit its employees from sharing

14 immigration information with the federal government. Nor does any other provision of federal law.

15 See Villas at Parkside Partners v. City of Farmers Branch, Tex., 726 F.3d 524, 573 (5th Cir. 2013)

16 (“Congress passed no law concerning … ‘sanctuary cities.’”).

17

X. THE EXECUTIVE ORDER

18

104. On January 25, 2017, Defendant Trump signed Executive Order No. 13768, titled

19 “Enhancing Public Safety in the Interior of the United States.” Executive Order No. 13768, 82

20 Fed. Reg. 8799 (Jan. 25, 2017).

21

105. The Executive Order is directed at “[s]anctuary jurisdictions across the United

22 States [that] willfully violate Federal law in an attempt to shield aliens from removal from the

23 United States.” Id. § 1. The Order asserts that “[t]hese jurisdictions have caused immeasurable

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 24
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 25 of 48

1 harm to the American people and to the very fabric of our Republic” (id.), although it recites no

2 factual support for this proposition and disregards the contrary conclusions of the state and local

3 jurisdictions that have primary responsibility for law enforcement and public safety in the United

4 States.

5

106. The Executive Order states that it is the policy of the federal Executive Branch to

6 “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal

7 funds, except as mandated by law.” Id. § 2(c).

8

107. To that end, the Executive Order “direct[s] [federal] agencies to employ all lawful

9 means to ensure the faithful execution of the immigration laws of the United States against all

10 removable aliens.” Id. § 4.

11

108. In particular, Section 9 of the Executive Order states that “[i]t is the policy of the

12 executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision

13 of a State, shall comply with 8 U.S.C. § 1373.”

14

109. In furtherance of this policy, the Executive Order provides that the Attorney

15 General and Secretary “shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C.

16 1373 (sanctuary jurisdictions) are not eligible to receive federal grants, except as deemed necessary

17 for law enforcement purposes by the Attorney General or the Secretary.” Id. § 9(a). For this

18 purpose, the Secretary is given the unreviewable “authority to designate … a jurisdiction as a

19 sanctuary jurisdiction.” Id.

20

110. In addition, the Executive Order provides that the Attorney General “shall take

21 appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in

22 effect a statute, policy, or practice that prevents or hinders the enforcement of federal law.” Id.

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 25
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 26 of 48

1

111. By its plain terms, the Executive Order appears to contemplate withholding all

2 federal funds from these “sanctuary jurisdictions,” with the exception of unspecified funds

3 “deemed necessary for law enforcement purposes.” This seems to be the import of the blanket

4 directive that the Attorney General and Secretary “ensure” that sanctuary jurisdictions “are not

5 eligible to receive Federal grants.” The expansive scope of the Order’s limitation on federal

6 funding is confirmed by the Executive Order’s otherwise inexplicable directive that the Director

7 of the federal Office of Management and Budget “obtain and provide relevant and responsive

8 information on all federal grant money that currently is received by any sanctuary jurisdiction.”

9 Id. § 9(c).

10

112. Although written in broad terms, the Executive Order’s particular import is unclear

11 in significant respects because the Order does not define any of its terms.

12

113. Thus, although the Executive Order, through use of a parenthetical, evidently

13 means to define “sanctuary jurisdiction[s]” as those that “willfully refuse to comply with 8 U.S.C.

14 1373,” the Order does not define what constitutes a “willful[] refus[al] to comply with 8 U.S.C. §

15 1373,” and therefore may encompass jurisdictions that permit their employees to share

16 immigration information with the federal government but prohibit their employees from collecting

17 or maintaining that information in the first place.

18

114. The terms “sanctuary jurisdiction” and “sanctuary city” are not defined, or

19 otherwise used, in any other provision of federal law. See United States v. Juarez-Escobar, 25 F.

20 Supp. 3d 774, 777 (W.D. Pa. 2014) (“There is very little ‘official’ information concerning

21 ‘sanctuary cities’ or ‘sanctuary states.’”); Unidad Latina en Accion v. U.S. Dep't of Justice, 2010

22 WL 7856573, at *1 n.2 (D. Conn. 2010) (referring to “sanctuary city” as a “non-legal term”).

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 26
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 27 of 48

1

115. Indeed, when asked to define the term “sanctuary city,” Defendant Kelly—the

2 official charged by the Executive Order with determining whether a city is a “sanctuary

3 jurisdiction”—responded: “I don’t have a clue.” Elliot Spagat, Assoc. Press, Homeland Security

4 Head Is Pressed to Define “Sanctuary City,” Feb. 11, 2017, https://goo.gl/5rkNCQ.

5

116. Similarly, the Executive Order does not specify what sorts of grants serve “law

6 enforcement purposes” that are exempt from the Order’s ban on federal funding, or when the

7 Attorney General or Secretary permissibly may withhold funds serving such “law enforcement”

8 purposes.

9

117. In addition, the Executive Order directs the Attorney General to “take appropriate

10 enforcement action” not only “against any entity that violates 8 U.S.C. § 1373,” but also against

11 any entity that “has in effect a statute, policy, or practice that prevents or hinders the enforcement

12 of Federal law.” Executive Order § 9(a). But the Order does not identify the type of “enforcement

13 action” that the Attorney General may take against such entities, including whether the Attorney

14 General’s enforcement power is limited to declaring sanctuary jurisdictions ineligible to receive

15 federal grants. The Order also does not define what it means for an entity to “prevent[] or hinder[]

16 the enforcement of Federal law,” an omission that creates particular uncertainty because, by its

17 terms, Section 9(a) applies to any provision of Federal law, not simply 8 U.S.C. § 1373 or other

18 provisions of federal immigration law.

19

XI. THE SESSIONS MEMORANDUM

20

118. On May 22, 2017, and in response to a nationwide injunction against enforcement

21 of the Order entered by the United States District Court for the Northern District of California, see

22 County of Santa Clara v. Trump, 2017 WL 1459081 (N.D. Cal. Apr. 25, 2017), the Attorney

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 27
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 28 of 48

1 General issued a two-page memorandum to “all department grant-making components” regarding

2 the implementation of the Executive Order. See Dkt. No. 24-1, at 1 (“Sessions Memorandum”).

3

119. Although the Attorney General stated that he “consult[ed]” on formation of the

4 memorandum with the Secretary—who is the official actually responsible for identifying sanctuary

5 jurisdictions under the Executive Order, see Order § 9(a)—the Sessions Memorandum is issued

6 solely under the Attorney General’s authority. Id. at 2.

7

120. Contrary to the Executive Order’s plain and unrestricted language stating that

8 “sanctuary jurisdictions . . . are not eligible to receive Federal grants,” Order § 9(a), the Sessions

9 Memorandum purports to apply the Executive Order “solely to federal grants administered by the

10 Department of Justice or the Department of Homeland Security, and not to other sources of federal

11 funding.” Sessions Memorandum at 1. The Sessions Memorandum specifically identifies grants

12 administered by the Office of Justice Programs and the Office of Community Oriented Policing

13 Services as within the Executive Order’s ambit. Id.

14

121. In addition to contravening Section 9(a)’s plain text, the Sessions Memorandum’s

15 purported limitation of the Executive Order’s scope runs counter to Section 9(c)’s instruction to

16 the Office of Management and Budget to “obtain and provide relevant and responsive information

17 on all federal grant money that currently is received by any sanctuary jurisdiction.” Id. §9(c)

18 (emphasis added). If the Executive Order’s scope were as circumscribed as the Sessions

19 Memorandum suggests, Section 9(c)’s use of the word “all” would be superfluous and vastly

20 overbroad.

21

122. The Sessions Memorandum’s putative narrowing of the universe of federal funds

22 at issue also runs counter to the Executive Order’s stated purpose: to ensure “that jurisdiction that

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 28
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 29 of 48

1 fail to comply with applicable Federal law do not receive federal funds.” Id. § 2(c) (emphasis

2 added).

3

123. The Sessions Memorandum states that “for purposes of enforcing the Executive

4 Order, the term ‘sanctuary jurisdiction’ will refer only to jurisdictions that ‘willfully refuse to

5 comply with 8 U.S.C. 1373.’ A jurisdiction that does not willfully refuse to comply with section

6 1373 is not a ‘sanctuary jurisdiction’ as that term is used in section 9(a).” Id. That definition is

7 circular. It merely parrots the language of the Executive Order. It provides no guidance on what

8 conduct constitutes compliance with Section 1373 and does not indicate what sort of conduct, or

9 what municipal state of mind, constitutes “willful” noncompliance with the statute. The Sessions

10 Memorandum also does not answer key questions about Section 1373’s scope, such as whether

11 local jurisdictions must comply with ICE detainer requests.

12

124. Rather than clearly define Section 1373’s scope, the Sessions Memorandum

13 requires jurisdictions to “certify their compliance with federal law, including 8 U.S.C. § 1373, as

14 a condition for receiving an award.” Id. According to the Sessions Memorandum, “[a]ll grantees

15 will receive notice of their obligation to comply with section 1373.” Id. Once again, however, the

16 Sessions Memorandum fails to specify how a jurisdiction is to know whether it complies with

17 Section 1373.

18

125. Because the Sessions Memorandum is, at most, an interpretive rule, it may be

19 revoked without any notice-and-comment rulemaking. See Perez v. Mortgage Bankers Ass’n, 135

20 S. Ct. 1199 (2015). In other words, the Sessions Memorandum’s putative re-writing of the

21 Executive Order, even if otherwise effective, may be revoked or modified at the discretion of the

22 Attorney General.

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 29
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 30 of 48

1

126. Indeed, the Sessions Memorandum does not foreclose using other, unidentified

2 sources of statutory authority “going forward” to restrict the receipt of federal funds by sanctuary

3 jurisdictions. Sessions Memorandum at 2.

4

127. Because the Sessions Memorandum conflicts with the Executive Order’s plain text

5 and because it may be revoked or modified at any moment, it deserves no deference and cannot be

6 construed to materially narrow the Executive Order.

7

XII. DEFENDANTS HAVE THREATENED PLAINTIFFS WITH THE LOSS OF

FEDERAL FUNDS

8 128. Defendants have made statements indicating that they intend to take punitive

9 actions against “sanctuary” jurisdictions, such as Seattle and Portland.

10 129. During his presidential campaign, Defendant Trump repeatedly “said he … would

11 withhold federal funds to punish so-called sanctuary cities … for their lenient policies toward

12 illegal immigration.” Cindy Carcamo et al., Trump’s Crackdown on Illegal Immigration Leaves A

13 Lot Unanswered for Sanctuary Cities like L.A., L.A. Times, Nov. 15, 2016, https://goo.gl/FqFuf4.

14 130. Among other statements, in a speech on immigration on August 31, 2016,

15 Defendant Trump claimed that “[c]ountless innocent American lives” have been lost because of

16 “sanctuary cities and open borders.” Donald J. Trump, Speech on Immigration in Phoenix, Ariz.

17 (Aug. 31, 2016), https://goo.gl/Rx1Pks. He declared that he would “block funding for sanctuary

18 cities,” “end the sanctuary cities that have resulted in so many needless deaths,” and ensure that

19 “[c]ities that refuse to cooperate with federal authorities will not receive taxpayer dollars.” Id.

20 131. Defendant Trump referred to Seattle in particular as a “sanctuary city” that would

21 be a target of his administration. For instance, “[o]n the campaign trail, [Defendant] Trump

22 referenced a 2007 Seattle homicide in his dislike for sanctuary cities.” Mayor: Seattle Could Lose

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 30
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 31 of 48

1 $85 Million by Remaining a Sanctuary City, KIRO7 (Jan. 25, 2017, 9:09 PM),

2 https://goo.gl/euC8TN.

3

132. In an interview with a Seattle radio station on August 29, 2016, Defendant Trump

4 was asked about Seattle’s sanctuary city policy. He responded that “sanctuary cities are out …

5 sanctuary cities are over.” He added that “[t]he federal government is going to have to get involved

6 and they’re going to have to get involved very sharply.” Donald Trump on Colin Kaepernick: He

7 Should Find Another Country, MYNorthwest (Aug. 29, 2016, 5:03 PM), https://goo.gl/JidxYJ.

8

133. In a speech in Everett, Washington, on August 30, 2016, Defendant Trump stated

9 that “[w]e are also going to secure our border to stop the drugs from pouring in,” and specifically

10 referenced the Seattle area. Trump: Party of Lincoln Promises Hope to Every Forgotten Stretch of

11 America (Aug. 30, 2016), https://goo.gl/Cn84rQ.

12

134. Defendant Trump has continued to attack sanctuary cities since his inauguration. In

13 a speech to congressional Republicans, Defendant Trump declared: “And finally, at long last,

14 cracking down on Sanctuary Cities.” President Trump Remarks at Congressional Republican

15 Retreat, C-Span (Jan 26, 2017), https://goo.gl/7Gya30.

16

135. In an interview with Fox News host Bill O’Reilly, Defendant Trump reiterated that

17 he is “very much opposed to sanctuary cities,” and that “[i]f we have to, we’ll defund.” Trump:

18 California ‘Out of Control’ and Defunding Could Be In Store, KQED News (Feb. 6, 2017),

19 https://goo.gl/TgLAkL.

20

136. In a news conference on February 16, Defendant Trump explained that he had

21 “ordered a crackdown on sanctuary cities.” Glenn Kessler & Michelle Ye Hee Lee, Fact-Checking

22 President Trump’s News Conference, Wash. Post., Feb. 16, 2017, https://goo.gl/tT4oWx.

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 31
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 32 of 48

1

137. In a tweet sent on February 21, Defendant Trump referenced a poll on Americans’

2 attitudes toward sanctuary cities, presumably in support of his executive order. See Teresa Welch,

3 Today in Trump Tweets, Feb. 21, 2017: Sanctuary Cities and “So-Called Angry Crowds,”

4 McClatchy DC Bureau (Feb. 21, 2017), https://goo.gl/lQtn1R.

5

138. Similarly, Defendant Trump’s press secretary, Sean Spicer, has insisted that “the

6 President is going to do everything he can within the scope of the executive order to make sure

7 that cities who don’t comply with it—counties and other institutions that remain sanctuary cities

8 don’t get federal government funding in compliance with the executive order.” Press Briefing by

9 Press Secretary Sean Spicer (Feb. 8, 2017), https://goo.gl/yru1yo; see also Priscilla Alvarez,

10 Trump Cracks Down on Sanctuary Cities, The Atlantic (Jan. 25, 2017), https://goo.gl/pKHmJD

11 (quoting Sean Spicer as saying “We’re going to strip federal grant money from the sanctuary states

12 and cities that harbor illegal immigrants. The American people are no longer going to have to be

13 forced to subsidize this disregard for our laws.”).

14

139. Other defendants have likewise referred to the need to take action against sanctuary

15 cities, including by stripping them of their federal funding. In a speech to Congress on July 9,

16 2015, Defendant Sessions called on Congress “to make its first item of business the immediate

17 passage of legislation to cut off relevant federal monies to sanctuary cities.” Senator Sessions Calls

18 on Congress to Take Up Immigration Reform for Americans (July 9, 2015), https://goo.gl/115ov7.

19 Indeed, at the ceremony where he was sworn in as Attorney General, Defendant Sessions

20 emphasized that the Department of Justice would “end th[e] lawlessness” of illegal immigration

21 and “defend the lawful orders of the President of the United States with vigor and determination.”

22 President Trump Participates in the Swearing-In of the Attorney General, Jeff Sessions, YouTube,

23 https://goo.gl/GTK15I (last visited Feb. 9, 2017, 12:02 PM).

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 32
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 33 of 48

1

140. More recently, Defendant Sessions appeared at the White House Press Briefing to

2 declare that “the Department of Justice will require that jurisdictions seeking or applying for

3 Department of Justice grants to certify compliance with 1373 as a condition of receiving those

4 awards.” Press Briefing By Press Secretary Sean Spicer (Mar. 27, 2017), https://goo.gl/Sfd49z. He

5 likewise threatened that “[t]he Department of Justice will also take all lawful steps to claw back

6 any funds awarded to a jurisdiction that willfully violates 1373.” Id. In response to a question about

7 whether other funds might be taken away from sanctuary cities, Defendant Sessions stated that

8 “grants in the future could be issued that have additional requirements.” Id.

9

141. Defendants appear to have begun taking action against cities that refuse to comply

10 with their dictates. Defendant Trump’s recent budget proposal “was an opening salvo against so-

11 called sanctuary cities, … slash[ing] $210 million in federal reimbursements to state and local jails

12 that hold immigrants convicted of crimes while in the country illegally.” Brian Bennett, Trump

13 Takes Aim at “Sanctuary Cities” with a Proposal to Cut More than $200 Million in Local Funds,

14 L.A. Times, Mar. 16, 2017, https://goo.gl/sukI6E. And a federal judge recently stated that he had

15 been warned by federal agents “to expect a crackdown on immigrants in response to a new

16 ‘sanctuary’ policy adopted by Travis County,” Texas. Federal Judge Says ICE Targeted Austin

17 for Immigrant Raid in Retaliation for “Sanctuary” Policy, The Week, Mar. 21, 2017,

18 https://goo.gl/UPvIO1.

19

142. Federal government agencies have also long designated Seattle and other localities

20 in the State of Washington as jurisdictions that fail to comply with federal requests for assistance

21 in enforcing the immigration laws. Most recently, King County, Washington was identified in the

22 Weekly Declined Detainer Outcome Report issued for the week of February 4 through February

23 10, 2017, as required by Section 9(b) of the Executive Order. The ten counties listed are identified

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 33
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 34 of 48

1 as ones that “do not comply with [ICE] detainers on a routine basis” and have a “policy of non-

2 cooperation or restrict cooperation” with federal immigration enforcement authorities. Dep’t of

3 Homeland Security, Weekly Declined Detainer Outcome Report For Recorded Declined Detainers

4 Feb 4 – Feb 10, 2017, https://goo.gl/snVAFG. A 2014 report from the Department of Homeland

5 Security listed Seattle and other municipalities in Washington as refusing to comply with ICE

6 detainer requests. Dep’t of Homeland Security, Declined Detainer Outcome Report 23-25 (Oct. 8,

7 2014), https://goo.gl/FvCIFW. A 2006 report from the Congressional Research Service identified

8 Seattle as a jurisdiction with a “sanctuary polic[y].” Lisa M. Seghetti et al., Enforcing Immigration

9 Law: The Role of State and Local Law Enforcement, Cong. Res. Serv. 26 n.8 (Aug. 14, 2006),

10 https://goo.gl/mY7W5K.

11

143. As one journalist recently noted, “Seattle will almost certainly be on [the Attorney

12 General’s] list” for punitive action, given that Seattle has “prohibited city employees, including

13 police, from inquiring about someone’s immigration status” since 2003, and that Seattle has

14 “roundly condemned the executive order” issued by Defendant Trump. Casey Jaywork, Trump

15 Orders Funding Cuts to Sanctuary Cities, Promising a Showdown with Seattle, Seattle Weekly

16 (Jan. 25, 2017, 1:35 PM), https://goo.gl/ELGxaq; see also David Kroman, As Trump Targets

17 ‘Sanctuary Cities,’ Seattle Plans Budget Cuts, Crosscut (Jan. 25, 2017), https://goo.gl/SrxvzO

18 (“Seattle is a prime target.”).

19

144. Federal government agencies have designated Oregon counties as jurisdictions that

20 fail to comply with federal requests for assistance in enforcing immigration laws. Most recently,

21 Washington County, Oregon was identified in the Weekly Declined Detainer Outcome Report

22 issued for the week of February 4 through February 10, 2017, as a county that does not routinely

23 comply with ICE detainer requests. Dep’t of Homeland Security, Weekly Declined Detainer

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 34
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 35 of 48

1 Outcome Report, supra. A 2014 report from the Department of Homeland Security listed nineteen

2 Oregon counties, including all three counties in which the City of Portland is located, as refusing

3 to comply with ICE detainer requests. Dep’t of Homeland Security, Declined Detainer Outcome

4 Report, supra. A 2006 report from the Congressional Research Service also identified Oregon as

5 one of only two states with “statewide policies regarding providing sanctuary for unauthorized

6 aliens.” Seghetti et al., supra, at 26 n.8. That report noted that “Oregon [law] prohibits state and

7 local law enforcement agencies from using agency moneys, equipment or personnel for the

8 purpose of detecting or apprehending foreign citizens based on violation of federal immigration

9 law.” Id.

10

145. Indeed, the Department of Homeland Security recently released “its first report

11 listing jurisdictions that refuse cooperation with federal immigration authorities—a step designed

12 to put public pressure on sanctuary cities.” Rafael Bernal & Mike Lillis, Trump Moves Sanctuary

13 City Fight to Front Burner, The Hill, Mar. 22, 2017, https://goo.gl/fjkNvl. That report lists several

14 counties associated with the Seattle and Portland metropolitan areas. See Enforcement and

15 Removal Operations: Weekly Declined Detainer Report, U.S. Immig. & Customs Enforcement

16 29-31, https://goo.gl/1DCsWd.

17

146. Both Seattle and Portland are therefore likely to be subjected to punitive action by

18 Defendants.

19 XIII. THE EXECUTIVE ORDER IS CAUSING IMMEDIATE HARM TO PLAINTIFFS

20

147. The imminent threat that the Executive Order poses to Plaintiffs’ federal funding is

21 having a current impact on their budget processes and operations.

22

148. Seattle’s fiscal year for 2017 began on January 1, and the budget process for 2018

23 is already underway. On March 10, the Mayor and the City Budget Office sent instructions and

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 35
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 36 of 48

1 guidance to city departments about the upcoming budget process. Those same departments were

2 required to submit budget memoranda for review and guidance by April 5. The multi-step budget

3 process will continue throughout the summer, with each step of the process dependent on the

4 materials and plans prepared at the prior steps.

5

149. After receiving departments’ budget memoranda, on May 1 the Mayor and the

6 budget office provide guidance for departments to complete their budget submittals, which were

7 due on June 1, with remaining capital budget work due to the budget office by July 1. Additional

8 work in July and August leads to the delivery of a proposed budget to the City Council by

9 September 25, with Council action expected on November 20.

10

150. Portland faces a distinct challenge. Portland’s 2017-18 fiscal year will begin on

11 July 1, 2017, and the budget process for that fiscal year is all but complete. City Bureaus submitted

12 their formal Requested Budgets on January 30, 2017, the City Council held work sessions on those

13 Requested Budgets between March 13 and March 31, 2017, and public hearings on those

14 Requested Budgets took place April 11 and 18, 2017. The Mayor was required to release his

15 Proposed Budget for the City on May 8, 2017. The City Council adopted the city’s annual budget

16 on June 8, 2017 through Ordinance No. 188445. Thus, the City of Portland has made fiscal

17 decisions impacting city residents from July 1, 2017 through June 30, 2018, on the expectation of

18 receiving certain federal funds.

19

151. Portland’s 2018-19 budget process will begin in a matter of months.

20

152. The Executive Order creates irresolvable uncertainty surrounding whether federal

21 funds that currently benefit all of Plaintiffs’ residents will be cut off if the cities are deemed to be

22 “sanctuary jurisdictions.”

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 36
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 37 of 48

1

153. Such uncertainty has a substantial and immediate impact on Seattle’s budget

2 process, as each of the steps described above is dependent on accurate forecasting of available

3 sources of funds. Should federal funding be cut off, the entire budget process would be thrown

4 into disarray given Seattle’s reliance on over $50 million in federal funds for its operating budget

5 and millions more to help fund capital projects.

6

154. This same uncertainty has also had a substantial and immediate impact on

7 Portland’s budget process, as each of the budgeting steps outlined above depends on accurate

8 forecasting of available funding sources. Should Portland’s federal funding be cut off, the entire

9 budget process would be thrown in disarray given Portland’s reliance on approximately $40

10 million in federal funds in each fiscal year.

11

XIV. THE EXECUTIVE ORDER IS UNCONSTITUTIONAL

12

155. The Executive Order has several characteristics that render it unconstitutional as a

13 general matter and that make its application to Seattle or Portland constitutionally impermissible.

14

156. First, given the breadth of the Executive Order’s reading of Section 1373 and the

15 expansive terms of the Order, it appears that the Order is designed to punish municipalities like

16 Plaintiffs for not actively assisting the federal government in its enforcement of the immigration

17 laws—and, by doing so, to coerce those municipalities into providing such assistance. This attempt

18 to compel a state or local government to assist in the enforcement of federal law is precluded by

19 the “anti-commandeering principle” of the Tenth Amendment.

20

157. Forbidden “commandeering” occurs when the federal government “require[s] the

21 States in their sovereign capacity to regulate their own citizens.” Reno v. Condon, 528 U.S. 141,

22 151 (2000). The Supreme Court has made clear that, under the Tenth Amendment, “[t]he Federal

23 Government may neither issue directives requiring the States to address particular problems, nor

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 37
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 38 of 48

1 command the States’ officers, or those of their political subdivisions, to administer or enforce a

2 federal regulatory program.” Printz v. United States, 521 U.S. 898, 935 (1997).

3

158. The Executive Order issues just such commands to “sanctuary jurisdictions.” It

4 demands compliance with Section 1373, a statute that directs local governments to permit their

5 employees to communicate with the federal government regarding the immigration status of their

6 residents, and thereby interferes with how those governments direct and control the actions of their

7 employees and officials. Cf., e.g., Nevada v. Hicks, 533 U.S. 353, 365 (2001) (“[A] State can act

8 only through its officers and agents.”); Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (“Through

9 the structure of its government, and the character of those who exercise government authority, a

10 State defines itself as a sovereign.”). Federal authorities, moreover, have given Section 1373 an

11 even broader reading. Plaintiffs maintain that they comply with Section 1373. But wholly apart

12 from whether Section 1373 is itself constitutional and enforceable, the Executive Order, by

13 imposing draconian punishments on noncompliance with that statute in an effort to force state and

14 local officials to assist in federal law enforcement, plainly is not.

15

159. Under Section 1373(a), local governments may not prevent employees from

16 sharing information, even though that “information … belongs to the State and is available to the[]

17 [employees] only in their official capacity,” including via “databases and records that only state

18 officials have access too.” Printz, 521 U.S. at 932 n.17.

19

160. Section 1373(a) sweeps broadly to “any government entity or official,” and so

20 covers local employees who perform a number of core functions with respect to local governance.

21

161. For example, many of the employees covered by Section 1373(a) are police

22 officers, who “fulfill[] a most fundamental obligation of government to its constituency” and

23 “affect[] members of the public significantly and often in the most sensitive areas of daily life.”

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 38
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 39 of 48

1 Foley v. Connelie, 435 U.S. 291, 297 (1978). Under Section 1373(a), local governments must

2 permit police officers who come across immigration information in the course of their duties to

3 relay such information to the federal government.

4

162. Moreover, it appears that the Executive Order purports to impose obligations upon

5 state and local governments that go well beyond those stated in the plain terms of Section 1373.

6 Even prior to issuance of the Executive Order, the federal Executive Branch read duties into the

7 statute that do not appear in its text, including the requirement that state and local employees be

8 instructed on their entitlement to direct immigration information to federal authorities. Indeed,

9 “[t]he Executive Order uses coercive means in an attempt to force states and local jurisdictions to

10 honor civil detainer requests, which are voluntary ‘requests’ precisely because the federal

11 government cannot command states to comply with them under the Tenth Amendment.” County

12 of Santa Clara, 2017 WL 1459081, at *24. And the Executive Order goes further yet, providing

13 in Section 9(a) that the Attorney General “shall” take action against any entity that “has in effect

14 a statute, policy, or practice that prevents or hinders the enforcement of Federal law.” Because a

15 policy that fails to provide affirmative support for the enforcement of federal immigration law

16 could well be said to “hinder the enforcement” of that law, this requirement of the Executive Order

17 appears to impose extensive affirmative obligations on state and local officials.

18

163. By punishing noncompliance with Section 1373(a) and other elements of federal

19 law, the Executive Order forces local governments to allow their employees to eschew their

20 essential duties in favor of carrying out the policies of the federal government. Under this regime,

21 “[t]he power of the Federal Government” is “augmented immeasurably” because it can “impress

22 into its service—and at no cost to itself—the police officers of the 50 States,” as well as other State

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 39
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 40 of 48

1 and local officials, for the purpose of enforcing the federal immigration laws. Printz, 521 U.S. at

2 922.

3

164. By forcing localities to “absorb the financial burden of implementing” federal

4 immigration law through the Executive Order’s effectuation of Section 1373(a), the President and

5 “Members of Congress can take credit for ‘solving’ problems without having to ask their

6 constituents to pay for the solutions with higher federal taxes.” Printz, 521 U.S. at 930.

7

165. The Executive Order also leaves local governments “in the position of taking the

8 blame” (Printz, 521 U.S. at 930) for any action the federal government takes based on information

9 provided by local officials, including deportations of local residents and immigration enforcement

10 raids. Local governments will likewise be blamed for failing to provide social services to local

11 residents who fear that contacting municipal officials will expose them to immigration authorities.

12 Under the Tenth Amendment, the federal government may not impose such burdens on state and

13 local authorities.

14

166. In this regard, it is irrelevant that the Executive Order and Section 1373 are

15 premised on the federal government’s power over immigration. “No matter how powerful the

16 federal interest involved, the Constitution simply does not give Congress the authority to require

17 the States to regulate.” New York v. United States, 505 U.S. 144, 178 (1992).

18

167. Second, and separately, the Executive Order violates the restrictions on federal

19 authority imposed by the U.S. Constitution’s Spending Clause.

20

168. When conditions on the payment to state or local governments of specific federal

21 funds “take the form of threats to terminate other significant independent grants, the conditions are

22 properly viewed as a means of pressuring the States to accept policy changes.” Nat’l Fed. of Indep.

23 Bus. v. Sebelius, 132 S. Ct. 2566, 2604 (2012). “States [and local jurisdictions] must have a

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 40
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 41 of 48

1 ‘legitimate choice whether to accept the federal conditions in exchange for federal funds.’” County

2 of Santa Clara, 2017 WL 1459081, at *23 (quoting NFIB, 132 S. Ct. at 2602-03). Here, the

3 Executive Order’s funding termination requirement, which threatens to terminate virtually all

4 federal funding for “sanctuary jurisdictions,” is specifically imposed for just that purpose. And in

5 doing so, it imposes a condition so severe that it “crosse[s] the line distinguishing encouragement

6 from coercion.” NFIB, 132 S. Ct. at 2603. Given the centrality of federal funding to the day-to-

7 day functioning of virtually all municipalities, including Seattle and Portland, such a condition “is

8 much more than ‘relatively mild encouragement’—it is a gun to the head.” Id. at 2604. A threat of

9 this sort constitutes “economic dragooning that leaves the States with no real option but to

10 acquiesce” to the federal requirement. Id. at 2605.

11

169. Even setting aside the coerciveness of its threat to strip “sanctuary jurisdictions” of

12 all federal grants, the Executive Order also purports to strip federal funding from local

13 governments even when that funding is unrelated to federal immigration law. The Executive Order

14 therefore violates the Spending Clause requirement that conditions on federal grants to state and

15 local governments must be “[]related ‘to the federal interest in particular national projects or

16 programs’” that are the subject of the withheld grant. South Dakota v. Dole, 483 U.S. 203, 207

17 (1987).

18

170. Third, likely because the Executive Order was drafted in extraordinary haste and,

19 most unusually, without any involvement by the responsible Cabinet departments, the Order is

20 fatally ambiguous. It uses terms that are vague and not defined, does not spell out the particular

21 enforcement objectives of the Secretary and Attorney General, and does not describe in an

22 intelligible manner the federal Executive Branch’s understanding of the requirements purportedly

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 41
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 42 of 48

1 imposed by Section 1373. The Executive Order therefore does not inform municipalities like

2 Seattle and Portland of the consequences if they engage in given “sanctuary” policies.

3

171. The Spending Clause precludes the enforcement of funding conditions of this sort.

4 It is settled that, “if Congress intends to impose a condition on the grant of federal moneys, it must

5 do so unambiguously.” Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 17 (1981);

6 see Dole, 483 U.S. at 207. This is because “[t]he legitimacy of Congress’ power to legislate under

7 the spending power … rests on whether the State voluntarily and knowingly accepts” the federal

8 conditions. Pennhurst, 451 U.S. at 17. “There can, of course, be no knowing acceptance if a State

9 is unaware of the conditions or is unable to ascertain what is expected of it.” Id.

10

172. Here, neither the plain terms of Section 1373 itself, nor the additional requirements

11 stated by the Executive Order and the Sessions Memorandum, adequately informed Seattle or

12 Portland, at the time they engaged in the relevant conduct, of the new and greatly expanded

13 conditions that the Executive Order now purports to impose on the receipt of federal funds. Put

14 simply, “[t]he Order gives the [Cities] no clear guidance on how to comply with its provisions or

15 what penalties will result from non-compliance.” County of Santa Clara, 2017 WL 1459081, at

16 *25. Such conditions may not constitutionally be enforced.

17

173. And fourth, the Executive Order violates the constitutional separation of powers.

18

174. Because the President is required to “take Care that the Law be faithfully executed,”

19 U.S. Const. art. II, § 3, cl. 5, the President has no authority to withhold funds that Congress has

20 allocated to the States and their political subdivisions. Indeed, Congress has placed restrictions on

21 the President’s authority to impound federal funds. See Impoundment Control Act of 1974, 2

22 U.S.C. §§ 683 et seq.

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 42
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 43 of 48

1

175. Here, the President’s power is “at its lowest ebb,” Youngstown Sheet & Tube Co. v.

2 Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring), given Congress’s repeated refusal to

3 enact legislation that would authorize the President to withhold federal funds from sanctuary

4 jurisdictions. See, e.g., Ending Sanctuary Cities Act of 2016, H.R. 6252, 114th Cong. (2016); Stop

5 Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. (2016). Section 1373 does not authorize

6 the restrictions on federal funds embodied in the Executive Order.

7

176. The Executive Order is therefore an unconstitutional attempt by the President to

8 wield Congress’s exclusive spending power. See County of Santa Clara, 2017 WL 1459081, at

9 *21-22.

10

CAUSES OF ACTION

11

XV. COUNT ONE

12

Declaratory Judgment That Seattle and Portland Comply With 8 U.S.C. § 1373

13

177. Plaintiffs repeat and incorporate by reference each allegation that appears in

14 Paragraphs 1-176 above.

15

178. Plaintiffs allege that they comply with Section 1373 because that statute does not

16 impose an affirmative obligation to collect the citizenship and immigration data of a municipality’s

17 residents, or to provide such data to federal officials.

18

179. Defendants contend that Plaintiffs do not comply with Section 1373.

19

180. An actual controversy exists between Plaintiffs and Defendants about the scope of

20 Section 1373 and Plaintiffs’ compliance with that statute.

21

181. A judicial determination resolving this controversy is necessary and appropriate at

22 this time.

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 43
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 44 of 48

1

XVI. COUNT TWO

2 The Executive Order Violates The Tenth Amendment’s Anti-Commandeering Rule

3

182. Plaintiffs repeat and incorporate by reference each allegation that appears in

4 Paragraphs 1-181 above.

5

183. To the extent that the Executive Order imposes affirmative duties on state and local

6 officials beyond those prescribed in Section 1373, or to the extent that Section 1373 is thought to

7 impose such affirmative duties and the Executive Order penalizes Plaintiffs for failing to perform

8 those duties, the Order is unconstitutional under the Tenth Amendment’s anti-commandeering

9 principle. The Supreme Court has made clear that “[t]he Federal Government may neither issue

10 directives requiring the States to address particular problems, nor command the States’ officers, or

11 those of their political subdivisions, to administer or enforce a federal regulatory program.” Printz,

12 521 U.S. at 935. On its face and as applied, the Executive Order does just that.

13

XVII. COUNT THREE

14

The Executive Order Violates The Spending Clause

15

184. Plaintiffs repeat and incorporate by reference each allegation that appears in

16 Paragraphs 1-183 above.

17

185. The Executive Order purports to deny “sanctuary jurisdictions” all federal grants.

18 Such an extreme penalty as a consequence of the “sanctuary jurisdiction” designation is

19 unconstitutionally coercive under NFIB, 132 S. Ct. at 2604.

20

186. Even setting aside the coerciveness of its threat to strip sanctuary cities of all federal

21 grants, the Executive Order is unconstitutional under the Spending Clause for placing conditions

22 on the receipt of federal funds that are not “[]related to the federal interest in particular national

23 projects or programs” paid for by those funds. South Dakota v. Dole, 483 U.S. at 207.

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 44
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 45 of 48

1

187. Moreover, neither Section 1373 nor the Executive Order provides adequately

2 unambiguous notice to municipalities of the conditions that the federal Executive Branch now

3 would attach to the receipt of federal funds. Such conditions may not constitutionally be enforced.

4

XVIII. COUNT FOUR

5

The Executive Order Violates the Separation of Powers

6

188. Plaintiffs repeat and incorporate by reference each allegation that appears in

7 Paragraphs 1-187 above.

8

189. To the extent the Executive Order authorizes the withholding of federal funds

9 without express statutory authorization, the President has failed to “take Care” that the laws be

10 faithfully executive and has unconstitutionally usurped Congress’s exclusive power over spending.

11 U.S. Const., art. II, § 3, cl. 5.

12

XIX. REQUEST FOR RELIEF

13

WHEREFORE, Plaintiffs pray that this Court:

14

1. Declare that Seattle and Portland are in compliance with 8 U.S.C. § 1373;

15

2. Declare that Seattle and Portland are not “sanctuary jurisdictions” as defined in the

16 Executive Order;

17

3. Declare that Section 9 of the Executive Order is unconstitutional on its face and as

18 applied to Seattle and Portland, under the Tenth Amendment, the Spending Clause, and the

19 separation of powers principles embodied in the United States Constitution;

20

4. Award Seattle and Portland their costs in this action, including their reasonable

21 attorneys’ fees incurred; and

22

5. Award such other relief as the Court deems just and proper.

23

DATED this 26th day of June, 2017.

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 45
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 46 of 48

1

PETER S. HOLMES

Seattle City Attorney

2 By: /s/ Carlton W.M. Seu

3

Peter S. Holmes, WSBA #15787

Seattle City Attorney

4

Gregory C. Narver, WSBA #18127

Assistant City Attorney

5

Carlton W.M. Seu, WSBA #26830

Assistant City Attorney

6

Michael K. Ryan, WSBA #32091

Assistant City Attorney

7

Gary T. Smith, WSBA #29718

Assistant City Attorney

8

SEATTLE CITY ATTORNEY’S OFFICE

701 Fifth Avenue, Suite 2050

9

Seattle, WA 98104

Phone: (206) 684-8207

10

Fax: (206) 684-8284

11

Attorneys for the City of Seattle, Washington

12

Tracy Reeve, OSB # 891123 (pro hac vice pending)

Portland City Attorney

13

Denis Vannier, OSB # 044406 (pro hac vice pending)

Deputy City Attorney

14

PORTLAND CITY ATTORNEY’S OFFICE

430 City Hall

15

1221 SW Fourth Avenue

Portland, OR 97204

16

Phone: (503) 823-4047

Fax: (503) 823-3089

17 Attorneys for the City of Portland, Oregon

18 Andrew J. Pincus (admitted pro hac vice)

19

Charles A. Rothfeld (admitted pro hac vice)

Ori Lev (admitted pro hac vice)

20

Travis Crum (admitted pro hac vice)

John T. Lewis (admitted pro hac vice)

21

Joshua M. Silverstein (admitted pro hac vice)

MAYER BROWN LLP

22

1999 K Street, NW

Washington, D.C. 20006

23

Phone: (202) 263-3000

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 46
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 47 of 48

1

Fax: (202) 263-3300

2

Attorneys for Plaintiffs

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 47
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

Case 2:17-cv-00497-RAJ Document 27 Filed 06/26/17 Page 48 of 48

1

CERTIFICATE OF SERVICE

2

I hereby certify that on this 26th day of June, 2017, I electronically filed this First Amended

3 Complaint for Declaratory Relief with the Clerk of the Court using the CM/ECF system which

4 will send notification of such filing to all counsel of record.

5

DATED this 26th day of June, 2017, at Seattle, Washington.

6

7

By: /s/ Carlton W.M. Seu

Carlton W.M. Seu, WSBA #26830

8

carlton.seu@seattle.gov

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF - 48
17-CV-00497RAJ

PETER S. HOLMES
Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 (206) 684-8200

 
 Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 1 of 32

1

Honorable Richard A. Jones

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10 CITY OF SEATTLE et al.,

11 Plaintiffs,

12

v.

13 DONALD J. TRUMP et al.,

14

Defendants.

15

No. 17-cv-00497RAJ
DEFENDANTS’ MOTION TO DISMISS THE FIRST AMENDED COMPLAINT
NOTE ON MOTION CALENDAR: August 4, 2017

16

DEFENDANTS’ MOTION TO DISMISS

17

PLAINTIFFS’ FIRST AMENDED COMPLAINT

18

19

20

21

22

23

24

25

26

27

28 Defs.’ Mot. to Dismiss First Am. Compl.
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 2 of 32

1

Table of Contents

2 INTRODUCTION ........................................................................................................................... 1

3 LEGAL OVERVIEW ...................................................................................................................... 4

4

I. The Executive Enjoys Broad Discretion in Enforcement of Immigration Law................... 4

5

II. Executive Order 13,768 ....................................................................................................... 5

III. The AG Memorandum ......................................................................................................... 7 6
PROCEDURAL BACKGROUND .................................................................................................. 8

7 LEGAL STANDARD ...................................................................................................................... 9

8 ARGUMENT ................................................................................................................................. 10

9 I. The Court Lacks Jurisdiction to Consider the Cities’ Claims............................................ 10

10

A. The Cities’ Claims Are Not Ripe for Judicial Review.............................................. 10

11

1. The Cities Have Not Alleged a Genuine Threat of Imminent Enforcement. .... 12

2. The Cities’ Claims Are Not Fit for Judicial Review. ........................................ 13 12

3. The Cities Fail to Establish Sufficient Harm Under the Ripeness

13

Inquiry. .............................................................................................................. 14

14

B. The Cities Fail to Demonstrate An Injury Sufficient to Confer Standing. ............... 15

15 II. The Cities Fail to State a Claim for Declaratory Relief Under Section 1373. ................... 16

16

III. The Cities Fail to State a Viable Tenth Amendment Claim............................................... 18

IV. The Cities Fail to State a Viable Claim that the Order Exceeds the

17

Spending Power .............................................................................................................. 21

18

IV. The Cities Fail to State a Viable Claim Under the Take Care Clause ............................... 24

19 CONCLUSION .............................................................................................................................. 24

20

21

22

23

24

25

26

27

28 Defs.’ Mot. to Dismiss First Am. Compl - i
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 3 of 32

1

Table of Authorities

2 Cases
3 Abbott Labs. v. Gardner,
4 387 U.S. 136 (1967)......................................................................................................... 2, 11, 14

5 Alexander v. Sandoval, 532 U.S. 275 (2001)................................................................................................................... 16
6
Arizona Dream Act Coal. v. Brewer, 7 ___ F.3d ___, No. 15-15307, 2017 WL 461503 (9th Cir. Feb. 2, 2017) ..................................... 4

8 Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492 (2012).......................................................................................... 4
9
Ashcroft v. Iqbal, 10 556 U.S. 662 (2009)............................................................................................................. 10, 18

11 Baker v. Carr, 369 U.S. 186 (1962)................................................................................................................... 24
12
Bldg. & Constr. Trades Dep’t, AFL-CIO v. Allbaugh, 13 295 F.3d 28 (D.C. Cir. 2002)....................................................................................................... 6

14 Bova v. City of Medford, 564 F.3d 1093 (9th Cir. 2009) ............................................................................................. 10, 15
15
Chen v. Schiltgen, 16 No. C-94-4094 MHP, 1995 WL 317023 (N.D. Cal. May 19, 1995) ......................................... 19

17 Cty. of Santa Clara v. Trump, No. 17-CV-00485-WHO, 2017 WL 1459081 (N.D. Cal. Apr. 25, 2017) ................................... 7
18
Fowler Packing Co., Inc. v. Lanier, 19 844 F.3d 809 (9th Cir. 2016) ..................................................................................................... 10

20 Golden v. Zwickler, 394 U.S. 103 (1969)................................................................................................................... 16
21
Herrera-Castanola v. Holder, 22 528 F. App'x 721 (9th Cir. 2013)............................................................................................... 17

23 Hummel v. Nw. Tr. Servs., Inc., 180 F. Supp. 3d 798 (W.D. Wash. 2016)................................................................................... 17
24
Legal Aid Soc’y of Alameda County v. Brennan, 25 608 F.2d 1319 (9th Cir.1979) .................................................................................................... 19

26 Lopez v. Candaele, 630 F.3d 775 (9th Cir. 2010) ..................................................................................................... 16
27

28 Defs.’ Mot. to Dismiss First Am. Compl - ii
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 4 of 32

1 Love v. United States,
915 F.2d 1242 (9th Cir. 1989) ................................................................................................... 10 2
Lujan v. Defenders of Wildlife, 3 504 U.S. 555 (1992)............................................................................................................... 9, 24

4 Mayweathers v. Newland,
314 F.3d 1062 (9th Cir. 2002) ................................................................................................... 23 5
Mississippi v. Johnson, 6 71 U.S. (4 Wall.) 475 (1866) ..................................................................................................... 24

7 Nat’l Fed’n of Indep. Bus. v. Sebelius,
132 S. Ct. 2566 (2012)............................................................................................................... 23 8
Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 9 538 U.S. 803 (2003)................................................................................................................... 14

10 Portland Police Ass’n v. City of Portland, By & Through Bureau of Police,
658 F.2d 1272 (9th Cir. 1981) ................................................................................................... 14 11
Portman v. County of Santa Clara, 12 995 F.2d 898 (9th Cir. 1993) ..................................................................................................... 11

13 Renne v. Geary,
501 U.S. 312 (1991)..................................................................................................................... 9 14
Reno v. Catholic Soc. Servs., Inc., 15 509 U.S. 43 (1993)..................................................................................................................... 11

16 S. Dakota v. Dole,
483 U.S. 203 (1987)............................................................................................................. 21, 22 17
Standard Alaska Prod. Co. v. Schaible, 18 874 F.2d 624 (9th Cir. 1989) ..................................................................................................... 12

19 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)................................................................................................................. 9, 15
20 Tenaska Washington Partners II, L.P. v. United States,
21 34 Fed. Cl. 434 (1995) ................................................................................................................. 7

22 Texas v. United States, 523 U.S. 296 (1998)....................................................................................................... 10, 11, 13
23 Thomas v. Anchorage Equal Rights Comm’n,
24 220 F.3d 1134 (9th Cir. 2000) ....................................................................................... 11, 12, 13

25 United States v. Guzman-Padilla, 573 F.3d 865 (9th Cir. 2009) ..................................................................................................... 18
26 United States v. Pickard,
27 100 F. Supp. 3d 981 (E.D. Cal. 2015) ....................................................................................... 20

28 Defs.’ Mot. to Dismiss First Am. Compl - iii
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 5 of 32

1 United States v. Salerno,
481 U.S. 739 (1987)................................................................................................... 3, 18, 20, 21 2
Virgin v. County of San Luis Obispo, 3 201 F.3d 1141 (9th Cir. 2000) ................................................................................................... 17

4 Warth v. Seldin,
422 U.S. 490 (1975)................................................................................................................... 10 5
Wash. State Grange v. Wash. State Republican Party, 6 552 U.S. 442 (2008)................................................................................................................... 20

7 Westlands Water Dist. Distribution Dist. v. Nat. Res. Def. Council, Inc.,
276 F. Supp. 2d 1046 (E.D. Cal. 2003) ..................................................................................... 17 8
Whitmore v. Arkansas, 9 495 U.S. 149 (1990)......................................................................................................... 2, 10, 15

10 Winter v. Cal. Med. Review, Inc.,
900 F.2d 1322 (9th Cir. 1989) ............................................................................................. 12, 14 11
Wolfson v. Brammer, 12 616 F.3d 1045 (9th Cir. 2010) ................................................................................................... 12

13 Statutes

14 8 U.S.C. § 1101 ................................................................................................................................ 4

15 8 U.S.C. § 1103(c)(1) ....................................................................................................................... 7

16 8 U.S.C. § 1373 ....................................................................................................................... passim

17 8 U.S.C. § 1373(a) ........................................................................................................................... 4

18 28 U.S.C. § 512 ................................................................................................................................ 7

19 28 U.S.C. § 1331 ............................................................................................................................ 17

20 28 U.S.C. § 1346 ............................................................................................................................ 17

21 28 U.S.C. §§ 2201-2202................................................................................................................. 17

22 U.S. Const. art. I............................................................................................................................. 22

23 U.S. Const. art. II ............................................................................................................................. 3

24 U.S. Const. art. III ............................................................................................................................ 9

25 Regulations 26 28 C.F.R. § 0.5(c)............................................................................................................................. 7 27

28 Defs.’ Mot. to Dismiss First Am. Compl - iv
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 6 of 32

1 Other Authorities

2 Declined Detainer Outcome Report FAQs, available at https://www.ice.gov/declined-detaineroutcome-report........................................................................................................................... 13
3 Exec. Order 13,536, 76 Fed. Reg. 3,821 (Jan. 18, 2011) ................................................................. 6
4 Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................. passim
5 Exec. Order No. 13,608, 77 Fed. Reg. 26,409 (2012) ..................................................................... 4
6 Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (2016) ..................................................................... 4
7 Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the Office of
8 Legal Counsel, 52 Admin. L. Rev. 1303 (2000) ................................................................. 7, 8, 9

9 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
10 Violations of 8 U.S.C. § 1373 by Grant Recipients (May 31, 2016), available at https://oig.justice.gov/reports/2016/1607.pdf...........................................................5
11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 Defs.’ Mot. to Dismiss First Am. Compl - v
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 7 of 32

1

INTRODUCTION

2

On January 25, 2017, the President signed Executive Order 13,768 for the declared

3 purpose of “direct[ing] executive departments and agencies . . . to employ all lawful means to
4 enforce the immigration laws of the United States.” See Exec. Order No. 13,768, § 1, 82 Fed.
5
6 Reg. 8,799-8,803 (Jan. 30, 2017). Section 9(a) of the Order, which is the subject of this litigation,

7 establishes a policy of ensuring that state and local jurisdictions comply with 8 U.S.C. § 1373.

8 Id. § 9(a). Section 1373 provides, inter alia, that no government entity or official may prohibit or

9 restrict the sending or receiving of information regarding the citizenship or immigration status of
10 any individual to federal immigration authorities. 8 U.S.C. § 1373. 11
The Executive Order is a presidential directive, directed to the Attorney General, the 12
Secretary of Homeland Security (the “Secretary”), and other federal officials. Pursuant to the 13 14 plain language of Section 9(a) of the Order, and as conclusively established through subsequent
15 guidance issued by the Attorney General, the Order does not purport to alter the existing

16 requirements of Section 1373 (or any other federal law), impose new or retroactive burdens on

17 state or local jurisdictions, or expand the legal authority of the Secretary or the Attorney General.
18 See generally Mem. from Att’y Gen. to Dep’t of Justice Grant-Making Components, 19
Implementation of Executive Order 13768 (May 22, 2017) (“AG Memorandum”) (attached hereto 20
as Exhibit 1). Rather, the Executive Order announces the policy of the Executive Branch and 21
22 directs the Secretary and Attorney General, in their discretion and consistent with their existing

23 legal authority, to ensure that jurisdictions that willfully refuse to comply with Section 1373 not

24 be eligible to receive federal grants, except as deemed necessary for law enforcement purposes.

25 Id.; see also Exec. Order No. 13,768, § 9(a).

26 Section 9(a) of the Executive Order is not self-executing, and defendants have taken no

27

action against the City of Seattle or the City of Portland (the “Cities”) under that section.

28 Defs.’ Mot. to Dismiss First Am. Compl. - 1

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 8 of 32

1 Nevertheless, the Cities filed the instant lawsuit seeking declaratory and injunctive relief to

2 prevent defendants from taking hypothetical future actions pursuant to that authority. The Cities’
3 lawsuit is premature. The Cities concede that they have not been the subject of any adverse
4 action, the Secretary has not designated them as “sanctuary jurisdictions” in accordance with the
5 6 process contemplated in Section 9(a) of the Order, and the Cities affirmatively state that they
7 comply with the requirements of Section 1373.

8

The Cities cannot show any injury due to the mere existence of the Executive Order, much

9 less establish the “concrete” and “palpable” injury needed to meet the constitutional requirement
10 of standing. Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). Moreover, because defendants 11
have taken no action against the Cities under the Executive Order, “its effects [have not been] felt 12
in a concrete way,” rendering the Cities’ pre-enforcement challenge subject to dismissal under the 13 14 ripeness doctrine. See Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967), abrogated on other
15 grounds, Califano v. Sanders, 430 U.S. 99, 97 (1977). The Cities’ First Amended Complaint is

16 based on speculation concerning the Order’s scope, assumptions about the manner in which the

17 Secretary and Attorney General might interpret and implement the Order’s provisions, and
18 conjecture concerning the possibility that the Cities might one day be designated as “sanctuary 19
jurisdictions” pursuant to the Order and might lose all federal grant funding as a result. Such 20
speculative assertions fall short of demonstrating concrete injury. Indeed, the AG Memorandum 21
22 disproves many of the assumptions underlying the Cities’ claims – such as the Cities’ contention

23 that the Executive Order seeks to terminate all federal funding to sanctuary jurisdictions.

24 Compare First Am. Compl. (“FAC”) ¶ 74 (ECF No. 27), with AG Mem. at 1-2. The Supreme

25 Court has made clear that the ripeness doctrine exists to prevent courts from issuing decisions

26 based on hypothetical circumstances – like those alleged in the FAC – that might not occur as

27 anticipated or might not occur at all.
28 Defs.’ Mot. to Dismiss First Am. Compl.- 2

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 9 of 32

1

Additionally, the Cities have failed to state claims on which relief can be granted for

2 general declaratory relief or under the Tenth Amendment to the Constitution, the Spending
3 Clause, or the Take Care Clause. The Cities’ request for a declaration regarding their compliance
4 with Section 1373 fails because they identify no cause of action authorizing such relief, and
5 6 because issuance of that relief would require the Court to render an advisory opinion. Their facial
7 Tenth Amendment challenge fails because (1) it is based on a misinterpretation of the Executive

8 Order; (2) such a claim cannot be sustained against an Executive Order that merely implements

9 executive policy and does not carry the force of law; and (3) the Cities cannot establish that “no

10 set of circumstances exists under which [the challenged provisions] would be valid.” United
11 States v. Salerno, 481 U.S. 739, 745 (1987). The Cities’ Spending Clause claim similarly rests on
12 a misinterpretation of the Executive Order, and their Take Care Clause claim fails because the
13
14 Cities cannot identify a cause of action that authorizes the relief they seek.

15

The Executive Order does not alter or expand the existing law that governs when the

16 Federal Government may impose or enforce conditions on federal grant programming. Instead,

17 the President – pursuant to his express constitutional authority to ensure that federal agencies
18 “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3 – has directed agency 19
heads to utilize their existing legal authorities “to the extent consistent with law,” see Exec. Order 20
No. 13,768, § 9, in connection with local violations of Section 1373. In other words, the 21
22 Executive Order does nothing more than set policy priorities and direct certain Executive Branch

23 officials to implement those priorities through the enforcement of preexisting legal authority. The

24 Cities’ conjecture to the contrary does not satisfy their burden of establishing the justiciability or

25 viability of their claims; accordingly, the Court should dismiss the FAC pursuant to Rules
26 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
27

28 Defs.’ Mot. to Dismiss First Am. Compl.- 3
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 10 of 32

1

LEGAL OVERVIEW

2 I.

The Executive Enjoys Broad Discretion in Enforcement of Immigration Law.

3 “The Government of the United States has broad, undoubted power over the subject of
4 immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492,
5
6 2497 (2012). Through the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq.,

7 Congress granted the Executive significant authority to control the entry, movement, and other

8 conduct of foreign nationals in the United States. Under the INA, the Department of Homeland

9 Security (“DHS”), the Department of Justice (“DOJ”), and other federal agencies administer and
10 enforce the immigration laws. The INA permits the Executive to exercise “very broad discretion” 11
to direct enforcement pursuant to federal policy objectives. See Arizona Dream Act Coal. v. 12
Brewer, ___ F.3d ___, No. 15-15307, 2017 WL 461503, at *9-10 (9th Cir. Feb. 2, 2017). Several 13 14 Presidents have exercised this discretion by Executive Order, and they have done so in differing
15 ways, reflecting their judgments as to how best to take care that the laws of the United States be

16 faithfully executed. See, e.g., Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (2016) (“Suspending

17 Entry Into the United States of Persons Contributing to the Situation in Libya”); Exec. Order No.
18 13,608, 77 Fed. Reg. 26,409 (2012) (“Suspending Entry Into the United States of Foreign 19
Sanctions Evaders With Respect to Iran and Syria”). 20
The INA contains a number of provisions regarding the involvement of state and local 21
22 authorities in the enforcement of immigration law. One of those provisions, 8 U.S.C. § 1373(a),

23 ensures the sharing of information between federal and state actors:

24

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

25

restrict, any government entity or official from sending to, or receiving from,

26

[federal immigration authorities] information regarding the citizenship or

immigration status, lawful or unlawful, of any individual.

27

Well before the issuance of Executive Order 13,768, the compliance of state and local

28 Defs.’ Mot. to Dismiss First Am. Compl.- 4

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 11 of 32

1 governments with Section 1373 has been of interest to federal agencies because such

2 governments are recipients of federal grants. For example, the DOJ Inspector General issued a
3 memorandum on May 31, 2016, as the Cities note (FAC ¶¶ 98-99), describing a concern that
4 several state and local governments receiving federal grants were not complying with 8 U.S.C. §
5 6 1373. See Mem. from Michael E. Horowitz, Inspector Gen., to Karol V. Mason, Assistant Att’y
7 Gen., Office of Justice Programs, Department of Justice Referral of Allegations of Potential

8 Violations of 8 U.S.C. § 1373 by Grant Recipients (May 31, 2016), available at

9 https://oig.justice.gov/reports/2016/1607.pdf. Although the Inspector General observed that
10 certain local ordinances might be inconsistent with Section 1373, id. at 4-8, the report 11
nevertheless noted that “no one at DHS . . . has made a formal legal determination whether 12
certain state and local laws or policies violate Section 1373, and we are unaware of any 13 14 Department of Justice decision in that regard.” Id. at 8 n.12.
15 II. Executive Order 13,768

16

Executive Order 13,768 seeks to “[e]nsure the faithful execution of the immigration

17 laws,” including the INA. Exec. Order 13,768 § 2(a). The Order sets forth several policies and
18 priorities regarding enforcement of federal immigration law, and it represents a dramatic 19
departure from the prior administration’s policy of non-enforcement of certain immigration 20
programs. See, e.g., id. § 10(a) (directing the Secretary to reinstitute immediately the 21
22 immigration program known as “Secure Communities”).

23

As permitted by the INA, Executive Order 13,768 establishes priorities regarding aliens

24 who are subject to removal from the United States under the immigration laws. Id. § 5. Several

25 provisions of the Order instruct officials to take actions directing future conduct, including

26 instructions to promulgate certain regulations within one year, to take “all appropriate action” to

27

hire additional immigration officers, to seek agreements with state and local officials where

28 Defs.’ Mot. to Dismiss First Am. Compl.- 5

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 12 of 32

1 appropriate, to develop a program to ensure adequate prosecution of criminal immigration

2 offenses, and to establish an office to provide certain services to victims of crimes committed by
3 removable aliens. Id. §§ 6, 7, 8, 11, 13. Throughout, the Order specifies that federal officials are
4 to take these actions as “permitted by law” or as “consistent with law.” Id. §§ 7, 8, 9(a), 10(b),
5 6 12, 14, 17, 18(b). In this respect, the Order is analogous to orders issued by past administrations
7 that have set forth specific priorities and directed federal agencies to implement those priorities,

8 “to the extent permitted by law.” See, e.g., Exec. Order 13,536, 76 Fed. Reg. 3,821-3,823 (Jan.

9 18, 2011) (reaffirming as a policy priority certain principles of contemporary regulatory review
10 and directing agencies “to the extent permitted by law” to promote those principles); see also 11
Bldg. & Constr. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28, 32-33 (D.C. Cir. 2002) 12
(holding that the President may instruct his subordinates to follow certain guidance “to the extent 13 14 permitted by law,” which means that “if an executive agency … may lawfully implement the
15 Executive Order, then it must do so; if the agency is prohibited, by statute or other law, from

16 implementing the Executive Order, then . . . the agency [must] follow the law”).

17

Section 9 of the Executive Order provides that “[i]t is the policy of the executive branch to

18 ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall

19 comply with 8 U.S.C. 1373.” Section 9(a) directs federal agencies to achieve that policy:
20

In furtherance of this policy, the Attorney General and the Secretary [of Homeland

21

Security], in their discretion and to the extent consistent with law, shall ensure that

22

jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed

23

necessary for law enforcement purposes by the Attorney General or the Secretary.

The Secretary has the authority to designate, in his discretion and to the extent

24

consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney

General shall take appropriate enforcement action against any entity that violates 8

25

U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or

26

hinders the enforcement of Federal law.

27 Id. § 9(a).

28 Defs.’ Mot. to Dismiss First Am. Compl.- 6
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 13 of 32

1 III. The AG Memorandum

2

On May 22, 2017, the Attorney General issued a memorandum that sets forth in a formal,

3 conclusive manner the administration’s interpretation of the scope of the grant-eligibility
4 provision of Section 9(a). See AG Mem. at 1-2.1 By longstanding tradition and practice, the
5
6 Attorney General’s legal opinions are treated as authoritative by the heads of executive agencies.

7 See, e.g., Tenaska Washington Partners II, L.P. v. United States, 34 Fed. Cl. 434, 439 (1995);

8 Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the Office of

9 Legal Counsel, 52 Admin. L. Rev. 1303, 1319-20 (2000). The Attorney General has a statutory
10 duty to advise executive department heads on “questions of law,” 28 U.S.C. § 512, and to furnish 11
formal legal opinions to executive agencies, 28 C.F.R. § 0.5(c). And although the Secretary 12
principally administers the immigration laws, the INA provides that “the determination and ruling 13 14 by the Attorney General with respect to all questions of law shall be controlling.” 8 U.S.C.
15 § 1103(c)(1). The AG Memorandum thus conclusively establishes the scope of Section 9(a) and

16 sets clear and consistent guidance for the applicable components of DOJ as to the parameters of

17 the grant-eligibility provision.

18

Consistent with Section 9(a)’s plain text, which is directed only to the Attorney General

19 and the Secretary, the AG Memorandum specifies that the grant-eligibility provision of Section
20

21

1 The AG Memorandum issued shortly after a Court in the United States District Court for the Northern
22 District of California entered a nationwide injunction prohibiting DOJ and DHS “from enforcing Section

23

9(a) of the Executive Order against jurisdictions they deem as sanctuary jurisdictions.” Cty. of Santa Clara v. Trump, No. 17-CV-00485-WHO, 2017 WL 1459081, at *29 (N.D. Cal. Apr. 25, 2017). That

24

Court limited the scope of its injunction by providing that DOJ and DHS may “use lawful means to enforce existing conditions of federal grants or 8 U.S.C. 1373[.]” Id. The government does not interpret

25 the injunction entered in County of Santa Clara as precluding the government’s ability to utilize legal
authority independent of the Executive Order to advance the government’s law enforcement priorities.

26 Moreover, in light of the clarifications provided in the AG Memorandum, the government has sought
reconsideration of the injunction entered in that case. See Defs.’ Mot for Recons., Cty. of Santa Clara v.

27 Trump, No. 17-CV-00485-WHO, (N.D. Cal. May 23, 2017), ECF No. 113.

28 Defs.’ Mot. to Dismiss First Am. Compl.- 7
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 14 of 32

1 9(a) applies “solely to federal grants administered by [DOJ] or [DHS], and not to other sources of

2 federal funding.” AG Mem. at 1. The Memorandum specifies that the Executive Order does not
3 “purport to expand the existing statutory or constitutional authority of the Attorney General and
4 the Secretary . . . in any respect,” but rather instructs those officials to take certain action, “to the
5 6 extent consistent with the law.” Id. at 1-2. The AG Memorandum acknowledges that, “apart
7 from the Executive Order, [DOJ] and [DHS], in certain circumstances, may lawfully exercise

8 discretion over grants they administer[,]” and that Section 9(a) merely “directs the Attorney

9 General and the Secretary . . . to exercise, as appropriate, their lawful discretion to ensure that
10 jurisdictions that willfully refuse to comply with section 1373 are not eligible to receive” federal 11
grants administered by DOJ or DHS. Id. at 2. Thus, the Attorney General has directed that, 12
where legally authorized, DOJ, pursuant to the Executive Order, “will require jurisdictions 13 14 applying for certain [DOJ] grants to certify their compliance with 8 U.S.C. § 1373 as a condition
15 for receiving an award[,]” and that jurisdictions that fail to meet that condition “will be ineligible

16 to receive such awards.” Id. The AG Memorandum also makes clear that, with respect to Section

17 1373 compliance conditions, DOJ or DHS may impose a condition only pursuant to the exercise
18 of “existing statutory or constitutional authority,” and only where “grantees will receive notice of 19
their obligation to comply with section 1373.” Id. In short, Section 9(a) directs DOJ and DHS to 20
exercise their existing authority in a lawful manner to encourage jurisdictions receiving DOJ or 21
22 DHS administered grants to comply with 8 U.S.C. § 1373.

23

PROCEDURAL BACKGROUND

24

The Cities filed the FAC on June 26, 2017, seeking declaratory relief regarding their

25 compliance with Section 1373 and the constitutionality of the Executive Order. See generally

26 FAC, Request for Relief ¶¶ 1-5. The Cities do not allege that the defendants have designated

27

them as “sanctuary jurisdictions” under Section 9(a) of the Order, nor do they allege that any

28 Defs.’ Mot. to Dismiss First Am. Compl.- 8

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 15 of 32

1 federal funding has been withheld or revoked pursuant to the Order. Rather, relying on

2 newspaper articles and public statements of various federal officials, the Cities allege that the
3 Secretary is likely to declare them sanctuary jurisdictions at some future point, despite their
4 alleged compliance with 8 U.S.C. § 1373. See, e.g., id. ¶ 143 (citing Casey Jaywork, Trump
5 6 Orders Funding Cuts to Sanctuary Cities, Promising a Showdown with Seattle, Seattle Weekly
7 (Jan. 25, 2017)). The Cities further allege that, following this hypothetical future designation,

8 defendants might decide to withhold an indeterminate amount of federal funding from them, or

9 take other, unspecified action against them. Id. ¶¶ 5-6. The Cities contend that they “comply

10 with Section 1373 and all other applicable federal legal requirements,” id. ¶ 5, and they seek a

11 declaration from this Court confirming their compliance with that provision and thus confirming
12 that they are not “sanctuary jurisdictions.” Id., Request for Relief ¶¶ 1-2.
13

14

LEGAL STANDARD

15

Defendants seek dismissal of the FAC pursuant to Rule 12(b)(1) of the Federal Rules of

16 Civil Procedure on the grounds that the Court lacks subject-matter jurisdiction to entertain the

17 FAC. The jurisdiction of a federal court is limited to “cases” and “controversies.” U.S. Const.,
18 Art. III, § 2. “Jurisdiction is power to declare the law, and when it ceases to exist, the only 19
function remaining to the court is that of announcing the fact and dismissing the cause.” Steel Co. 20
v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). The party asserting federal court 21
22 jurisdiction has the burden of demonstrating its existence. See Lujan v. Defenders of Wildlife,

23 504 U.S. 555, 561 (1992). Courts should “presume that [they] lack jurisdiction unless the

24 contrary appears affirmatively from the record.” Renne v. Geary, 501 U.S. 312, 316 (1991).

25

Defendants also seek dismissal of the FAC pursuant to Rule 12(b)(6) for failure to state a

26 claim on which relief can be granted. In evaluating a Rule 12(b)(6) argument, the Court accepts

27

the material allegations in the complaint as true and construes reasonable inferences in the

28 Defs.’ Mot. to Dismiss First Am. Compl.- 9

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 16 of 32

1 complainant’s favor. See Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). To survive

2 a Rule 12(b)(6) motion, the factual allegations in a complaint must “state a claim to relief that is
3 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Fowler Packing Co., Inc. v.
4 Lanier, 844 F.3d 809, 814 (9th Cir. 2016). “A claim has facial plausibility when the plaintiff
5 6 pleads factual content that allows the court to draw the reasonable inference that the defendant is
7 liable for the misconduct alleged.” Iqbal, 556 U.S at 678.

8

ARGUMENT

9 I. The Court Lacks Jurisdiction to Consider the Cities’ Claims.

10

Executive Order 13,768 is not self-executing, and no adverse action has been taken

11 against the Cities under the Order. Nor has the government interpreted or implemented Section
12 9(a) of the Order in the manner that the Cities predict; indeed, the guidance contained in the AG
13

14 Memorandum undermines many of the presumptions on which the Cities’ claims rely.

15 Accordingly, because no action has been taken against the Cities, and because the Cities’ claims

16 largely “rest[] upon contingent future events that may not occur as anticipated, or indeed may not

17 occur at all,” the Court should dismiss this matter under the ripeness doctrine. Texas v. United
18 States, 523 U.S. 296, 300 (1998); Bova v. City of Medford, 564 F.3d 1093, 1096 (9th Cir. 2009). 19
Similarly, because defendants have not taken any adverse action against the Cities, the Cities 20
cannot meet their burden of establishing the “concrete,” “objective,” and “palpable,” injury 21
22 necessary to satisfy the constitutional requirement of standing. Whitmore, 495 U.S. at 155. Thus,

23 the Cities’ claims are non-justiciable under both the ripeness doctrine and the standing doctrine.

24

A. The Cities’ Claims Are Not Ripe for Judicial Review.

25

Article III of the United States Constitution requires that a dispute must be ripe for judicial

26 consideration — that is, a controversy must have “matured sufficiently to warrant judicial

27

intervention.” Warth v. Seldin, 422 U.S. 490, 499 n.10 (1975). “A claim is not ripe for

28 Defs.’ Mot. to Dismiss First Am. Compl.- 10

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 17 of 32

1 adjudication [under the Constitution] if it rests upon contingent future events that may not occur

2 as anticipated, or indeed may not occur at all.” Texas, 523 U.S. at 300; see also Abbott Labs., 387
3 U.S. at 148 (“[I]njunctive and declaratory judgment remedies are discretionary, and courts
4 traditionally have been reluctant to apply them to administrative determinations unless these arise
5 6 in the context of a controversy ‘ripe’ for judicial resolution.”). The ripeness doctrine, like other
7 justiciability doctrines, “is drawn both from Article III limitations on judicial power and from

8 prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Soc. Servs., Inc., 509

9 U.S. 43, 58 n.18 (1993). The doctrine “prevent[s] the courts, through avoidance of premature

10 adjudication, from entangling themselves in abstract disagreements over administrative policies,

11 and . . . protect[s] the agencies from judicial interference until an administrative decision has been
12 formalized and its effects felt in a concrete way[.]” Abbott Labs., 387 U.S. at 148-49.
13

14

The Ninth Circuit has held that “the ripeness inquiry contains both a constitutional and a

15 prudential component.” Portman v. County of Santa Clara, 995 F.2d 898, 902 (9th Cir. 1993). In

16 assessing the constitutional component of the ripeness inquiry in the context of a pre-enforcement

17 challenge to a statutory or administrative enactment, a court must first satisfy itself that “there
18 exist[s] a constitutional ‘case or controversy,’ [i.e.,] that the issues presented are definite and 19
concrete, not hypothetical or abstract.” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 20
1134, 1139 (9th Cir. 2000). In making that determination, a court will consider “whether the 21
22 plaintiff faces a realistic danger of sustaining a direct injury as a result of the statute’s operation

23 or enforcement” by evaluating “[1] whether the plaintiffs have articulated a concrete plan to

24 violate the law in question, [2] whether the prosecuting authorities have communicated a specific

25 warning or threat to initiate proceedings, and [3] the history of past prosecution or enforcement

26 under the challenged statute.” Id. “[N]either the mere existence of a proscriptive statute nor a

27

generalized threat of [enforcement] satisfies the ‘case or controversy’ requirement.” Id.

28 Defs.’ Mot. to Dismiss First Am. Compl.- 11

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 18 of 32

1

To evaluate the “prudential component of ripeness,” a court considers “the fitness of the

2 issues for judicial decision and the hardship to the parties of withholding court consideration.”
3 Wolfson v. Brammer, 616 F.3d 1045, 1060 (9th Cir. 2010); see also Abbott Labs., 387 U.S. at
4 149. “A claim is fit for decision if the issues raised are primarily legal, do not require further
5 6 factual development, and the challenged action is final.” Standard Alaska Prod. Co. v. Schaible,
7 874 F.2d 624, 627 (9th Cir. 1989). “To meet the hardship requirement, a litigant must show that

8 withholding review would result in direct and immediate hardship and would entail more than

9 possible financial loss.” Winter v. Cal. Med. Review, Inc., 900 F.2d 1322, 1325 (9th Cir. 1989).

10

1. The Cities Have Not Alleged a Genuine Threat of Imminent Enforcement.

11 The Cities have not alleged that they face a genuine threat of imminent enforcement of
12 Section 9(a) of the Executive Order, nor could they, as the Executive Order does not confer on
13

14 any Executive Branch official any new authority. See AG Mem. at 2. As mentioned above, the

15 Order serves to set certain policy priorities of the administration and to direct implementation of

16 those priorities in a manner “consistent with the law.” Exec. Order 13,768 § 9. Thus, to the

17 extent the officials identified in Section 9(a) can “enforce” that provision against the Cities at all,
18 they are only capable of doing so by exercising authority that exists apart from the Order itself. 19
See AG Mem. at 2. Moreover, the Cities have not “articulated a concrete plan to violate” the 20
Executive Order. Thomas, 220 F.3d at 1139. To the contrary, the Cities contend that they 21
22 comply with Section 1373. See FAC ¶ 7. The Cities also cannot meet the second prong of the

23 “genuine threat” test because they do not allege that the Attorney General or the Secretary has

24 “communicated a specific warning or threat to initiate proceedings” against them. Thomas, 220

25 F.3d at 1139. The Cities cite to certain Declined Detainer Outcome Reports published by DHS as

26 an indication that defendants might designate them as “sanctuary jurisdictions,” see FAC ¶¶ 142-

27

144, but DHS has made clear that “inclusion on [those reports] will not automatically result in

28 Defs.’ Mot. to Dismiss First Am. Compl.- 12

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 19 of 32

1 ineligibility for grants,” and that “DHS is currently working to develop a process” to address

2 Section 9(a)’s designation requirement. See Declined Detainer Outcome Report FAQs, available
3 at https://www.ice.gov/declined-detainer-outcome-report. The Cities point to no official
4 communication of an intent to initiate an adverse enforcement action under the Executive Order.
5 6 Finally, the Cities fail to meet the third prong of the test because they do not identify a “history of
7 past . . . enforcement” of the Order under similar circumstances. Thomas, 220 F.3d at 1139.

8 Thus, because the Cities have not alleged any facts that would establish a genuine threat of

9 imminent enforcement, the Court should reject their pre-enforcement challenge under the
10 constitutional component of the ripeness inquiry. 11
2. The Cities’ Claims Are Not Fit for Judicial Review. 12
The Cities’ claims are also subject to dismissal under the prudential component of the 13 14 ripeness inquiry because those claims are based on several “contingent events that may not occur
15 as anticipated.” Texas, 523 U.S. at 300. Specifically, the Cities do not allege they have been

16 penalized in any manner pursuant to Section 9(a) of the Executive Order, nor do they allege they

17 have been denied any federal funding pursuant to that provision. The string of hypothetical
18 events on which the allegations in the FAC rest provides evidence that the Cities’ claims are not 19
fit for review. To entertain those claims, the Court would need to assume that: (1) the 20
administration will interpret and apply Section 9(a) in an unconstitutional manner; (2) the 21
22 administration will make a factual determination that the Cities are subject to designation as

23 “sanctuary jurisdictions” pursuant to that section; and (3) the Secretary or the Attorney General or

24 both will rely on those findings to take some form of adverse action against the Cities. Those

25 events may not transpire as the Cities anticipate, or may not transpire at all. Indeed, the Attorney

26 General has already issued guidance concerning Section 9(a) that contradicts many of the Cities’

27

contentions. Compare AG Mem. at 1-2 (providing that Section 9(a) of the Order applies solely to

28 Defs.’ Mot. to Dismiss First Am. Compl.- 13

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 20 of 32

1 federal grants administered by DOJ or DHS), with FAC ¶ 185 (alleging that the Executive Order

2 “purports to deny ‘sanctuary jurisdictions’ all federal grants”) (emphasis in original). Thus,
3 delaying judicial review until there has been some concrete application of the Executive Order
4 would allow an opportunity for factual development of the Cities’ claims and would avoid
5 6 judicial speculation. See Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 812 (2003)
7 (finding that, even where “the question presented . . . is a purely legal one[,]” the issue may not be

8 fit for review if the court “believe[s] that further factual development would significantly advance

9 [its] ability to deal with the legal issues presented”).

10

3. The Cities Fail to Establish Sufficient Harm Under the Ripeness Inquiry.

11 The Cities also fail to allege harm sufficient to justify pre-enforcement review. Here, the
12 primary harm the Cities allege is the potential loss of federal grant funding. That harm is
13

14 monetary in nature and thus not “a sufficient interest to sustain a judicial challenge” in the pre-

15 enforcement context. Abbott Labs., 387 U.S. at 153; Winter, 900 F.2d at 1325 (“[A] litigant must

16 show . . . more than possible financial loss.”). Additionally, in alleging purported injury, the

17 Cities again rely on a series of contingent future events. Those contingencies include the
18 assumptions (1) that Section 9(a) applies to all federal grant funding, including, for example, 19
funding to support home-based care for the elderly, college readiness programs, and 20
transportation infrastructure, see, e.g., FAC ¶¶ 63, 68, 75; (2) that the Secretary will designate the 21
22 Cities as “sanctuary jurisdictions” at some future point (despite the Cities’ simultaneous

23 insistence that they comply with Section 1373), see id. ¶ 5; and (3) that “if the cities are deemed

24 to be ‘sanctuary jurisdictions,’” they may face some form of adverse action, see id. ¶ 152

25 (emphasis added). Such allegations of harm are too speculative to justify pre-enforcement

26 review. See, e.g., Portland Police Ass’n v. City of Portland, By & Through Bureau of Police, 658

27

F.2d 1272, 1274 (9th Cir. 1981) (finding allegations of harm too speculative where “it was

28 Defs.’ Mot. to Dismiss First Am. Compl.- 14

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 21 of 32

1 necessary to assume a series of contingencies”). Moreover, as mentioned above, many of the

2 Cities’ assumptions, such as the assumption that the Executive Order jeopardizes all federal
3 funding, are demonstrably inaccurate. See AG Mem. at 1. Accordingly, because the Cities
4 cannot show that their claims are fit for resolution or that they face immediate and irremediable
5 6 adverse consequences from delaying review until the Order has been applied, the Court should
7 dismiss their claims under the prudential component of the ripeness doctrine.

8

B. The Cities Fail to Demonstrate An Injury Sufficient to Confer Standing.

9

Related to the ripeness requirement is the constitutional requirement of standing. See

10 Bova, 564 F.3d at 1096 (“[I]f the contingent events do not occur, the plaintiff likely will not have
11 suffered an injury that is concrete and particularized enough to establish the first element of
12 standing . . . [i]n this way, ripeness and standing are intertwined.”). To satisfy the “irreducible
13
14 constitutional minimum” of standing, a plaintiff must demonstrate an “injury in fact,” a “fairly

15 traceable” causal connection between the injury and defendant’s conduct, and redressability.

16 Steel Co., 523 U.S. at 102-03. The injury needed for constitutional standing must be “concrete,”

17 “objective,” and “palpable,” not merely “abstract” or “subjective.” See Whitmore, 495 U.S. at
18 155. The injury also must be “certainly impending” rather than “speculative.” Id. at 158. 19
Applying these standards here, the Cities’ alleged injuries are too speculative to meet the 20
constitutional standing requirement. Neither the Secretary nor the Attorney General has taken 21
22 any action against the Cities pursuant to Section 9 of the Executive Order. Thus, the Cities

23 cannot assert any actual “concrete,” “objective,” and “palpable” injury. Id. at 155. Rather, the

24 Cities allege that they suffer from “irresolvable uncertainty surrounding whether federal funds

25 that currently benefit all of . . . [their] residents will be cut off if the cities are deemed to be

26 ‘sanctuary jurisdictions.’” FAC ¶ 152 (emphasis added). Not only does this allegation of harm

27

rest on conjecture, as detailed above, but as the AG Memorandum makes clear, Section 9(a) of

28 Defs.’ Mot. to Dismiss First Am. Compl.- 15

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 22 of 32

1 the Executive Order does not expand the authority of the Attorney General or the Secretary.

2 Rather, it merely directs those officials, consistent with the law, to exercise existing authority to
3 ensure compliance with 8 U.S.C. § 1373. See AG Mem. at 1-2. Statements by officials regarding
4 an intention “to enforce those laws which they are charged to administer do not create the
5 6 necessary injury in fact” under the standing inquiry. Lopez v. Candaele, 630 F.3d 775, 787 (9th
7 Cir. 2010) (concluding that a sheriff’s statement that “all of the laws of San Diego, State, Federal

8 and County, will be enforced within our jurisdiction” was insufficient to create a justiciable case).

9 Accordingly, because the Cities’ claimed injury is insufficient to meet the standing requirement,

10 the Court lacks jurisdiction to review the Cities’ claims.

11 II.
12
13

The Cities Fail to State a Claim for Declaratory Relief Under Section 1373. Beyond the lack of justiciability of all of the Cities’ claims, the Cities also fail to state a

14 claim for declaratory relief regarding their compliance with Section 1373. See FAC ¶¶ 177-181.

15 That claim is subject to dismissal because the Cities cannot identify a cause of action that would

16 allow them to pursue such relief. See Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001)

17 (absent statutory intent to create a cause of action, one “does not exist and courts might not create
18 one, no matter how desirable that may be as a policy matter”). Moreover, because the defendants 19
have not designated the Cites as sanctuary jurisdictions or taken any action against them for 20
alleged violations of Section 1373, granting the Cities their requested declaratory relief would 21
22 violate the Constitution’s prohibition against advisory opinions. See e.g., Golden v. Zwickler, 394

23 U.S. 103, 108 (1969) (“[T]he federal courts . . . do not render advisory opinions. . . . This is as

24 true of declaratory judgments as any other field.”).

25

District courts have “original jurisdiction of all civil actions arising under the Constitution,

26 laws, or treaties of the United States.” 28 U.S.C. § 1331. A claim arises under federal law if “it

27

is apparent from the face of the complaint either that (1) a federal law creates the plaintiff’s cause

28 Defs.’ Mot. to Dismiss First Am. Compl.- 16

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 23 of 32

1 of action; or (2) if a state law creates the cause of action, a federal law that creates a cause of

2 action is a necessary element of the plaintiff’s claim.” Virgin v. County of San Luis Obispo, 201
3 F.3d 1141, 1142–43 (9th Cir. 2000). Here, the Cities identify no federal law that creates a cause
4 of action that would entitle them to a declaration regarding their purported compliance with
5 6 Section 1373. The general jurisdictional statutes that the Cities cite, 28 U.S.C. §§ 1331 and 1346,
7 do not create independent causes of action. See, e.g., Herrera-Castanola v. Holder, 528 F. App'x

8 721, 722 (9th Cir. 2013) (“28 U.S.C. § 1331 . . . does not create causes of action, but only confers

9 jurisdiction to adjudicate those arising from other sources which satisfy its limiting provisions”).
10 The Cities also cite to the Declaratory Judgment Act (“DJA”), 28 U.S.C. §§ 2201-2202, but that 11
statute creates a certain remedy that may be available to litigants, it does not create a cause of 12
action. Id. (The DJA “only enlarged the range of remedies available in the federal courts but did 13 14 not extend their jurisdiction.”); Hummel v. Nw. Tr. Servs., Inc., 180 F. Supp. 3d 798, 810 (W.D.
15 Wash. 2016) (Jones, J.) (“It is well established that the [DJA] does not create an independent

16 cause of action . . . . As such, in the absence of a substantive cause of action, the Court cannot

17 grant declaratory relief.”). Thus, because the Cities fail to identify a cause of action authorizing
18 their requested declaratory relief, that claim must be dismissed. 19
Moreover, “regardless of whether the relief sought is monetary, injunctive or declaratory . 20
. . for a case to be more than a request for an advisory opinion, there must be an actual dispute 21
22 between adverse litigants and a substantial likelihood that a favorable federal court decision will

23 have some effect.” Westlands Water Dist. Distribution Dist. v. Nat. Res. Def. Council, Inc., 276

24 F. Supp. 2d 1046, 1050 (E.D. Cal. 2003). Here, defendants have not designated the Cities as

25 “sanctuary jurisdictions” or as otherwise being in violation of Section 1373. The Cities’ claim

26 that “an actual controversy exists about . . . [the Cities’] compliance with that statute,” see FAC ¶

27

180, is an unsupported, conclusory statement that is “not entitled to the assumption of truth.”

28 Defs.’ Mot. to Dismiss First Am. Compl.- 17

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 24 of 32

1 Iqbal, 556 U.S. at 662. Thus, because the Cities’ request for declaratory relief concerns a

2 hypothetical legal dispute, issuing a declaratory judgment regarding the Cities’ compliance with

3 Section 1373 would constitute an advisory opinion, which is “constitutionally forbidden.” United
4 States v. Guzman-Padilla, 573 F.3d 865, 879 (9th Cir. 2009).
5
6 III. The Cities Fail to State a Viable Tenth Amendment Claim.

7

The Cities also fail to state a claim that the Executive Order on its face violates the Tenth

8 Amendment. The Cities premise their Tenth Amendment challenge on a misinterpretation of the

9 Executive Order; such a challenge is not appropriate against an Order that merely announces and

10 directs the implementation of executive policy; and, even if a Tenth Amendment challenge to the

11 Order could be sustained, the Cities have not “establish[ed] that no set of circumstances exists
12 under which the [Order] would be valid.” Salerno, 481 U.S. at 745.
13

14

The Cities’ Tenth Amendment claim rests on a misreading of the Executive Order. The

15 Cities presume that “the Executive Order imposes affirmative duties on state and local officials

16 beyond those prescribed in Section 1373,” and that it “penalizes [the Cities] for failing to perform

17 those duties[.]” FAC ¶ 183. The plain language of the Executive Order and the guidance
18 contained in the AG Memorandum disprove the Cities’ presumption. The Executive Order does 19
not impose conditions on federal grants, nor does it impose any requirements on state or local 20
jurisdictions. Rather, the Order “establish[es] immigration enforcement as a priority for this 21
22 Administration,” see AG Mem. at 1, in an effort to “ensure that our Nation’s immigration laws

23 are faithfully executed.” Exec. Order 13,768 at 1. The Order directs the appropriate executive

24 officials to prioritize, to the fullest extent of the law, means for achieving that priority. Those

25 means may include, for example, more aggressive enforcement of existing grant conditions, or, as

26 the AG Memorandum suggests, tailoring future grant awards in a manner that promotes the

27

administration’s law enforcement priorities. See AG Mem. at 2.

28 Defs.’ Mot. to Dismiss First Am. Compl.- 18

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 25 of 32

1

At no point, however, does the Order itself purport to impose affirmative obligations on

2 state or local jurisdictions. Rather, the Attorney General and the Secretary are to enforce the
3 Order’s directives only “to the extent permitted by law.” Exec. Order 13,768, § 9(a). Consistent
4 with that directive, the Order “does not call for the imposition of grant conditions that would
5 6 violate any applicable constitutional or statutory limitation . . . [n]or does the Executive Order
7 purport to expand the existing statutory or constitutional authority of the Attorney General and

8 the Secretary . . . in any respect.” AG Mem. at 1-2. Rather, in the event the Secretary or

9 Attorney General determine to impose obligations on a grant program pursuant to the directives
10 contained the Order, such as a condition relating to compliance with 8 U.S.C. § 1373, that 11
obligation may be imposed only where existing legal authority allows it, and only where grantees 12
are given “notice of their obligation[s.]” Id. at 2. Thus, because the Executive Order does not 13 14 directly impose any affirmative duties on state or local jurisdictions, the Court should reject the
15 Cities’ contention that the Order violates the Tenth Amendment’s anti-commandeering principle.

16

The Court should reject the Cities’ Tenth Amendment challenge for the independent

17 reason that such a challenge cannot be sustained against an Executive Order that directs internal
18 Executive Branch policy. In considering the judicial enforceability of Executive Orders, courts in 19
this Circuit have distinguished between Executive Orders that are intended to be internal 20
directives that “implement policy as a product of executive authority,” and those that are 21
22 promulgated to effectuate an authority explicitly vested in the President through an act of

23 Congress. See Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023, at *5 (N.D. Cal. May

24 19, 1995), aff’d sub nom. Chen v. I.N.S., 95 F.3d 801 (9th Cir. 1996); Legal Aid Soc’y of Alameda

25 County v. Brennan, 608 F.2d 1319, 1330 n.14 (9th Cir.1979). The former type of Executive

26 Order does not carry an independent force of law; rather, it serves merely as an internal Executive

27

Branch directive. Executive Order 13,768 falls into that category. As the Attorney General made

28 Defs.’ Mot. to Dismiss First Am. Compl.- 19

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 26 of 32

1 clear, the challenged provisions of the Order are directives to Executive officials regarding their

2 exercise of existing statutory and constitutional authority. AG Mem. at 1-2. Because the Order is
3 an internal Executive Branch policy directive, the Cities cannot sustain a claim that the Order
4 carries the force of law sufficiently broad to commandeer City employees in violation of the
5 6 Tenth Amendment. Cf. United States v. Pickard, 100 F. Supp. 3d 981, 1011 (E.D. Cal. 2015)
7 (rejecting a Tenth Amendment challenge to a policy statement because such a statement “is a very

8 different creature from a statute” in that it does not bind states in the manner that a statute would).

9

Finally, even assuming arguendo that the Executive Order is sufficiently comparable to a

10 federal statute to sustain a facial constitutional challenge, the Cities’ challenge should be
11 dismissed because they fail to allege that “no set of circumstances exists under which the [Order]
12 would be valid.” Salerno, 481 U.S. at 745. Facial challenges to federal statutes are disfavored
13
14 because they “often rest on speculation[;]” “they raise the risk of premature interpretation of

15 statutes on the basis of factually barebones records[;]” they “run contrary to the fundamental

16 principle of judicial restraint that courts should neither anticipate a question of constitutional law

17 in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is
18 required by the precise facts to which it is to be applied[;]” and they “threaten to short circuit the 19
democratic process by preventing laws embodying the will of the people from being implemented 20
in a manner consistent with the Constitution.” Wash. State Grange v. Wash. State Republican 21
22 Party, 552 U.S. 442, 450-51 (2008). Thus, the mere possibility that the Executive Order could be

23 interpreted in an unconstitutional manner is insufficient to state a facial challenge. See Salerno,

24 481 U.S. at 745 (“The fact that the . . . Act might operate unconstitutionally under some

25 conceivable set of circumstances is insufficient to render it wholly invalid.”).

26 Here, the Cities fail to establish that Section 9(a) of the Executive Order would be invalid

27

under all circumstances. The challenged provision of the Order seeks to ensure, to the extent

28 Defs.’ Mot. to Dismiss First Am. Compl.- 20

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 27 of 32

1 consistent with the law, that jurisdictions that willfully refuse to comply with 8 U.S.C. § 1373 are

2 not eligible to receive grants administered by DOJ or DHS. See Exec. Order at § 9; AG Mem. at
3 2. Thus, where applicants for or recipients of certain DOJ or DHS grants are required (pursuant
4 to authority that exists independent of the Executive Order) to certify their compliance with
5 6 Section 1373 as a condition for receiving an award, their failure to do so will render them
7 “ineligible to receive such awards.” AG Mem. at 2. Conditioning the receipt of federal funds on

8 whether a state or local jurisdiction complies with a federal statute or takes some other action

9 does not violate the Tenth Amendment, so long as the “State could . . . adopt the simple expedient
10 of not yielding to what she urges is federal coercion.” See S. Dakota v. Dole, 483 U.S. 203, 210 11
(1987) (A “perceived Tenth Amendment limitation on congressional regulation of state affairs 12
d[oes] not concomitantly limit the range of conditions legitimately placed on federal grants.”). 13 14 Thus, if a state or local jurisdiction were disinclined to certify compliance with Section 1373 (or
15 disinclined to comply with any other grant provision), that jurisdiction could simply decline to

16 participate in the grant program. The Tenth Amendment, however, does not give States and their

17 subdivisions the right to be free of any federal grant conditions that might be constitutionally
18 impermissible if mandatorily imposed by Congress. Id. Accordingly, because the Cities fail to 19
establish that “no set of circumstances exists under which [the Executive Order] would be valid,” 20
their facial challenge to the Order must fail. Salerno, 481 U.S. at 745. 21
22 IV. The Cities Fail to State a Viable Claim that the Order Exceeds the Spending Power.

23

The Cities also fail to state a claim that the directives contained in Section 9(a) violate the

24 requirement under the Spending Clause of the Constitution that conditions on spending be non-

25 coercive, related to the federal interest in the particular program, and unambiguous. FAC ¶¶ 184-

26 187; Dole, 483 U.S. at 206. Those claims rest on misinterpretation of Section 9(a); the AG

27

Memorandum directly undermines the principle bases of those claims.

28 Defs.’ Mot. to Dismiss First Am. Compl.- 21

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 28 of 32

1

The Spending Clause provides Congress the power to “lay and collect Taxes, Duties,

2 Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare
3 of the United States.” U.S. Const. art. I, § 8, cl. 1. “Congress may attach conditions on the
4 receipt of federal funds, and has repeatedly employed the power to further broad policy objectives
5 6 by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory
7 and administrative directives.” Dole, 483 U.S. at 206. The spending power is subject to certain

8 limitations, including that conditions on the receipt of federal funds must be stated

9 “unambiguously” so that recipients can “exercise their choice knowingly, cognizant of the

10 consequences of their participation;” that “conditions on federal grants might be illegitimate if
11 they are unrelated to the federal interest in particular national projects or programs;” and that “the
12 financial inducement offered by Congress” must not “be so coercive as to pass the point at which
13
14 pressure turns into compulsion.” Id. at 207-08, 211.

15

As a threshold matter, the Cities’ Spending Clause claims fail for the simple reason that

16 the Executive Order does not impose conditions on federal grant programming. See AG Mem. at

17 1-2. Rather, as explained above, Section 9(a) directs Executive Branch officials to exercise
18 existing power in a certain manner, which may include “impos[ing] additional conditions on 19
grantees” in the future, consistent with “applicable constitutional or statutory limitations.” Id. 20
Thus, because the Order does not impose new or retroactive conditions on federal spending, the 21
22 Supreme Court’s conditional spending jurisprudence is inapplicable here.

23

The Cities’ claim that Section 9(a) imposes unconstitutionally coercive grant conditions,

24 fails not only because Section 9(a) does not impose conditions at all, but also because the

25 directives contained in that Section “will be applied solely” to DOJ and DHS administered grants,

26 see AG Mem. at 1, not to “all federal grants,” as the Cities presume. FAC ¶ 185. Because

27

Section 9(a) applies only to a limited universe of federal grants, and, with respect to DOJ, only to

28 Defs.’ Mot. to Dismiss First Am. Compl.- 22

UNITED STATES DEPARTMENT OF JUSTICE

17-CV-00497RAJ

CIVIL DIVISION, FEDERAL PROGRAMS BRANCH

P.O. Box. 883, Ben Franklin Station

Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 29 of 32

1 grant programs that “expressly contain[]” certification requirements, AG Mem. at 2, the Cities

2 cannot establish that Section 9(a) imposes conditions so severe as to coerce compliance. See
3 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2664 (2012) (“[C]ourts should not
4 conclude that [an enactment] is unconstitutional on [coercion] ground unless the coercive nature
5 6 of an offer is unmistakably clear” such as where States are subjected to the risk of losing “over 10
7 percent of a State’s overall budget” if they declined to adopt certain conditions).

8

The Cities’ claim under the so-called “nexus” requirement similarly fails. See FAC ¶ 186.

9 That requirement is only a “possible ground” for invalidating an enactment and does not impose
10 an “exacting standard.” Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002). The AG 11
Memorandum makes clear that Section 9(a)’s directives apply only to “certain” grants 12
administered by DOJ (the primary federal law enforcement agency) or DHS (the federal agency 13 14 responsible for the admission and removal of non-citizens), and not, as the Cities suggest, to “all
15 federal grants,” including those unrelated to Section 9(a)’s directives. FAC ¶ 186. The Cities fail

16 to identify any instance in which the defendants have imposed a condition pursuant to Section

17 9(a) that is unrelated to the underlying grant program. Accordingly, the Cities have not stated a
18 claim under the nexus requirement. 19
Finally, the Cities’ claim that Section 9(a) violates the requirement that federal grant 20
conditions be stated “unambiguously” fails for the same reason: Section 9(a) does not directly 21
22 impose conditions on federal grants, and the Cities identify no instance in which defendants have

23 imposed an allegedly ambiguous condition on a federal grant program. See FAC ¶ 187. Further,

24 the AG Memorandum clarifies that grant applicants or recipients will “receive notice” of any

25 obligations imposed pursuant to the Executive Order’s directives. Thus, because the Cities do not
26 identify any allegedly ambiguous conditions, they cannot sustain their Spending Clause claim.
27

28 Defs.’ Mot. to Dismiss First Am. Compl.- 23
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 30 of 32

1 IV. The Cities Fail to State a Viable Claim Under the Take Care Clause.

2

The Cities’ effort to proceed under the Take Care Clause is also subject to dismissal. FAC

3 ¶ 189. The Supreme Court has long recognized that “the duty of the President in the exercise of
4 the power to see that the laws are faithfully executed” is “purely executive and political,” and not
5
6 subject to judicial direction. Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 499 (1866). Thus, the

7 Cities’ Take Care Clause claim is not justiciable. Moreover, the Cities identify no cause of

8 action, whether under the Administrative Procedure Act (“APA”) or the Clause itself, which

9 would authorize a suit challenging the President’s actions or inaction under the Clause. Indeed,
10 recognizing such a cause of action would express a “lack of the respect due” to the Nation’s 11
highest elected official, Baker v. Carr, 369 U.S. 186, 217 (1962), by assuming judicial 12
superintendence over the exercise of Executive power that the Take Care Clause commits to the 13 14 President. See generally Lujan v. Defs. of Wildlife, 504 U.S. 555, 577 (1992) (Permitting a cause
15 of action under the Take Care Clause “would enable the courts . . . to assume a position of

16 authority over the governmental acts of another and co-equal department . . . and to become

17 virtually continuing monitors of the wisdom and soundness of Executive action.”). Because the

18 Cities identify no cause of action that would allow the Court to compel presidential action or
19 inaction under the Take Care Clause, their claim for relief under that Clause must be dismissed.
20 CONCLUSION
21

22

For the foregoing reasons, defendants respectfully request the Court dismiss the FAC

23 pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

24

25

26

27

28 Defs.’ Mot. to Dismiss First Am. Compl.- 24
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 31 of 32

1 Date: July 10, 2017 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defs.’ Mot. to Dismiss First Am. Compl.- 25
17-CV-00497RAJ

Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General JOHN R. TYLER Assistant Director
/s/ Stephen J. Buckingham STEPHEN J. BUCKINGHAM (MD Bar) Special Counsel United States Department of Justice Civil Division, Federal Programs Branch Telephone: (202) 514-3330 Facsimile: (202) 616-8470 E-mail: stephen.buckingham@usdoj.gov Mailing Address Post Office Box 883 Washington, D.C. 20044 Special Delivery Address 950 Pennsylvania Ave. NW Washington, DC 20530
UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

Case 2:17-cv-00497-RAJ Document 34 Filed 07/10/17 Page 32 of 32

1

CERTIFICATE OF SERVICE

2

I hereby certify that on July 10, 2017, I caused the foregoing Motion to Dismiss the First

3 Amended Complaint to be filed electronically and that this document is available for viewing and
4 downloading from the CM/ECF system. Participants in the case who are registered CM/ECF
5
6 users will be served by the CM/ECF system.

7

/s/ Stephen J. Buckingham

Stephen J. Buckingham

8

9

DECLARATION OF COMPLIANCE WITH MEET AND CONFER REQUIREMENT

10

Pursuant to the Court’s Standing Order for Civil Cases (Dkt. No. 22), undersigned counsel

11 hereby declares that, on July 7, 2017, the parties engaged in good faith discussions concerning the
12 substance of the foregoing Motion to Dismiss and potential efforts to resolve the issues raised in
13

14 the Motion. That discussion included the specific bases for the legal arguments contained in the

15 Motion.

16

/s/ Stephen J. Buckingham

Stephen J. Buckingham 17

18

19

20

21

22

23

24

25

26

27

28 Defs.’ Mot. to Dismiss First Am. Compl.- 26
17-CV-00497RAJ

UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH
P.O. Box. 883, Ben Franklin Station Washington, DC 20044; (202) 514-3330

 
 Case 2:17-cv-00497-RAJ Document 62 Filed 10/24/18 Page 1 of 2

1

HONORABLE RICHARD A. JONES

2

3

4

5

6 UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

8

9 CITY OF SEATTLE and CITY OF PORTLAND,
10
Plaintiffs, 11

12

vs.

13 DONALD J. TRUMP, et al.,

Case No. C17-497-RAJ
ORDER AND JUDGMENT GRANTING DECLARATORY RELIEF

14

Defendants.

15

16

Upon consideration of the parties’ briefs and the balance of the record, the decision in

17 City and County of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018), and the parties’

18 agreement on the appropriate disposition of this case, it is hereby
19 ADJUDGED against defendants Jefferson B. Sessions, III, Attorney General, and
20 Kirstjen M. Nielsen, Secretary of Homeland Security, that Section 9(a) of Executive Order
21 13,768, “Enhancing Public Safety in the Interior of the United States,” is unconstitutional;
22
and it is further 23

ORDER AND JUDGMENT - 1

Case 2:17-cv-00497-RAJ Document 62 Filed 10/24/18 Page 2 of 2

1

ADJUDGED against the same defendants that, because Section 9(a) of Executive

2 Order 13,768 directs Executive Branch administrative agencies to withhold funding that

3 Congress has not tied to compliance with 8 U.S.C. § 1373, it would be unconstitutional for

4 Executive Branch agencies to withhold appropriated funds from plaintiffs Cities of Seattle

5 and Portland pursuant to Section 9(a) of the Executive Order.

6 This Order and Judgment does not address whether any specific statutory grant

7 program permits grants to be conditioned on compliance with 8 U.S.C. § 1373.

8

DATED this 24th day of October, 2018. 9

10

A

11 The Honorable Richard A. Jones

12

United States District Judge

13

14

15

16

17

18

19

20

21

22

23

ORDER AND JUDGMENT - 2

 
 CLOSED,STAYED
U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:17-cv-00497-RAJ

City of Seattle v. Trump et al Assigned to: Judge Richard A. Jones Cause: 28:1331 Fed. Question

Date Filed: 03/29/2017 Date Terminated: 10/24/2018 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question

Plaintiff City of Seattle

represented by Andrew J. Pincus MAYER BROWN LLP (DC) 1999 K ST NW WASHINGTON, DC 20006-1101 202-263-3220 Email: apincus@mayerbrown.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Charles A. Rothfeld MAYER BROWN LLP (DC) 1999 K ST NW WASHINGTON, DC 20006-1101 202-263-3000 Email: crothfeld@mayerbrown.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua Silverstein MAYER BROWN LLP (DC) 1999 K ST NW WASHINGTON, DC 20006-1101 202-263-3208 Email: jsilverstein@mayerbrown.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Karianne M. Jones MAYER BROWN LLP (DC) 1999 K ST NW WASHINGTON, DC 20006-1101 202-263-3734 Email: kjones@mayerbrown.com TERMINATED: 06/22/2017 LEAD ATTORNEY PRO HAC VICE
Ori Lev MAYER BROWN LLP (DC) 1999 K ST NW WASHINGTON, DC 20006-1101 202-263-3270 Email: olev@mayerbrown.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Travis Crum MAYER BROWN LLP (DC) 1999 K ST NW WASHINGTON, DC 20006-1101 202-263-3365 Email: tcrum@mayerbrown.com TERMINATED: 02/05/2018 LEAD ATTORNEY PRO HAC VICE
Carlton Wm Seu SEATTLE CITY ATTORNEY'S OFFICE 701 FIFTH AVENUE SUITE 2050 SEATTLE, WA 98104-7097 206-733-9390 Email: carlton.seu@seattle.gov ATTORNEY TO BE NOTICED
Gary T Smith SEATTLE CITY ATTORNEY'S OFFICE 701 FIFTH AVENUE SUITE 2050 SEATTLE, WA 98104-7097 206-733-9318 Fax: 206-684-8284

Plaintiff City of Portland

Email: gary.smith@seattle.gov ATTORNEY TO BE NOTICED
John Lewis MAYER BROWN LLP (DC) 1999 K ST NW WASHINGTON, DC 20006-1101 202-263-3349 Email: jtlewis@mayerbrown.com TERMINATED: 03/21/2018 PRO HAC VICE
Michael K Ryan SEATTLE CITY ATTORNEY'S OFFICE 701 FIFTH AVENUE SUITE 2050 SEATTLE, WA 98104-7097 206-684-8207 Fax: 206-684-8284 Email: michael.ryan@seattle.gov ATTORNEY TO BE NOTICED
Peter Samuel Holmes SEATTLE CITY ATTORNEY'S OFFICE 701 FIFTH AVENUE SUITE 2050 SEATTLE, WA 98104-7097 206-684-8200 Email: peter.holmes@seattle.gov ATTORNEY TO BE NOTICED
Gregory Colin Narver SEATTLE CITY ATTORNEY'S OFFICE 701 FIFTH AVENUE SUITE 2050 SEATTLE, WA 98104-7097 206-684-8233 Email: gregory.narver@seattle.gov ATTORNEY TO BE NOTICED
represented by Denis M. Vannier OFFICE OF CITY ATTORNEY CITY OF PORTLAND, OREGON 1221 SW 4TH AVENUE, STE 430 PORTLAND, OR 97204-1991

503-823-4047 Email: denis.vannier@portlandoregon.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Naomi Sheffield OFFICE OF CITY ATTORNEY CITY OF PORTLAND, OREGON 1221 SW 4TH AVENUE, STE 430 PORTLAND, OR 97204-1991 503-823-4047 Email: naomi.sheffield@portlandoregon.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Tracy Reeve OFFICE OF CITY ATTORNEY CITY OF PORTLAND, OREGON 1221 SW 4TH AVENUE, STE 430 PORTLAND, OR 97204-1991 503-823-4047 Email: tracy.reeve@portlandoregon.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kymberly K. Evanson PACIFICA LAW GROUP LLP 1191 SECOND AVENUE SUITE 2000 SEATTLE, WA 98101 206-245-1700 Email: kymberly.evanson@pacificalawgroup.com ATTORNEY TO BE NOTICED
Paul J Lawrence PACIFICA LAW GROUP LLP 1191 SECOND AVENUE SUITE 2000 SEATTLE, WA 98101 206-245-1700 Email:

paul.lawrence@pacificalawgroup.com ATTORNEY TO BE NOTICED

V.
Defendant
Donald J. Trump in his official capacity as President of the United States

represented by Stephen J. Buckingham US DEPARTMENT OF JUSTICE CIVIL DIVISION 20 MASSACHUSETTS AVENUE NW WASHINGTON, DC 20001 202-514-3330 Email: stephen.buckingham@usdoj.gov TERMINATED: 10/24/2017

W Scott Simpson US DEPARTMENT OF JUSTICE CIVIL DIVISION 318 SOUTH SIXTH STREET, ROOM 244 SPRINGFIELD, IL 62701 202-514-3495 Fax: 217-492-4888 Email: scott.simpson@usdoj.gov ATTORNEY TO BE NOTICED

Defendant

Jefferson B Sessions

represented by Stephen J. Buckingham

in his official capacity as Attorney

(See above for address)

General

TERMINATED: 10/24/2017

Defendant
John F. Kelly in his official capacity as Secretary of Homeland Security

W Scott Simpson (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen J. Buckingham (See above for address) TERMINATED: 10/24/2017

Defendant

W Scott Simpson (See above for address) ATTORNEY TO BE NOTICED

Elaine C. Duke

represented by W Scott Simpson (See above for address) ATTORNEY TO BE NOTICED

Defendant Kirstjen M. Nielsen
Amicus Immigration Reform Law Institute

represented by Richard M Stephens STEPHENS & KLINGE LLP 601 108TH AVENUE NE SUITE 1900 BELLEVUE, WA 98004 425-453-6206 Email: stephens@sklegal.pro LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/29/2017 03/29/2017 03/29/2017
03/29/2017

# Docket Text
1 COMPLAINT for Declaratory Relief against defendant(s) John F. Kelly, Sessions Jefferson, Donald J. Trump (Receipt # 0981-4823135) Attorney Gregory Colin Narver added to party City of Seattle(pty:pla), filed by City of Seattle. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons)(Narver, Gregory) (Entered: 03/29/2017)
Hon. Brian A Tsuchida added. (RE) (Entered: 03/29/2017)
SUMMONS FORM INCORRECT: READABLE ONLY FORMAT: Summons as presented cannot be issued by the court. To obtain the Courts summons form go to the Courts website at wawd.uscourts.gov, find under the Attorneys tab/Forms/Civil/Summons in a Civil Action to download and save the blank form to your computer. Each time you open a case and wish summons to be issued, fill out the form, save per your preference (DO NOT scan) and upload each as an attachment to your Complaint or Motion for Leave to Proceed In Forma Pauperis. To post the corrected summons(es) use the event Praecipe For A Summons under Other Documents. All summons(es) should be posted under this one event. Please call the Attorney Case Opening Helpdesk at 206-370-8787 with any questions. Thank you. (RE) (Entered: 03/29/2017)
2 PRAECIPE TO ISSUE SUMMONS re 1 Complaint, by Plaintiff City of Seattle (Attachments: # 1 Summons, # 2 Summons, # 3 Summons)(Narver, Gregory) (Entered: 03/29/2017)

03/30/2017 03/30/2017 03/30/2017 03/30/2017 03/30/2017 03/30/2017 03/30/2017 03/31/2017

3 Summons Issued as to defendant(s) Donald J. Trump, Jefferson B Sessions, III, John F. Kelly. (Attachments: # 1 Summons, J. Sessions, # 2 Summons, J. Kelly)(AE) (Entered: 03/30/2017)
4 APPLICATION OF ATTORNEY Andrew J. Pincus FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiff City of Seattle (Fee Paid) Receipt No. 0981-4825131 (Narver, Gregory) (Entered: 03/30/2017)
5 APPLICATION OF ATTORNEY Charles Rothfeld FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiff City of Seattle (Fee Paid) Receipt No. 0981-4825132 (Narver, Gregory) (Entered: 03/30/2017)
6 APPLICATION OF ATTORNEY John Lewis FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiff City of Seattle (Fee Paid) Receipt No. 0981-4825133 (Narver, Gregory) (Entered: 03/30/2017)
7 APPLICATION OF ATTORNEY Karianne M. Jones FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiff City of Seattle (Fee Paid) Receipt No. 0981-4825134 (Narver, Gregory) (Entered: 03/30/2017)
8 APPLICATION OF ATTORNEY Ori Lev FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiff City of Seattle (Fee Paid) Receipt No. 0981-4825135 (Narver, Gregory) (Entered: 03/30/2017)
9 APPLICATION OF ATTORNEY Travis Crum FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiff City of Seattle (Fee Paid) Receipt No. 0981-4825136 (Narver, Gregory) (Entered: 03/30/2017)
10 ORDER re 4 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Andrew J. Pincus for City of Seattle, by Clerk William M McCool. No document associated with this docket entry, text only.

03/31/2017

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 03/31/2017)
11 ORDER re 5 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Charles A. Rothfeld for City of Seattle, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 03/31/2017)

03/31/2017

12 ORDER re 6 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney John Lewis for City of Seattle, by Clerk William M McCool. No document associated with this docket entry, text only.

03/31/2017

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 03/31/2017)
13 ORDER re 7 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Karianne M. Jones for City of Seattle, by Clerk William M McCool. No document associated with this docket entry, text only.

03/31/2017

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 03/31/2017)
14 ORDER re 8 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Ori Lev for City of Seattle, by Clerk William M McCool. No document associated with this docket entry, text only.

03/31/2017

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 03/31/2017)
15 ORDER re 9 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Travis Crum for City of Seattle, by Clerk William M McCool. No document associated with this docket entry, text only.

04/06/2017 04/07/2017

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 03/31/2017)
16 APPLICATION OF ATTORNEY Joshua Silverstein FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiff City of Seattle (Fee Paid) Receipt No. 0981-4832706 (Narver, Gregory) (Entered: 04/06/2017)
17 ORDER re 16 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Joshua Silverstein for Plaintiff City of Seattle, by Clerk William M McCool. No document associated with this docket entry, text only.

04/11/2017 05/25/2017 05/25/2017 05/26/2017 05/31/2017 05/31/2017 06/05/2017 06/15/2017
06/16/2017

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 04/07/2017)
18 AFFIDAVIT of Service of Summons and Complaint on Sandra ZuberBowers on 3/30/2017, filed by Plaintiff City of Seattle. (Narver, Gregory) (Entered: 04/11/2017)
19 NOTICE of Appearance by attorney Stephen J. Buckingham on behalf of Defendants John F. Kelly, Jefferson B Sessions, III, Donald J. Trump. (Buckingham, Stephen) (Entered: 05/25/2017)
20 NOTICE OF INITIAL ASSIGNMENT TO A US MAGISTRATE JUDGE AND CONSENT OR DECLINE FORM. If consent or decline, return the executed form by 6/8/2017. Please Note: Forms must not be electronically filed with the Court. (AE) (Entered: 05/25/2017)
21 MINUTE ORDER REASSIGNING CASE by William M. McCool. Case reassigned to Judge Richard A Jones for all further proceedings. Hon. Brian A Tsuchida no longer assigned to case. Cc to RAJ. (AE) (Entered: 05/26/2017)
22 STANDING ORDER for Civil Cases Assigned to Judge Richard A. Jones. (VE) (Entered: 05/31/2017)
23 ORDER REGARDING INITIAL DISCLOSURES AND JOINT STATUS REPORT. FRCP 26f Conference Deadline is 6/14/2017, Initial Disclosure Deadline is 6/21/2017, Joint Status Report due by 6/28/2017, by Judge Richard A. Jones. (VE) (Entered: 05/31/2017)
24 MOTION to Dismiss , filed by Defendants John F. Kelly, Jefferson B Sessions, III, Donald J. Trump. (Attachments: # 1 Exhibit 1, # 2 Proposed Order) Noting Date 6/30/2017, (Buckingham, Stephen) (Entered: 06/05/2017)
25 Unopposed MOTION File Amicus Brief , filed by Plaintiff Immigration Reform Law Institute. (Attachments: # 1 Proposed Order, # 2 Proposed Amicus Brief, # 3 Pro Hac Vice Application, # 4 Pro Hac Vice Application) Noting Date 6/15/2017, (Stephens, Richard) (Entered: 06/15/2017)
***Deadlines terminated. The deadlines set forth in the Court's 23 ORDER REGARDING INITIAL DISCLOSURES AND JOINT STATUS REPORT are vacated pending the Court's rulings on the pending and any forthcoming Motions to Dismiss. (VE) (Entered: 06/16/2017)

06/22/2017 06/26/2017 06/27/2017 06/30/2017 06/30/2017 06/30/2017 06/30/2017 07/03/2017

26 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Karianne M. Jones for Plaintiff City of Seattle. (Rothfeld, Charles) (Entered: 06/22/2017)
27 AMENDED COMPLAINT against defendant(s) All Plaintiffs, filed by City of Seattle.(Seu, Carlton) (Entered: 06/26/2017)
Party City of Portland added per first amended complaint (RS) (Entered: 06/27/2017)
28 NOTICE of Appearance by attorney Kymberly K. Evanson on behalf of Plaintiff City of Portland. (Evanson, Kymberly) (Entered: 06/30/2017)
29 NOTICE of Appearance by attorney Paul J Lawrence on behalf of Plaintiff City of Portland. (Lawrence, Paul) (Entered: 06/30/2017)
30 APPLICATION OF ATTORNEY Denis M. Vannier FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiff City of Portland (Fee Paid) Receipt No. 0981-4930164 (Evanson, Kymberly) (Entered: 06/30/2017)
31 APPLICATION OF ATTORNEY Tracy Reeve FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiff City of Portland (Fee Paid) Receipt No. 0981-4930167 (Evanson, Kymberly) (Entered: 06/30/2017)
32 ORDER re 30 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Denis M. Vannier for Plaintiff City of Portland, by Clerk William M McCool. No document associated with this docket entry, text only.

07/05/2017 07/10/2017
07/18/2017

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 07/03/2017)
33 ORDER striking govt's 24 Motion to Dismiss signed by Judge Richard A Jones.(RS) (Entered: 07/05/2017)
34 MOTION to Dismiss First Amended Complaint, filed by Defendants John F. Kelly, Jefferson B Sessions, III, Donald J. Trump. (Attachments: # 1 Exhibit, # 2 Proposed Order) Noting Date 8/4/2017, (Buckingham, Stephen) (Entered: 07/10/2017)
35 ORDER re 31 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Tracy Reeve for Plaintiff City of Portland, by Clerk William M McCool. No document associated with this docket entry, text only.

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the

07/21/2017 07/21/2017
08/09/2017 08/21/2017 09/01/2017 10/03/2017 10/03/2017 10/03/2017 10/04/2017

applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 07/18/2017)
36 STIPULATION AND PROPOSED ORDER RE BRIEFING SCHEDULE by parties (Seu, Carlton) (Entered: 07/21/2017)
Reset Deadlines and Noting Date: Pursuant to the parties' 36 STIPULATION RE BRIEFING SCHEDULE as it relates to Defendants' 34 MOTION to Dismiss First Amended Complaint, Plaintiffs' Opposition is due 8/21/2017, Defendants' Reply is due 9/1/2017, and the motion is renoted for 9/1/2017. (VE) (Entered: 07/21/2017)
37 ORDER granting IRLI's 25 Motion to file an amicus brief in support of govt's motion to dismiss signed by Judge Richard A Jones.(RS) (Entered: 08/09/2017)
38 RESPONSE, by Plaintiffs City of Portland, City of Seattle, to 34 MOTION to Dismiss First Amended Complaint. (Holmes, Peter) (Entered: 08/21/2017)
39 REPLY, filed by Defendants John F. Kelly, Jefferson B Sessions, III, Donald J. Trump, TO RESPONSE to 34 MOTION to Dismiss First Amended Complaint(Buckingham, Stephen) (Entered: 09/01/2017)
40 NOTICE of Appearance by attorney W Scott Simpson on behalf of Defendants Jefferson B Sessions, III, Donald J. Trump, Elaine C. Duke. (Simpson, W) (Entered: 10/03/2017)
41 APPLICATION OF ATTORNEY Naomi Sheffield FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiff City of Portland (Fee Paid) Receipt No. 0981-5040070 (Evanson, Kymberly) (Entered: 10/03/2017)
NOTE: Document 40 was filed incorrectly. The status of attorneys in this case remains the same until such time as the filer complies with LCR 83.2 Attorney Appearance and Withdrawal. (KB) (Entered: 10/04/2017)
42 ORDER re 41 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Attorney Naomi Sheffield for Plaintiff City of Portland, by Clerk William M McCool. No document associated with this docket entry, text only.

10/17/2017

NOTE TO COUNSEL: Local counsel agrees to sign all filings and to be prepared to handle the matter, including the trial thereof, in the event the applicant is unable to be present on any date scheduled by the court, pursuant to LCR 83.1(d).(DS) (Entered: 10/04/2017)
43 NOTICE of Supplemental Authority re 34 MOTION to Dismiss First Amended Complaint by Plaintiff City of Seattle (Attachments: # 1 Exhibit

10/19/2017 10/24/2017 10/24/2017 10/30/2017 10/31/2017 10/31/2017 02/05/2018 03/21/2018 04/20/2018 04/23/2018
06/19/2018

1, # 2 Exhibit 2, # 3Exhibit 3, # 4 Exhibit 4)(Seu, Carlton) (Entered: 10/17/2017)
44 ORDER denying Government's 34 Motion to Dismiss. Furthermore, the Court requests briefing from the parties regarding a potential stay in this matter. Signed by Judge Richard A Jones. (TH) (Entered: 10/19/2017)
45 NOTICE of Appearance by attorney W Scott Simpson on behalf of Defendants Elaine C. Duke, Jefferson B Sessions, III, Donald J. Trump. (Simpson, W) (Entered: 10/24/2017)
46 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Stephen J. Buckingham for Defendants Elaine C. Duke, Jefferson B Sessions, III, Donald J. Trump. (Simpson, W) (Entered: 10/24/2017)
47 JOINT MOTION TO STAY/STATEMENT PARTIES' JOINT REQUEST TO STAY PROCEEDINGS by Plaintiffs City of Portland, City of Seattle (Seu, Carlton) Modified on 10/31/2017 to edit docket text and change event to a motion (TH). (Entered: 10/30/2017)
NOTICE of Docket Text Modification re 47 MOTION to Stay : Document erroneously filed using Statement event; changed event to a motion and modified docket text. (TH) (Entered: 10/31/2017)
48 ORDER granting parties' 47 Joint Motion to Stay proceedings pending the appeal in County of Santa Clara v. Trump, et al., No. 3:17-cv- 00574WHO (N.D. Cal.). Signed by Judge Richard A Jones. (TH) (Entered: 11/01/2017)
49 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Travis Crum for Plaintiffs City of Portland, City of Seattle. (Crum, Travis) (Entered: 02/05/2018)
50 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney John Lewis for Plaintiffs City of Portland, City of Seattle. (Lewis, John) (Entered: 03/21/2018)
51 Joint STATUS REPORT by Defendants Jefferson B Sessions, III, Donald J. Trump, Kirstjen M. Nielsen (Simpson, W) (Entered: 04/20/2018)
Set Deadline: The Court acknowledges receipt of the parties' 51 Joint STATUS REPORT. This matter remains stayed. The parties shall file an updated Joint Status Report by 7/31/2018, or upon a decision by the Court of Appeals in County of Santa Clara v. Trump, whichever occurs sooner. (VE) (Entered: 04/23/2018)
52 NOTICE of Change of Address/Change of Name of Attorney W Scott Simpson. Filed by Defendants Kirstjen M. Nielsen, Jefferson B Sessions, III, Donald J. Trump. (Simpson, W) Modified Address on 6/22/2018 (DS). (Entered: 06/19/2018)

07/19/2018 07/31/2018 07/31/2018
08/06/2018 08/09/2018 08/10/2018
09/24/2018 09/25/2018 09/25/2018 10/01/2018 10/02/2018

53 NOTICE of Change of Address/Change of Name of Attorney Richard M Stephens. Filed by Amicus Immigration Reform Law Institute. (Stephens, Richard) Modified firm address on 7/20/2018 (DS). (Entered: 07/19/2018)
54 JOINT STATUS REPORT signed by all parties estimated Trial Days: 0. (Seu, Carlton) (Entered: 07/31/2018)
Set Deadline: The Court acknowledges receipt of the parties' 54 JOINT STATUS REPORT. This matter remains stayed. The parties shall file an updated Joint Status Report by 10/31/2018, or upon a decision by the Court of Appeals in County of Santa Clara v. Trump, whichever occurs sooner. (VE) (Entered: 07/31/2018)
55 JOINT STATUS REPORT signed by all parties estimated Trial Days: 0. (Smith, Gary) (Entered: 08/06/2018)
56 JOINT STATUS REPORT signed by all parties estimated Trial Days: 0. (Seu, Carlton) (Entered: 08/09/2018)
Set Deadline: The Court acknowledges it has received and reviewed the parties' 56 JOINT STATUS REPORT. The parties shall confer within three business days after the filing of any petition for rehearing in County of Santa Clara, or by 9/20/2018, whichever first occurs, and file an updated Joint Status Report with this Court within five business days after the filing of any such petition, or by 9/24/2018, whichever first occurs. (VE) (Entered: 08/10/2018)
57 STATUS REPORT by Plaintiffs City of Portland, City of Seattle (Seu, Carlton) (Entered: 09/24/2018)
58 STATEMENT re 57 Status Report by Defendants Kirstjen M. Nielsen, Jefferson B Sessions, Donald J. Trump (Simpson, W) (Entered: 09/25/2018)
Set Deadline: The Court acknowledges it has received and reviewed the parties' 57 STATUS REPORT and 58 STATEMENT. The parties shall file an updated Joint Status Report by 10/1/2018. (VE) (Entered: 09/25/2018)
59 JOINT STATUS REPORT signed by all parties (Seu, Carlton) (Entered: 10/01/2018)
Reset Deadlines: The Court acknowledges it has received and reviewed the parties' 59 JOINT STATUS REPORT. No later than 10/15/2018, the parties shall file with the Court either a stipulated proposed form of judgment, or, in lieu thereof, a further Joint Status Report. (VE) (Entered: 10/02/2018)

10/15/2018 10/16/2018
10/19/2018 10/24/2018 10/24/2018

60 JOINT STATUS REPORT signed by all parties estimated Trial Days: 0. (Seu, Carlton) (Entered: 10/15/2018)
Set Deadline: The Court acknowledges it has received and reviewed the parties' 60 JOINT STATUS REPORT. No later than 10/19/2018, the parties shall submit a proposed judgment, or in lieu thereof, submit a further status report outlining the parties' respective intentions with respect to lifting of the stay in this case and the conduct of further proceedings. (VE) (Entered: 10/16/2018)
61 STIPULATION AND PROPOSED ORDER AND JUDGMENT GRANTING DECLARATORY RELIEF by parties (Attachments: # 1 Proposed Order)(Seu, Carlton) (Entered: 10/19/2018)
62 ORDER AND JUDGMENT GRANTING DECLARATORY RELIEF, signed by Judge Richard A. Jones. The parties' 61 Stipulation is GRANTED. (VE) (Entered: 10/24/2018)
63 JUDGMENT BY COURT in favor of Plaintiffs against Defendants (VE) (Entered: 10/24/2018)