Case: 1:18-cv-437 As of: 04/01/2020 08:51 PM EDT 1 of 8
U.S. District Court District of Rhode Island (Providence) CIVIL DOCKET FOR CASE #: 1:18−cv−00437−JJM−LDA

APPEAL

City of Providence et al v. Sessions et al Assigned to: District Judge John J. McConnell, Jr. Referred to: Magistrate Judge Lincoln D. Almond Case in other court: U.S. Court of Appeals for the First Circuit,
19−01802 (requires PACER login)
U.S. Court of Appeals for the First Circuit, 20−01296 (requires PACER login) Cause: 28:2201 Declaratory Judgment
Plaintiff

Date Filed: 08/09/2018 Date Terminated: 01/10/2020 Jury Demand: Plaintiff Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

City of Providence

represented by Etie−Lee Z Schaub City Solictor's Office 444 Westminster Street Suite 220 Providence, RI 02903 401−680−5333 Fax: 401−680−5520 Email: eschaub@providenceri.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey T. Dana City of Providence Solicitor's Office 444 Westminster Street Suite 220 Providence, RI 02903 401−680−5333 Fax: 401−680−5520 Email: jdana@providenceri.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Megan K Maciasz DiSanto Senior Assistant City Solicitor Providence Solicitor's Office 444 Westminster Street Suite 220 Providence, RI 02903 (401) 680−5333 Fax: (401) 680−5520 Email: mdisanto@providenceri.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff City of Central Falls

represented by Matthew T. Jerzyk The Law Offices of Matthew Jerzyk LLC 260 West Exchange St. Suite 102A Providence, RI 02903 (401) 757−0370 Email: mjerzyk@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicholas J. Hemond Darrow Everett LLP One Turk Head Place

Case: 1:18-cv-437 As of: 04/01/2020 08:51 PM EDT 2 of 8
Suite 1200 Providence, RI 02903 401−453−1200 Email: nhemond@darroweverett.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert F. Weber Olen Law Offices 478A Broadway Providence, RI 02909 401−274−1400 Email: robertweber.law@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Jefferson B. Sessions, III In his Official Capacity as Attorney General of the United States TERMINATED: 03/05/2019
Defendant United States Department of Justice
Defendant William Barr in his official capacity as United States Attorney General

represented by Daniel D. Mauler U.S. Department of Justice 1100 L Street, NW Washington, DC 20005 202−616−0773 Email: dan.mauler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A. Cunha Office of the U.S. Attorney District of Rhode Island 50 Kennedy Plaza 8th Floor Providence, RI 02903 401−709−5040 Email: zachary.cunha@usdoj.gov ATTORNEY TO BE NOTICED
represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A. Cunha (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Zachary A. Cunha (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

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08/09/2018 08/09/2018 08/09/2018 08/09/2018 08/09/2018 08/09/2018 08/09/2018 08/10/2018 08/10/2018 08/10/2018 08/10/2018 08/10/2018 08/20/2018 10/12/2018
10/15/2018
10/15/2018
10/16/2018

1 COMPLAINT ( filing fee paid $ 400.00 receipt number 14670021121 ), filed by City of Providence, City of Central Falls. (Attachments: # 1 Civil Cover Sheet, # 2 Receipt)(Potter, Carrie) (Entered: 08/09/2018)
2 MOTION for Temporary Restraining Order filed by City of Central Falls, City of Providence. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Potter, Carrie) (Entered: 08/09/2018)
NOTICE of Hearing on Motion 2 MOTION for Temporary Restraining Order : Motion Hearing set for Friday, 8/10/2018 at 01:00 PM in Courtroom 2 before District Judge John J. McConnell, Jr. (Barletta, Barbara) (Entered: 08/09/2018)
3 Summons Request filed by City of Central Falls, City of Providence. (DiSanto, Megan) (Entered: 08/09/2018)
4 Summons Request filed by City of Central Falls, City of Providence. (DiSanto, Megan) (Entered: 08/09/2018)
5 Summons Request filed by City of Central Falls, City of Providence. (DiSanto, Megan) (Entered: 08/09/2018)
6 Summons Issued as to Jefferson B. Sessions, III, United States Department of Justice and U.S. Attorney (Attachments: # 1 Summons, # 2 Summons)(Potter, Carrie) (Entered: 08/09/2018)
7 NOTICE of Appearance by Zachary A. Cunha on behalf of Jefferson B. Sessions, III, United States Department of Justice (Cunha, Zachary) (Entered: 08/10/2018)
8 STIPULATION and Proposed Order signed by all parties filed by Jefferson B. Sessions, III, United States Department of Justice. (Cunha, Zachary) (Entered: 08/10/2018)
TEXT ORDER entering 8 Stipulation filed by all parties − So Ordered by District Judge John J. McConnell, Jr. on 8/10/2018 (Barletta, Barbara) (Entered: 08/10/2018)
TEXT ORDER: The Plaintiffs' 2 Motion for TRO is denied without prejudice as moot in light of the filing of the 8 Stipulation − So Ordered by District Judge John J. McConnell, Jr. on 8/10/2018 (Barletta, Barbara) (Entered: 08/10/2018)
HEARING CANCELLED: The 2 MOTION for Temporary Restraining Order scheduled for Friday, 8/10/18 at 1:00 p.m. in Courtroom 2 before Judge John J. McConnell, Jr. is cancelled(Barletta, Barbara) (Entered: 08/10/2018)
9 SUMMONS Returned Executed by City of Providence, City of Central Falls. All Defendants. (DiSanto, Megan) (Entered: 08/20/2018)
10 STIPULATION And Proposed Order Extending Defendants Time To Respond To The Complaint, And Establishing Briefing Schedule filed by Jefferson B. Sessions, III, United States Department of Justice. (Attachments: # 1 Certificate of Service)(Cunha, Zachary) (Entered: 10/12/2018)
TEXT ORDER entering 10 Stipulation of proposed schedule filed by all parties; Set Deadlines: Plaintiff shall file an Amended Complaint by 11/10/2018; Defendants will file a certified administrative record by 11/30/18; Plaintiff Municipalities will file a Motion for Summary Judgment on or before 12/21/18; Defendants shall file their opposition to Plaintiffs' Motion and any Motion to Dismiss on or before 1/31/19; Plaintiff Municipalities shall file their opposition to Defendants' motion if any and a reply on or before 3/1/19; Defendants shall file any reply in support of their motions on or before 4/1/19 − So Ordered by District Judge John J. McConnell, Jr. on 10/15/2018. (Barletta, Barbara) (Entered: 10/15/2018)
11 STIPULATION and Proposed Order between Plaintiff City of Providence and Defendants with respect to FY2018 grant award filed by Jefferson B. Sessions, III, United States Department of Justice. (Attachments: # 1 Certificate of Service)(Cunha, Zachary) (Entered: 10/15/2018)
TEXT ORDER entering 11 Stipulation regarding FY2018 grant award − So Ordered by District Judge John J. McConnell, Jr. on 10/16/2018. (Barletta, Barbara) (Entered: 10/16/2018)

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10/16/2018 10/18/2018 10/19/2018 10/19/2018 11/09/2018 11/28/2018 11/29/2018 11/30/2018
11/30/2018 12/21/2018 01/02/2019 01/25/2019 01/28/2019 01/28/2019 01/29/2019

12 STIPULATION AND ORDER regarding FY2018 grant awards− So Ordered by District Judge John J. McConnell, Jr. on 10/16/2018. (Barletta, Barbara) (Entered: 10/16/2018)
13 STIPULATION and Proposed Order between Plaintiff City of Central Falls and Defendants with respect to FY2018 grant award filed by Jefferson B. Sessions, III, United States Department of Justice. (Attachments: # 1 Certificate of Service)(Cunha, Zachary) (Entered: 10/18/2018)
TEXT ORDER entering 13 Stipulation filed by United States Department of Justice, Jefferson B. Sessions, III and City of Central Falls− So Ordered by District Judge John J. McConnell, Jr. on 10/19/2018. (Barletta, Barbara) (Entered: 10/19/2018)
14 STIPULATION AND ORDER regarding FY2018 grant awards as to City of Central Falls− So Ordered by District Judge John J. McConnell, Jr. on 10/19/2018. (Barletta, Barbara) (Entered: 10/19/2018)
15 AMENDED COMPLAINT against All Defendants, filed by City of Providence, City of Central Falls. (Attachments: # 1 Exhibit FY17 PVD Award, # 2 Exhibit FY18 PVD Award, # 3 Exhibit FY17 CF Award, # 4 Exhibit FY18 Award)(DiSanto, Megan) (Entered: 11/09/2018)
16 NOTICE of Appearance by Daniel D. Mauler on behalf of All Defendants (Mauler, Daniel) (Entered: 11/28/2018)
17 Amended STIPULATION And Proposed Order Extending Defendants Time To Respond To The Complaint, And Establishing Bifurcated Briefing Schedule filed by All Plaintiffs. (Attachments: # 1 Proposed Order)(DiSanto, Megan) (Entered: 11/29/2018)
18 ADMINISTRATIVE RECORD filed with respect to Fiscal Year 2017 Grants by Jefferson B. Sessions, III, United States Department of Justice NOTICE: In order to view this document, you must first log in using your CMECF Filer login.. (Attachments: # 1 Index to Administrative Record, # 2 Administrative Record− Part 1 of 3 (AR1−AR508), # 3 Administrative Record− Part 2 of 3 (AR509−AR616), # 4 Administrative Record− Part 3 of 3 (AR617−AR1037))(Cunha, Zachary) (Entered: 11/30/2018)
19 ORDER entering 17 Stipulation − So Ordered by District Judge John J. McConnell, Jr. on 11/30/2018. (Urizandi, Nisshy) (Entered: 11/30/2018)
20 MOTION for Partial Summary Judgment re: Counts I−V (FY 2017 Claims) filed by All Plaintiffs. Responses due by 1/4/2019. (Attachments: # 1 Supporting Memorandum, # 2 Statement of Undisputed Facts, # 3 Plaintiff's Exhibits)(DiSanto, Megan) (Entered: 12/21/2018)
SetDeadlines: Responses to 20 MOTION for Partial Summary Judgment re: Counts I−V (FY 2017 Claims) filed by City of Providence, City of Central Falls due by 1/31/2019. (Barletta, Barbara) (Entered: 01/02/2019)
21 MOTION to Stay in light of lapse in appropriations filed by Jefferson B. Sessions, III, United States Department of Justice. Responses due by 2/8/2019. (Cunha, Zachary) (Entered: 01/25/2019)
TEXT ORDER denying as moot 21 Motion to Stay− So Ordered by District Judge John J. McConnell, Jr. on 1/28/2019 (Barletta, Barbara) (Entered: 01/28/2019)
22 MOTION for an Extension of Time to File Response/Reply − request to extend all filing deadlines with respect to briefiing on FY2017 claims by thirty days filed by Jefferson B. Sessions, III, United States Department of Justice. Responses due by 2/11/2019. (Cunha, Zachary) (Entered: 01/28/2019)
TEXT ORDER granting 22 Motion for Extension of Time to File; Defendants shall file their opposition to 20 MOTION for Partial Summary Judgment re: Counts I−V (FY 2017 Claims) and any Motion to Dismiss/Motion for Summary Judgment on or before 3/2/19; Plaintiff municipalities shall file their opposition to defendants' motions and a reply in support of their Motion on or before 3/31/19 and on or before 5/1/19 defendants shall file any replies in support of their motions − So Ordered by District Judge John J. McConnell, Jr. on 1/29/2019 (Barletta, Barbara) (Entered: 01/29/2019)

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03/02/2019
03/02/2019 03/02/2019 03/05/2019 03/29/2019
03/29/2019 05/01/2019 05/02/2019
05/30/2019
06/10/2019 06/10/2019

23 Cross MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , or in the alternative,, MOTION for Partial Summary Judgment with respect to Counts I through V of the Amended Complaint (FY2017 Claims), and Response in Opposition to Plaintiffs' Motion for Partial Summary Judgment (Docket No. 20 ) filed by Jefferson B. Sessions, III, United States Department of Justice. Responses due by 3/18/2019. (Attachments: # 1 Supporting Memorandum of law, # 2 Affidavit Declaration of Caridad Cephas−Kimbrough, Deputy Assistant Director, ICE Office of Enforcement and Removal Operations)(Cunha, Zachary) (Entered: 03/02/2019)
24 STATEMENT OF UNDISPUTED FACTS in support of Defendants' Motion For Partial Summary Judgment (Docket No. 23 ) by Jefferson B. Sessions, III, United States Department of Justice. (Cunha, Zachary) (Entered: 03/02/2019)
25 STATEMENT OF DISPUTED FACTS − Defendants Response To Plaintiffs Statement Of Material Facts (Docket No. [20−2]) by Jefferson B. Sessions, III, United States Department of Justice re 20 MOTION for Partial Summary Judgment re: Counts I−V (FY 2017 Claims). (Cunha, Zachary) (Entered: 03/02/2019)
TEXT ORDER: Pursuant to Fed. R. Civ. P. 25(d), United States Attorney General William Barr, in his official capacity as Attorney General of the United States, is substituted as a Defendant in this case in place of former U.S. Attorney General Jefferson B. Sessions, III.− So Ordered by District Judge John J. McConnell, Jr. on 3/5/2019 (Barletta, Barbara) (Entered: 03/05/2019)
26 RESPONSE In Opposition to 23 Cross MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , or in the alternative, MOTION for Partial Summary Judgment with respect to Counts I through V of the Amended Complaint (FY2017 Claims), and Response in Opposition to Plaintiffs' Motion for Partial Summary Judgment (Docket No. 20 ) and REPLY MEMORANDUM in Further Support of Plaintiffs' Motion for Summary Judgment on FY2017 Claims filed by All Plaintiffs. Replies due by 4/5/2019. (Attachments: # 1 Supporting Memorandum)(DiSanto, Megan) (Entered: 03/29/2019)
27 STATEMENT OF DISPUTED FACTS − Response to Defendants' Statement of Undisputed Facts by All Plaintiffs re 24 Statement of Undisputed Facts. (DiSanto, Megan) (Entered: 03/29/2019)
28 REPLY to Response re 26 Response to Motion,, Defendants Reply In Further Support Of Their Motion To Dismiss, Or, In The Alternative, For Partial Summary Judgment with respect to Counts I through V of the Amended Complaint (Docket No. 23 ), and in Reply to Plaintiffs' Opposition filed by William Barr, United States Department of Justice. (Cunha, Zachary) (Entered: 05/01/2019)
NOTICE of Hearing on Motion 23 Cross MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , or in the alternative, MOTION for Partial Summary Judgment with respect to Counts I through V of the Amended Complaint (FY2017 Claims), and Response in Opposition to Plaintiffs' Motion for Partial Summary Judgment (Docket No. 20 ), 20 MOTION for Partial Summary Judgment re: Counts I−V (FY 2017 Claims) : Motion Hearing set for Monday, 6/10/2019 at 02:00 PM in Courtroom 1 before District Judge John J. McConnell, Jr.(Barletta, Barbara) (Entered: 05/02/2019)
29 ADMINISTRATIVE RECORD filed with respect to Fiscal Year 2018 Grants by William Barr, United States Department of Justice NOTICE: In order to view this document, you must first log in using your CMECF Filer login.. (Attachments: # 1 Exhibit Administrative Record, Part 1, # 2 Exhibit Administrative Record, Part 2, # 3 Exhibit Administrative Record, Part 3, # 4 Exhibit Administrative Record, Part 4, # 5 Exhibit Administrative Record, Part 5, # 6 Exhibit Administrative Record, Part 6)(Mauler, Daniel) (Entered: 05/30/2019)
30 MEMORANDUM AND ORDER granting 20 Motion for Partial Summary Judgment; denying 23 Motion to Dismiss for Failure to State a Claim; denying 23 Motion for Partial Summary Judgment− So Ordered by District Judge John J. McConnell, Jr. on 6/10/2019. (Barletta, Barbara) (Entered: 06/10/2019)
Minute Entry for proceedings held before District Judge John J. McConnell, Jr.: Motion Hearing held on 6/10/2019 re 20 MOTION for Partial Summary Judgment re: Counts I−V (FY 2017 Claims) filed by City of Providence, City of Central Falls, 23 Cross MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , or in the

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06/12/2019 06/14/2019 06/24/2019
06/27/2019 06/27/2019 06/27/2019 07/12/2019
07/12/2019 07/12/2019 07/15/2019

alternative, MOTION for Partial Summary Judgment with respect to Counts I through V of the Amended Complaint (FY2017 Claims), and Response in Opposition to Plaintiffs' Motion for Partial Summary Judgment (Docket No. 20 ) filed by United States Department of Justice, Jefferson B. Sessions, III. Jeffrey Dana, Matthew Jerzyk, Megan DiSanto & Eti−Lee Schaub for Plaintiff. Daniel Mauler & Zachary Cunha for Defendant. Plaintiff & Defendant present argument to the Court. Court to issue a written order. Court adjourned. (Court Reporter Karen Wischnowsky in Courtroom 1 at 1:55 pm.) (McGuire, Vickie) (Entered: 06/10/2019)
31 TRANSCRIPT ORDER for proceedings held on 6/10/2019 before Judge JJM. Ordinary Transcript delivery selected. Transcript to be delivered in 30 days.. (Cunha, Zachary) (Entered: 06/12/2019)
32 TRANSCRIPT ORDER ACKNOWLEDGMENT Entered re: 31 Transcript Order. Court Reporter/Transcriber: Karen Wischnowsky. (Dias, Jennifer) (Entered: 06/14/2019)
33 MOTION for Reconsideration re 30 Order on Motion for Partial Summary Judgment,, Order on Motion to Dismiss for failure to State a Claim,,, Defendants' unopposed Motion for Limited Reconsideration with respect to one aspect of the relief ordered by this Court, and submission of the parties' proposed language for a permanent injunction with respect to FY2017 Byrne JAG Grants filed by William Barr, United States Department of Justice. Responses due by 7/8/2019. (Attachments: # 1 − Proposed Order and Partial Judgment of Permanent Injunction With Respect to FY2017 Grants Reflecting the Joint Conferral of the Parties)(Cunha, Zachary) (Entered: 06/24/2019)
34 MOTION for Partial Summary Judgment re: Counts VI−X (FY 2018 Claims) filed by All Plaintiffs. Responses due by 7/11/2019. (Attachments: # 1 Supporting Memorandum, # 2 Statement of Undisputed Facts, # 3 Plaintiffs' Exhibits)(DiSanto, Megan) (Entered: 06/27/2019)
TEXT ORDER granting 33 Motion for Reconsideration re 30 Memorandum and Order − So Ordered by District Judge John J. McConnell, Jr. on 6/27/2019. (Barletta, Barbara) (Entered: 06/27/2019)
35 PARTIAL JUDGMENT OF INJUNCTION AND WRIT OF MANDAMUS − So Ordered by District Judge John J. McConnell, Jr. on 6/27/2019. (Barletta, Barbara) (Entered: 06/27/2019)
TEXT ORDER: The Plaintiffs' Motion for Partial Summary Judgment 34 regarding the Fiscal Year 2018 claims (Counts VI−X) in Plaintiffs' Amended Complaint is GRANTED as unopposed. Judgment shall enter as a matter of law that the immigration−related conditions on FY 2018 Byrne JAG funding are in excess of statutory authority and unconstitutional.− So Ordered by District Judge John J. McConnell, Jr. on 7/12/2019. (Barletta, Barbara) (Entered: 07/12/2019)
TEXT ORDER: The 7/12/19 Text Order granting 34 Motion for Partial Summary Judgment is VACATED.− So Ordered by District Judge John J. McConnell, Jr. on 7/12/2019. (Barletta, Barbara) Modified on 7/12/2019 to correct typo(Barletta, Barbara). (Entered: 07/12/2019)
SetDeadlines: Responses to 34 MOTION for Partial Summary Judgment due by 8/2/2019. (Barletta, Barbara) (Entered: 07/12/2019)
36 TRANSCRIPT of Hearing on Cross−Motions for Summary Judgment held on June 10, 2019, before Judge John J. McConnell, Jr. Court Reporter Karen Wischnowsky, Telephone number (401) 752−7045. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter or PACER. NOTICE TO COUNSEL: Redaction Requests must be filed for personal identifiers only. All other redactions must be requested by motion. For local policy and sample redaction request visit our website at www.rid.uscourts.gov and select Transcripts under the Case Information menu option. Redaction Request due 8/5/2019. Redacted Transcript Deadline set for 8/15/2019. Release of Transcript Restriction set for 10/15/2019. (Wischnowsky, Karen) (Entered: 07/15/2019)

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08/01/2019 08/02/2019
08/09/2019

37 STIPULATION re 34 MOTION for Partial Summary Judgment re: Counts VI−X (FY 2018 Claims) −Stipulation and Proposed Order Re: Extension of Time and Revised Schedule for Remaining Briefing on FY2018 Claims filed by William Barr, United States Department of Justice. (Cunha, Zachary) (Entered: 08/01/2019)
TEXT ORDER entering 37 Stipulation to extend time; Reset Deadlines: ( Oppositions to 34 Motion for Partial Summary Judgment shall be filed 8/12/2019; any Partial Motion for Summary Judgment or Partial Motion to Dismiss shall be filed by 8/12/19; Plaintiffs' opposition to any Motion or reply in support of their motion shall be filed by 9/16/19 and Defendants' reply in support of any motion filed by them shall be filed on or before 10/16/19.) So Ordered by District Judge John J. McConnell, Jr. on 8/2/2019. (Barletta, Barbara) (Entered: 08/02/2019)
38 NOTICE OF APPEAL by United States Department of Justice (No fee paid, USA, Waived by Statute, or IFP.)

08/09/2019
08/12/2019 08/12/2019
08/12/2019 08/12/2019 09/13/2019
09/13/2019 10/16/2019 10/24/2019 11/14/2019

NOTICE TO COUNSEL: Counsel should register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf/. Counsel should also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf Appeal Record due by 8/16/2019. (Cunha, Zachary) (Entered: 08/09/2019)
39 CLERK'S CERTIFICATE AND APPELLATE COVER SHEET: Abbreviated record on appeal consisting of notice of appeal, order(s) being appealed, and a certified copy of the district court docket report transmitted to the U.S. Court of Appeals for the First Circuit in accordance with 1st Cir. R. 11.0(b). 38 Notice of Appeal. (Attachments: # 1 Record on Appeal)(Potter, Carrie) (Entered: 08/09/2019)
USCA Case Number 19−1802 for 38 Notice of Appeal filed by United States Department of Justice. (Simoncelli, Michael) (Entered: 08/12/2019)
40 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM or in the alternative, MOTION for Summary Judgment with respect to Counts VI−X (FY 2018 Claims) of the Amended Complaint, and Response in Opposition to Plaintiffs' Motion for Partial Summary Judgment (Docket No. 34 ) filed by All Defendants. Responses due by 8/26/2019. (Attachments: # 1 Supporting Memorandum Defendants Brief in Support of Motion To Dismiss or Summary Judgment, and in Opposition to Plaintiffs Motion for Partial Summary Judgment)(Mauler, Daniel) (Entered: 08/12/2019)
41 STATEMENT OF UNDISPUTED FACTS in support of Defendants' Motion For Partial Summary Judgment (Docket No. 40) by All Defendants. (Mauler, Daniel) (Entered: 08/12/2019)
42 STATEMENT OF DISPUTED FACTS − Defendants Response To Plaintiffs Statement Of Material Facts (Docket No. [34−2]) by All Defendants. (Mauler, Daniel) (Entered: 08/12/2019)
43 RESPONSE In Opposition to 40 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM or in the alternative MOTION for Summary Judgment with respect to Counts VI−X (FY 2018 Claims) of the Amended Complaint, and Response in Opposition to Plaintiffs' Motion for Partial Summary Judgment (Docket No. 34 ) and REPLY MEMORANDUM in Further Support of Plaintiffs' Motion for Summary Judgment on FY 2018 Claims filed by All Plaintiffs. Replies due by 9/20/2019. (Attachments: # 1 Supporting Memorandum)(DiSanto, Megan) (Entered: 09/13/2019)
44 STATEMENT OF DISPUTED FACTS − Response to Defendants' Statement of Undisputed Facts by All Plaintiffs re 41 Statement of Undisputed Facts. (DiSanto, Megan) (Entered: 09/13/2019)
45 REPLY to Response re 43 Response to Motion,, filed by All Defendants. (Mauler, Daniel) (Entered: 10/16/2019)
46 NOTICE by City of Central Falls, City of Providence re 34 MOTION for Partial Summary Judgment re: Counts VI−X (FY 2018 Claims) of Recent Case Law (DiSanto, Megan) (Entered: 10/24/2019)
47 ORDER granting 34 Motion for Partial Summary Judgment; denying 40 Motion to Dismiss for Failure to State a Claim; denying 40 Motion for Summary Judgment− So

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01/10/2020 03/10/2020
03/10/2020 03/11/2020

Ordered by District Judge John J. McConnell, Jr. on 11/14/2019. (Barletta, Barbara) (Entered: 11/14/2019)
48 JUDGMENT OF INJUNCTION AND WRIT OF MANDAMUS in favor of City of Central Falls, City of Providence− So Ordered by Chief Judge John J. McConnell, Jr. on 1/10/2020. (Barletta, Barbara) (Entered: 01/10/2020)
49 NOTICE OF APPEAL by United States Department of Justice (No fee paid, USA, Waived by Statute, or IFP.)
NOTICE TO COUNSEL: Counsel should register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf/. Counsel should also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf Appeal Record due by 3/17/2020. (Mauler, Daniel) (Entered: 03/10/2020)
50 CLERK'S CERTIFICATE AND APPELLATE COVER SHEET: Abbreviated record on appeal consisting of notice of appeal, order(s) being appealed, and a certified copy of the district court docket report transmitted to the U.S. Court of Appeals for the First Circuit in accordance with 1st Cir. R. 11.0(b). 49 Notice of Appeal. Documents Sent: 47, 48, 49. (Attachments: # 1 Record)(Hicks, Alyson) (Entered: 03/10/2020)
USCA Case Number 20−1296 for 49 Notice of Appeal filed by United States Department of Justice. (Farrell Pletcher, Paula) (Entered: 03/11/2020)

 
 Case 1:18-cv-00437-JJM-LDA Document 1 Filed 08/09/18 Page 1 of 30 PageID #: 1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND
. r: ..

)

CITY OF PROVIDENCE and

)

CITY OF CENTRAL FALLS,

)

Plaintiffs,

)

)

v.

) C.A.No.:

)

JEFFERSON B. SESSIONS ill, in his

) COMPLAINT FOR DECLARATORY

official capacity as Attorney General of the )

AND INJUNCTIVE RELIEF

United States, and the UNITED STATES

)

DEPARTMENT OF JUSTICE,

)

Defendants.

)

)

INTRODUCTION

1. In our system of government, local governments are the primary source for law

enforcement policies to keep communities safe and promote trust between law enforcement

agencies and the residents they serve. The Edward Byrne Memorial Justice Grant ("Byrne JAG")

program provides funding for states and units of local government to support a broad range of

criminal justice related activities based on their own local needs and conditions. Congress has

appropriated hundreds of millions of dollars in annual grant funds to that end. Contrary to this

congressional intent, however, the United States Department of Justice ("DOJ") has now decided

to coerce local governments into enforcing the federal government's civil immigration priorities

by conditioning Byrne JAG funding on compliance with immigration-related conditions that

have nothing to do with the program's purpose. Plaintiffs-the City of Providence

("Providence") and the City of Central Falls ("Central Falls") (collectively, the "Cities" or

"Plaintiffs"}-challenge these unconstitutional and illegal conditions, and seek declaratory and

injunctive relief to protect their ability to pursue their own law enforcement prerogatives in the

manner that best achieves the safety and security of their communities.

Case 1:18-cv-00437-JJM-LDA Document 1 Filed 08/09/18 Page 2 of 30 PageID #: 2

2. The Byrne JAG program is designed to "give state and local governments more

flexibility to spend money for programs that work for them rather than impose a 'one size fits

all' solution." H.R. Rep. No. 109-233, at 89 (2005). Byrne JAG funds have been used to support

a diverse array of programs tailored to local law enforcement needs.

3. On July 25, 2017, DOJ issued a press release announcing that it was imposing

three immigration-related conditions on Fiscal Year ("FY") 2017 Byrne JAG funds. The

conditions require States and local governments to (1) provide access to their conectional

facilities for federal immigration enforcement agents (the "access condition"); (2) provide

advance notice to federal immigration authorities before an individual's scheduled release from

custody (the "notice condition") and (3) certify compliance with 8 U.S.C. § 1373, which

prohibits states and localities from restricting their officials from communicating with federal

immigration authorities "regarding the citizenship or immigration status, lawful or unlawful, of

any individual" (the "Section 13 73 condition").

4.

DOJ's decision to impose these sweeping conditions on Byrne JAG grantees

represents an unlawful, ultra vires attempt to force states and localities to forsake their own

policy judgments and aid in federal civil immigration enforcement. Nothing in the Byrne JAG

statute "grant[s] the Attorney General the authority to impose conditions that require states or

local governments to assist in immigration enforcement, nor to deny funds to states or local

governments for their failure to comply with those conditions." City of Chicago v. Sessions, 888

F.3d 272,283 (7th Cir. 2018).

5. DOJ has thus forced the Cities into an untenable position: accept unlawful and

unconstitutional conditions that diminish their ability to design their law enforcement policies

2

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and protect their communities, or forfeit Byme JAG funding, thus undermining the vital programs that such funding supports.
6. Accordingly, the Cities file this action seeking a declaratory judgment that the notice, access, and Section 1373 conditions are unlawful, and a permanent injunction enjoining DOJ from imposing these conditions on the Cities in order to receive Byme JAG funds.
JURISDICTION AND VENUE 7. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1346. The Court is authorized to issue the relief sought here under the Administrative Procedures Act, 5 U.S.C. §§ 702, 705, 706, and the Declaratory Judgment Act, 28 U.S.C. § 2201, 2202. 8. Venue is proper in this district under 28 U.S.C. §§ 1391(b)(2) and (e)(l). Defendants are United States agencies or officers sued in their official capacities. The Cities are located in this District, and a substantial part of the events or omissions giving rise to this Complaint occurred and continue to occur herein.
PARTIES 9. Plaintiff City of Providence, represented by and through its Solicitor, Jeffrey Dana, is a municipal corporation organized pursuant to Rhode Island state law. The City of Providence is a political subdivision of the State of Rhode Island and derives its powers through the state constitution, state laws, and its home rule charter. 10. Providence is the state capital of Rhode Island and the third largest city in New England. According to the 2014 American Community Survey data, Providence has a population of 179,154 and an urban population density of 9,736 people per square mile. The city experiences the majority (70%) of the state's violent crimes. Providence is home to a diverse community, with a population that is 38% Hispanic or Latino, 38% White, 16% Black, 6%
3

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Asian, and 6% Multi-Racial. Over 47% of Providence residents speak a language other than English, compared to just 21% of residents statewide. Providence is one of the poorest cities in the Northeast, with approximately 29% of its residents receiving income below the federal poverty level. Despite these financial challenges, the City's community-oriented police policies have helped reduce the incident of crime by over 20% between 2013 and 20 15.
11. Plaintiff City of Central Falls, represented by and through its Solicitor, Matthew Jerzyk, is a municipal corporation organized pursuant to Rhode Island state law. Central Falls is a political subdivision of the State of Rhode Island and derives its powers through the state constitution, state Jaws, and its home rule charter.
12. Central Falls has the most low-income people, immigrants, and people of color, per capita, in the state. Encompassing only 1.27 square miles, Central Falls has approximately 19,376 residents, of whom 38% are foreign-born, according to the 2010 U.S. Census. 1 A supermajority of the population, 74.4%, is people of color, with an estimated tvvo-thirds of the population of Hispanic or Latino origin (2016). Central Falls has the lowest median income among state municipalities (which approximates roughly half of the state median income). According to the 2016 RI Kids Count Factbook, 41% of Central Falls' children live in poverty and 19% in extreme poverty, more than twice the state rates. Despite these financial challenges, Central Falls has witnessed a reduction in crime of over 17% in the last five years as a result of community-oriented policing policies.
13. The Cities are aggrieved by Defendants' actions and have standing to bring this action.
See https://v.rww.census. gov/quickfacts/fact/table/centralfallscityrhodeisland/PST045217 (last visited August 8, 20 18).
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14. Defendant United States Department of Justice ("DOJ") is an agency and executive department of the United States government and has responsibility for implementing the Byrne JAG program, which is administered by DOJ through its Office of Justice Programs.
15. Defendant Jefferson B. Sessions III is the Attorney General of the United States and is the federal official in charge of the DOJ. The Attorney General is sued in his official capacity.
FACTUAL ALLEGATIONS The Byrne JAG Program
16. The Byrne JAG program has its origins in the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, Title I, 82 Stat. 197, which created the first block grants for states and localities to use for law enforcement and criminal justice programs. 2 Recognizing that "crime is essentially a local problem that must be dealt with by State and local governments," 82 Stat. at 197, Congress designed the grant to provide a reliable funding stream that States and localities could use in accordance with State and local law enforcement policies. 3
17. To ensure federal deference to local priorities, the 1968 Act prohibited federal agencies and executive branch officials from using law enforcement grants to "exercise any direction, supervision, or control over any police force or any other law enforcement agency of any State or any political subdivision thereof." Id. § 518(a), 82 Stat. at 208. Although Congress

2

See Justice System Improvement Act of 1979, Pub. L. No. 96-157, 93 Stat. 1167, 1179 (amending Title I of

the 1968 Act and reauthorizing law enforcement block grants to states and local governments); Justice Assistance

Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837, 2077-85 (same); Anti-Drug Abuse Act of 1988, Pub. L. No. 100-

690, pt. E, 102 Stat. 4181, 4329 (amending Title I of the 1968 Act and creating a formula law-enforcement grant);

Violence Against Women and Department ofJustice Reauthorization Act of 2005, Pub. L. No. 109-162, § 1111, 119

Stat. 2960, 3094 (2006) (amending Title I of the 1968 Act and creating the modern Byrne JAG program).

3

See, e.g., S. Rep. No. 90-1097, at 2 (1968) (stating that Congress sought to encourage States and localities

to adopt programs "based upon their evaluation of State and local problems of law enforcement"); see also Ely v.

Velde, 451 F.2d 1130, 1136 (4th Cir. 1971) (reviewing the legislative history ofthe 1968 Act and concluding that

"[t]he dominant concern of Congress apparently was to guard against any tendency towards federalization of local

police and law enforcement agencies").

5

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has repeatedly modified the structure and terms of the law enforcement grants authorized under Title I of the 1968 Act, the prohibition originally set forth in § 518 of the 1968 Act remains in effect with virtually no modification, and is now codified in the same chapter of the U.S. Code as Byrne JAG. See 34 U.S.C. § 10228(a). The full text of Section 10228(a) provides: ''Nothing in this chapter or any other Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision thereof." Id.
18. Congress codified the modem Byrne JAG program in 2006.4 34 U.S.C. §§ 1015158. Like its predecessors, Byrne JAG aims to "give state and local governments more flexibility to spend money for programs that work for them rather than to impose a 'one size fits all' solution." H.R. Rep. No. 109-233, at 89 (2005). To that end, the Byrne JAG statute gives recipients substantial discretion to use funds for eight "broad purposes," id., including law enforcement, crime prevention and education, and drug treatment. 34 U.S. C.§ 10152(a)(l).
19. DOJ is required by law to issue grants in "accordance with the formula" set forth in the Byrne JAG statute. Id. That formula determines the distribution of Byrne JAG funds to state and local governments based on their population and relative levels of violent crime and is explicitly enumerated in 34 U.S.C. § 10156.
20. Of the money allocated to each state, sixty percent of the funding "shall be for direct grants to States," id. § 10156(b)(1 ), and forty percent "shall be for grants" directly to localities, id. 34 § 10156(b)(2), (d). Each state is required to allocate a portion of its award to
The program is named after a former New York City police officer who was killed in the line of duty while protecting a Guyanese immigrant who was acting as a cooperating witness. See About Officer Byrne, https://goo.gl/pLm8JM (last visited August 8, 2018), see also Arjune Enters Plea of Guilty in Arrest Case, NEW YORK TIMES (1989), m>ailable at https://www.nytimes.com/1989/12/16/nyregion/mjune-enters-plea-of-guilty-inarrest-case.html (last visited August 8, 2018). Congress appropriated for the program-which consolidated the existing Byrne formula program with another law enforcement block grant program-in an appropriations act passed on December 8, 2004. See P.L. 108-447, 118 Stat. 2809,2863 (Dec. 8, 2004). Thus, although the program was not codified until2006, some states began receiving awards under the program in FY 2005.
6

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localities within the state. See id., § 10156(c)(2). Thus, some localities are both direct grant recipients and subgrantees ofthe States. The Cities are direct grant recipients only. 5
21. Unlike discretionmJ! grant programs, which agencies award on a competitive basis, "formula grants ... are not awarded at the discretion of a state or federal agency, but are awarded pursuant to a statutory formula." City of Los Angeles v..A1cLaughlin, 865 F.2d 1084, 1088 (9th Cir. 1989). Thus, if a grantee satisfies the statutory requirements, it is entitled to receive what the formula dictates.
22. Under the Byrne JAG statute, state and local governments are entitled to their share of the formula allocation as long as they use the funds to further one or more of the eight broadly defined goals, see 34 U.S.C. § 10152(a)(1)(A)-(H), and their applications contain a series of statutorily prescribed certifications and attestations, see id. § 10153(a).
23. States and localities are required to submit an application to receive Byrne JAG funds each fiscal year. See id. § 10153(a). The application must include the following items, among others: a certification that program funds will not be used to supplant state or local funds, id. § 10153(a)(1); an assurance that the application was made available for comment by the public, and by neighborhood or community-based organizations, id. § 10153(a)(3); an assurance that the applicant will "maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require," id. § 10153(a)(4); and a certification that programs to be funded meet the requirements of the Byrne JAG statute, that all the information in the application is correct, that there has been appropriate coordination with affected agencies, and that "the applicant will comply with all provisions of this part and all other applicable Federal laws," id. § 10153(a)(5).
In the past, the City of Central Falls has been a direct grant recipient and subgrantee of Byrne JAG funds. Since 2014, however, it has been only a direct recipient.
7

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24. The Byrne JAG statute does not include any provision expressly authorizing DOJ to impose conditions on Byrne JAG funding.
The Cities' Use of Byrne JAG Funding 25. For nearly fifty years, the states and local governments have used grant funds received under Byrne JAG and its predecessor grant programs to support a broad array of critical law enforcement programs tailored to local needs.
City ofProvidence 26. Providence has used Byrne JAG funding for a variety of purposes including overtime compensation for targeted patrols in areas known for criminal activity, training of police department personnel, and the development of a gang intervention unit and database (now known as an Intelligence Assessment Database) in order to monitor and curb the criminal activity of numerous highly organized and violent gangs operating in Providence. Providence has received Byrne JAG awards every year since at least FY 2005. 27. Upon information and belief, Providence has never had any conflicts with the federal government in obtaining Byrne JAG funds. 28. On June 26, 2018, the DOJ awarded Providence with Byrne JAG funding for FY 2017 in the amount of$212,112. 29. For the FY 2017 grant cycle, Providence plans to use its Byrne JAG funding to support a number of criminal justice priorities. In particular, Providence plans to use FY 2017 Byrne JAG funding to:
• cover overtime expenses incurred by the Investigative and Patrol Divisions of the Providence Police Department in order to conduct targeted patrols in known "hotspot" areas;
8

Case 1:18-cv-00437-JJM-LDA Document 1 Filed 08/09/18 Page 9 of 30 PageID #: 9
• contract with a part-time Bilingual Police Liaison in order to assist with providing crisis intervention, serve as an interpreter, and interview potential clients and recommend appropriate program assignments; and
• cover the cost of placing a "public notice ad" in the locality's prominent news publication.
30. Providence's deadline to accept the FY 2017 Byrne JAG award is August 10, 2018.
City of Central Falls 31. Central Falls has used Byrne JAG funding for a variety of purposes including the following: internet access and tablets for detectives; upgrades to police department servers, video cameras, security doors, radio system, and computer technology systems; and weapons and digital recording systems. 32. Central Falls has received Byrne JAG awards every year since at least FY 2005. 33. Upon information and belief, Central Falls has never had any conflicts with the federal government in obtaining Byrne JAG funds. 34. Byrne JAG funds have been especially important to Central Falls as funding for its police department was cut dramatically following the city's declaration of bankruptcy in August 2011 and emergance from bankruptcy in late 2012. 35. On June 26,2018 the DOJ awarded Central Falls with Byrne JAG funding for FY 2017 in the amount of$28,677. 36. For the FY 2017 grant cycle, Central Falls plans to use its Byrne JAG funding to support a number of criminal justice priorities. In particular, the City of Central Falls plans to use FY 2017 Byrne JAG funding to:
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Case 1:18-cv-00437-JJM-LDA Document 1 Filed 08/09/18 Page 10 of 30 PageID #: 10
e purchase necessary hardware and software that will allow police personnel to log onto the existing police network with heightened security by utilizing fingerprint readers and device access with dual authentication;
• purchase hardware and software to increase the viability of the Central Falls Police Department's remote access location-the Emergency Operations Center-to assist in the maintenance and backup of data in real time and provide the police department with the ability to have an uninterrupted alternate offsite location in the event of equipment failure or an emergency event.
37. Central Falls' deadline to accept the FY 2017 Byrne JAG award is August 10, 2018.
The Cities' Local Laws and Policies 38. Immigrants are an integral part of the Cities' workforces, business sectors, schools and college populations, and civic associations; the success of local immigrants is vital to the Cities' success. To ensure that immigrant communities continue to thrive, the Cities' have adopted policies that seek to foster trust between the immigrant population and city officials and agents- especially the police department-and to encourage people of all backgrounds to take full advantage of the Cities' resources and opportunities. The rationale behind these policies is that if immigrants, including undocumented immigrants, do not fear adverse consequences to themselves or to their families from interacting with city officials, they are more likely to report crimes, enroll their children in public schools, request health services like vaccines, and contribute more fully to the Cities' health and prosperity. 39. The Cities' have determined that public safety is best promoted without their involvement in the enforcement of federal immigration law. To the contrary, the Cities' have
10

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long recognized that a resident's immigration status has no bearing on his or her contributions to the community or on his or her likelihood to commit crimes, and that when people with foreign backgrounds are afraid to cooperate with the police, public safety is compromised.
40. Providence, in order to bridge the divide between the community and the police, has, among other things, enacted the Providence Community Police Relations Act, which prohibits police from inquiring about an individual's immigration status or complying with requests by other agencies to support or assist in operations conducted solely for the purpose of enforcing federal civil immigration law. 6 By executive order of the Mayor, Providence issues identification cards to all City residents, regardless of immigration status. 7 Providence has established a Muslim-American Advisory Board to better serve the Muslim-American community in Providence and to provide advice on policy decisions that effect that community. The City Council has, by resolution, expressed concern with the federal Secure Communities program, an initiative that asks local law enforcement agencies to share information with U.S. Immigration and Customs Enforcement about arrestees. 8 In Providence's experience, these policies have promoted the city's safety by facilitating greater cooperation with the immigrant community at large.
41. Central Falls, in order to bridge the divide between the community and the police, has implemented a community policing department in recent years. In addition, in collaboration with law enforcement experts and community leaders, Central Falls' police department implemented a general order on immigration detainers stating that "when an individual is arrested ... on a criminal offense, and is determined during standard prisoner processing to have an ICE detainer request, he or she is not to be held beyond the time when they are eligible for

6

See Providence Code of Ordinances§ 18 Yz.4 (eff. Jan. 1, 2018).

See Providence Executive Order 2017-3 (Nov. 2, 2017).

See Providence City Council Resolution No. 170 (Mar. 11, 2011).

11

Case 1:18-cv-00437-JJM-LDA Document 1 Filed 08/09/18 Page 12 of 30 PageID #: 12

release from custody, to include, yet not limited to, transportation to an outside jail or detention facility." 9 The police department issued another general order on immigration matters prohibiting the detention of any individual at the request of ICE without evidence of a court-
° issued warrant. 1 Central Falls police officers do not stop or question individuals on account of
their immigration status, do not in any way act as immigration enforcement agents, and maintain the confidentiality of information about victims and witnesses to crimes. The Central Falls City Council has expressed an official position opposing immigration policies which are not sensitive to the needs of local governments and communities. 11 In Central Falls' experience, these policies have promoted the city's safety by facilitating greater cooperation with the immigrant community at large.
DOJ's Immigration-Related Byrne JAG Conditions 42. On January 25, 2017, President Trump issued Executive Order 13768. Section 9(a) of the order threatened to deny federal grant funding to all so-called "sanctuary jurisdictions." That section was permanently enjoined by a federal district court because it violated numerous provisions of the United States Constitution. 12 43. DOJ subsequently sought to achieve a similar goal by imposing three immigration-related conditions on FY 2017 Byrne JAG funds. 13 On July 25, 2017, DOJ announced that it would impose these conditions and provided a one-page "Backgrounder" and a press release, neither of which explained how or why DOJ decided to impose these immigration-

9

See Central Falls Police Department, General Order 14-08 (July 24, 20 18).

10

See Central Falls Police Department, General Order 100.Dl (May 23, 2016).

II

See Central Falls City Council Resolution 17-08 (Feb. 13, 2017).

12

Cty. ofSanta Clara v. Trump, 267 F. Supp. 3d 1201 (N.D. Cal. 2017) (permanent injunction).

13

See Press Release, Attorney General Sessions Announces Immigration Compliance Requirements for

Edward Byrne Memorial Justice Assistance Programs (July 25, 20 17), m>ailable at https://goo.gl/VH5wGU (last

visited August 8, 2018); Backgrounder on Grant Requirements (July 25, 2017), available at https://goo.gl/ZLgXMC

(last visited August 8, 2018); Byrne JAG FY2017 State Solicitation, m>ailable at

https://www.bja.gov/funding/JAGstate17.pdf (last visited August 8, 2018).

12

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related conditions, how the conditions would advance the interests of the Byrne JAG program, or what alternatives DOJ had considered.
44. On August 24, 2017, DOJ published a sample final award document containing the three immigration-related conditions and stated that identical conditions would be imposed on all Byrne JAG funding recipients.
45. The access condition requires all state and local grantees and state subgrantees to have a statute, rule, regulation, policy or practice designed to ensure that federal agents may access any state (or state-contracted) or local (or local-contracted) correctional facility to question suspected aliens about their right to be, or remain, in the United States.
46. The notice condition requires all state and local grantees, and state subgrantees, to have a statute, rule, regulation, policy or practice designed to ensure that, upon written request, any state (or state-contracted) or local (or local-contracted) correctional facility will provide the Department of Homeland Security, as early as practicable, advance notice of a particular alien's scheduled release date and time.
47. The Section 1373 condition requires that, in order to accept Bryne JAG funding, a local government must comply with, as well as certify compliance with, 8 U.S.C. § 1373, which prohibits states and localities from restricting their officials from communicating with federal immigration authorities "regarding the citizenship or immigration status, lawful or unlawful, of any individual." 8 U.S.C. § 1373(a). 14 Although Section 1373 was enacted in 1996, FY 2017 is the first time that any federal agency has imposed compliance with that statute as a condition for

14

See also 8 U.S.C. § 1373(b) ("Notwithstanding any other provision of Federal, State, or local law, no

person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of

the following with respect to information regarding the immigration status, lawful or unlawful, of any individual: (1)

Sending information to, or requesting or receiving such information from, the Immigration and Naturalization

Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local

government entity.").

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receipt of federal funding. Certification carries the risk of personal criminal prosecution, civil penalties, and administrative remedies.
48. A number of jurisdictions have brought lawsuits challenging DOJ's legal authority to impose one or more of the immigration-related conditions on Byrne JAG funding. Upon information and belief, all comts to have considered the question to date have held that DOJ likely, or actually, lacks authority to impose these conditions.
49. The City of Chicago sued on August 7, 2017, challenging the notice and access conditions and seeking a declaration that it complies with Section 1373. 15 On September 15, 2017, a federal court in Chicago issued a nationwide preliminary injunction that prohibited the DOJ from imposing the notice and access conditions on any Byrne JAG applicant. 16 Rather than disburse the Byrne JAG awards without these conditions, DOJ instead decided to effectively suspend the program by withholding all further FY 2017 grant awards until the injunction was narrowed or there was a final decision on the merits in the Chicago action.
50. On April19, 2018, the Seventh Circuit unanimously affirmed the Chicago district court's nationwide preliminary injunction on the notice and access conditions and its ruling that DOJ likely lacks authority to impose those two conditions. 17
51. On June 26, 2018, the Seventh Circuit issued a partial stay of the nationwide preliminary injunction previously issued by the district court in Chicago, limiting the effect of the injunction to Chicago. The Seventh Circuit also granted en bane review solely on the question of the propriety of the nationwide scope of the injunction. 18 The Seventh Circuit will

15

Compl., City of Chicago v. Sessions, No. 17-cv-05720, 264 F. Supp. 3d 933 (N.D. Ill. Aug. 7, 2017), ECF

No.1.

16

City ofChicago v. Sessions, 264 F.Supp. 3d 933 (N.D.lll. 2017).

17

City a,{ Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018).

18

City of Chicago v. Sessions, 17-2991 (7th Cir. June 4, 2018), Doc. No. 128 (granting en bane review on

scope of preliminary injunction); Order, Chicago v. Sessions, 17-2991 (7th Cir. June 26, 2018), Doc. No. 134

(granting partial stay of injunction as to geographic areas beyond the City of Chicago).

14

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hear argument en bane in September 2018 on that limited issue. DOJ did not challenge the Seventh Circuit's ruling that DOJ likely lacks authority to impose the notice and access conditions.
52. On June 26, 2018, just hours after the Seventh Circuit issued its decision limiting the injunction to Chicago, DOJ issued grant award letters to the Cities that included the notice, access, and Section 1373 conditions.
53. Shortly after the lawsuit in Chicago was filed, the City of Philadelphia filed its own lawsuit. 19 On June 6, 2018, the district court in Philadelphia permanently enjoined DOJ from imposing the three conditions on Philadelphia and ordered DOJ to immediately disburse the Byrne JAG funds to Philadelphia. 20
54. Also in 2017, the County and City of San Francisco ("San Francisco") filed suit seeking declaratory and injunctive relief on the basis that the notice, access, and section 1373 conditions imposed in order to receive Byrne JAG funding are unconstitutional. 21
55. San Francisco sought, among other things, that the court declare the imposition of the notice, access, and section 1373 conditions as unconstitutional and that the Court enjoin DOJ from denying Byrne JAG funding. 22 On November 20, 2017, a federal district court in California issued a decision granting summary judgment, enjoining DOJ and Attorney General Sessions

19

Compl., City ofPhiladelphia v. Sessions, No. 17-cv-03894, (E.D. Pa. Aug. 30, 20 17), ECF No. I.

20

City ofPhiladelphia v. Sessions, 309 F. Supp. 3d. 289,338-45 (E.D. Pa. 2018).

21

See Compls. and Am. Compls. in City and Cty. of San Francisco v. Donald J Trump, No. 17-cv-00485,

and related cases Nos. 17-cv-00574, 17-cv-01535, 17-cv-04642, and 17-cv-04701 (N.D. Cal.).

22

The County of Santa Clara also filed similar papers with the Northern District of California and the Court

considered both Santa Clara and San Francisco in its decision.

15

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from enforcing the notice, access, and section 1373 conditions. 23 Further, that court issued a nationwide injunction against the defendants (other than President Trump).24
56. On August 1, 2018, the Ninth Circuit Court of Appeals issued a decision affirming the California district court's grant of summary judgment, affirming the injunction as to the State of California, but vacating the nationwide injunction.
57. Following the Ninth Circuit's August 1, 2018 decision vacating the nationwide injunction, the Cities were given less than ten (1 0) days to decide whether to accept the awards with the new immigration-related conditions.
All Three Immigration-Related Conditions Are Unlawful 58. All three immigration-related conditions are unlawful for a number of reasons. 59. First, DOJ has no statutory authorization to impose the conditions. An "agency literally has no power to act. .. unless and until Congress confers power upon it." Louisiana Pub. Serv. Comm 'n v. FCC, 476 U.S. 355, 374 (1986). Here, nothing in the statute's text, structure, purpose, or history suggests that Congress granted DOJ authority to prescribe generally applicable substantive conditions like the notice, access and Section 13 73 conditions at issue here. See Oty ofChicago, 888 F.3d at 285-87; Oty ofPhiladelphia, 309 F.Supp.3d at 321-22. 60. · The fact that Congress designed Byrne JAG as a formula grant provides further confirmation that DOJ lacks discretion to impose these substantive conditions. Formula grants leave no discretion to the administering agency: if a grantee satisfies the statutory requirements, it is entitled to the grant amount that the formula dictates. See, e.g., City ofLos Angeles, 865 F.2d

23

Cty. of Santa Clara, v. Donald J Trump, 275 F.Supp.3d 1196 (N.D. Cal. 2017), a.ff'd in part, vacated in

part, remanded sub nom. City & Cty. ofSan Francisco v. Trump, No. 17-17478,2018 WL 3637911 (9th Cir. Aug I,

2018).

24

ld. at 1219.

16

Case 1:18-cv-00437-JJM-LDA Document 1 Filed 08/09/18 Page 17 of 30 PageID #: 17

at 1088.25 Accordingly, DOJ's imposition of the new conditions is ultra vires for purposes ofthe Administrative Procedure Act.
61. Second, because Congress did not authorize DOJ to impose conditions on Byrne JAG, DOJ' s actions here violate the Separation of Powers between Congress and the Executive. The Executive Branch may not arrogate to itself the powers that the Constitution reserves to Congress, as it has attempted to do here. The Executive has no authority to amend or cancel an appropriation that Congress has duly enacted. Nor can executive officials choose to spend less than the full amount of funding that Congress has authorized under a statute.
62. Third, the immigration-related conditions violate 34 U.S.C. § 10228(a), which is codified in the same chapter of the U.S. Code as the Byrne JAG statute and provides that "[n]othing in this title or any other Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or political subdivision thereof." This language has been carried forward in every law enforcement grant since the Omnibus Crime Control and Safe Streets Act of 1968-a predecessor to the Byrne JAG program and the first federal block grant program for State and local law enforcement. 26 The legislative history of § 10228 makes clear that Congress intended to incorporate anti-commandeering principles into the grant context to prevent executive officials from using a grant like Byrne JAG to interfere with state and local law enforcement policy. 27 All three immigration-related

25

See also Paul G. Dembling & Malcolm S. Mason, Essentials ofGrant Law Practice§ 5.03, 33-35 (1991).

26

See Omnibus Crime Control and Safe Street Act of 1968, Pub. L. No. 90-351, § 518(a), 82 Stat. 197, 208

(1968); see generally John K. Hudzik, Federal Aid to Criminal Justice: Rhetoric, Results, Lessons 1-68 (1984)

(describing the origins of the Safe Streets Act).

27

See, e.g., Amendments to Title I (LEAA) of the Omnibus Crime Control and Sqfe Streets Act: Hearing

Before the Subcomm. on Criminal Lml'S and Procedures ofthe S. Comm. ofthe Judicimy, 94th Cong. 407-08 (1975)

(statement of Richard W. Velde, Administrator of the LEAA) ("It is disturbing that it should even be suggested that

LEAA ought to undertake to redirect the efforts of state and local law enforcement agencies .... The Congress has

17

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conditions violate § 10228(a) because they compel grant recipients to act as enforcement arms of federal immigration authorities.
63. Fourth, the Section 1373 condition is invalid because Section 1373 is unconstitutional. See South Dakota v. Dole, 483 U.S. 203, 210-211 (1987) (federal government cannot impose unconstitutional conditions). In A1wphy v. NCAA, 138 S.Ct. 1461, 1478 (2018), the Supreme Court held that Congress runs afoul of the anti-commandeering principles of the Tenth Amendment when it "unequivocally dictates what a state legislature may and may not do." Section 1373 violates this rule because it directly prohibits states and localities enacting laws, rules, or policies that "prohibit or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Nationalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual." 8. U.S.C. § 1373(a). See, e.g., City of Philadelphia, 309F.Supp.3d. at 329-31 (citing Mwphy and holding that 8 U.S.C. § 1373 violates the Tenth Amendment).
64. Finally, the conditions are arbitrary and capricious because DOJ imposed them without any explanation, reasoning, or opportunity for exchange with state or local governments regarding the likely impact of the conditions on state and local efforts to promote public safety.
The Cities Are Harmed by DOJ's Imposition of the Immigration-Related Conditions on Byrne JAG Funding
65. The three immigration-related conditions imposed by DOJ upon applicants for FY 2017 Byrne JAG funding threaten the Cities with serious, immediate, and irreparable harm.
66. In our federal system, states and localities have primary responsibility for the design of law-enforcement policies to keep their residents safe. See, e.g., United States v. Morrison, 529 U.S. 598, 618 (2000) ("[W]e can think of no better example of the police
continuously emphasized that law enforcement is, and must remain, essentially a state and local responsibility. Section 518(a) of the Safe Streets Act is the embodiment of this appropriate philosophy.").
18

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power. ..reposed in the StatesO than the suppressiOn of violent crime and vindication of its victims.").
67. Recognizing that states and local governments possess the primary authority for maintaining public safety, Congress designed the Byrne JAG program to maximize the discretion of the states and their localities to decide how to best use these funds to advance their law enforcement priorities and make their communities safer. The immigration-related conditions constrain the very choices that Congress sought to safeguard.
68. DOJ's actions place the Cities in an untenable position. If the Cities do not acquiesce to the conditions, they collectively will forfeit hundreds of thousands of dollars in law enforcement funding, potentially compromising the critical law enforcement and criminal justice programs those funds support.
69. If they accept these conditions, the Cities will be forced to relinquish local control over law enforcement officials and law enforcement policies, including policy choices to allow localities to adopt law enforcement and criminal justice policies based on local needs. Localities that lawfully limited voluntary cooperation with federal immigration officials will now be compelled to adopt policies that undermine their relationships of trust with their immigrant communities, to the detriment of effective crime reporting and overall public safety. Immigrants also may be deterred from seeking primary care and preventative health care services, undermining the public health efforts of states and localities. The trust between immigrants and state and local officials, "once destroyed by the mandated cooperation and communication with the federal immigration authorities, [cannot] easily be restored." City of Chicago, 888 F.3d at
291.
19

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70. Certifying compliance with Section 1373 is particularly perilous for the Cities given Defendants' expansive and ever-changing interpretations of that statute's meaning and application. DOJ has advanced increasingly broad interpretations of what it means to comply with Section 1373. For example, DOJ has suggested that Section 1373 prevents jurisdictions from enacting policies that define the time and manner in which their employees exchange immigration-status information with federal officials. 28 DOJ has also suggested that Section 1373 requires jurisdictions to not only provide advance notification of an alien's scheduled release from state or local custody, but also to facilitate transfers from state and local jails to federal immigration authorities. 29 DOJ has further suggested that Section 1373 requires jurisdictions to not only share the immigration and citizenship status of individuals, but that it also requires jurisdictions to share an alien's home and work address and his scheduled release date from incarceration. 30 On top of all of this, DOJ has taken the position that jurisdictions have an affirmative obligation to communicate DOJ's interpretation of Section 1373 to their

28

See, e.g., Letter from Alan Hanson, Acting Assistant Attorney General, to Elizabeth Glazer, Director, New

York City Mayor's Office of Criminal Justice (Oct. 11, 2017), available at https://www.justice.gov/opalpress-

release/file/1003041/download (last visited August 8, 2018); Letter from Alan Hanson, Acting Assistant Attorney

General, to the Hon. Jim Kenney, Mayor, City of Philadelphia (Oct. 11, 2017), available at

https://wv,rw.justice.gov/opa/press-release/file/1 003046/download (last visited August 8, 2018).

29

See Def. 's Proposed Findings of Fact 8-11, City ofPhiladelphia v. Sessions, No. 17-cv-3894 (B.D. Pa. May

17, 2018), ECF No. 200; Pl.'s Mot. For Prelim. Inj. and Mem. Of Law in Support 24-26, United States v. California,

No. 18-cv-00490 (B.D. Cal. Mar. 6, 2018), ECF No. 2-1 (suggesting California Jaw violates§ 1373 by restricting the

transfer of aliens in state custody to federal custody).

30

See, e.g., PI's Mot. for Prelim. Inj. and Mem. Of Law in Support 27-28, United States v. Cal(fornia, 18-cv-

00490 (B.D. Cal. Mar. 6, 2018), ECF No. 2-1 (asserting that the phrase "information regarding the citizenship or

immigration statute ... of any individual" in § 1373 "does not merely denote the alien's technical immigration

status"); Letter from Alan Hanson, Acting Assistant Attorney General, to Elizabeth Glazer, New York City's

Mayor's Office of Criminal Justice, at 2 (Oct. 11, 2017), m>ailable at http://www.justice.gov/opalpress-

release/file/1003041/download (last visited August 8, 2018) ("In order to comply with 8 U.S.C. § 1373, the

Department has determined that New York would need to certify that it interprets and applies Section 9-131(b) and

(d) to not restrict New York officers from sharing information regarding the date and time of an alien's release from

custody."). But at least one federal court has ruled that Section 1373 does not govern release dates or home or work

addresses. Order re: United States of America's Mot. for Prelim. Inj., United States v. California, 18-cv-00490 (E.D.

Cal. July 5, 2018), ECF No. 193.

20

Case 1:18-cv-00437-JJM-LDA Document 1 Filed 08/09/18 Page 21 of 30 PageID #: 21

employees. 31 Thus, DOJ requires the Cities not only to certify compliance with the black-letter of Section 13 73 but also with DOJ' s ever-shifting interpretation of the scope of that statute.
CAUSES OF ACTION COUNT I
Separation of Powers 71. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 72. The Constitution vests the spending power in Congress, not the Executive Branch. U.S. Const. art. I § 8, cl. 1. 73. Absent a statutory prov1s10n or express delegation, only Congress has the authority to attach conditions to federal funds. 74. The Executive "does not have unilateral authority to refuse to spend ... funds" that Congress already appropriated "for a particular project or program." In re Aiken Cty., 725 F.3d 2255, 261 n.l (D.C. Cir. 2013); see also Train v. City ofNew York, 420 U.S. 35, 44 (1975). The Executive's unauthorized imposition of new conditions on a federal grant program amounts to refusing to spend money appropriated by Congress. 75. The Byrne JAG statute does not condition participation in the Byrne JAG program on compliance with Section 1373 or the notice or acc~ss conditions. See 34 U.S.C. § 10151 et seq. Additionally, there is nothing in either the text or legislative history of Section

31

See, e.g., Letter from Alan Hanson, Acting Assistant Attorney General, to Elizabeth Glazer, New York

City's Mayor's Office of Criminal Justice, at 2 (Oct. 11, 2017), available at http://www.justice.gov/opalpress-

release/file/1003041/download (last visited August 8, 2018) ("In order to comply with 8 U.S.C. § 1373, the

Department has determined that ... New York would need to certify that it has communicated this interpretation to

its officers and employees."); Letter from Alan Hanson, Acting Assistant Attorney General, to the Ron. Jim Kenney,

Mayor, City of Philadelphia, at 2 (Oct. 11, 20 17), m>ailable at http://wwvdustice.gov/opalpress-

release/file/1003046/download (last visited August 8, 2018) ("In order to comply with 8 U.S.C. § 1373, the

Department has determined that Philadelphia would need to certify that it interprets and applies this Executive Order

to not restrict Philadelphia's officers from sharing information regarding immigration status with federal

immigration officers. The Department has also determined that Philadelphia would need to certify that it has

communicated this interpretation to its officers and employees.").

21

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13 73 that conditions federal funding on compliance with Section 1373. These statutes do not grant DOJ the authority to impose the notice, access, or Section 1373 conditions.
76. The notice condition was not imposed by Congress, but rather by DOJ in issuing the FY 2017 Byrne JAG application. Therefore, the notice condition amounts to improper usurpation of Congress's spending power by the Executive Branch.
77. The access condition was not imposed by Congress, but rather by the DOJ in issuing the FY 2017 Byme JAG application. Therefore, the notice condition amounts to improper usurpation of Congress's spending power by the Executive Branch.
78. The Section 1373 condition was not imposed by Congress, but rather by the DOJ in issuing its OJP guidance and the FY 2017 Byrne JAG application. Therefore, the Section 1373 condition amounts to improper usurpation of Congress's spending power by the Executive Branch.
79. The new immigration-related conditions amount to a refusal to spend money appropriated by Congress, in violation of the Executive's constitutional authority to administer the Jaw.
80. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the Attorney General's imposition of the notice, access, and Section 1373 conditions violates the constitutional principle of separation of powers and impermissibly arrogates to the Executive power that is reserved to Congress. Plaintiffs also are entitled to a permanent injunction preventing the Attomey General from putting those conditions into effect.
COUNT IT Ultra Vires Conduct 81. Plaintiffs incorporate by reference the allegations in the preceding paragraphs.
22

Case 1:18-cv-00437-JJM-LDA Document 1 Filed 08/09/18 Page 23 of 30 PageID #: 23

82.
u.s. 297.

DOJ may only exercise authority conferred by statute. See City ofArlington, 569

83. The Byrne JAG statute does not authorize the Attorney General to impose the

notice, access, and Section 1373 conditions on the receipt of Byrne JAG funds, or to deny funds

to states or local governments that fail to comply with those conditions. See City of Chicago, 88

F.3d 283. Indeed, such authority is at odds with the text, structure, and purpose of the Byrne JAG

statute.

84. The DOJ's imposition of the new conditions contradicts the Byrne JAG

program's formula grant structure. See 34 U.S.C. § 10156(d)(2)(A). It also contradicts

Congress's intent to give states and local governments the "flexibility to spend money for

programs that work for them rather than to impose a 'one size fits all' solution." H.R. Rep. No.

109-223, at 89 (2005).

85. DOJ lacks statutory authority to condition Byrne JAG funds on compliance with

Section 1373. The Byrne JAG statute's requirement that grantees comply with "all applicable

Federal laws" does not encompass Section 1373. Rather, the phrase "all applicable Federal laws"

refers to the laws that regulate the conduct of federal grant recipients as grant recipients and not

to every section of the U.S. Code that could possibly apply to a state or local government.

Section 1373 does not regulate grantees as grantees nor does it mention federal grants or funds.

86. The notice, access, and Section 1373 conditions are invalid under 34 U.S.C. §

10228(a), which prohibits Executive Branch officials from using law-enforcement grants to exert

"any direction, supervision, or control" over any state or local police force or criminal justice

agency.

23

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87. Congress has repeatedly considered and rejected legislation that would withhold grant funding as a penalty for noncooperation with federal immigration law. 32 Courts should look skeptically on executive action where Congress declined to enact legislation that would have granted the same or substantially similar authority to the executive branch. See FDA v. Brown & Williamson Tobacco Cmp., 529 U.S. 120, 159-60 (2000).
88. Under the Administrative Procedure Act ("APA"), a court must set "aside agency action" that is, inter alia, "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right" or "otherwise not in accordance with law," 5 U.S.C. § 706(2). DOJ's imposition of the three conditions on the Byrne JAG award are such agency action.
89. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the Attorney General lacks authority to impose the notice, access, and Section 1373 conditions on Byrne JAG funds and, in doing so, has acted contrary to law in violation of the APA. Plaintiffs also are entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
COUNTID Arbitrary and Capricious Agency Action 90. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 91. Even if DOJ had a constitutional or statutory basis to impose the three new conditions, which it does not, DOJ's decision to impose the conditions on recipients of Byrne JAG funds is arbitrary and capricious.

32

See, e.g., Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. § 4 (2016); Stop Dangerous

Sanctuary Cities Act, S. 3100, 114th Cong. § 4 (2016); Enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th

Cong. (2016); Mobilizing Against Sanctuary Cities Act, H.R. 3002, 114th Cong. § 2 (2015); Stop Sanctuary Policies

and Protect Americans Act, S. 2146, 114th Cong. § 3 (2015); Stop Sanctuary Cities Act, S. 1814, 114th Cong. § 3(a)

(2015); Stop Sanctuary Cities Act, S. 1814 114th Cong. § 2 (2015); Financial Services and General Government

Appropriations Act, FY2017, H.R. 5485, 114th Cong., § 1217 (2016); see also H.R. 3355, 103d Cong. § 5119 (Nov.

19, 1993) (Senate version of Violent Crime Control and Law Enforcement Act, which would have authorized DOJ

to withhold grant funding if the jurisdiction did not cooperate with the Immigration and Naturalization Service).

24

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92. An agency's departure from prior practice can serve as a basis for finding an agency's interpretation to be arbitrary and capricious if the change in policy constitutes an "unexplained inconsistency." Nat'! Cable & Telecomms. Ass 'n v. Brand X Internet Servs., 545
u.s. 967, 981 (2005).
93. DOJ departed from more than a decade of past practice when it imposed the immigration-related conditions, yet provided almost no explanation for its decision. See Encino :Motorcars, LLC v. Navarro, 136 S.Ct. 2117, 2126 (2016) ("the agency must at least display awareness that it is changing position and show that there are good reasons for the new policy"). DOJ has never before sought to impose notice and access conditions on grantees, nor has it ever "sought to enforce [Section 1373] against a state or local government." 33
94. DOJ has never previously determined that Section 1373 is an "applicable Federal law" for the purposes of the Byrne JAG program.
95. Despite DOJ' s shift in policy, it has provided virtually no explanation for its decisions. It released no reports, studies, or analysis in connection with its July 25, 2017 announcement of the immigration-related grant conditions, nor has it attempted to justify its aggressive and shifting interpretations of Section 1373.
96. In addition, DOJ "relied on factors which Congress has not intended to consider," Motor Vehicle Mfrs. Ass'n of US., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), by, for example, evaluating grant applicants on the basis of their compliance with the immigration-related conditions rather than on their compliance with expressly enumerated statutory application requirements. See 34 U.S.C. § 10153(a)(l)-(6).

33

Elizabeth M. McCormick, Federal Anti-Sanctumy Lml': A Failed Approach to Immigration El?(orcement

and a Poor Substitute for Real Reform, 20 Lewis & Clark L. Rev. 165, 170 (2016).

25

Case 1:18-cv-00437-JJM-LDA Document 1 Filed 08/09/18 Page 26 of 30 PageID #: 26
97. DOJ also "entirely failed to consider an important aspect of the problem" by failing to recognize how Section 1373 interferes with local policies that promote public health and safety. See Philadelphia, 280 F. Supp. 3d at 625.
98. Under the APA, a court must set "aside agency action" that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law," 5 U.S.C. § 706(2)(A)-for example, because the agency has failed to consider relevant evidence or "articulate a satisfactory explanation for its action." State Farm, 463 U.S. at 43.
99. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the three immigration-related conditions violate the APA. Plaintiffs also are entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
COUNT IV Tenth Amendment: Commandeering 100. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 101. The Tenth Amendment prohibits the federal government from "requir[ing] States and localities "to govern according to Congress' instructions," New York v. United States, 505 U.S. 144, 162 (1992), or "command[ing] the States' officers ...to administer or enforce a federal regulatory program." Printz v. United States, 521 U.S. 898, 935 (1997). 102. Section 1373 violates the Tenth Amendment because it "unequivocally dictates what a state legislature may and may not do." Mwphy, 138 S.Ct. at 1476. See City of Philadelphia, 309 F.Supp.3d. at 330-31. 103. When Congress enacted Section 1373, it sought to ensure that "[t]he acquisition, maintenance, and exchange of immigration-related information by State and local agencies" could be used to enforce federal law. S. Rep. No. 104-249, at 19-20 (1996). fu doing so, it sought
26

Case 1:18-cv-00437-JJM-LDA Document 1 Filed 08/09/18 Page 27 of 30 PageID #: 27
to "require [state and local officers] to provide information that belongs to the State and is available to them only in their official capacity,"-in other words, to engage in unconstitutional commandeering.
104. Further, Section 1373 prohibits state and local governments from engaging in a core aspect of governing: controlling the actions of their agents. Compliance with Section 1373 results in the federal government commandeering states and local governments by directing how state and municipal agents should act and handle data under local control to advance a federal program. In fact, DOJ instructed that states and local governments may need to provide affirmative instructions to their agents to comply. 34 Section 1373 requires local officers to follow federal directives and usurps the local policymaking process.
105. The notice and access conditions impermissibly commandeer states and local governments and carmot be validly imposed on Byrne JAG funding recipients. The notice condition seeks to fundamentally reorganize not just hmv local officers spend their time, but also the way state and local governments balance their Fourth Amendment obligations against their interest in effective law enforcement. The access condition requires a fundamental restructuring of police procedures and functions to accommodate on-demand access to detainees by federal agents.
106. Because Section 1373 violates the Tenth Amendment, DOJ cannot reqmre jurisdictions to comply with that statute as a condition of receiving Byrne JAG funds. See South Dakota v. Dole, 483 U.S. 203, 207-8 (1987).

34

See Mem. From Michael E. Horowitz, Inspector Gen., U.S. Dep't of Justice, to Karol V. Mason, Assistant

Attorney General, Office of Justice Programs, U.S. Dep't of Justice, Department of Justice Referral of Allegations

of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients (May 31, 2016), available at

https://tinyurl.com/y9rpwge4 (last visited August 8, 2018).

27

Case 1:18-cv-00437-JJM-LDA Document 1 Filed 08/09/18 Page 28 of 30 PageID #: 28
107. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the Section 13 73 condition violates the Tenth Amendment. Plaintiffs also are entitled to a permanent injunction preventing the Attorney General from putting that condition into effect.
COUNTY Violation of the Spending Clause 108. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 109. In order to satisfy the requirements of the Spending Clause of the Constitution, U.S. Const. art. I § 8, cl. 1, the conditions for receipt must be stated clearly and the funding conditions must be reasonably related to the federal interest in the project or program that the federal government is funding. 110. First, even if Congress had clearly conditioned receipt of Byrne JAG funding on the three new conditions, which it did not, all three of DOJ's conditions violate the Spending Clause because they are not reasonably related to the federal interest in the Byrne JAG program. 111. The access, notice, and Section 13 73 conditions relate to civil immigratiQn enforcement and do not reasonably relate to the Byrne JAG program, which is intended to provide funding to states and local governments for criminal justice purposes. The conditions actively undermine Congress's goals of disbursing funds across the country, targeting funds to combat violet crime, and respecting local judgment in settling law enforcement strategy. 112. Second, the Spending Clause prohibits the federal government from imposing spending conditions to "induce the States to engage in activities that would themselves be unconstitutional." S. Dakota v. Dole, 483 U.S. 203,210 (1987).
28

Case 1:18-cv-00437-JJM-LDA Document 1 Filed 08/09/18 Page 29 of 30 PageID #: 29
113. The notice, access, and Section 1373 conditions impermissibly induce Byrne JAG recipients to engage in unconstitutional activity, such as detaining individuals without probable cause in violation of the Fourth Amendment.
114. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the three immigration-related conditions violate the Spending Clause. Plaintiffs also are entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that this Court:
a) Declare that the notice, access, and Section 13 73 conditions for the FY 2017 Byrne JAG program are unlawful;
b) Preliminarily and permanently enjoin DOJ from imposing the notice, access, and Section 1373 conditions on the FY 2017 Byrne JAG funds; and from imposing the notice, access, and compliance conditions on future Byrne JAG funds;
c) Retain jurisdiction to monitor DOJ's compliance with this Court's judgment; d) Award their reasonable fees, costs, and expenses, including attorneys' fees, as
permitted by federal law, including the APA and 28 U.S.C. § 2412; and e) Grant other such relief as this Court may deem proper.
29

Case 1:18-cv-00437-JJM-LDA Document 1 Filed 08/09/18 Page 30 of 30 PageID #: 30
Respectfully submitted,
CITY OF PROVIDENCE By its Attorney,
JEFFREY DANA CITY SOLICITOR
Is/Jeffrey Dana (#5580) jdana@,providenceri.gov
/s!Megan Maciasz DiSanto (#7991) Senior Assistant City Solicitor mdisanto@providenceri. gov
/s/Etie-Lee Z. Schaub (#8783) Associate City Solicitor eschaub@providenceri. gov
City of Providence Solicitor's Office 444 Westminster Street, Suite 220 Providence, RI 02903 (401) 680-5333 I (401) 680-5520 (Fax)
CITY OF CENTRAL FALLS By its Attorney,
MATTHEW JERZYK CITY SOLICITOR
Is/Matthew Jerzyk (#7945) mj erzyk@centralfallsri.us
Is/Robert Weber (#8828) Assistant City Solicitor rweber@centralfallsri. us
Is/Nicholas Hemond (#8782) Assistant City Solicitor nhemond@darroweverett.com
City of Central Falls 580 Broad St. Central Falls, RI 02863 401-616-2435 I 401-727-7422 (Fax)
30

 
 Case 1:18-cv-00437-JJM-LDA Document 15 Filed 11/09/18 Page 1 of 46 PageID #: 257

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

______________________________________

)

CITY OF PROVIDENCE and

)

CITY OF CENTRAL FALLS,

)

Plaintiffs,

)

)

v.

) C.A. No.: 1:18-cv-00437-JJM-LDA

)

JEFFERSON B. SESSIONS III, in his

)

AMENDED COMPLAINT FOR

official capacity as Attorney General of the ) DECLARATORY AND INJUNCTIVE

United States, and the UNITED STATES

)

RELIEF

DEPARTMENT OF JUSTICE,

)

Defendants.

)

)

INTRODUCTION

1. In our system of government, local governments are the primary source for law

enforcement policies to keep communities safe and promote trust between law enforcement

agencies and the residents they serve. The Edward Byrne Memorial Justice Assistance Grant

(“Byrne JAG”) program provides funding for states and units of local government to support a

broad range of criminal justice related activities based on their own local needs and conditions.

Congress has appropriated hundreds of millions of dollars in annual grant funds to that end.

Contrary to this congressional intent, however, the United States Department of Justice (“DOJ”)

has now decided to coerce local governments into enforcing the federal government’s civil

immigration priorities by conditioning Byrne JAG funding on compliance with immigration-

related conditions that have nothing to do with the program’s purpose. Plaintiffs—the City of

Providence (“Providence”) and the City of Central Falls (“Central Falls”) (collectively, the

“Cities” or “Plaintiffs”)—challenge these unconstitutional and illegal conditions, and seek

declaratory and injunctive relief to protect their ability to pursue their own law enforcement

prerogatives in the manner that best achieves the safety and security of their communities.

Case 1:18-cv-00437-JJM-LDA Document 15 Filed 11/09/18 Page 2 of 46 PageID #: 258
2. The Byrne JAG program is designed to “give state and local governments more flexibility to spend money for programs that work for them rather than impose a ‘one size fits all’ solution.” H.R. Rep. No. 109-233, at 89 (2005). Byrne JAG funds have been used to support a diverse array of programs tailored to local law enforcement needs.
3. On July 25, 2017, DOJ issued a press release announcing that it was imposing three immigration-related conditions on Fiscal Year (“FY”) 2017 Byrne JAG funds. The conditions require states and local governments to (1) provide unfettered access to their correctional facilities for federal immigration enforcement agents (the “access condition”); (2) provide advance notice to federal immigration authorities before a suspected alien’s scheduled release from custody (the “notice condition”); and (3) comply with federal statute (8 U.S.C. § 1373) prohibiting state and local governments from restricting their officials from communicating with federal immigration authorities regarding any individual’s citizenship or immigration status (the “cooperation condition”). In conjunction therewith, for FY 2017, DOJ is requiring certification of compliance with Section 1373 and the notice and access conditions. (These three conditions and the certifications required are referred to collectively as “the FY 2017 immigration-related conditions”).
4. A year later, on June 28, 2018, DOJ issued a press release announcing “new conditions” on four (4) public safety FY 2018 grants in order to “enforce immigration laws.” The FY 2018 conditions change the FY 2017 immigration-related conditions in form but not in substance and add additional immigration-related conditions. In order to accept Byrne JAG awards, the FY 2018 conditions include re-packaged versions of (1) the access condition; (2) the notice condition; and (3) the cooperation condition; as well as (4) a new prohibition on the public disclosure of any federal law enforcement information that might harbor or shield from detection
2

Case 1:18-cv-00437-JJM-LDA Document 15 Filed 11/09/18 Page 3 of 46 PageID #: 259
any illegal aliens pursuant to 8 U.S.C. § 1324 (the “gag-order condition”). In conjunction therewith, for FY 2018, DOJ is requiring certifications of compliance with these four conditions and with various federal law enforcement and immigration statutes—namely, 8 U.S.C. §§ 1226(a) and (c), 1231(a)(4), 1324(a), 1357(a)(1), 1366(1) and (3), 1373, and 1644—that DOJ purportedly considers to be post hoc statutory authority for these conditions. (These four conditions and the certifications required by DOJ in order for Plaintiffs to receive Byrne JAG funds are referred to collectively as “the FY 2018 immigration-related conditions.”)
5. DOJ’s decision to impose these sweeping conditions on Byrne JAG grantees represents an unlawful, ultra vires attempt to force states and localities to forsake their own policy judgments and aid in federal civil immigration enforcement. Nothing in the Byrne JAG statute “grant[s] the Attorney General the authority to impose conditions that require states or local governments to assist in immigration enforcement, nor to deny funds to states or local governments for their failure to comply with those conditions.” City of Chicago v. Sessions, 888 F.3d 272, 283 (7th Cir. 2018).
6. DOJ has thus forced the Cities into an untenable position: accept unlawful and unconstitutional conditions that diminish their ability to design their law enforcement policies and protect their communities, or forfeit Byrne JAG funding, thus undermining the vital programs that such funding supports.
7. Accordingly, the Cities file this action seeking a declaratory judgment that the immigration-related conditions DOJ seeks to impose on both FY 2017 and FY 2018 Byrne JAG funds (together simply referred to as “the immigration-related conditions”) are unlawful, and a permanent injunction enjoining DOJ from imposing these conditions on any Bryne JAG applicant in order to receive the funds.
3

Case 1:18-cv-00437-JJM-LDA Document 15 Filed 11/09/18 Page 4 of 46 PageID #: 260
JURISDICTION AND VENUE 8. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1346. The Court is authorized to issue the relief sought here under the Administrative Procedures Act, 5 U.S.C. §§ 702, 705, 706, and the Declaratory Judgment Act, 28 U.S.C. § 2201, 2202. 9. Venue is proper in this district under 28 U.S.C. §§ 1391(b)(2) and (e)(1). Defendants are United States agencies or officers sued in their official capacities. The Cities are located in this District, and a substantial part of the events or omissions giving rise to this Complaint occurred and continue to occur herein.
PARTIES 10. Plaintiff City of Providence, represented by and through its Solicitor, Jeffrey Dana, is a municipal corporation organized pursuant to Rhode Island state law. Providence is a political subdivision of the State of Rhode Island and derives its powers through the state constitution, state laws, and its home rule charter. 11. Providence is the state capital of Rhode Island and the third largest city in New England. According to the 2014 American Community Survey data, Providence has a population of 179,154 and an urban population density of 9,736 people per square mile. The city experiences the majority (70%) of the state’s violent crimes. Providence is home to a diverse community, with a population that is 38% Hispanic or Latino, 38% White, 16% Black, 6% Asian, and 6% Multi-Racial. Over 47% of Providence residents speak a language other than English, compared to just 21% of residents statewide. Providence is one of the poorest cities in the Northeast, with approximately 29% of its residents receiving income below the federal poverty level. Despite these financial challenges, the City’s community-oriented police policies have helped reduce the incident of crime by over 20% between 2013 and 2015.
4

Case 1:18-cv-00437-JJM-LDA Document 15 Filed 11/09/18 Page 5 of 46 PageID #: 261
12. Plaintiff City of Central Falls, represented by and through its Solicitor, Matthew Jerzyk, is a municipal corporation organized pursuant to Rhode Island state law. Central Falls is a political subdivision of the State of Rhode Island and derives its powers through the state constitution, state laws, and its home rule charter.
13. Central Falls has the most low-income people, immigrants, and people of color, per capita, in the state. Encompassing only 1.27 square miles, Central Falls has approximately 19,376 residents, of whom 38% are foreign-born, according to the 2010 U.S. Census.1 A supermajority of the population, 74.4%, is people of color, with an estimated two-thirds of the population of Hispanic or Latino origin (2016). Central Falls has the lowest median income among state municipalities (which approximates roughly half of the state median income). According to the 2016 RI Kids Count Factbook, 41% of Central Falls’ children live in poverty and 19% in extreme poverty, more than twice the state rates. Despite these financial challenges, Central Falls has witnessed a reduction in crime of over 17% in the last five years as a result of community-oriented policing policies.
14. The Cities are aggrieved by Defendants’ actions and have standing to bring this action.
15. Defendant United States Department of Justice (“DOJ”) is an agency and executive department of the United States government and has responsibility for implementing the Byrne JAG program, which is administered by DOJ through its Office of Justice Programs.
16. Defendant Jefferson B. Sessions III was the Attorney General of the United States and the federal official in charge of the DOJ until he tendered his resignation on November 7,

1

See United States Census Bureau, Quick Facts, Central Falls, Rhode Island, https://tinyurl.com/ycso7ddq

(last visited November 9, 2018).

5

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2018. Matthew G. Whitaker is serving as acting Attorney General.2 The Attorney General is sued in his official capacity.
FACTUAL ALLEGATIONS I. The Byrne JAG Program
17. The Byrne JAG program has its origins in the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, Title I, 82 Stat. 197, which created the first block grants for states and localities to use for law enforcement and criminal justice programs.3 Recognizing that “crime is essentially a local problem that must be dealt with by State and local governments,” 82 Stat. at 197, Congress designed the grant to provide a reliable funding stream that states and localities could use in accordance with state and local law enforcement policies.4
18. To ensure federal deference to local priorities, the 1968 Act prohibited federal agencies and executive branch officials from using law enforcement grants to “exercise any direction, supervision, or control over any police force or any other law enforcement agency of any State or any political subdivision thereof.” Id. § 518(a), 82 Stat. at 208. Although Congress has repeatedly modified the structure and terms of the law enforcement grants authorized under Title I of the 1968 Act, the prohibition originally set forth in § 518 of the 1968 Act remains in effect with virtually no modification, and is now codified in the same chapter of the U.S. Code as Byrne JAG. See 34 U.S.C. § 10228(a). The full text of Section 10228(a) provides: “Nothing in

2

Rule 25(d) of the Federal Rules of Civil Procedure provides for automatic substitution of public officers.

3

See Justice System Improvement Act of 1979, Pub. L. No. 96-157, 93 Stat. 1167, 1179 (amending Title I of

the 1968 Act and reauthorizing law enforcement block grants to states and local governments); Justice Assistance

Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837, 2077-85 (same); Anti-Drug Abuse Act of 1988, Pub. L. No. 100-

690, pt. E, 102 Stat. 4181, 4329 (amending Title I of the 1968 Act and creating a formula law-enforcement grant);

Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, § 1111, 119

Stat. 2960, 3094 (2006) (amending Title I of the 1968 Act and creating the modern Byrne JAG program).

4

See, e.g., S. Rep. No. 90-1097, at 2 (1968) (stating that Congress sought to encourage States and localities

to adopt programs “based upon their evaluation of State and local problems of law enforcement”); see also Ely v.

Velde, 451 F.2d 1130, 1136 (4th Cir. 1971) (reviewing the legislative history of the 1968 Act and concluding that

“[t]he dominant concern of Congress apparently was to guard against any tendency towards federalization of local

police and law enforcement agencies”).

6

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this chapter or any other Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision thereof.” Id.
19. Congress codified the modern Byrne JAG program in 2006.5 34 U.S.C. §§ 1015158. Like its predecessors, Byrne JAG aims to “give state and local governments more flexibility to spend money for programs that work for them rather than to impose a ‘one size fits all’ solution.” H.R. Rep. No. 109-233, at 89 (2005). To that end, the Byrne JAG statute gives recipients substantial discretion to use funds for eight broad statutory purposes—namely: (1) law enforcement, (2) prosecution and courts, (3) crime prevention and education, (4) corrections and community corrections, (5) drug treatment, (6) planning, evaluation, and technology improvement, (7) crime victim and witness programs, and (8) mental health programs, including behavioral programs and crisis intervention. 34 U.S.C. § 10152(a)(1).
20. DOJ is required by law to issue grants in “accordance with the formula” set forth in the Byrne JAG statute. Id. That formula determines the distribution of Byrne JAG funds to state and local governments based on their population and relative levels of violent crime and is explicitly enumerated in 34 U.S.C. § 10156.
21. Of the money allocated to each state, sixty percent of the funding “shall be for direct grants to States,” id. § 10156(b)(1), and forty percent “shall be for grants” directly to localities, id. 34 § 10156(b)(2), (d). Each state is required to allocate a portion of its award to

5

The program is named after a former New York City police officer who was killed in the line of duty while

protecting a Guyanese immigrant who was acting as a cooperating witness. See About Officer Byrne,

https://goo.gl/pLm8JM (last visited November 9, 2018), see also Arjune Enters Plea of Guilty in Arrest Case, NEW

YORK TIMES (1989), available at https://tinyurl.com/ycx5bhzs (last visited November 9, 2018). Congress

appropriated for the program—which consolidated the existing Byrne formula program with another law

enforcement block grant program—in an appropriations act passed on December 8, 2004. See P.L. 108-447, 118

Stat. 2809, 2863 (Dec. 8, 2004). Thus, although the program was not codified until 2006, some states began

receiving awards under the program in FY 2005.

7

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localities within the state. See id., § 10156(c)(2). Thus, some localities are both direct grant recipients and subgrantees of the states. The Cities are direct grant recipients only.6
22. Unlike discretionary grant programs, which agencies award on a competitive basis, “formula grants…are not awarded at the discretion of a state or federal agency, but are awarded pursuant to a statutory formula.” City of Los Angeles v. McLaughlin, 865 F.2d 1084, 1088 (9th Cir. 1989). Thus, if a grantee satisfies the statutory requirements, it is entitled to receive what the formula dictates.
23. Under the Byrne JAG statute, state and local governments are entitled to their share of the formula allocation as long as they use the funds to further one or more of the eight broadly defined goals, see 34 U.S.C. § 10152(a)(1)(A)-(H), and their applications contain a series of statutorily prescribed certifications and attestations, see id. § 10153(a).
24. States and localities are required to submit an application to receive Byrne JAG funds each fiscal year. See id. § 10153(a). The application must include the following items, among others: a certification that program funds will not be used to supplant state or local funds, id. § 10153(a)(1); an assurance that the application was made available for comment by the public, and by neighborhood or community-based organizations, id. § 10153(a)(3); an assurance that the applicant will “maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require,” id. § 10153(a)(4); and a certification that programs to be funded meet the requirements of the Byrne JAG statute, that all the information in the application is correct, that there has been appropriate coordination with affected agencies, and that “the applicant will comply with all provisions of this part and all other applicable Federal laws,” id. § 10153(a)(5).

6

In the past, the City of Central Falls has been a direct grant recipient and subgrantee of Byrne JAG funds.

Since 2014, however, it has been only a direct recipient.

8

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25. The Byrne JAG statute does not authorize DOJ to impose any conditions on Byrne JAG funding. II. The Cities’ Use of Byrne JAG Funding
26. For nearly fifty years, the states and local governments have used grant funds received under Byrne JAG and its predecessor grant programs to support a broad array of critical law enforcement programs tailored to local needs.
A. City of Providence 27. Providence has used Byrne JAG funding for a variety of purposes, including overtime compensation for targeted patrols in areas known for criminal activity, training of police department personnel, and the development of a gang intervention unit and database (now known as an Intelligence Assessment Database) in order to monitor and curb the criminal activity of numerous highly organized and violent gangs operating in Providence. Providence has received Byrne JAG awards every year since at least FY 2005. 28. Upon information and belief, Providence has never had any conflicts with the federal government in obtaining Byrne JAG funds. 29. On June 26, 2018, the DOJ awarded Providence with Byrne JAG funding for FY 2017 in the amount of $212,112. See FY 2017 Providence Award Letter, attached as Exhibit A. 30. For the FY 2017 grant cycle, Providence plans to use its Byrne JAG funding to support a number of criminal justice priorities. In particular, Providence plans to use FY 2017 Byrne JAG funding to:
• cover overtime expenses incurred by the investigative and patrol divisions of the Providence Police Department in order to conduct targeted patrols in known “hotspot” areas;
9

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• contract with a part-time bilingual police liaison in order to assist with providing crisis intervention, serve as an interpreter, and interview potential clients and recommend appropriate program assignments; and
• cover the cost of placing a “public notice ad” in the locality’s prominent news publication.
31. Providence’s deadline to accept the FY 2017 Byrne JAG award was August 10, 2018, but that time has been extended pursuant to a Stipulation and Order filed by the parties in this matter (see ECF No. 8) and entered as a text order by this Court on August 10, 2018.
32. While this case was pending, on October 1, 2018, the DOJ awarded Providence with Byrne JAG funding for FY 2018 in the amount of $211,879. See FY 2018 Providence Award Letter, attached as Exhibit B.
33. For the FY 2018 grant cycle, Providence plans to use its Byrne JAG funding to support a number of criminal justice priorities. In particular, Providence plans to use FY 2018 Byrne JAG funding to:
• outfit an additional 80 police officers with, and train them in the use of, body worn cameras for the purposes of providing critical evidence in criminal prosecutions, improving officer safety, strengthening police-community relationships, and decreasing incidents of police misconduct through enhanced accountability; and
• continue to utilize a part-time bilingual police liaison in order to assist with providing crisis intervention, serve as an interpreter, and interview potential clients and recommend appropriate program assignments.
10

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34. Providence’s deadline to accept the FY 2018 Byrne JAG award was November 15, 2018, but that time has been extended pursuant to a Stipulation and Order entered by the Court in this matter on October 16, 2018. See ECF No. 12.
B. City of Central Falls 35. Central Falls has used Byrne JAG funding for a variety of purposes, including the following: internet access and tablets for detectives; upgrades to police department servers, video cameras, security doors, radio system, and computer technology systems; and weapons and digital recording systems. 36. Central Falls has received Byrne JAG awards every year since at least FY 2005. 37. Upon information and belief, Central Falls has never had any conflicts with the federal government in obtaining Byrne JAG funds. 38. Byrne JAG funds have been especially important to Central Falls as funding for its police department was cut dramatically following the city’s declaration of bankruptcy in August 2011 and emergence from bankruptcy in late 2012. 39. On June 26, 2018 the DOJ awarded Central Falls with Byrne JAG funding for FY 2017 in the amount of $28,677. See FY 2017 Central Falls Award Letter, attached as Exhibit C (referred to collectively with the FY 2017 Providence Award Letter as “the FY 2017 Award Letters). 40. For the FY 2017 grant cycle, Central Falls plans to use its Byrne JAG funding to support a number of criminal justice priorities. In particular, the City of Central Falls plans to use FY 2017 Byrne JAG funding to:
11

Case 1:18-cv-00437-JJM-LDA Document 15 Filed 11/09/18 Page 12 of 46 PageID #: 268
• purchase necessary hardware and software that will allow police personnel to log onto the existing police network with heightened security by utilizing fingerprint readers and device access with dual authentication; and
• purchase hardware and software to increase the viability of the Central Falls Police Department’s remote access location—the Emergency Operations Center—to assist in the maintenance and backup of data in real time and provide the police department with the ability to have an uninterrupted alternate offsite location in the event of equipment failure or an emergency event.
41. Central Falls’ deadline to accept the FY 2017 Byrne JAG award was August 10, 2018, but that time has been extended pursuant to a Stipulation and Order filed by the parties in this matter (see ECF No. 8) and entered as a text order by this Court on August 10, 2018.
42. While this case was pending, on October 1, 2018, the DOJ awarded Central Falls with Byrne JAG funding for FY 2018 in the amount of $29,286. See FY 2018 Central Falls Award Letter, attached as Exhibit D (referred to collectively with the FY 2018 Providence Award Letter as “the FY 2018 Award Letters).
43. For the FY 2018 grant cycle, Central Falls plans to use its Byrne JAG funding to support a number of criminal justice priorities. In particular, the City of Central Falls plans to use FY 2018 Byrne JAG funding to:
• purchase new software systems to connect multiple virtualized servers between the police station and the secured off-site backup location for the Emergency Operations Center; and
12

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• purchase software for terminals located in the police station to enhance the dayto-day functions and duties for employees in the patrol division, detective division, and police administrative division.
44. Central Falls’ deadline to accept the FY 2018 Byrne JAG award was November 15, 2018, but that time has been extended pursuant to a Stipulation and Order entered by the Court in this matter on October 19, 2018. See ECF No. 14. III. The Cities’ Local Laws and Policies
45. Immigrants are an integral part of the Cities’ workforces, business sectors, schools and college populations, and civic associations; the success of local immigrants is vital to the Cities’ success. To ensure that immigrant communities continue to thrive, the Cities’ have adopted policies that seek to foster trust between the immigrant population and city officials and agents—especially the police department—and to encourage people of all backgrounds to take full advantage of the Cities’ resources and opportunities. The rationale behind these policies is that if immigrants, including undocumented immigrants, do not fear adverse consequences to themselves or to their families from interacting with city officials, they are more likely to report crimes, enroll their children in public schools, request health services like vaccines, and contribute more fully to the Cities’ health and prosperity.
46. The Cities’ have determined that public safety is best promoted without their involvement in the enforcement of federal immigration law. To the contrary, the Cities’ have long recognized that a resident’s immigration status has no bearing on his or her contributions to the community or on his or her likelihood to commit crimes, and that when people with foreign backgrounds are afraid to cooperate with the police, public safety is compromised.
13

Case 1:18-cv-00437-JJM-LDA Document 15 Filed 11/09/18 Page 14 of 46 PageID #: 270

47. Providence, in order to bridge the divide between the community and the police, has, among other things, enacted the Providence Community Police Relations Act, which prohibits police from inquiring about an individual’s immigration status or complying with requests by other agencies to support or assist in operations conducted solely for the purpose of enforcing federal civil immigration law.7 By executive order of the Mayor, Providence issues identification cards to all City residents, regardless of immigration status.8 Providence has established a Muslim-American Advisory Board to better serve the Muslim-American community in Providence and to provide advice on policy decisions that effect that community. The City Council has, by resolution, expressed concern with the federal Secure Communities program, an initiative that asks local law enforcement agencies to share information with U.S. Immigration and Customs Enforcement (“ICE”) about arrestees.9 In Providence’s experience, these policies have promoted the city’s safety by facilitating greater cooperation with the immigrant community at large.
48. Central Falls, in order to bridge the divide between the community and the police, has implemented a community policing department in recent years. In addition, in collaboration with law enforcement experts and community leaders, Central Falls’ police department implemented a general order on immigration detainers stating that “when an individual is arrested … on a criminal offense, and is determined during standard prisoner processing to have an ICE detainer request, he or she is not to be held beyond the time when they are eligible for release from custody, to include, yet not limited to, transportation to an outside jail or detention facility.”10 The police department issued another general order on immigration matters

7

See Providence Code of Ordinances § 18 ½.4 (eff. Jan. 1, 2018).

8

See Providence Executive Order 2017-3 (Nov. 2, 2017).

9

See Providence City Council Resolution No. 170 (Mar. 11, 2011).

10

See Central Falls Police Department, General Order 14-08 (July 24, 2018).

14

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prohibiting the detention of any individual at the request of ICE without evidence of a courtissued warrant.11 Central Falls police officers do not stop or question individuals on account of their immigration status, do not in any way act as immigration enforcement agents, and maintain the confidentiality of information about victims and witnesses to crimes. The Central Falls City Council has expressed an official position opposing immigration policies which are not sensitive to the needs of local governments and communities.12 In Central Falls’ experience, these policies have promoted the city’s safety by facilitating greater cooperation with the immigrant community at large. IV. DOJ’s FY 2017 Immigration-Related Byrne JAG Conditions
49. On January 25, 2017, President Trump issued Executive Order 13768. Section 9(a) of the order threatened to deny federal grant funding to all so-called “sanctuary jurisdictions.” That section was permanently enjoined by a federal district court because it violated numerous provisions of the United States Constitution.13
50. DOJ subsequently sought to achieve a similar goal by imposing immigrationrelated conditions on Byrne JAG funds.
51. On July 25, 2017, DOJ announced that it would impose immigration-related conditions on Byrne JAG grantees and provided a one-page “Backgrounder” and a press release, neither of which explained how or why DOJ decided to impose these immigration-related conditions, how the conditions would advance the interests of the Byrne JAG program, or what alternatives DOJ had considered.14

11

See Central Falls Police Department, General Order 100.01 (May 23, 2016).

12

See Central Falls City Council Resolution 17-08 (Feb. 13, 2017).

13

Cty. of Santa Clara v. Trump, 267 F. Supp. 3d 1201 (N.D. Cal. 2017) (permanent injunction).

14

See Press Release, Attorney General Sessions Announces Immigration Compliance Requirements for

Edward Byrne Memorial Justice Assistance Programs (July 25, 2017), available at https://goo.gl/VH5wGU (last

visited November 9, 2018); Backgrounder on Grant Requirements (July 25, 2017), available at

15

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52. On August 24, 2017, one day before applications for FY 2017 Byrne JAG funds were due, DOJ published a sample final award document containing the notice, access, and cooperation conditions and stated that identical conditions would be imposed on all FY 2017 Byrne JAG funding recipients.
53. The access condition requires all state and local grantees and state subgrantees to permit federal agents to access any correctional facility in order to question suspected aliens in state or local custody about their right to be, or remain, in the United States. The FY 2017 Award Letters impose the access condition by requiring the enactment of a state or local statute, rule, regulation, policy, or practice designed to ensure federal agents’ access to state or local (or government-contracted) correctional facilities. See FY 2017 Award Letters (Exhibits A and C), at 22-23.
54. The notice condition requires all state and local grantees and state subgrantees to provide the U.S. Department of Homeland Security (“DHS”), upon written request and as early as practicable, advance notice of a particular alien’s scheduled release date and time from state or local custody. The FY 2017 Award Letters impose the notice condition by requiring the enactment of a state or local statute, rule, regulation, policy, or practice designed to ensure such notice is provided. See FY 2017 Award Letters (Exhibits A and C), at 22-23.
55. The cooperation condition requires all state and local grantees and state subgrantees to comply with federal statute prohibiting restrictions on their officials’ communication with federal immigration authorities “regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a).15 The FY 2017 Award Letters

https://goo.gl/ZLgXMC (last visited November 9, 2018); Byrne JAG FY 2017 State Solicitation, available at

https://www.bja.gov/funding/JAGstate17.pdf (last visited November 9, 2018).

15

See also 8 U.S.C. § 1373(b) (“Notwithstanding any other provision of Federal, State, or local law, no

person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of

16

Case 1:18-cv-00437-JJM-LDA Document 15 Filed 11/09/18 Page 17 of 46 PageID #: 273
impose the cooperation condition by requiring compliance with 8 U.S.C. 1373. See FY 2017 Award Letters (Exhibits A and C), at 20-21.
56. In conjunction with these conditions, DOJ also requires three certifications in order to accept FY 2017 Byrne JAG awards. The first, which must be signed by the state or local government’s chief legal officer—in this case, the Cities’ solicitors—certifies compliance with Section 1373 (and, for states, that the chief legal officer understands that subgrantees must also comply with Section 1373). The second, which must be signed by the state or local government’s chief executive—in this case, the Cities’ mayors—attests to compliance with Section 1373 and the other grant conditions. The third requires the state or local government agent who signs the grant award to certify compliance with all other grant conditions. Each certification carries the risk of personal criminal prosecution, civil penalties, and administrative remedies. See FY 2017 Award Letters (Exhibits A and C), at 6, 19-20, 24.
57. The FY 2017 immigration-related conditions elicited a wave of legal challenges from numerous jurisdictions across the country, and several courts already have struck them down. Indeed, to date all federal courts that have considered these requirements have found them unlawful. See City and Cty. Of San Francisco v. Sessions, No. 17-cv-04642-WHO, 2018 WL 4859528 (N.D. Cal. Oct. 5, 2018); City of Chicago v. Sessions, 888 F.3d 272, 276 (7th Cir. 2018) (invalidating FY 2017 notice and access requirements); see also City of Philadelphia v. Sessions, 309 F. Supp. 3d 289, 321 (E.D. Pa. 2018) (striking down all FY 2017 immigration-related conditions); City of Chicago v. Sessions, 321 F. Supp. 855, 874 (N.D. Ill. 2018) (striking down all FY 2017 immigration-related conditions).
the following with respect to information regarding the immigration status, lawful or unlawful, of any individual: (1) Sending information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity.”).
17

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58. Before commencing this action, the Cities had been the beneficiaries of two nationwide preliminary injunctions prohibiting DOJ from imposing the FY 2017 immigrationrelated conditions on any Byrne JAG applicant, as ordered by federal courts in the Northern District of Illinois and the Northern District of California.16 The Seventh and Ninth Circuit Courts of Appeals, in reviewing the district courts’ decisions, upheld their conclusions that the FY 2017 immigration-related conditions were unlawful; however, both circuit courts vacated the nationwide injunction, limiting the injunction to the jurisdictions at issue in those cases.17
59. One of the two nationwide injunctions lifted on June 26, 2018 and the other on August 1, 2018,18 giving the Cities less than ten (10) days to decide whether to accept the FY 2017 Byrne JAG awards with the new immigration-related conditions.
60. The Cities filed a complaint in this action challenging the FY 2017 immigrationrelated conditions on August 9, 2018, one day before their FY 2017 Byrne JAG award acceptances were due. V. DOJ’s FY 2018 Immigration-Related Byrne JAG Conditions
61. With its efforts to condition FY 2017 Byrne JAG grant funds having been held unlawful by courts across the county, the DOJ prepared changes to the immigration-related conditions. On June 28, 2018, DOJ issued a press release announcing new immigration compliance requirements for FY 2018 grant recipients; then, on July 20, 2018, DOJ released the

16

See City of Chicago v. Sessions, 264 F. Supp. 3d 933 (N.D. Ill. 2017); Cty. of Santa Clara v. Trump, 275 F.

Supp. 3d 1196, 1219 (N.D. Cal. 2017), aff’d in part, vacated in part, remanded sub nom. City & Cty. of San

Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018).

17

See City of Chicago v. Sessions, 17-2991 (7th Cir. June 26, 2018), Order, Doc. No. 134 (granting partial

stay of injunction as to geographic areas beyond the City of Chicago); City & Cty. of San Francisco v. Trump, 897

F.3d 1225 (9th Cir. Aug. 1, 2018) (affirming grant of summary judgment in favor of plaintiffs and injunction as to

state of California, but vacating nationwide injunction).

18

See supra footnote 17.

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FY 2018 Byrne JAG award solicitation (“FY 2018 Local Solicitation”), which contained more detail on the new conditions and certifications required for FY 2018.19
62. On October 1, 2018, less than two months after the complaint in this action was filed, DOJ issued FY 2018 grant award letters to the Cities (“FY 2018 Award Letters”) that included revamped versions of the same notice, access, and cooperation conditions—which although different in form are virtually indistinguishable in substance—as well as the new gagorder condition. See FY 2018 Award Letters (Exhibits B and D).
63. The FY 2018 immigration-related conditions attempt to provide post hoc statutory authority for the notice and access conditions, despite DOJ’s inability to do so over the previous year of litigation challenging the FY 2017 immigration-related conditions. DOJ also continues to require compliance with Section 1373 as a basis for the cooperation condition, despite the fact that requiring state and local governments to certify compliance with that statute has been held unlawful by multiple courts.
64. The access condition still requires all state and local grantees and state subgrantees to permit federal agents to access any correctional facility in order to question suspected aliens in state or local custody about their right to be, or remain, in the United States. The FY 2018 Award Letters impose the access condition by prohibiting state and local governments from “impeding” federal agents’ access to these facilities on the purported basis that this would “interfere” with their authority to interrogate those suspected of being in the country illegally pursuant to 8 U.S.C. § 1357(a)(1) (and 8 C.F.R. § 287.5). See FY 2018 Award Letters (Exhibits B and D), at 20.

19

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

Grants (June 28, 2018), available at https://tinyurl.com/y7dsrsc8 (last visited November 9, 2018); see also Byrne

JAG FY 2018 State Solicitation, available at https://www.bja.gov/funding/JAGLocal18.pdf (last visited November

9, 2018)

19

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65. The notice condition still requires all state and local grantees and state subgrantees to provide DHS, upon written request and as early as practicable, advance notice of a particular alien’s scheduled release date and time from state or local custody. The FY 2018 Award Letters impose the notice condition on the purported basis that by “failing” to provide such notice state and local governments would be “interfering” with the enforcement of various federal immigration statutes—namely, 8 U.S.C. §§ 1226 and 1231 (which grant federal agents certain powers concerning the arrest, detention, and removal of aliens), and 8 U.S.C. § 1366 (which requires the Attorney General to report the number of individuals without lawful status incarcerated in federal and state prisons for having committed felonies and all efforts to ensure their prompt removal).20 See FY 2018 Award Letters (Exhibits B and D), at 21.
66. The cooperation condition still requires all state and local grantees and state subgrantees to comply with federal statute prohibiting restrictions on their officials’ communication with federal immigration authorities regarding any individual’s citizenship or immigration status. The FY 2018 Award Letters impose the cooperation condition by requiring compliance with 8 U.S.C. § 1373 and 8 U.S.C. § 1644—another federal statute prohibiting restrictions on sharing information about an individual’s immigration status with federal authorities.21 See FY 2018 Award Letters (Exhibits B and D), at 16-18.
67. Additionally, for FY 2018, the cooperation condition includes a questionnaire and/or legal opinion component, requiring that each state and local government grantee and state

20

The FY 2018 Award Letters provide that this condition does not encompass DHS requests to continue to

detain an individual for up to 48 hours after the scheduled release. See FY 2018 Award Letters (Exhibits B and D),

at 21-22.

21

See 8 U.S.C. § 1644 (“Notwithstanding any other provision of Federal, State, or local law, no State or local

government entity may be prohibited, or in any way restricted, from sending or receiving from the Immigration and

Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United

States.”).

20

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subgrantee, either when applying for FY 2018 Byrne JAG funds or in order to accept an award of FY 2018 funds,22 must answer the following questions:
• Does your jurisdiction have any laws, policies, or practices related to whether, when, or how employees may communicate with DHS or ICE?
• Is your jurisdiction subject to any laws from a superior political entity (e.g., a state law that binds a city) that meet the description in [the] question [above]?
FY 2018 Local Solicitation, at 27-18 (the “questionnaire component”). If the answer to either question is yes, the grantee must provide a copy of each law or policy, describe each practice, and explain how the law, policy, or practice complies with Section 1373. Id. States must also collect this information from all of their subgrantees. Id.; see FY 2018 Award Letters (Exhibits B and D), at 22, 26.
68. The new gag-order condition, imposed in FY 2018 and as provided in the FY 2018 Award Letters, ambiguously requires state and local governments not to publicly disclose any federal law enforcement information in an attempt to conceal, harbor, or shield from detection, in violation of 8 U.S.C. § 1324, any alien who unlawfully has entered or remains in the United States, whether or not such disclosure would constitute or form a predicate for a violation of that section. See FY 2018 Award Letters (Exhibits B and D), at 19.
69. It is unclear, to say the least, as to what jurisdictions must do in order to be in compliance with the gag-order condition. The award letters state that disclosure of information may be a violation of the gag-order condition without regard to whether such disclosure would constitute or could form a predicate for a violation of 8 U.S.C. § 1324—the statute DOJ relies

22

Although DOJ requires this and all other immigration-related conditions for FY 2018 Byrne JAG funds to

be certified at the time of the grant application, the Office of Justice Programs will not deny an application for FY

2018 for failure to submit these by the application deadline; instead, grantees will not be able to access the awards

until they submit these certifications and assurances. FY 2018 Local Solicitation at 1, 27-28, 40-41.

21

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upon for imposing this condition. See id. Nor has DOJ provided any guidance on what conduct that does not violate Section 1324 would nonetheless constitute a violation of the gag-order condition. It appears DOJ itself is confused by this condition, as the FY 2018 Award Letters differ in their recitation of this condition, shifting tact, from the FY 2018 Local Solicitation— which stated that the award conditions would require grantees to agree not to violate, or aid or abet any violation of, Section 1324(a), without mention of a prohibition on public disclosure of federal law enforcement information (i.e., gag-order). FY 2018 Local Solicitation, at 36.
70. In conjunction with these conditions, either when applying for FY 2018 Byrne JAG funds or in order to accept an award of FY 2018 funds, the DOJ requires three certifications. The state or local government’s chief legal officer must attest to compliance with Sections 1373 and 1644, as well as with 8 U.S.C. §§ 1226(a) and (c), 1231(a)(4), 1357(a), and 1366(1) and (3). The state or local government’s chief executive separately must certify compliance with those statutes, as well as with other grant conditions. And the state or local government agent who signs the grant award must certify compliance with all award conditions, including all statutes referenced in the chief legal officer’s certification. Each certification carries the risk of personal criminal prosecution, civil penalties, and administrative remedies.23
71. Otherwise put, each FY 2018 Byrne JAG grant recipient must certify that it does not or will not:
• Violate 8 U.S.C. §§ 1373 and 1644, two federal statutes prohibiting restrictions on sharing information about an individual’s immigration status with federal authorities;

23

The most up-to-date certification forms for the FY 2017 and FY 2018 Byrne JAG awards, which frequently

are revised—one of which was updated as recently as October 25, 2018—are available on DOJ’s Office of Justice

Program’s website, at https://ojp.gov/funding/Explore/SampleCertifications-8USC1373.htm (last visited November

9, 2018).

22

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• Publicly disclose federal law enforcement information in an attempt to conceal, harbor, or shield from certain individuals from detection, whether or not in violation of 8 U.S.C. § 1324(a), which prohibits the knowing or reckless concealment or harboring of aliens;
• Impede federal authorities in their arrest or removal of aliens as authorized by 8 U.S.C. §§ 1226(a) and (c) and 8 U.S.C. § 1231(a)(4);
• Impede federal immigration agents in their interrogation of individuals as authorized by 8 U.S.C. § 1357(a)(a) (and 8 C.F.R. § 287.5); and
• Impede congressional reporting by the Attorney General, pursuant to 8 U.S.C. §§ 1366(1) and (3), of the number of individuals without lawful status incarcerated in federal or state prisons for having committed felonies and all efforts to ensure their prompt removal.
72. DOJ’s position now seems to be that 8 U.S.C. §§ 1226, 1231, 1324, 1357, and 1366 are “applicable laws” within the meaning of the Byrne JAG statute. Moreover, it is using several of these immigration statutes as a vehicle to provide post hoc statutory authority for the notice and access conditions—conditions that every court to date has held DOJ lacks the statutory authority to impose.
73. By their own terms, these various federal statutes that DOJ attempts to connect to the FY 2018 Byrne JAG program do not provide authority for imposing immigration-related conditions on state and local governments. Sections 1226, 1231, 1357, and 1366 apply solely to the federal government—indeed, solely to the Attorney General himself—and do not impose any obligations whatsoever on state and local governments. Section 1324, which sets forth criminal
23

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penalties on “any person” who knowingly or recklessly harbors or conceals an alien, relies on a definition of person, 8 U.S.C. § 1101(b)(3), that does not encompass state or local governments. VI. The Immigration-Related Conditions Are Unlawful
74. All of the immigration-related conditions are unlawful for a number of reasons. 75. First, DOJ has no statutory authorization to impose the conditions. An “agency literally has no power to act…unless and until Congress confers power upon it.” Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). Here, nothing in the statute’s text, structure, purpose, or history suggests that Congress granted DOJ authority to prescribe generally applicable substantive conditions like the immigration-related conditions at issue here. See City of Chicago, 888 F.3d at 285-87; City of Philadelphia, 309 F.Supp.3d at 321-22. 76. The fact that Congress designed Byrne JAG as a formula grant provides further confirmation that DOJ lacks discretion to impose these substantive conditions. Formula grants leave no discretion to the administering agency: if a grantee satisfies the statutory requirements, it is entitled to the grant amount that the formula dictates. See, e.g., City of Los Angeles, 865 F.2d at 1088.24 Accordingly, DOJ’s imposition of the new conditions is ultra vires for purposes of the Administrative Procedure Act. 77. Second, because Congress did not authorize DOJ to impose conditions on Byrne JAG, DOJ’s actions here violate the Separation of Powers between Congress and the Executive. The Executive Branch may not arrogate to itself the powers that the Constitution reserves to Congress, as it has attempted to do here. The Executive has no authority to amend or cancel an appropriation that Congress has duly enacted. Nor can executive officials choose to spend less than the full amount of funding that Congress has authorized under a statute.

24

See also Paul G. Dembling & Malcolm S. Mason, Essentials of Grant Law Practice § 5.03, 33-35 (1991).

24

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78. Third, the immigration-related conditions violate 34 U.S.C. § 10228(a), which is codified in the same chapter of the U.S. Code as the Byrne JAG statute and provides that “[n]othing in this title or any other Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or political subdivision thereof.” This language has been carried forward in every law enforcement grant since the Omnibus Crime Control and Safe Streets Act of 1968—a predecessor to the Byrne JAG program and the first federal block grant program for State and local law enforcement.25 The legislative history of Section 10228 makes clear that Congress intended to incorporate anti-commandeering principles into the grant context to prevent executive officials from using a grant like Byrne JAG to interfere with state and local law enforcement policy.26 All of the immigration-related conditions violate § 10228(a) because they compel grant recipients to act as enforcement arms of federal immigration authorities.
79. Additionally, DOJ’s requirement that states and local governments certify compliance with the various additional immigration-related statutes in FY 2018 particularly runs afoul of Section 10228(a)’s prohibition on law enforcement commandeering because the statutes at issue do not even regulate actions by state or local governments. Compare 8 U.S.C. § 1373 (prohibiting federal, state, and local government agencies from restricting information-sharing about immigration or citizenship status with federal immigration authorities) with 8 U.S.C. §

25

See Omnibus Crime Control and Safe Street Act of 1968, Pub. L. No. 90-351, § 518(a), 82 Stat. 197, 208

(1968); see generally John K. Hudzik, Federal Aid to Criminal Justice: Rhetoric, Results, Lessons 1-68 (1984)

(describing the origins of the Safe Streets Act).

26

See, e.g., Amendments to Title I (LEAA) of the Omnibus Crime Control and Safe Streets Act: Hearing

Before the Subcomm. on Criminal Laws and Procedures of the S. Comm. of the Judiciary, 94th Cong. 407-08 (1975)

(statement of Richard W. Velde, Administrator of the LEAA) (“It is disturbing that it should even be suggested that

LEAA ought to undertake to redirect the efforts of state and local law enforcement agencies . . . . The Congress has

continuously emphasized that law enforcement is, and must remain, essentially a state and local responsibility.

Section 518(a) of the Safe Streets Act is the embodiment of this appropriate philosophy.”).

25

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1644 (prohibiting state and local government agencies from being restricted in informationsharing about an individual’s immigration status with federal immigration authorities); 8 U.S.C. §§ 1226(a) and (c) and 1231(a)(4) (granting certain powers to the Attorney General with respect to the arrest, detention, and removal of aliens); 8 U.S.C. § 1324(a) (prohibiting any person from the knowing or reckless concealment or harboring of aliens); 8 U.S.C. § 1357(a)(1) (authorizing federal immigration officers to interrogate any alien or person believed to be an alien); and 8 U.S.C. § 1366(1) and (3) (requiring the Attorney General to report to Congress on the number of individuals without lawful status incarcerated in federal and state prisons for having committed felonies and all efforts to ensure their prompt removal). DOJ’s attempt to bootstrap compliance with the notice and access conditions into these statutes similarly violates Section 10228(a)’s anti-commandeering principle.
80. Fourth, the cooperation condition is invalid because Sections 1373 and 1644 are unconstitutional. See S. Dakota v. Dole, 483 U.S. 203, 210-211 (1987) (federal government cannot impose unconstitutional conditions). In Murphy v. NCAA, 138 S.Ct. 1461, 1478 (2018), the Supreme Court held that Congress runs afoul of the anti-commandeering principles of the Tenth Amendment when it “unequivocally dictates what a state legislature may and may not do.”
81. Section 1373 violates this rule because it directly prohibits states and local governments from enacting laws, rules, policies, or procedures that “prohibit or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Nationalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a). See, e.g., City of Philadelphia, 309 F.Supp.3d. at 329-31 (citing Murphy and holding that 8 U.S.C. § 1373 violates the Tenth Amendment).
26

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82. Just as Section 1373 violates the Tenth Amendment by seeking to unequivocally dictate what states and local governments may and may not do, so too does the newly-added Section 1644 condition, which, similarly to Section 1373, prohibits restrictions on “sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States.” 8 U.S.C § 1644. The Tenth Amendment prohibits the federal government from requiring states and localities to govern according to Congress’s instructions and from commanding localities to administer or enforce a federal regulatory program. This anti-commandeering principal applies to situations in which Congress compels a state to enact or prohibits a state from enacting legislation. Murphy, 138 S. Ct. at 1478.
83. Fifth, the immigration-related conditions violate the Spending Clause of the U.S. Constitution, U.S. Const. art. I § 8, cl. 1, because the conditions are ambiguous as to what state and local governments must do to be in compliance and are not germane to the local criminal justice purposes of the Byrne JAG program. See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981); S. Dakota v. Dole, 483 U.S. at 207.
84. Finally, the conditions are arbitrary and capricious because DOJ imposed them without any explanation, reasoning, or opportunity for exchange with state or local governments regarding the likely impact of the conditions on state and local efforts to promote public safety. VII. The Cities Are Harmed by DOJ’s Imposition of the Immigration-Related
Conditions on Byrne JAG Funding 85. The immigration-related conditions imposed by DOJ upon grantees of the FY 2017 and FY 2018 Byrne JAG funding threaten the Cities with serious, immediate, and irreparable harm.
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86. In our federal system, states and localities have primary responsibility for the design of law-enforcement policies to keep their residents safe. See, e.g., United States v. Morrison, 529 U.S. 598, 618 (2000) (“[W]e can think of no better example of the police power…reposed in the States[] than the suppression of violent crime and vindication of its victims.”).
87. Recognizing that states and local governments possess the primary authority for maintaining public safety, Congress designed the Byrne JAG program to maximize the discretion of the states and their localities to decide how to best use these funds to advance their law enforcement priorities and make their communities safer. The immigration-related conditions constrain the very choices that Congress sought to safeguard.
88. DOJ’s actions place the Cities in an untenable position. If the Cities do not acquiesce to the conditions, they collectively will forfeit hundreds of thousands of dollars in law enforcement funding, potentially compromising the critical law enforcement and criminal justice programs those funds support.
89. If they accept these conditions, the Cities will be forced to relinquish local control over law enforcement officials and law enforcement policies, including policy choices to allow localities to adopt law enforcement and criminal justice policies based on local needs. Localities that lawfully limited voluntary cooperation with federal immigration officials will now be compelled to adopt policies that undermine their relationships of trust with their immigrant communities, to the detriment of effective crime reporting and overall public safety. Immigrants also may be deterred from seeking primary care and preventative health care services, undermining the public health efforts of states and localities. The trust between immigrants and state and local officials, “once destroyed by the mandated cooperation and communication with
28

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the federal immigration authorities, [cannot] easily be restored.” City of Chicago, 888 F.3d at

291.

90. Certifying compliance with Section 1373 is particularly perilous for the Cities

given Defendants’ expansive and ever-changing interpretations of that statute’s meaning and

application. DOJ has advanced increasingly broad interpretations of what it means to comply

with Section 1373. For example, DOJ has suggested that Section 1373 prevents jurisdictions

from enacting policies that define the time and manner in which their employees exchange immigration-status information with federal officials.27 DOJ also has suggested that Section

1373 requires jurisdictions to not only provide advance notification of an alien’s scheduled

release from state or local custody, but also to facilitate transfers from state and local jails to federal immigration authorities.28 DOJ has further suggested that Section 1373 requires

jurisdictions to not only share the immigration and citizenship status of individuals, but that it

also requires jurisdictions to share an alien’s home and work address and his scheduled release date from incarceration.29 On top of all of this, DOJ has taken the position that jurisdictions have

an affirmative obligation to communicate DOJ’s interpretation of Section 1373 to their

27

See, e.g., Letter from Alan Hanson, Acting Assistant Attorney General, to Elizabeth Glazer, Director, New

York City Mayor’s Office of Criminal Justice (Oct. 11, 2017), available at https://www.justice.gov/opa/press-

release/file/1003041/download (last visited November 9, 2018); Letter from Alan Hanson, Acting Assistant

Attorney General, to the Hon. Jim Kenney, Mayor, City of Philadelphia (Oct. 11, 2017), available at

https://www.justice.gov/opa/press-release/file/1003046/download (last visited November 9, 2018).

28

See Def.’s Proposed Findings of Fact 8-11, City of Philadelphia v. Sessions, No. 17-cv-3894 (E.D. Pa. May

17, 2018), ECF No. 200; Pl.’s Mot. For Prelim. Inj. and Mem. Of Law in Support 24-26, United States v. California,

No. 18-cv-00490 (E.D. Cal. Mar. 6, 2018), ECF No. 2-1 (suggesting California law violates § 1373 by restricting the

transfer of aliens in state custody to federal custody).

29

See, e.g., Pl’s Mot. for Prelim. Inj. and Mem. Of Law in Support 27-28, United States v. California, 18-cv-

00490 (E.D. Cal. Mar. 6, 2018), ECF No. 2-1 (asserting that the phrase “information regarding the citizenship or

immigration statute … of any individual” in § 1373 “does not merely denote the alien’s technical immigration

status”); Letter from Alan Hanson, Acting Assistant Attorney General, to Elizabeth Glazer, New York City’s

Mayor’s Office of Criminal Justice, at 2 (Oct. 11, 2017), available at http://www.justice.gov/opa/press-

release/file/1003041/download (last visited November 9, 2018) (“In order to comply with 8 U.S.C. § 1373, the

Department has determined that New York would need to certify that it interprets and applies Section 9-131(b) and

(d) to not restrict New York officers from sharing information regarding the date and time of an alien’s release from

custody.”). But at least one federal court has ruled that Section 1373 does not govern release dates or home or work

addresses. Order re: United States of America’s Mot. for Prelim. Inj., United States v. California, 18-cv-00490 (E.D.

Cal. July 5, 2018), ECF No. 193.

29

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employees.30 Thus, DOJ requires the Cities not only to certify compliance with the black-letter of Section 1373 but also with DOJ’s ever-shifting interpretation of the scope of that statute.
91. Certifying compliance with the myriad additional statutes cited by Defendants in the FY 2018 Grant Awards is similarly perilous for the Cities, as Defendants are reinterpreting the meaning and application of those statutes as well, which by their terms and past application do not impose obligations on state and local governments.
CAUSES OF ACTION COUNT I
Separation of Powers (FY 2017 Conditions) 92. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 93. The Constitution vests the spending power in Congress, not the Executive Branch. U.S. Const. art. I § 8, cl. 1. 94. Absent a statutory provision or express delegation, only Congress has the authority to attach conditions to federal funds. 95. The Executive “does not have unilateral authority to refuse to spend … funds” that Congress already appropriated “for a particular project or program.” In re Aiken Cty., 725 F.3d 255, 261 n.1 (D.C. Cir. 2013); see also Train v. City of New York, 420 U.S. 35, 44 (1975).

30

See, e.g., Letter from Alan Hanson, Acting Assistant Attorney General, to Elizabeth Glazer, New York

City’s Mayor’s Office of Criminal Justice, at 2 (Oct. 11, 2017), available at http://www.justice.gov/opa/press-

release/file/1003041/download (last visited November 9, 2018) (“In order to comply with 8 U.S.C. § 1373, the

Department has determined that … New York would need to certify that it has communicated this interpretation to

its officers and employees.”); Letter from Alan Hanson, Acting Assistant Attorney General, to the Hon. Jim Kenney,

Mayor, City of Philadelphia, at 2 (Oct. 11, 2017), available at http://www.justice.gov/opa/press-

release/file/1003046/download (last visited November 9, 2018) (“In order to comply with 8 U.S.C. § 1373, the

Department has determined that Philadelphia would need to certify that it interprets and applies this Executive Order

to not restrict Philadelphia’s officers from sharing information regarding immigration status with federal

immigration officers. The Department has also determined that Philadelphia would need to certify that it has

communicated this interpretation to its officers and employees.”).

30

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96. The Executive’s imposition of the FY 2017 immigration-related conditions on the Byrne JAG program amounts to a refusal to spend funds that Congress already appropriated, in violation of the Executive’s constitutional duty to administer the law.
97. Congress did not authorize the FY 2017 immigration-related conditions. Rather, these conditions were imposed by DOJ. Therefore, the FY 2017 immigration-related conditions amount to an improper usurpation of Congress’ spending power by the Executive.
98. The Byrne JAG statute does not condition participation in the Byrne JAG program on compliance with the FY 2017 immigration-related conditions. See 34 U.S.C. § 10151 et seq. Nor does it grant DOJ the authority to impose the FY 2017 immigration-related conditions.
99. DOJ does not have authority under 34 U.S.C. § 10102(a)(6) to impose the access, notice, or cooperation conditions.
100. DOJ does not have the authority to determine that 8 U.S.C. § 1373 is an “applicable federal law” for purposes of 34 U.S.C. § 10153(a)(5)(D).
101. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the Attorney General’s imposition of the FY 2017 immigration-related conditions violates the constitutional principle of separation of powers and impermissibly arrogates power to the Executive that is reserved to Congress. Plaintiffs also are entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
COUNT II Ultra Vires Conduct (FY 2017 Conditions) 102. Plaintiffs incorporate by reference the allegations in the preceding paragraphs.
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103. Under the Administrative Procedure Act (“APA”), a court must set “aside agency action” that is, inter alia, “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right” or “otherwise not in accordance with law,” 5 U.S.C. § 706(2). DOJ’s imposition of the FY 2017 immigration-related conditions on the Byrne JAG program is such an agency action.
104. DOJ may only exercise authority conferred by statute. See City of Arlington, 569 U.S. 297.
105. The Byrne JAG statute does not authorize the Attorney General to impose the FY 2017 immigration-related conditions on the receipt of Byrne JAG funds, or to deny funds to states or local governments that fail to comply with those conditions. See City of Chicago, 88 F.3d 283. Indeed, such authority is at odds with the text, structure, and purpose of the Byrne JAG statute.
106. The DOJ’s imposition of the FY 2017 immigration-related conditions contradicts the Byrne JAG program’s formula grant structure. See 34 U.S.C. § 10156(d)(2)(A). It also contradicts Congress’s intent to give states and local governments the “flexibility to spend money for programs that work for them rather than to impose a ‘one size fits all’ solution.” H.R. Rep. No. 109-223, at 89 (2005).
107. DOJ lacks statutory authority to condition Byrne JAG funds on compliance with Section 1373. The Byrne JAG statute’s requirement that grantees comply with “all applicable Federal laws” does not encompass Section 1373. Rather, the phrase “all applicable Federal laws” refers to the laws that regulate the conduct of federal grant recipients as grant recipients and not to every section of the U.S. Code that could possibly apply to a state or local government. Section 1373 does not regulate grantees as grantees nor does it mention federal grants or funds.
32

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108. The FY 2017 immigration-related conditions are invalid under 34 U.S.C. § 10228(a), which prohibits executive branch officials from using law-enforcement grants to exert “any direction, supervision, or control” over any state or local police force or criminal justice agency.
109. Congress has repeatedly considered and rejected legislation that would withhold grant funding as a penalty for noncooperation with federal immigration law.31 Courts should look skeptically on executive action where Congress declined to enact legislation that would have granted the same or substantially similar authority to the executive branch. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159-60 (2000).
110. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the Attorney General lacks authority to impose the FY 2017 immigration-related conditions on Byrne JAG funds and, in doing so, has acted contrary to law in violation of the APA. Plaintiffs also are entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
COUNT III Arbitrary and Capricious Agency Action
(FY 2017 Conditions) 111. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 112. Under the APA, a court must set “aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” 5 U.S.C. §

31

See, e.g., Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. § 4 (2016); Stop Dangerous

Sanctuary Cities Act, S. 3100, 114th Cong. § 4 (2016); Enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th

Cong. (2016); Mobilizing Against Sanctuary Cities Act, H.R. 3002, 114th Cong. § 2 (2015); Stop Sanctuary Policies

and Protect Americans Act, S. 2146, 114th Cong. § 3 (2015); Stop Sanctuary Cities Act, S. 1814, 114th Cong. § 3(a)

(2015); Stop Sanctuary Cities Act, S. 1814 114th Cong. § 2 (2015); Financial Services and General Government

Appropriations Act, FY 2017, H.R. 5485, 114th Cong., § 1217 (2016); see also H.R. 3355, 103d Cong. § 5119

(Nov. 19, 1993) (Senate version of Violent Crime Control and Law Enforcement Act, which would have authorized

DOJ to withhold grant funding if the jurisdiction did not cooperate with the Immigration and Naturalization

Service).

33

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706(2)(A)—for example, because the agency has failed to consider relevant evidence or “articulate a satisfactory explanation for its action.” State Farm, 463 U.S. at 43.
113. Even if DOJ had a constitutional or statutory basis to impose the FY 2017 immigration-related conditions, which it does not, DOJ’s decision to impose the conditions on recipients of Byrne JAG funds is arbitrary and capricious.
114. An agency’s departure from prior practice can serve as a basis for finding an agency’s interpretation to be arbitrary and capricious if the change in policy constitutes an “unexplained inconsistency.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005).
115. DOJ departed from more than a decade of past practice when it imposed the FY 2017 immigration-related conditions, yet provided almost no explanation for its decision. See Encino Motorcars, LLC v. Navarro, 136 S.Ct. 2117, 2126 (2016) (“the agency must at least display awareness that it is changing position and show that there are good reasons for the new policy”). DOJ has never before sought to impose notice and access conditions on grantees, nor has it ever “sought to enforce [Section 1373] against a state or local government.”32
116. DOJ has never previously determined that Section 1373 is an “applicable Federal law” for the purposes of the Byrne JAG program.
117. Despite DOJ’s shift in policy, it has provided virtually no explanation for its actions. It released no reports, studies, or analysis in connection with its July 25, 2017 announcement of the FY 2017 immigration-related grant conditions, nor has it attempted to justify its aggressive and shifting interpretations of Section 1373.

32

Elizabeth M. McCormick, Federal Anti-Sanctuary Law: A Failed Approach to Immigration Enforcement

and a Poor Substitute for Real Reform, 20 Lewis & Clark L. Rev. 165, 170 (2016).

34

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118. In addition, DOJ “relied on factors which Congress has not intended to consider,” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), by, for example, evaluating grant applicants on the basis of their compliance with the immigration-related conditions rather than on their compliance with expressly enumerated statutory application requirements. See 34 U.S.C. § 10153(a)(1)-(6).
119. DOJ also “entirely failed to consider an important aspect of the problem” by failing to recognize how Section 1373 interferes with local policies that promote public health and safety. See Philadelphia, 280 F. Supp. 3d at 625.
120. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the FY 2017 immigration-related conditions on Byrne JAG funds violate the APA. Plaintiffs also are entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
COUNT IV Tenth Amendment: Commandeering
(FY 2017 Conditions) 121. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 122. The Tenth Amendment prohibits the federal government from “requir[ing] States and localities “to govern according to Congress’ instructions,” New York v. United States, 505 U.S. 144, 162 (1992), or “command[ing] the States’ officers…to administer or enforce a federal regulatory program.” Printz v. United States, 521 U.S. 898, 935 (1997). 123. Section 1373 violates the Tenth Amendment because it “unequivocally dictates what a state legislature may and may not do.” Murphy, 138 S.Ct. at 1476. See City of Philadelphia, 309 F.Supp.3d. at 330-31.
35

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124. When Congress enacted Section 1373, it sought to ensure that “[t]he acquisition, maintenance, and exchange of immigration-related information by State and local agencies” could be used to enforce federal law. S. Rep. No. 104-249, at 19-20 (1996). In doing so, it sought to “require [state and local officers] to provide information that belongs to the State and is available to them only in their official capacity,”—in other words, to engage in unconstitutional commandeering.
125. Further, Section 1373 prohibits state and local governments from engaging in a core aspect of governing: controlling the actions of their agents. Compliance with Section 1373 results in the federal government commandeering states and local governments by directing how state and municipal agents should act and handle data under local control to advance a federal program. In fact, DOJ instructed that states and local governments may need to provide affirmative instructions to their agents to comply.33 Section 1373 requires local officers to follow federal directives and usurps the local policymaking process.
126. Because Section 1373 violates the Tenth Amendment, DOJ cannot require jurisdictions to comply with that statute as a condition of receiving Byrne JAG funds. See South Dakota v. Dole, 483 U.S. 203, 207-08 (1987).
127. Likewise, the notice and access conditions impermissibly commandeer states and local governments and cannot be validly imposed on Byrne JAG funding recipients. The notice condition seeks to fundamentally reorganize not just how local officers spend their time, but also the way state and local governments balance their Fourth Amendment obligations against their interest in effective law enforcement. The access condition requires a fundamental restructuring

33

See Mem. From Michael E. Horowitz, Inspector Gen., U.S. Dep’t of Justice, to Karol V. Mason, Assistant

Attorney General, Office of Justice Programs, U.S. Dep’t of Justice, Department of Justice Referral of Allegations

of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients (May 31, 2016), available at

https://tinyurl.com/y9rpwge4 (last visited November 9, 2018).

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of police procedures and functions to accommodate on-demand access to detainees by federal agents.
128. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the FY 2017 immigration-related conditions violate the Tenth Amendment. Plaintiffs also are entitled to a permanent injunction preventing the Attorney General from putting that condition into effect.
COUNT V Violation of the Spending Clause
(FY 2017 Conditions) 129. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 130. In order to satisfy the requirements of the Spending Clause of the Constitution, U.S. Const. art. I § 8, cl. 1, the conditions for receipt must be stated clearly and the funding conditions must be reasonably related to the federal interest in the project or program that the federal government is funding. 131. Even if Congress had delegated its authority to impose conditions on Byrne JAG funding, which it did not, all of the FY 2017 immigration-related conditions violate the Spending Clause because they are not reasonably related to the federal interest in the Byrne JAG program. See S. Dakota v. Dole, 483 U.S. at 207. 132. The FY 2017 immigration-related conditions relate to civil immigration enforcement and do not reasonably relate to the Byrne JAG program, which is intended to provide funding to states and local governments for criminal justice purposes. The conditions actively undermine Congress’s goals of disbursing funds across the country, targeting funds to combat violent crime, and respecting local judgment in settling law enforcement strategy.
37

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133. Furthermore, the FY 2017 immigration-related conditions violate the Spending Clause because of their ambiguity, leaving states and local governments unable to ascertain what is expected of them. See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981).
134. Additionally, the Spending Clause prohibits the federal government from imposing spending conditions to “induce the States to engage in activities that would themselves be unconstitutional.” S. Dakota v. Dole, 483 U.S. at 210. The FY 2017 immigration-related conditions impermissibly induce Byrne JAG recipients to engage in unconstitutional activity, such as detaining individuals without probable cause in violation of the Fourth Amendment.
135. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the FY 2017 immigration-related conditions violate the Spending Clause. Plaintiffs also are entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
COUNT VI Separation of Powers (FY 2018 Conditions) 136. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 137. The FY 2018 immigration-related conditions on the Byrne JAG program amount to a refusal to spend money appropriated by Congress, in violation of the Executive’s constitutional duty to administer the law. 138. Congress did not authorize FY 2018 immigration-related conditions. Rather, these conditions were imposed by DOJ. Therefore, the FY 2018 immigration-related conditions amount to an improper usurpation of Congress’ spending power by the Executive. 139. The Byrne JAG statute does not condition participation in the Byrne JAG program on compliance with the FY 2018 immigration-related conditions. See 34 U.S.C.
38

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§ 10151 et seq. Nor does it grant DOJ the authority to impose these immigration-related conditions.
140. DOJ does not have authority under 34 U.S.C. § 10102(a)(6) to impose any of the FY 2018 immigration-related conditions.
141. DOJ does not have the authority to determine that 8 U.S.C. §§ 1226, 1231, 1324, 1357, 1366, 1373 and 1644 are “applicable federal laws” for purposes of 34 U.S.C. § 10153(a)(5)(D).
142. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the Attorney General’s imposition of the FY 2018 immigration-related conditions on the FY Byrne JAG funds violates the constitutional principle of separation of powers and impermissibly arrogates power to the Executive that is reserved to Congress. Plaintiffs also are entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
COUNT VII Ultra Vires Conduct (FY 2018 Conditions) 143. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 144. The Byrne JAG statute does not authorize the Attorney General to impose the FY 2018 immigration-related conditions on the receipt of Byrne JAG funds, or to deny funds to states or local governments that fail to comply with those conditions. See City of Chicago, 88 F.3d 283. Indeed, such authority is at odds with the text, structure, and purpose of the Byrne JAG statute. 145. The DOJ’s imposition of the FY 2018 immigration-related conditions contradicts the Byrne JAG program’s formula grant structure. See 34 U.S.C. § 10156(d)(2)(A). It also
39

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contradicts Congress’s intent to give states and local governments the “flexibility to spend money for programs that work for them rather than to impose a ‘one size fits all’ solution.” H.R. Rep. No. 109-223, at 89 (2005).
146. DOJ lacks statutory authority to condition Byrne JAG funds on compliance with 8 U.S.C. §§ 1226, 1231, 1324, 1357, 1366, 1373, and 1644. The Byrne JAG statute’s requirement that grantees comply with “all applicable Federal laws” does not encompass these immigrationrelated statutes. Rather, the phrase “all applicable Federal laws” refers to the laws that regulate the conduct of federal grant recipients as grant recipients and not to every section of the U.S. Code that could possibly apply to a state or local government. None of these statutes regulate grantees as grantees nor do they mention federal grants or funds.
147. The FY 2018 immigration-related conditions are invalid under 34 U.S.C. § 10228(a), which prohibits executive branch officials from using law-enforcement grants to exert “any direction, supervision, or control” over any state or local police force or criminal justice agency.
148. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the Attorney General lacks authority to impose the immigration-related conditions on FY 2018 Byrne JAG funds and, in doing so, has acted contrary to law in violation of the APA. Plaintiffs also are entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
COUNT VIII Arbitrary and Capricious Agency Action
(FY 2018 Conditions) 149. Plaintiffs incorporate by reference the allegations in the preceding paragraphs.
40

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150. Even if DOJ had a constitutional or statutory basis to impose the FY 2018 immigration-related conditions, which it does not, DOJ’s decision to impose the conditions on recipients of Byrne JAG funds is arbitrary and capricious.
151. DOJ never has previously determined that 8 U.S.C. §§ 1226, 1231, 1324, 1357, 1366, and 1644 are “applicable Federal laws” for the purposes of the Byrne JAG program.
152. DOJ has never before imposed anything akin to the questionnaire component on Byrne JAG grantees, essentially requiring a legal opinion on a matter of federal statutory interpretation in order to receive FY 2018 funding.
153. Despite DOJ’s shift in policy, it has provided virtually no explanation for its actions. It released no reports, studies, or analysis in connection with its June 28, 2018 announcement of the FY 2018 immigration-related grant conditions, nor has it attempted to justify its aggressive and shifting interpretations of Section 1373.
154. In addition, DOJ “relied on factors which Congress has not intended to consider,” State Farm, 463 U.S. at 43, by, for example, evaluating grant applicants on the basis of their compliance with the immigration-related conditions rather than on their compliance with expressly enumerated statutory application requirements. See 34 U.S.C. § 10153(a)(1)-(6).
155. DOJ also “entirely failed to consider an important aspect of the problem” by failing to recognize how Section 1373 interferes with local policies that promote public health and safety. See Philadelphia, 280 F. Supp. 3d at 625.
156. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the immigration-related conditions on FY 2018 Byrne JAG funds violate the APA. Plaintiffs also are entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
41

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COUNT IX Tenth Amendment: Commandeering
(FY 2018 Conditions) 157. Plaintiffs incorporate by reference the allegations in the preceding paragraphs. 158. Because Section 1644 is virtually identical to Section 1373, it violates the Tenth Amendment for the same or similar reasons. 159. Because Sections 1373 and 1644 violate the Tenth Amendment, DOJ cannot require jurisdictions to comply with those statutes as a condition of receiving Byrne JAG funds. See S. Dakota, 483 U.S. at 207-8. 160. Likewise, the notice and access conditions impermissibly commandeer states and local governments and cannot be validly imposed on Byrne JAG funding recipients. 161. Additionally, the gag-order condition impermissibly commandeers state and local governments by further dictating their practices and procedures and treating them as enforcement arms of the federal government. Although ambiguous, the gag-order condition, by regulating public disclosure by public entities, appears so far-reaching as to instruct state and local governments how to govern in myriad and complex ways. 162. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the FY 2018 immigration-related conditions violate the Tenth Amendment. Plaintiffs also are entitled to a permanent injunction preventing the Attorney General from putting that condition into effect.
COUNT X Violation of Spending Clause
(FY 2018 Conditions) 163. Plaintiffs incorporate by reference the allegations in the preceding paragraphs.
42

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164. Even if Congress had delegated its authority to impose conditions on Byrne JAG funding, which it did not, all of the FY 2018 immigration-related conditions violate the Spending Clause because they are not reasonably related to the federal interest in the Byrne JAG program. See S. Dakota v. Dole, 483 U.S. at 207.
165. The FY 2018 immigration-related conditions relate to civil immigration enforcement and do not reasonably relate to the Byrne JAG program, which is intended to provide funding to states and local governments for criminal justice purposes. The conditions actively undermine Congress’s goals of disbursing funds across the country, targeting funds to combat violent crime, and respecting local judgment in settling law enforcement strategy.
166. Furthermore, the FY 2018 immigration-related conditions violate the Spending Clause because of their ambiguity, leaving states and local governments unable to ascertain what is expected of them. See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981).
167. Additionally, the Spending Clause prohibits the federal government from imposing spending conditions to “induce the States to engage in activities that would themselves be unconstitutional.” S. Dakota v. Dole, 483 U.S. at 210. The FY 2018 immigration-related conditions impermissibly induce Byrne JAG recipients to engage in unconstitutional activity, such as detaining individuals without probable cause in violation of the Fourth Amendment.
168. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiffs are entitled to a declaration that the FY 2018 immigration-related conditions violate the Spending Clause. Plaintiffs also are entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that this Court:
a) Declare that the immigration-related conditions for the FY 2017 and FY 2018 Byrne JAG programs are unlawful;
b) Preliminarily and permanently enjoin Defendants from imposing the immigrationrelated conditions on the FY 2017 and FY 2018 Byrne JAG funds; and from imposing immigration-related conditions on future Byrne JAG funds;
c) Issue a writ of mandamus compelling Defendants to immediately send FY 2017 and FY 2018 Byrne JAG award letters without the immigration-related conditions;
d) Retain jurisdiction to monitor Defendants’ compliance with this Court’s judgment;
e) Award Plaintiffs their reasonable fees, costs, and expenses, including attorneys’ fees, as permitted by federal law, including the APA and 28 U.S.C. § 2412; and
f) Grant other such relief as this Court may deem proper.
PLAINTIFFS DEMAND A TRIAL BY JURY
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Respectfully submitted,
CITY OF PROVIDENCE By its Attorney,
JEFFREY DANA CITY SOLICITOR
/s/Jeffrey Dana (#5580) jdana@providenceri.gov
/s/Megan Maciasz DiSanto (#7991) Senior Assistant City Solicitor mdisanto@providenceri.gov
/s/Etie-Lee Z. Schaub (#8783) Associate City Solicitor eschaub@providenceri.gov
City of Providence Solicitor’s Office 444 Westminster Street, Suite 220 Providence, RI 02903 (401) 680-5333 / (401) 680-5520 (Fax)
CITY OF CENTRAL FALLS By its Attorney,
MATTHEW JERZYK CITY SOLICITOR
/s/Matthew Jerzyk (#7945) mjerzyk@centralfallsri.us
/s/Robert Weber (#8828) Assistant City Solicitor rweber@centralfallsri.us
/s/Nicholas Hemond (#8782) Assistant City Solicitor nhemond@darroweverett.com
City of Central Falls 580 Broad St. Central Falls, RI 02863 401-616-2435 / 401-727-7422 (Fax)
45

Case 1:18-cv-00437-JJM-LDA Document 15 Filed 11/09/18 Page 46 of 46 PageID #: 302 CERTIFICATION OF SERVICE
I hereby certify that I have filed the within with the United States District Court on this 9th day of November 2018, that a copy is available for viewing and downloading via the ECF system, and that I have caused a copy to be sent to: Zachary A. Cunha (#7855) Assistant United States Attorney 50 Kennedy Plaza, 8th Floor Providence, RI 02903 Zachary.Cunha@usdoj.gov
/s/ Megan Maciasz DiSanto
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 Case 1:18-cv-00437-JJM-LDA Document 47 Filed 11/14/19 Page 1 of 6 PageID #: 4266

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

)

CITY OF PROVIDENCE and CITY OF )

CENTRAL FALLS,

)

Plaintiffs,

)

)

V.

)

)

WILLIAM P. BARR, in his official

)

capacity as Attorney General of the

)

United States, and the UNITED

)

STATES DEPARTMENT OF

)

JUSTICE,

)

Defendants.

)

_________________________ )

C.A. No. 18-CV-00437-JJM-LDA

ORDER This Court previously issued an Order (ECF No. 30) and Partial Judgment (ECF No. 35) involving the Fiscal Year ("FY'') 2017 Edward Byme ·Memorial Justice Assistance Grant Program Awards ("Byrne JAG") for the Cities of Providence and Central Falls (together, the "Cities"). For the FY 2018, the United States Department of Justice (the "DOJ") has continued the FY 2017 conditions (with slight modifications) and imposed three additional conditions (collectively, the "FY 2018 Conditions") on the receipt of Byrne JAG award funding. Tho Cities challenge the FY 2018 Conditions and move for partial summary judgment (ECF No. 34) and the DOJ moves to dismiss or, in the alternative, moves for partial summary judgment. ECF No. 40. The Court finds the FY 2018 Conditions unlawful because the DOJ has again gone outside its powers by imposing conditions not authorized by Congress. The Court orders the relief requested by the Cities.

Case 1:18-cv-00437-JJM-LDA Document 47 Filed 11/14/19 Page 2 of 6 PageID #: 4267
Backgmund Under 34 U.S.C. §10152(a), the Byrne JAG Program provides federal funding
(such funding, an "Award") for state and local municipalities to support local responses to criminal justice-related concerns upon timely receipt of an application. The DOJ administers the program. 34 U.S.C. §10152(a)(1). The DOJ has imposed conditions-six of which are relevant here (three conditions had been imposed on the FY 2017 Awards and three additional conditions)-that the recipients must meet before they can receive their Award. See U.S. Dep't of Just., Byrne JAG Program, FY 2018 Local Solicitation (hereinafter, "FY 2018 Local Solicitation"). The Cities allege that the conditions on the FY 2018 Awards represent both ultra vires and arbitrary and capricious agency conduct. ECF No. 34 at 21·33.
The Cities seek (1) a declaratory judgment that the FY 2018 Conditions are unlawful and unconstitutional; (2) a permanent injunction enjoining DOJ from imposing these or similar conditions; and (3) a Writ of Mandamus directing the DOJ to immediately disburse the Cities' FY 2018 Award funding. Id. at 5G. Tho DOJ moves to dismiss the complaint or, in the alternative, moves for partial summary judgment in its favor. ECF No. 40. Revised FY2017 Conditions
For FY 2017, tho DOJ set forth three conditions termed Access, Notice, and Section 1373 conditions on Byrne JAG Program funding. The Access condition requires a recipient to provide federal immigration enforcement agents with access to the recipient's conectional facilities. See ECF No. 20·3 at G8. The Notice condition
2

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requires a recipient to provide federal immigration enforcement agents notice of a scheduled release for a suspected alien in custody. See id. The Section 1373 condition prohibits a recipient from restricting their officials from sending or receiving information, described in 8 U.S.C. 1373(a), or maintaining, or exchanging information, described in 8 U.S.C. 1373(b), about citizenship or immigration status with federal immigration enforcement. See id. at 66. This Court held that the Attorney General exceeded his statutory authority in imposing these conditions for FY 2017 Awards and the DOJ's conditioning of Awards as such was ultra vires because the conditions were not authorized by Congress. ECF No. 30.
For FY 2018, the DOJ set forth almost identical Access, Notice, and Section 1373 conditions. The only difference in these conditions from FY 2017 is the inclusion of statutory references, which were added to bolster DOJ's argument that it is authorized to impose these conditions. See City ofL.A. v. Jefferson B. Sessions, No. CV-18·7347-R, 2019 WL 1957966, *3, 5 (C.D. Cal., Fob. 15, 2019). These minor changes do not move the needle for the Court. The Court continues to conclude that the Attorney General exceeded his statutory authority in imposing these conditions for FY 2018 Awards and the DOJ's conditioning of the Awards as such is ultra vires because the conditions are not authorized by Congress. FY2018 Additional Conditions
For FY 2018, the DOJ added three additional conditions. See FY 2018 Local Solicitation. The first new condition forbids Byrne JAG grantees from disclosing any information to conceal, harbor, or shield from detection any person who has
3

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unlawfully entered or remains in the United States (the "Harboring Condition"). Id. at 3G. The second new condition requires that Byrne JAG grantees answer a questionnaire about their laws, policies, and practices abotlt communicating with immigration authorities, and to provide an opinion on whether those laws, policies, and practices comply with Section 1373 ("the Questionnaire Condition"). Id. at 28, 52. And the third new condition requires grantees to certify compliance with aclclitional federal immigration statutes derived from the Immigration and Nationality Act, including 8 U.S.C. §§ 122G(a) and (c), 1231(a)(,!), 1324(a), 1357(a), and 13GG(1) and (3) (the "Certification Condition"). Id. at 44.
The issue here is not a novel one. In addition to the many courts that have struck clown the three conditions for FY 2017, every court to consider the restrictions for FY 2018 has also struck them clown. See, e.g:, at.v ofL.A., No. 18·7347, at *5·8; Cit.v& Ct.v. ofSF. v. Sessions, 372 F. Supp. 3cl928 (N.D. Calif. 2019); Cjt_vofCJJi. v. Ban; No. 18·C·G858, 2019 WL 451154G, at *17 (N.D. Ill. Sept. 19, 2019); and City of Evanston and tlJe United States Coni ofNlayors, No. 18·C·4853, 2019 vVL 4694734, at *12 (N.D. Ill. Sept. 2G, 2019). This Court comes to the same conclusion.
While the Byrne JAG statute delegates some authority to the Attorney General to withhold funds for a grantee's failure to comply with certain laws, as the Third and Seventh Circuits recognized, nothing in the Byrne JAG statute "grantlsl the Attorney General the authority to impose conditions that require states or local governments to assist in immigration enforcement." City of ClJi. v. Jefferson B. Sessions III, Attorney Oen of'the United States, 888 F.3cl272, 284 (7th Cir. 2018), vacated in part
4

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on otbw· gmunds; see also Ci~y ofPhila. v. Attonwy Gen. of the United States, 91G F.3d 27G, 284 (3d Cir. 2019) ("[s]uch authorization is nowhere to be found in the text of the [Byrne JAG] statute").
Simply put, the DOJ is claiming a sweeping power to use Byrne JAG special conditions to impose compliance with any federal statute of their choosing, no matter if the statute applies on its face to state and local governments. As the Third Circuit explained, "[alllowing the Attorney General to withhold all funds because a jurisdiction does not certify compliance with any federal law of the Attorney General's choosing undermines the predictability and consistency embedded in the program's design, thus turning the formula grant into a discretionary one." Ci~y ofPhila., 91G F. 3cl at 290.
Because the FY 2018 additional conditions-Harboring, Questionnaire, and Certification Conditions-are substantive immigration policy conditions unmoored in the text, structure, or purpose of the Byrne JAG statute, DOJ acted Ot!tside its statutory authority in imposing them. See City & Cty. ofS.F., 372 F. Supp. 3d at 947 (concluding that "imposition of tho [additional] conditions is ultra vires"); G'i~yofL.A., No. 18·7347, at *5·8 (concluding that the additional conditions are "ultra vires as a matter of law and a violation of separation of powers").
Congress has not granted the power to impose the conditions the DOJ imposed for FY 2018 and so these acts are ultra vires and violate the separation of powers. See Ci~y & C~y. of S.F., 372 F. Supp. 3d at 947. There is thus no need to address whether it also violates the spending clause and/or is arbitrary and capricious.
5

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Conclusion The Court GRANTS the Cities' Motion for Partial Summary Judgment (ECF
No. 34); and DENIES tho Attorney General's Motion to Dismiss for Failure to State a Claim and, in the alternative, Motion for Partial Summary Judgment. ECF No. 40. Moreover, the Cities' request for a Writ of Mandamus directing the U.S. Department of Justice to immediately issue the Cities' FY 2018 Award letters and disburse the Cites' FY 2018 Award funding in accordance with this ruling and without the challenged conditions is GRANTED.
Tho Cities shall draft, in consultation with the Attorney General, consistent with this ruling, a declaratory judgment, a permanent injunction enjoining DOJ from imposing the FY 2018 Conditions on them, and a Writ of lVIandamus directing the Department of Justice immediately to disburse the FY 2018 Award funding.
John J. McConnell, Jr. United States District Judge November 14, 2019
6

 
 Case 1:18-cv-00437-JJM-LDA Document 48 Filed 01/10/20 Page 1 of 3 PageID #: 4272

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

CITY OF PROVIDENCE, et al..,

Plaintiffs,

v.

Civil Action No.

CA-18-437-JJM-LDA

WILLIAM P. BARR, et al.,

Defendants,

JUDGMENT OF INJUNCTION AND WRIT OF MANDAMUS

Pursuant to, and for the reasons set forth in, this Comt's Memorandum and Order of November 14, 2019 (Docket No. 47), granting the City of Providence and the City of Central Falls' (the "Cities") Motion for Partial Summary Judgment (Docket No. 34), with respect to the Fiscal Year 2018 Edward Byme Memorial Justice Assistance Grant ("Byrne JAG") award claims at issue in this litigation, it is ORDERED, ADJUDGED, and DECREED as follows:

1. With respect to the Byrne JAG awards for Fiscal Year 2018 (a "FY2018 Award") made to the Cities, the Department of Justice ("DOJ") is permanently enjoined from enforcing any special condition on a recipient's FY2018 Award that imposes or requires any of the following (the "Enjoined Conditions") as a condition of eligibility for, or receipt of, FY2018 Byrne JAG award funds:

a. That the Cities provide federal immigration enforcement agents with access to their correctional facilities (the "Access Condition");

b. That the Cities provide federal immigration enforcement agents with notice of a scheduled release of a suspected alien in custody (the ''Notice Condition");

c. That the Cities not restrict, in contravention of 8 U.S.C. §§ 1373 and 1644, the sharing, maintenance, or exchange of information regarding citizenship or immigration status with federal immigration enforcement authorities (the "1373 and 1644 Conditions");

d. That the Cities not disclose information in an attempt to conceal, harbor, or shield from detection any alien who unlawfully has entered or remains in the United States (the "Harboring Condition");

e. That the Cities answer a questionnaire about their laws, policies, and practices about communicating with immigration authorities, and to provide an opinion as

Case 1:18-cv-00437-JJM-LDA Document 48 Filed 01/10/20 Page 2 of 3 PageID #: 4273

to whether those laws, policies, and practices comply with 8 U.S.C. § 1373 (the "Questionnaire Condition"); and

f. That the Cities certify that they do not have laws or policies that would impede the Department of Homeland Security's exercise of authority under 8 U.S.C. § 1357(a) or relating to 8 U.S.C. §§ 1226(a) and (c), 123l(a)(4), 1324(a), and 1366(1) and (3) ("the Certification Condition");

2. DOJ is mandated to disburse the Cities' FY2018 Awards, specifically:

Award No.···· 2018-DJ-BX-0911 2018-DJ-BX-0905

City of Providence City of Central Falls

$211,879.00 $29,286.00

These disbursement shall be made despite the Cities' failure to certify compliance with the Access Condition, the Notice Condition, the 1373 and 1644 Conditions, the Harboring Condition, the Questionnaire Condition, and the Certification Condition as set f01th in the award documents for the Cities' FY2018 Awards; provided, however, that nothing in this Order shall relieve the Cities' from their obligations to provide cettification of, and compliance with, any other condition of the Cities' FY2018 Awards other than the Enjoined Conditions, and DOJ is not required to disburse the Cities' FY2018 Awards until such other conditions for disbursement are met. Acceptance of FY20 18 Award funds by the Cities shall not be construed as acceptance of the Enjoined Conditions;

3. In their acceptance of the FY2018 Awards, the Cities may include notations or additional pages indicating that they are not cettifying compliance with the Access Condition, the Notice Condition, the 1373 and 1644 Conditions, the Harboring Condition, the Questionnaire Condition, and the Certification Condition so long as this Court's Order remains in effect;

4. DOJ must process and approve the Cities' requests for drawdowns of their respective FY 2018 Byrne JAG funds as it would in the ordinary course and without regard to the Enjoined Conditions;

5. Nothing in this Order shall impair, affect, or relieve the Cities from the obligation to cettify and comply with any and all other grant conditions apart from the Access Condition, the Notice Condition, the Section 1373 and 1644 Conditions, the Harboring Condition, the Questionnaire Condition, and the Cettification Condition, nor shall it impair DOJ's ability to enforce the conditions in the Cities' FY 2018 Awards other than the Access Condition, the Notice Condition, the Section 1373 and 1644 Conditions, the Harboring Condition, the Questionnaire Condition, and the Certification Condition;

6. The Cities' rights to seek reasonable costs, including attorneys' fees, for this matter and any future related proceedings, are reserved.

r
I

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7. Because this Court's resolution of the Cities' Motion for Partial Summary Judgment (Docket No. 34) with regard to their FY20 18 Award claims is conclusive of all claims brought by the Cities in their Amended Complaint (Docket No. 15), including previously resolved claims related to their FY2017 Awards (see Memorandum and Order of June 10, 2019 (Docket No. 47) and Partial Judgment oflnjunction and Writ of Mandamus of June 27, 2019 (Docket No. 35)), judgment in this matter is appropriate and shall enter fmthwith in favor of the Cities.

_jll, JANUARY

2020

HON. JOHN J. McCONNELL, Jr. UNITED STATES DISTRICT JUDGE

 
 City of Providence v. Barr, 954 F.3d 23 (2020)

954 F.3d 23 United States Court of Appeals, First Circuit.
CITY OF PROVIDENCE and City of Central Falls, Plaintiffs, Appellees, v.
William P. BARR, in his official capacity as United States Attorney General, and the United States Department of Justice, Defendants, Appellants.
No. 19-1802 |
March 24, 2020
Synopsis Background: Cities brought action against Attorney General challenging Department of Justice’s (DOJ) immigration-related conditions for federal formula grants for law enforcement activities under Edward Byrne Memorial Justice Assistance (Byrne JAG) Grant Program. The United States District Court for the District of Rhode Island, John J. McConnell, J., 385 F.Supp.3d 160, entered summary judgment in cities’ favor, and DOJ appealed.
Holdings: The Court of Appeals, Selya, Senior Circuit Judge, held that:
provision requiring grant applicants to report information to Attorney General did not authorize DOJ to impose challenged conditions;
provision requiring grant applicants to certify that “there has been appropriate coordination with affected agencies” did not authorize DOJ impose challenged conditions;
provision requiring grant applicants to comply with “all other applicable Federal laws” did not authorize DOJ to impose challenged conditions;
statute defining duties of Assistant Attorney General for Office of Justice Programs did not authorize DOJ to impose challenged conditions.
Affirmed.
1

Procedural Posture(s): On Appeal; Motion for Summary Judgment.
*25 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. John J. McConnell, Jr., U.S. District Judge]
Attorneys and Law Firms
Brian H. Pandya, Deputy Associate Attorney General, Civil Division, U.S. Department of Justice, with whom Joseph H. Hunt, Assistant Attorney General, Aaron L. Weisman, United States Attorney, and Daniel Tenny and Brad Hinshelwood, Attorneys, Appellate Staff, were on brief, for appellants.
Jeffrey Dana, City Solicitor, with whom Megan Maciasz DiSanto, Senior Assistant City Solicitor, and Etie-Lee Z. Schaub, Associate City Solicitor, were on brief, for appellee City of Providence.
Matthew Jerzyk, City Solicitor, for appellee City of Central Falls.
Peter F. Neronha, Attorney General of Rhode Island, Michael W. Field, Assistant Attorney General, Letitia James, Attorney General of New York, Barbara D. Underwood, Solicitor General, Anisha S. Dasgupta, Deputy Solicitor General, Eric R. Haren, Special Counsel, Linda Fang, Assistant Solicitor General, Xavier Becerra, Attorney General of California, Phil Weiser, Attorney General of Colorado, William Tong, Attorney General of Connecticut, Kathleen Jennings, Attorney General of Delaware, Kwame Raoul, Attorney General of Illinois, Brian E. Frosh, Attorney General of Maryland, Maura Healey, Attorney General of Massachusetts, Dana Nessel, Attorney General of Michigan, Keith Ellison, Attorney General of Minnesota, Aaron D. Ford, Attorney General of Nevada, Gurbir S. Grewal, Attorney General of New Jersey, Hector Balderas, Attorney General of New Mexico, Ellen F. Rosenblum, Attorney General of Oregon, Thomas J. Donovan, Jr., Attorney General of Vermont, Robert W. Ferguson, Attorney General of Washington, and Karl A. Racine, Attorney General for the District of Columbia, on brief for states of New York, Rhode Island, California, Colorado, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Vermont, and Washington and the District of Columbia, amici curiae.

City of Providence v. Barr, 954 F.3d 23 (2020)
Omar C. Jadwat, Lee Gelernt, New York, NY, Cody Wofsy, San Francisco, CA, Spencer E. Amdur, My Khanh Ngo, American Civil Liberties Union, Mark Fleming, Katherine E. Melloy Goettel, National Immigrant Justice Center, Nicholas Trott Long, Providence, RI, and ACLU Foundation of Rhode Island on brief for American Civil Liberties Union, American Civil Liberties Union of Rhode Island, National Immigrant Justice Center, National Immigration Law Center, Washington Defender Association, Southern Poverty Law Center, Northwest Immigrant Rights Project, and New Orleans Workers’ Center for Racial Justice, amici curiae.
Before Barron, Circuit Judge, Souter,* Associate Justice, and Selya, Circuit Judge.
Opinion
SELYA, Circuit Judge.
*26 After a number of state and local governments refused to assist in federal enforcement of certain immigration-related laws, the United States Department of Justice (DOJ) purposed to condition some unrelated federal law enforcement grants on the provision of such assistance. Unwilling to retreat from their so-called “sanctuary” laws and policies, several state and local governments pushed back. A rash of litigation ensued, and a circuit split has now developed. Compare New York v. U.S. Dep’t of Justice, 951 F.3d 84, 123-24 (2d Cir. 2020) (upholding grant conditions imposed by the DOJ), with City of Philadelphia v. Attorney Gen., 916 F.3d 276, 279 (3d Cir. 2019) (invalidating such conditions). The case at hand requires us to take sides in this circuit split.
To put the critical issues into perspective, it helps to revisit the genesis of the underlying suit. Two affected Rhode Island municipalities—Providence and Central Falls (collectively, the Cities)—are among the state and local governmental entities that decided to resist the DOJ’s actions. To that end, they repaired to the federal district court and sought to invalidate the conditions that the DOJ had imposed on grant funds allocated to them. The district court ruled in the Cities’ favor, see City of Providence v. Barr, 385 F. Supp. 3d 160 (D.R.I. 2019), and the DOJ appealed.1
At the time the parties appeared for oral argument before
2

us, three courts of appeals had refused to enforce some or all of the challenged conditions. See City of Los Angeles v. Barr, 941 F.3d 931, 934 (9th Cir. 2019); City of Philadelphia, 916 F.3d at 279; City of Chicago v. Sessions, 888 F.3d 272, 287 (7th Cir.), reh’g en banc granted in part on other grounds, vacated in part on other grounds, No. 17-2991, 2018 WL 4268817 (7th Cir. June 4, 2018), reh’g en banc vacated, No. 17-2991, 2018 WL 4268814 (7th Cir. Aug. 10, 2018). After oral argument, the plot thickened: the Second Circuit upheld all of the challenged conditions, see New York, 951 F.3d at 123-24, thus creating a circuit split. We have carefully considered the district court’s useful rescript, the comprehensive briefs *27 of the parties and the amici, the DOJ’s kitchen-sink-full of clever legal arguments, and the thoughtful but conflicting views of sister circuits. At the end of the day, we conclude that the DOJ’s reach exceeds its grasp; it lacked authority to impose the challenged conditions. Consequently, we affirm the judgment below.
I. BACKGROUND For simplicity’s sake, we bifurcate our statement of the relevant background. First, we trace the anatomy of the grant program that underlies this litigation. Second, we sketch the origins and travel of the case.
A. The Edward Byrne Memorial Justice Assistance Grant Program.
Congress established the Edward Byrne Memorial Justice Assistance Grant Program (Byrne JAG) in 2006 through the merger of two preexisting grant programs. See Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, § 1111, 119 Stat. 2960, 3094 (2006); see also 34 U.S.C. § 10151. Byrne JAG provides grants to state and local governments for personnel, equipment, training, and other uses connected with certain criminal justice programs. See 34 U.S.C. § 10152(a)(1). To be eligible for Byrne JAG funding, a program must fall within the reach of eight broad categories, including “[l]aw enforcement programs,” “[c]orrections and community corrections programs,” and “[c]rime victim and witness programs.” Id.

City of Providence v. Barr, 954 F.3d 23 (2020)
The DOJ administers Byrne JAG funding through its Office of Justice Programs (OJP), which also oversees other federal law enforcement grant programs. See id. §§ 10101, 10110. A Senate-confirmed Assistant Attorney General (Assistant AG) heads the OJP, even though the Attorney General retains ultimate authority over the OJP’s functions. See id. The statute that authorizes the OJP directs the Assistant AG to engage in various information-sharing, liaison, and coordination duties. See id. § 10102(a)(1)-(5). The Assistant AG also must “exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.” Id. § 10102(a)(6).
Importantly, Congress structured Byrne JAG as a formula grant program. Rather than exercising its own discretion as to which jurisdictions receive grants and in what amounts, the DOJ is obliged to distribute funding pursuant to a statutory formula. See id. §§ 10152(a)(1), 10156; see also City of Los Angeles v. McLaughlin, 865 F.2d 1084, 1088 (9th Cir. 1989) (describing difference between formula and discretionary grant programs). The Byrne JAG formula divides Congress’s annual appropriation among states based on their relative populations and rates of violent crime (with each state receiving a minimum of one-quarter of one percent of the total). See 34 U.S.C. § 10156(a). Of the funding allocated to a given state, up to sixty percent goes to the state government and no less than forty percent goes to localities within the state. See id. § 10156(b)-(c). Relative rates of violent crime determine the allocation of funds among localities. See id. § 10156(d)(2)(A). No local government may receive a Byrne JAG grant that is larger than its “total expenditures on criminal justice services for the most recently completed fiscal year for which data are available.” Id. § 10156(e)(1).
Congress has allowed a carefully circumscribed number of deviations from this formula. *28 Pertinently, the DOJ may reallocate up to five percent of Congress’s total appropriation for special grants to address “precipitous or extraordinary increases in crime” or “significant programmatic harm resulting from operation of the formula.” Id. § 10157(b). So, too, the DOJ may retain up to $20 million to help local governments upgrade their law enforcement technology and another $20 million to fund antiterrorism training programs. See id. § 10157(a). In addition, Congress has authorized the DOJ to withhold
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a small percentage of a Byrne JAG grant if the designated recipient fails to comply with certain specified federal law-enforcement-related mandates. These mandates include requirements that states establish a sex offender registry, see id. § 20927(a) (mandatory ten percent reduction), provide records to a national criminal background check database, see id. § 40914(b)(2) (mandatory five percent reduction), and report the deaths of individuals in custody, see id. § 60105(c)(2) (discretionary reduction of up to ten percent).
To receive its share of funding, a state or local government must apply annually to the DOJ. See id. § 10153(a). The applicant’s proffer must make certain certifications and assurances concerning the application and the programs for which the applicant seeks funding. See id. For example, each applicant must provide “[a]n assurance that, for each fiscal year covered by an application, [it] shall maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require,” id. § 10153(a)(4), and “[a] certification ... that ... there has been appropriate coordination with affected agencies,” id. § 10153(a)(5)(C). Applicants also must certify that they “will comply with all provisions of this part [the Byrne JAG statute] and all other applicable Federal laws.” Id. § 10153(a)(5)(D).
After it approves a Byrne JAG application, the DOJ issues a grant award letter that the designated government entity must sign to receive its grant. In this letter, the DOJ typically lists a few so-called “special conditions” with which the designated grant recipient must comply. Some conditions relate to the recipient’s administration of the grant (such as collecting and maintaining data on the funded programs, cooperating with the DOJ’s monitoring of the grant, and attending DOJ events and conferences). Others require that recipients that use their funding for certain purposes (including purchasing police equipment and developing training materials) adhere to federal guidelines. Recipients likewise must obey federal information technology, training, and nondiscrimination regulations and policies. Every grant award letter states that the DOJ may either withhold or terminate funding if the recipient does not comply with these conditions.
B. The Origins and Travel of the Case.

City of Providence v. Barr, 954 F.3d 23 (2020)
This appeal arises indirectly from long-simmering tensions between the federal government and various states and localities that have refused to assist wholeheartedly in the enforcement of certain federal immigration laws and policies—and it arises directly from those tensions involving the federal government and the Cities. In order to limit such assistance, a number of state and local governments have enacted sanctuary laws and policies, which prohibit their officials from taking certain actions that would help federal immigration authorities locate and detain potentially deportable noncitizens. Such laws and policies include bans on notifying federal immigration authorities when a law enforcement officer takes into custody or releases a noncitizen. So, too, some jurisdictions *29 refuse to comply with federal immigration detainers, which ask state and local law enforcement agencies to hold noncitizens beyond their scheduled release from criminal custody (thus permitting immigration authorities to detain them). See 8 C.F.R. § 287.7(a), (d); Morales v. Chadbourne, 793 F.3d 208, 214-15 (1st Cir. 2015).
In May of 2016, the DOJ’s Inspector General issued a report identifying several state and local governments that were receiving federal law enforcement grants (including Byrne JAG grants) and had enacted sanctuary policies that, in one way or another, limited their cooperation and information sharing with federal immigration authorities. The Inspector General suggested that many of these policies violated 8 U.S.C. § 1373, which prohibits federal, state, and local laws and policies that restrict the ability of government entities and officials to maintain information regarding any individual’s immigration status and share that information with federal immigration authorities. See 8 U.S.C. § 1373(a)-(b). Throughout 2015 and 2016, members of Congress introduced various bills that would have made compliance with section 1373 a condition of federal funding for states and localities. None of these bills became law. See City of Chicago, 888 F.3d at 277-78 (collecting bills).
These legislative initiatives stymied, the DOJ notified Byrne JAG grant recipients that it had determined that section 1373 was an “applicable federal law” for purposes of the program. Going forward, state and local governments would, therefore, have to certify compliance with section 1373 as part of the Byrne JAG application process. See 34 U.S.C. § 10153(a)(5)(D) (requiring applicants to certify that they “will comply with ... all other applicable Federal laws”). The DOJ announced that, beginning with fiscal year 2017 (FY2017), it would investigate suspected violations of section 1373 and
4

impose sanctions—including the withholding of grant funds—on jurisdictions that did not remedy such perceived violations. The DOJ also informed prospective Byrne JAG applicants that FY2017 grants would for the first time include conditions requiring specific assistance with immigration enforcement efforts. According to the DOJ, these conditions were designed to ensure that the federal government was not supporting states and localities that were undermining its ability to protect the public by removing noncitizens who had committed crimes.
The Cities have received Byrne JAG grants annually since the program’s inception. Each of them applied for Byrne JAG grants for FY2017. Providence planned to use its grant to cover overtime expenses for officers conducting patrols in “hotspot” areas, hire a part-time bilingual police liaison, and place an advertisement in a local newspaper. Central Falls sought funding to upgrade its police department’s information technology systems.
On June 26, 2018, the DOJ notified the Cities that it had approved their applications and awarded Providence and Central Falls grants of $212,112 and $28,677, respectively. In the grant award letters, the DOJ included three conditions tailored to compel cooperation with federal immigration authorities, none of which had been a condition on Byrne JAG grants in prior fiscal years:
• The notice condition: Grant recipients must implement a law, policy, or practice that ensures that their correctional facilities will “honor” any “formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien.”
• The access condition: Grant recipients must implement a law, policy, or *30 practice that gives federal immigration agents access to “correctional facilit[ies] for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals’ right to be or remain in the United States.”
• The certification condition: Grant recipients “must submit the required ‘Certification of Compliance with 8 U.S.C. [§] 1373’ ” and ensure “[o]ngoing compliance with 8 U.S.C. [§] 1373.”
The Cities took issue with the notice, access, and

City of Providence v. Barr, 954 F.3d 23 (2020)
certification conditions (collectively, the challenged conditions), which conflicted with specific sanctuary policies that they had embraced. For instance, neither of the Cities allows its law enforcement officers to retain custody of a noncitizen based solely on an immigration detainer or other request from immigration authorities, absent a court-issued warrant. A Providence ordinance forbids police officers from even inquiring about any individual’s immigration status. Similarly, police officers in Central Falls do not stop or question individuals based on their immigration status. The Cities believe that these policies build trust between their law enforcement agencies and immigrant communities and ensure that noncitizens feel comfortable reporting crimes, cooperating with investigators, and serving as witnesses.
Dismayed by the DOJ’s attempt to superimpose its policy views on their law enforcement efforts, the Cities decamped to the federal district court and sued the DOJ. They sought to enjoin the DOJ from imposing the challenged conditions on their FY2017 Byrne JAG grants. In relevant part, the Cities alleged that the DOJ did not possess statutory authority to impose the challenged conditions, that the imposition of the challenged conditions was arbitrary and capricious, and that the challenged conditions were unconstitutional.
After some procedural skirmishing not relevant here, the parties filed cross-motions for summary judgment. The district court granted summary judgment for the Cities, holding that the DOJ exceeded its statutory authority in imposing the challenged conditions on their Byrne JAG grants. See City of Providence, 385 F. Supp. 3d at 164-65. The court permanently enjoined the DOJ from enforcing the challenged conditions and—in aid of that injunction—issued a writ of mandamus directing the DOJ to disburse the Cities’ FY2017 grant funds to them. This timely appeal ensued.2
II. ANALYSIS We review the district court’s entry of summary judgment de novo, taking the facts and all reasonable inferences therefrom in the light most agreeable to the nonmovant. See Avery v. Hughes, 661 F.3d 690, 693 (1st Cir. 2011). “We will affirm only if the record reveals ‘that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Id. (quoting Fed. R. Civ. P. 56(a)). The fact that the parties brought
5

*31 cross-motions for summary judgment does not alter our standard of review. See Blackie v. Maine, 75 F.3d 716, 721 (1st Cir. 1996).
The briefs in this case mix policy arguments with legal arguments. The Cities view their sanctuary policies as consistent with the best traditions of a free and open society. The DOJ, however, views those policies as antithetic to its efforts to enforce a series of validly enacted immigration-related laws. We need not plunge into these troubled waters. The issue before us is not whether sanctuary policies are good or bad—that issue is for the political branches, not for the courts. Instead, we focus on the parties’ legal arguments, which coalesce into a single dispositive issue: did the DOJ lawfully impose the challenged conditions on the Cities’ FY2017 Byrne JAG grants?
The court below adopted the Cities’ theory that the DOJ exceeded its statutory authority in imposing the challenged conditions. In this venue, the Cities reiterate this theory and argue, in the alternative, that the DOJ acted arbitrarily and capriciously when it imposed the challenged conditions. Finally, they argue that the challenged conditions violate the Spending Clause of the United States Constitution. See U.S. Const. art. I, § 8, cl. 1. Like the district court, we begin—and end—with the proposition that the DOJ lacked statutory authority to impose the challenged conditions.
When an executive agency administers a federal statute, the agency’s power to act is “authoritatively prescribed by Congress.” City of Arlington v. FCC, 569 U.S. 290, 297, 133 S.Ct. 1863, 185 L.Ed.2d 941 (2013). It is no exaggeration to say that “an agency literally has no power to act ... unless and until Congress confers power upon it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986). Any action that an agency takes outside the bounds of its statutory authority is ultra vires, see City of Arlington, 569 U.S. at 297, 133 S.Ct. 1863, and violates the Administrative Procedure Act, see 5 U.S.C. § 706(2)(C).
The DOJ advances two sources of purported statutory authority for the challenged conditions: the Byrne JAG statute itself, 34 U.S.C. §§ 10151-10158, and the duties-and-functions provisions relating to the Assistant AG for the OJP, 34 U.S.C. § 10102. The question of whether either of these sources authorized the imposition of the challenged conditions reduces to an exercise in statutory construction. We therefore summarize the familiar principles that guide such an inquiry.

City of Providence v. Barr, 954 F.3d 23 (2020)
A court’s lodestar in interpreting a statute is to effectuate congressional intent. See Passamaquoddy Tribe v. Maine, 75 F.3d 784, 788 (1st Cir. 1996). It is axiomatic that the quest to determine this intent must start with the text of the statute itself. See Stornawaye Fin. Corp. v. Hill (In re Hill), 562 F.3d 29, 32 (1st Cir. 2009). When Congress uses a term in a statute and does not define it, we generally assume that the term carries its plain and ordinary meaning. See id. The context surrounding a statutory provision and the structure of the statutory scheme as a whole often provide useful indicators of congressional intent. See Atl. Fish Spotters Ass’n v. Evans, 321 F.3d 220, 224 (1st Cir. 2003); Sterling Suffolk Racecourse Ltd. P’ship v. Burrillville Racing Ass’n, 989 F.2d 1266, 1270 (1st Cir. 1993). If the language employed by Congress evinces a plausible meaning for the disputed provision, our inquiry normally ends there. See In re Hill, 562 F.3d at 32. Other tools of statutory interpretation, such as legislative history, customarily carry significant weight only when the text is ambiguous or *32 its plain meaning leads to an absurd result. See United States v. Charles George Trucking Co., 823 F.2d 685, 688 (1st Cir. 1987).
Against this backdrop, we proceed to examine the statutory provisions that the DOJ identifies as authorizing the imposition of the challenged conditions.
A. The Byrne JAG Statute.
Our starting point is the Byrne JAG statute. See 34 U.S.C. §§ 10151-10158. No provision in the statute authorizes the DOJ to condition Byrne JAG grants on cooperation with federal immigration enforcement efforts in so many words. Recognizing this lack of specific authorization, the DOJ relies instead on three categories of assurances and certifications that the statute requires state and local governments to proffer in their Byrne JAG applications: maintenance and reporting of programmatic information, see id. § 10153(a)(4), coordination with affected agencies, see id. § 10153(a)(5)(C), and compliance with “all other applicable Federal laws,” id. § 10153(a)(5)(D). We address the information-reporting and coordination provisions together and then shift the lens of our inquiry to the “applicable Federal laws” provision.
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1. The Information-Reporting and Coordination Provisions. The information-reporting provision of section 10153(a) mandates that a Byrne JAG application include “[a]n assurance that, for each fiscal year covered by an application, the applicant shall maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require.” Id. § 10153(a)(4). The coordination provision requires an applicant to certify that “there has been appropriate coordination with affected agencies.” Id. § 10153(a)(5)(C). The DOJ contends that these provisions authorized the imposition of the challenged conditions because those conditions request the sharing of “programmatic” information about a grant recipient’s law enforcement and correctional activities and call for “coordination” with federal immigration authorities.
The DOJ’s contentions stretch the statutory language beyond hope of recognition. Under the DOJ’s interpretation, the term “programmatic” in the information-reporting provision apparently would refer to any activity that a grant recipient undertakes within the eight categories of “programs” that the Byrne JAG statute allows grants to fund, without regard to whether the recipient’s grant in fact funds that particular activity. Throughout the Byrne JAG statute, though, Congress used the term “program” in only two ways: to refer to Byrne JAG itself, see, e.g., id. § 10151(a) (“The grant program established under this part shall be known as the ‘Edward Byrne Memorial Justice Assistance Grant Program’.”), or to refer to the specific criminal-justice-related activity that a Byrne JAG grant supports, see, e.g., id. § 10152(a)(1) (explaining that Byrne JAG provides funding “for criminal justice, including for any one or more of the following [eight] programs”); id. § 10153(a)(5)(A) (requiring applicant to certify that “the programs to be funded by the grant meet all the requirements of this part”). In statutes that authorize other federal grant programs, Congress commonly uses the term “programmatic” in this same manner, that is, to denote the grant program and the activities that it funds. See, e.g., 20 U.S.C. § 1232f(a); 29 U.S.C. § 3245(c)(2); 34 U.S.C. § 20305(a)(2)(B); 42 U.S.C. § 300ff-14(h)(3)(A). The DOJ’s contrary interpretation is little more than an ipse dixit; the DOJ advances no principled reason why we should interpret the term in so unorthodox a manner when construing the information-reporting *33 provision.3 See City of Los Angeles, 941 F.3d at 944-45; City of Philadelphia, 916 F.3d at 285; see also Azar v. Allina Health Servs., ––– U.S. ––––, 139 S. Ct. 1804, 1812, 204 L.Ed.2d 139 (2019) (explaining that courts should “not lightly assume

City of Providence v. Barr, 954 F.3d 23 (2020)
that Congress silently attaches different meanings to the same term in the same or related statutes”).
The DOJ’s definition of “programmatic” is inconsistent with the plain language of the statute in another way. The information-reporting provision requires that a grant applicant assure that it will maintain and report programmatic information “for each fiscal year covered by an application.” 34 U.S.C. § 10153(a)(4). The fact that the statute ties the reporting obligation to the years “covered by an application” supports interpreting the term “programmatic” to refer to Byrne JAG itself and the specific activities that a grant funds. Treating “programmatic” as referring to law-enforcement-related activities that are not funded by a grant would gratuitously expand the scope of the term in a manner that contradicts the “fiscal year” language.
Turning to the coordination provision, we find once again that the DOJ’s broad interpretation conflicts with the plain meaning of the statutory text. The DOJ reads the phrase “coordination with affected agencies” to refer to coordination with all law enforcement agencies affected by any activity of the grant applicant. It attempts to justify this interpretation by invoking a goal of the Byrne JAG program, which is also an objective of the OJP’s work more generally: the promotion of law enforcement cooperation. See, e.g., 34 U.S.C. § 10102(a)(4) (directing Assistant AG for OJP to “maintain liaison with ... State and local governments ... relating to criminal justice”); Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197, 197 (listing purposes of predecessor grant program as including increasing “coordination of law enforcement and criminal justice systems at all levels of government”).
The text of the provision itself belies this jerry-built justification. The statute requires an applicant to certify only that there “has been” coordination, 34 U.S.C. § 10153(a)(5)(C), and we must give effect to the verb tense that Congress has chosen to employ, see Carr v. United States, 560 U.S. 438, 448, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010); Navarro v. Pfizer Corp., 261 F.3d 90, 100-01 (1st Cir. 2001). That tense makes pellucid that the coordination to which the statute alludes must take place before a state or local government submits its application. Given this temporal limitation, we think it manifest that the required coordination concerns the preparation of an application and involves the agencies affected by the programs for which the applicant seeks funding.4 See *34 City of Los Angeles, 941 F.3d at 945; City of Philadelphia, 916 F.3d at 285.
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If more were needed—and we doubt that it is—both the statutory context and the formulaic nature of the Byrne JAG program undermine the DOJ’s expansive construction of the information-reporting and coordination provisions. To begin, the canon of noscitur a sociis teaches that “statutory words are often known by the company they keep.” Lagos v. United States, ––– U.S. ––––, 138 S. Ct. 1684, 1688-89, 201 L.Ed.2d 1 (2018); see Wheeling & Lake Erie Ry. Co. v. Keach (In re Montreal, Me. & Atl. Ry., Ltd.), 799 F.3d 1, 8 (1st Cir. 2015). Under this canon, “a string of statutory terms raises the implication that the ‘words grouped in a list should be given related meaning.’ ” S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 378, 126 S.Ct. 1843, 164 L.Ed.2d 625 (2006) (quoting Dole v. United Steelworkers, 494 U.S. 26, 36, 110 S.Ct. 929, 108 L.Ed.2d 23 (1990)).
The information-reporting and coordination provisions appear in a list of assurances and conditions that a Byrne JAG applicant must make with respect to the application and programs to be funded. See 34 U.S.C. § 10153(a) (requiring certification, inter alia, that grant will not supplant applicant’s own funding and that applicant’s governing body and the public had opportunity to review application). We presume that Congress intended these provisions to relate unreservedly to the application, grant, and programs to be funded. The broad authorization that the DOJ purports to find in these provisions—the power to condition a Byrne JAG grant on the recipient’s reporting of information and coordination on matters relating to any of the far-flung law enforcement operations that it conducts—is implausible in this context. See McDonnell v. United States, ––– U.S. ––––, 136 S. Ct. 2355, 2368, 195 L.Ed.2d 639 (2016) (recognizing that canon of noscitur a sociis helps avoid expansive definitions that Congress did not intend).
In addition, it is nose-on-the-face plain that Congress intended Byrne JAG to operate as a formula grant program. See 34 U.S.C. § 10201(b)(2) (referring to Byrne JAG grants as “formula grants”). To carry out this intent, the DOJ must allocate funding in accordance with a detailed formula that takes into account population and violent crime statistics. See id. §§ 10152(a)(1), 10156. Congress was quick to specify those relatively few instances where it thought a deviation from this formula would be permissible. For example, the DOJ may reserve up to five percent of Congress’s total appropriation for special grants to address “precipitous or extraordinary increases in crime,” id. § 10157(b)(1), and it must

City of Providence v. Barr, 954 F.3d 23 (2020)
withhold ten percent of a grant from a state that does not maintain a sex offender registry that meets federal standards, see id. § 20927(a).
Congress did not make an allowance for any deviation that would justify the actions undertaken by the DOJ in this case. And reading the information-reporting and coordination provisions as broadly as does the DOJ would destabilize the statutory formula. In the DOJ’s view, it can condition Byrne JAG grants on state and local governments assisting with unrelated federal law enforcement priorities through mandatory disclosure of information and coordination. But the statutory formula is not so elastic: it simply does not allow the DOJ to impose by brute force conditions *35 on Byrne JAG grants to further its own unrelated law enforcement priorities. In fact, the express authorization for specific deviations from the formula strongly implies that Congress did not intend to give the DOJ the power to advance its own priorities by means of grant conditions. See City of Philadelphia, 916 F.3d at 286; see also Gonzales v. Oregon, 546 U.S. 243, 262, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) (declining to find broad and unrestrained authority for agency in statute that specifically describes agency’s limited authority to act).
To sum up, we hold that the information-reporting provision authorizes the DOJ to require a Byrne JAG applicant only to assure that it will maintain and report information about its grant and the programs that the grant funds. See City of Los Angeles, 941 F.3d at 944-45; City of Philadelphia, 916 F.3d at 285. We further hold that the coordination provision authorizes the DOJ only to require a certification that the applicant has coordinated in the preparation of its application with agencies affected by the programs for which the applicant seeks funding. See City of Los Angeles, 941 F.3d at 945; City of Philadelphia, 916 F.3d at 285.
None of the challenged conditions falls within the compass of this authority. With respect to the information-reporting provision, only the notice condition requires the disclosure of information to the federal government. That condition, however, calls for the Cities to report the release dates of noncitizens in their custody—information that does not pertain either to the Cities’ Byrne JAG grants or to the police-related programs for which the Cities sought funding. The release dates of noncitizens do not, therefore, qualify as “programmatic” information. So, too, the purported reach of the challenged conditions exceeds the authority conferred upon the DOJ by the coordination provision:
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they mandate that the Cities cooperate with federal immigration authorities in manifold ways that are, without exception, unrelated either to their Byrne JAG grants or to the programs for which the Cities sought funding. The challenged conditions also require coordination on an ongoing basis during the term of the Cities’ grants, not merely past coordination relative to the preparation of their applications.
We add a coda. Although the Second Circuit reached a similar conclusion about the meaning of the information-reporting and coordination provisions, it held that those provisions authorize the imposition of the notice and access conditions on any grant that funds a program “relate[d] in any way to the criminal prosecution, incarceration, or release of persons.” New York, 951 F.3d at 116-22. The court explained that such programs include those for police task forces, prosecutors’ and defenders’ offices, and incarceration facilities. See id. at 117-18. The DOJ advances a similarly expansive notion of the scope of a funded program. For example, it suggests that even if the term “programmatic” refers only to a Byrne JAG grant and the programs that the grant supports, the challenged conditions seek “programmatic” information from any grant recipient that uses its funding for a law enforcement or corrections program.
We reject this capacious view of the types of funded programs that would permit the imposition of the challenged conditions—a view that covers most (if not all) criminal justice activities that a state or local government may undertake. For the reasons previously discussed, we think it would be wrong to hold that Congress gave the DOJ free rein to insist that Byrne JAG applicants furnish information and engage in coordination with respect to all of their law enforcement operations. And *36 while we do not foreclose the possibility that the challenged conditions may be sufficiently related to programs for which a different grant applicant seeks funding, the activities financed by the Cities’ FY2017 Byrne JAG grants have no direct connection either to the removal of noncitizens or to the Cities’ relationships with federal immigration authorities. It follows inexorably, as night follows day, that the DOJ lacked statutory authority to impose the challenged conditions pursuant to the information-reporting and coordination provisions of the Byrne JAG statute.
2. The “Applicable Federal Laws” Provision. We turn next to the DOJ’s asseveration that the certification condition is authorized by section 10153(a)(5)(D) of the Byrne JAG statute. That provision requires Byrne JAG

City of Providence v. Barr, 954 F.3d 23 (2020)
applicants to certify that they “will comply with all provisions of this part [the Byrne JAG statute] and all other applicable Federal laws.”5 34 U.S.C. § 10153(a)(5)(D). The DOJ would have us interpret the phrase “applicable Federal laws” to cover all “laws that apply to Byrne JAG applicants and are germane to the grant.” Section 1373 qualifies as such a law, the DOJ claims, because it applies to state and local governments and mandates “cooperation between federal and state officials, which ... is central to the Byrne JAG program.” The Cities rejoin that the phrase refers more narrowly to laws that apply to state and local governments qua Byrne JAG grant recipients. They hasten to add that section 1373 does not fit within this narrower taxonomy. The statutory text, on its face, fails to resolve this dispute: it neither defines the term “applicable” nor explicitly indicates the scope of federal laws that fall within the ambit of this provision.
The dictionary defines “applicable” to mean “capable of being applied” or “fit, suitable, or right to be applied.” Webster’s Third New International Dictionary of the English Language Unabridged 105 (Philip Babcock Gove ed., 2002). Relying heavily on this generic definition, the Second Circuit interpreted the phrase “applicable Federal laws” to encompass all federal laws “pertaining either to the State or locality seeking a Byrne grant or to the grant being sought.” New York, 951 F.3d at 106. The court reasoned that a statute “can” or “may” be capable of being applied or fit to be applied both to persons (such as the grant applicant) and to circumstances (such as the grant itself). Id.
Courts must be wary of simplistic solutions and, unlike the Second Circuit, we do not believe that the dictionary definition clarifies the meaning of the term “applicable” as used in this context. After all, “words are like chameleons; they frequently have different shades of meaning depending upon the circumstances.” Doe v. Leavitt, 552 F.3d 75, 83 (1st Cir. 2009) (quoting United States v. Romain, 393 F.3d 63, 74 (1st Cir. 2004)). A federal law may be “capable of being applied” or “fit to be applied” in an infinite number of ways, and the range of interpretations advanced by the Second Circuit, the DOJ, and the Cities are all consistent with this definition. Instead of assuming (as the Second Circuit did) that Congress meant to imbue “applicable Federal laws” with its broadest possible meaning, we think that *37 sound principles of statutory construction demand that we venture beyond the dictionary definition to ascertain the intended scope of the phrase in this specific context.
9

At the outset, a close reading of the statutory text casts grave doubt on the Second Circuit’s extravagant interpretation. The canon against surplusage teaches that “[w]e must read statutes, whenever possible, to give effect to every word and phrase.” Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 26 (1st Cir. 2006) (en banc). Courts generally ought not to interpret statutes in a way that renders words or phrases either meaningless or superfluous. See United States v. Walker, 665 F.3d 212, 225 (1st Cir. 2011). The Second Circuit’s interpretation of the phrase “applicable Federal laws”—which encompasses all federal laws that apply to state and local governments in any capacity—flouts this principle by effectively reading the term “applicable” out of the statute. For instance, a local government hardly can certify that it will comply with a law that does not apply to local governments in the first place. Congress obviously could have written this provision to require Byrne JAG applicants to certify compliance with “all other Federal laws,” but it did not. In our view, the fact that Congress included the word “applicable” strongly implies that the provision must refer to a subset of all federal laws that apply to state and local governments. See City of Philadelphia, 916 F.3d at 289.
To its credit, the DOJ does not ask us to adopt the expansive interpretation of the “applicable Federal laws” phraseology proposed by the Second Circuit. The DOJ argues instead that its somewhat narrower construction of the phrase does not render the word “applicable” meaningless because that word limits the relevant category of federal laws to those that are “germane” to the Byrne JAG program (and, thus, may constitutionally serve as conditions on Byrne JAG grants). See New York v. United States, 505 U.S. 144, 171-72, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). Such a limitation gets the DOJ where it wants to go since it deems all laws that govern cooperation between the federal government and states and localities on any law enforcement issue to be “germane” to the Byrne JAG program.
This argument has a patina of plausibility. The words “applicable” and “germane” both can mean “relevant.” See Webster’s Third New International Dictionary of the English Language Unabridged, supra, at 105, 951. But as with the Second Circuit’s blind allegiance to the dictionary definition of the word “applicable,” the DOJ’s use of a handy synonym for the same word does not answer the critical question: in what sense must a federal law be relevant in order to qualify as an “applicable Federal law” under section 10153(a)(5)(D)? Once again, we find useful guidance in the canons of statutory

City of Providence v. Barr, 954 F.3d 23 (2020)
construction. The canon of noscitur a sociis points us to the correct answer. It suggests that the “applicable Federal laws” provision must carry a meaning similar to the neighboring assurances and certifications in section 10153(a). As we previously have explained, see supra Part II(A)(1), those assurances and certifications all concern the Byrne JAG application and the programs supported by the grants. In this statutory setting, the phrase “applicable Federal laws” logically denotes laws that apply to states and localities in their capacities as Byrne JAG grant recipients. It strains credulity to think that Congress would bury among those certifications and assurances an authorization for the DOJ to condition grants on certification of compliance with federal laws that require some law-enforcement-related cooperation but lack any nexus to *38 the Byrne JAG program. See City of Philadelphia, 916 F.3d at 289-90.
There is more. Under the DOJ’s interpretation of the “applicable Federal laws” provision, it would have substantial discretion to deviate from the statutory formula in order to enforce its own priorities. After all, it would be able to withhold a grant in its entirety based on the recipient’s failure to certify compliance with any of the wide array of federal laws that touch upon law enforcement cooperation.6 See id. at 290. Given the formulaic nature of the Byrne JAG program, we doubt that Congress intended to give the DOJ so universal a trump card.
The DOJ strives to persuade us that this reasoning is faulty. It serves up a list of other statutes that it contends more clearly limit the phrase “applicable Federal laws” to laws that apply in the context of federal funding. See 42 U.S.C. § 16154(g)(1) (requiring Secretary of Energy to carry out hydrogen energy and fuel cell program in a manner “consistent with the generally applicable Federal laws and regulations governing awards of financial assistance, contracts, or other agreements”); Water Resources Reform and Development Act of 2014, Pub. L. No. 113-121, § 1043(a)(3)(C)(ii)(II), 128 Stat. 1193, 1246 (to be codified at 33 U.S.C. § 2201) (requiring Secretary of the Army to ensure that certain recipients of federal funds for water resources projects “comply with all applicable Federal laws (including regulations) relating to the use of those funds”). Relatedly, it complains that the Cities’ crabbed interpretation means that it cannot condition Byrne JAG grants on recipients’ certification of compliance with certain significant public safety laws that do not apply to states and localities in their capacities as grant recipients. See New York, 951 F.3d at 107-08 (expressing concern at “the idea of States and localities
10

seeking federal funds to enforce their own laws while themselves hampering the enforcement of federal laws, or worse, violating those laws”). Specifically, the DOJ points to federal statutory requirements anent the transfer and registration of firearms. See 26 U.S.C. §§ 5812, 5841.
We are not convinced. As the DOJ’s examples demonstrate, Congress could have used clearer language to indicate its desire to limit “applicable Federal laws” to those that apply to state and local governments in their capacities as Byrne JAG grant recipients. But the perfect is often the enemy of the good, and Congress cannot always be expected to speak in the clearest possible terms. In this instance, what counts is that the language that Congress did use, coupled with the neighboring statutory provisions and the formulaic nature of the grant program, leaves little doubt that Congress meant for the phrase “applicable Federal law” to have this circumscribed scope.
We add—without taking a position as to whether any laws not at issue here are *39 “applicable Federal laws”—that we think Congress intended not to condition Byrne JAG grants on certification of compliance with every law that mandates some form of cooperation with the federal government on criminal justice matters. Congress made this intent manifest by stating expressly in other statutes that noncompliance with those statutes’ requirements could trigger the withholding of a set percentage of a Byrne JAG grant. See, e.g., 34 U.S.C. § 60105(c)(2).
We find equally unconvincing the Second Circuit’s asserted justification for interpreting the phrase “applicable Federal laws” to include laws beyond those that apply to state and local governments in their capacities as Byrne JAG grant recipients. See New York, 951 F.3d at 105-11. In addition to the generic dictionary definition of the term “applicable,” the Second Circuit mentioned what it considered the DOJ’s broad statutory authority to determine whether a state or local government qualifies for Byrne JAG funding in the first place. See id. at 103-04, 107 & n.22.
We do not read the Byrne JAG statute to grant the DOJ such sweeping authority. We recognize, of course, that Congress said that a state or local government may not qualify for its share of Byrne JAG funding in some circumstances. See 34 U.S.C. § 10154 (permitting Attorney General to “finally disapprove [an] application” after allowing applicant to correct deficiencies); id. § 10156(f) (directing Attorney General to reallocate funding

City of Providence v. Barr, 954 F.3d 23 (2020)
to localities if he “determines ... that a State will be unable to qualify or receive funds under this part”). Still, nothing in the Byrne JAG statute indicates that Congress intended to permit the DOJ to create qualification requirements unrelated to the grant program simply to advance its own policy priorities. And as the Second Circuit acknowledged, section 10153(a) delineates precisely what an applicant must do to qualify for a grant, that is, proffer the necessary assurances and certifications and submit the required statewide plan. See New York, 951 F.3d at 104 (“[T]he Attorney General’s authority in identifying qualified Byrne applicants is not limitless but, rather, a function of the particular requirements prescribed by Congress.”). The DOJ may determine the “form” of the application and certain certifications, 34 U.S.C. §§ 10153(a), 10153(a)(5), but that power does not allow it to arrogate unto itself the authority to alter the qualification requirements. Seen in this light, the limited delegation of discretion to the DOJ in the Byrne JAG statute does not support a broad interpretation of the “applicable Federal laws” provision.
That ends this aspect of the matter. We hold that “applicable Federal laws” under section 10153(a)(5)(D) are federal laws that apply to state and local governments in their capacities as Byrne JAG grant recipients. Section 1373 is not such a law because it applies to any state or local government, regardless of whether that government accepts Byrne JAG funding. The “applicable Federal laws” provision did not, therefore, authorize the imposition of the certification condition.
B. The Duties and Functions of the Assistant Attorney General.
We now reach what may be the DOJ’s strongest argument: its assertion that it possessed statutory authority to impose the challenged conditions under 34 U.S.C. § 10102. This statute lays out the duties and functions of the Assistant AG for the OJP. These duties and functions include overseeing the various components within the OJP and performing certain information-sharing and liaison-related tasks pertaining to criminal justice issues. See id. § 10102(a)(1)-(5). In addition, *40 section 10102(a)(6) states that the Assistant AG shall “exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant
11

to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.” Id. § 10102(a)(6).
Seizing on this language, the DOJ submits that section 10102(a)(6) authorizes the Assistant AG to place special conditions on all grants that the OJP administers, including Byrne JAG grants.7 The DOJ defines a “special condition” as any grant-wide condition that the Assistant AG deems warranted based on “the circumstances of a particular grant program” (or, as the DOJ put it at oral argument, any condition “germane” to the grant program). The challenged conditions are reasonable requirements for the receipt of Byrne JAG funds, the DOJ says, because they ensure that state and local governments cooperate with federal immigration authorities and, thus, enhance public safety.
As we have explained, see supra Part II(A), the DOJ has not pointed to any provision in the Byrne JAG statute that allows either the Assistant AG or the Attorney General to impose the challenged conditions on Byrne JAG grants. Nor has the DOJ identified any other statute or regulation that gives such authority to either official. It necessarily follows that the DOJ’s thesis rests on the notion that section 10102(a)(6) itself confers statutory authority to impose special conditions. In a nutshell, the DOJ reads the phrase “placing special conditions on all grants” as an independent endowment of authority above and beyond “such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General.” The Cities reject this premise, arguing that placing special conditions is simply an illustrative example of the powers that the Assistant AG may exercise if vested in him elsewhere in the statute or by delegation from the Attorney General.
Our analysis of this provision starts, as it must, with the statutory text. See In re Hill, 562 F.3d at 32. Congress prefaced the phrase “placing special conditions on all grants” with the word “including.” In both lay and legal usage, “include” generally signifies that what follows is a subset of what comes before. See Include, Black’s Law Dictionary (8th ed. 2004) (defining “include” as “[t]o contain as a part of something”); Webster’s Third New International Dictionary of the English Language Unabridged, supra, at 1143 (defining “include” as “to place, list, or rate as a part or component of a whole or of a larger group, class, or aggregate”). In the same vein, the word “including” most commonly “connotes ... an illustrative application of the general principle.” Reich v.

City of Providence v. Barr, 954 F.3d 23 (2020)
Cambridgeport Air Sys., Inc., 26 F.3d 1187, 1191 (1st Cir. 1994) (quoting Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100, 62 S.Ct. 1, 86 L.Ed. 65 (1941)). This plain meaning indicates, as the Cities posit, that “placing *41 special conditions on all grants” is an example of a power or function that the Assistant AG may exercise if vested in him “pursuant to this chapter or by delegation of the Attorney General.” See New York, 951 F.3d at 101-02; City of Philadelphia, 916 F.3d at 287; City of Chicago, 888 F.3d at 284-85; see also City of Los Angeles, 941 F.3d at 947-48 (Wardlaw, J., concurring in the judgment). Under the DOJ’s alternative interpretation, the word “including” would mean “and” or “as well as”—a radical departure from the word’s plain and ordinary meaning. See P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 77 n.7, 100 S.Ct. 328, 62 L.Ed.2d 225 (1979).
What is more, each subsection of section 10102(a) begins with one or two verbs that define the authority imbued in the Assistant AG. See, e.g., 34 U.S.C. § 10102(a)(1) (directing Assistant AG to “publish and disseminate” certain information); id. § 10102(a)(5) (directing Assistant AG to “coordinate and provide staff support” to OJP components). Section 10102(a)(6) starts with the verb “exercise.” Id. § 10102(a)(6). Accordingly, the most natural reading of this provision is one conferring on the Assistant AG only the limited authority to “exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General.” The DOJ’s more ambitious reading of section 10102(a)(6) conflicts with the provision’s plain meaning by interpreting “placing” as a second verb that gives the Assistant AG additional power. Unlike play-doh, the text of a statute cannot be molded into an infinite number of shapes and sizes to suit the needs of particular moments. Here, the statutory language simply does not say that the Assistant AG may “place” special conditions on all grants.
The statutory context surrounding section 10102(a)(6) likewise counsels in favor of the Cities’ interpretation. See City of Philadelphia, 916 F.3d at 288; City of Chicago, 888 F.3d at 285; see also City of Los Angeles, 941 F.3d at 949 (Wardlaw, J., concurring in the judgment). Section 10102(a) assigns six sets of duties and functions to the Assistant AG. The first five encompass purely ministerial responsibilities, such as providing information to various recipients, liaising with certain private and public entities, and coordinating the operations of the OJP. See 34 U.S.C. § 10102(a)(1)-(5). Given the canon of noscitur a sociis, we are hesitant to
12

interpret the sixth and final subsection to grant wide-ranging substantive authority to the Assistant AG to impose special conditions on Byrne JAG grants at his discretion when the neighboring provisions confer only ministerial responsibilities upon him. If Congress meant to give the Assistant AG the wide-ranging discretionary authority envisioned by the DOJ, we think it would have done so in clearer terms and in a more prominent place in the statute. See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (“Congress ... does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”). Examples of more explicit language that Congress could have employed to give the Assistant AG the power to impose conditions abound in statutes that authorize other grant programs. See, e.g., 34 U.S.C. § 10142(2) (tasking DOJ official with “awarding and allocating funds ... on terms and conditions determined ... to be consistent” with the statute); id. § 10446(e)(3) (“In disbursing grants under this subchapter, the Attorney General may impose reasonable conditions on grant awards to ensure that the States meet *42 statutory, regulatory, and other program requirements.”).
An additional point is worth mentioning. The DOJ’s proposed construction of section 10102(a)(6) is—like its interpretation of the Byrne JAG statute, see supra Part II(A)—inconsistent with the formulaic nature of the grant program. See City of Chicago, 888 F.3d at 286; see also City of Los Angeles, 941 F.3d at 949-50 (Wardlaw, J., concurring in the judgment). This inconsistency is especially hard to ignore here; even the wide-ranging authority that the DOJ purports to find in the Byrne JAG statute covers only a few limited categories of potential grant conditions (for instance, information-reporting requirements under section 10153(a)(4) or certification of compliance with other federal laws under section 10153(a)(5)(D)). By contrast, the DOJ claims that section 10102(a)(6) authorizes it to impose any and all conditions that it deems relevant to a grant program and to withhold entire grants for noncompliance. Were such discretion vested in the DOJ, Byrne JAG would no longer function as a formula grant program.
To cinch the matter, Congress added the “including” language to section 10102(a)(6) in 2006 in the same bill that established the current Byrne JAG formula. Yet the bill contained no cross-reference between the two sections. See Violence Against Women and Department of Justice Reauthorization Act §§ 1111, 1152(b); see also City of Chicago, 888 F.3d at 286. Had Congress wanted

City of Providence v. Barr, 954 F.3d 23 (2020)
to authorize the DOJ to deviate from the statutory formula so drastically, we would expect to see a more direct statement to that effect.
The DOJ’s arguments for reading section 10102(a)(6) as an independent grant of statutory authority to impose special conditions are unavailing. Invoking the canon against surplusage, the DOJ contends that accepting the Cities’ construction would render the “including” language meaningless because no other statute gives the Assistant AG (or any other DOJ functionary) the power to impose special conditions on any Byrne JAG grant. The presumption against treating the “including” language as surplusage has particular force here, the DOJ suggests, because a court should presume that Congress intended its 2006 amendment “to have real and substantial effect.” Stone v. INS, 514 U.S. 386, 397, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995).
A divided panel of the Ninth Circuit relied on this reasoning to hold that section 10102(a)(6) “confirm[s] the authority of DOJ to place ‘special conditions on all grants.’ ”8 City of Los Angeles, 941 F.3d at 939. We do not agree. The plain meaning of a statute is the best evidence of Congress’s intent. See Boivin v. Black, 225 F.3d 36, 40 (1st Cir. 2000). As we already have explained, the statutory language that Congress chose to employ simply does not demonstrate an intent to give the Assistant AG independent statutory authority to impose special conditions.
In all events, there is less to the DOJ’s argument that the canon against surplusage supports its position than meets the eye. Although we aspire to give statutory language more than an illustrative function when the plain meaning of the text admits, we recognize that sometimes *43 “Congress may consider a specific point important or uncertain enough to justify a modicum of redundancy.” Mass. Ass’n of HMOs v. Ruthardt, 194 F.3d 176, 181 (1st Cir. 1999). The canon against surplusage is not a straitjacket. It should not, therefore, be employed inflexibly to rule out every interpretation of a statute that treats certain language as illustrative or clarifying. See id.; see also Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008). In view of the unambiguous language of section 10102(a)(6), Congress’s 2006 amendment appears calculated to remove any doubt that the Assistant AG may place special conditions on all grants whenever this power is vested in him by statute or by delegation of the Attorney General.
Here, moreover, the canon against surplusage is a
13

double-edged sword. The DOJ’s reading of section 10102(a)(6) would itself render meaningless the numerous provisions in other statutes that authorize the agency to withhold set percentages of awards for specific purposes. See City of Los Angeles, 941 F.3d at 951 (Wardlaw, J., concurring in the judgment). Why, for example, would Congress have bothered to specify that the DOJ may withhold up to ten percent of a Byrne JAG grant from a state that fails to report the deaths of individuals in custody, see 34 U.S.C. § 60105(c)(2), if section 10102(a)(6) allowed it to withhold the entire grant for the same reason through the imposition of a special condition? We think it much more probable that Congress intended the word “including” to be illustrative or clarifying than that Congress gave the DOJ authority that would undercut, by implication, so many other statutory provisions.
Specifically, we believe that Congress meant to clarify that the Assistant AG, when vested with such authority pursuant to statute or through delegation by the Attorney General, may impose individualized special conditions on an award to a high-risk grantee to ensure compliance with the existing terms of the award. At the time Congress amended section 10102(a)(6), a DOJ regulation authorized the agency to impose “special conditions” on a grant to a state or local government if the grantee was “high risk.” 28 C.F.R. § 66.12(a)(5) (2006) (repealed 2014). A state or local government was considered “high risk” if it had financial or managerial problems or difficulty adhering to the terms of prior grants. See id. § 66.12(a). The special conditions that the DOJ could impose on an award to a high-risk grantee included restrictions on the disbursement of grant funds, “[a]dditional project monitoring,” demands for “more detailed financial reports,” and requirements that a grantee “obtain technical or management assistance.” Id. § 66.12(b). Identical regulations governed grantmaking by several other federal agencies. See, e.g., 7 C.F.R. § 3016.12 (2006) (repealed 2014) (Department of Agriculture); 34 C.F.R. § 80.12 (2006) (repealed 2014) (Department of Education); see also Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, 53 Fed. Reg. 8034 (Mar. 11, 1988) (adopting uniform grant regulations for over twenty federal agencies).
We assume—in the absence of some indication to the contrary—that when Congress uses a term of art, it intends the term to carry its established meaning. See McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 342, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991). Because

City of Providence v. Barr, 954 F.3d 23 (2020)
Congress did not define “special conditions” as used in section 10102(a)(6), we construe the term to refer to the type of individualized grant conditions for high-risk grantees authorized by 28 C.F.R. § 66.12 and its sister regulations. See City of Los Angeles, 941 F.3d at 941, 944 (defining “special conditions” in *44 section 10102(a)(6) as “conditions placed on grants to grantees that exhibit certain risk factors or have idiosyncratic issues that must be addressed individually”).
This construction finds support in a neighboring provision in the same 2006 legislation. That provision directs the new Office of Audit, Assessment, and Management—which is tasked with ensuring compliance with various DOJ-administered grants—to “take special conditions of the grant into account.” 34 U.S.C. § 10109(a)(2); see Violence Against Women and Department of Justice Reauthorization Act § 1158. The clear implication of this provision is that Congress intended for the term “special conditions” to refer to individualized requirements imposed on a specific grant. See City of Los Angeles, 941 F.3d at 941; see also United States v. Nippon Paper Indus. Co., 109 F.3d 1, 4 (1st Cir. 1997) (“It is a fundamental interpretive principle that identical words or terms used in different parts of the same act are intended to have the same meaning.”).
Subsequent to the repeal of 28 C.F.R. § 66.12 in 2014, the DOJ’s authority to impose individualized conditions on awards to high-risk grantees derives from 2 C.F.R. § 200.207. See 2 C.F.R. § 2800.101 (adopting 2 C.F.R. part 200 for DOJ grants). This regulation describes these individualized conditions as “specific award conditions.” Id. § 200.207(a). Here, however, we have no occasion to decide whether section 10102(a)(6) permits the Assistant AG to exercise delegated authority from the Attorney General to impose “specific award conditions” on Byrne JAG grants: the DOJ does not argue that the challenged conditions constitute “specific award conditions” authorized by 2 C.F.R. § 200.207. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”). And in all events, the challenged conditions, which the DOJ has imposed as program-wide requirements for all Byrne JAG grants, are not special conditions under section 10102(a)(6) because they are not individualized requirements for high-risk grantees. See City of Los Angeles, 941 F.3d at 942, 944.
The DOJ offers yet another line of argument. To bolster its reading of section 10102(a)(6), it relies on a statement
14

in the legislative history indicating that the 2006 amendment “allows the Assistant Attorney General to place special conditions on all grants.” H.R. Rep. No. 109-233, at 101 (2005). This reliance is mislaid. The cited statement does not provide an unmistakable indication of congressional intent such as might lead us to disregard the plain meaning of the statutory text. See Charles George Trucking Co., 823 F.2d at 688. Although section 10102(a)(6) allows the Assistant AG to place special conditions on grants in certain circumstances, the legislative history tells us nothing about Congress’s intent as to the nature and extent of those circumstances. Given the plain meaning of the statutory language, the formulaic nature of the Byrne JAG program, and Congress’s use of “special conditions” as a term of art, we have no reason to believe that Congress meant to give the DOJ virtually unfettered authority to impose whatever grant conditions it deems warranted.
Finally, the DOJ compiles a compendium of other requirements, all of which it has styled as “special conditions” and imposed on Byrne JAG grants since the inception of the program. It boasts that these conditions have been neither questioned by Congress nor challenged by grant recipients. This is thin gruel: the lawfulness of these other special conditions *45 is well beyond the scope of this appeal. And to the extent that the DOJ argues that its longstanding practice must signify, through some mysterious alchemy, that section 10102(a)(6) gives it the authority to impose special conditions on Byrne JAG grants at its discretion, we disagree. An agency’s implementation of a statute has scant value in determining the actual authority that the statute confers upon the agency, at least where—as here—the plain text of the statute contradicts the agency’s praxis. See Rapanos v. United States, 547 U.S. 715, 752, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (plurality opinion). The DOJ cannot take by adverse possession the authority to impose special conditions in a way that shields the devaluation of statutory language from judicial review. See id.
Nor does the bare fact that Congress in 2016 codified requirements related to body armor that the DOJ had previously imposed as special conditions on Byrne JAG grants, see 34 U.S.C. § 10202(c), bolster the DOJ’s adverse possession argument. We find no support for the inference that Congress, through this codification, meant to endorse the DOJ’s expansive view of the scope of its own statutory authority.
To say more would be to paint the lily. We conclude that section 10102(a)(6) authorizes the imposition of special

City of Providence v. Barr, 954 F.3d 23 (2020)

conditions on Byrne JAG grants only to the extent that such power is “vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General.” The provision does not constitute an independent grant of authority to the Assistant AG to impose whatever conditions he may deem advisable based on the nature of the grant program. And because the DOJ has failed to identify either another statute that vests authority in the Assistant AG to impose the challenged conditions or any valid delegation of such authority from the Attorney General, section 10102(a)(6), by itself, cannot authorize those conditions.9

We need go no further. When the federal government deals with state and local governments, it must turn square corners. Here, the DOJ took an impermissible shortcut when it attempted to impose the challenged conditions on the Cities’ FY2017 Byrne JAG grants—conditions that Congress had not vested the DOJ with authority to impose. Consequently, the judgment of the district court is
Affirmed.
All Citations
954 F.3d 23

III. CONCLUSION

Footnotes

*

Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

1

The Cities sued not only the DOJ but also the Attorney General in his official capacity. For ease in exposition, we

refer throughout to the DOJ as if it were the sole defendant.

2

In October of 2018, the DOJ approved the Cities’ Byrne JAG applications for fiscal year 2018 (FY2018). The grant

award letters contained both modified versions of the challenged conditions and some new immigration-related

conditions. After the Cities amended their complaint to challenge the FY2018 conditions, the district court

bifurcated the FY2017 and FY2018 claims. The court entered partial final judgment on the FY2017 claims under

Federal Rule of Civil Procedure 54(b), conferring appellate jurisdiction over this appeal. See United States v. Univ. of

Mass., Worcester, 812 F.3d 35, 44-45 (1st Cir. 2016).

3

The DOJ mentions that each challenged condition is prefaced with some variant of the following language: “[w]ith

respect to the ‘program or activity’ funded in whole or part under this award.” The challenged conditions define

“program or activity” by importing the broad meaning that the same phrase carries under Title VI of the Civil Rights

Act of 1964. See 42 U.S.C. § 2000d-4a (defining “program or activity” as “all of the operations” of various public and

private entities that receive federal funding). If the DOJ seeks to argue that its own definition of the term “program”

is entitled to deference, that argument is incorrect. This definition contradicts the plain meaning of the term as used

in the statute and is, therefore, unreasonable. See City of Los Angeles, 941 F.3d at 945 n.17; see also Quinn v. City of

Boston, 325 F.3d 18, 33-34 (1st Cir. 2003) (explaining that courts should not defer to agency interpretations of

statutes that are unreasonable or “contradict clearly ascertainable legislative intent”).

4

Contrary to the DOJ’s intimation, the Byrne JAG statute does not address this type of coordination elsewhere in the

list of certifications and assurances required in an application. See 34 U.S.C. § 10153(a)(3) (pre-submission

opportunity for consultation with the public); id. § 10153(a)(6) (submission of statewide plan on use of Byrne JAG

grants developed in consultation with public and private entities).

5

Although the statute speaks only of certifying compliance with “applicable Federal laws,” the conditions in the

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City of Providence v. Barr, 954 F.3d 23 (2020)

Cities’ FY2017 grant award letters specify that the Cities both certify compliance with section 1373 and ensure ongoing compliance with the same statute throughout the period of the grants. The DOJ’s arguments do not meaningfully distinguish between these two requirements. Because we conclude that section 1373 is not an “applicable Federal law,” see text infra, we take no view on whether the DOJ may condition a Byrne JAG grant on ongoing compliance with such a law.

6

The DOJ implicitly assumes that the Byrne JAG statute allows it to pick and choose the “applicable Federal laws”

with which a grant applicant must certify compliance. See New York, 951 F.3d at 104 (“[T]he Attorney General

identifies the laws requiring § 10153(a)(5)(D) compliance certification.”). This assumption contradicts the language

of the statute, which states that a Byrne JAG application “shall include” a certification that the grant applicant “will

comply with ... all other applicable Federal laws.” 34 U.S.C. § 10153(a)(5)(D) (emphasis supplied). Given the clarity of

the requirement set forth in the statute, we do not think that the DOJ’s discretion to determine the “form” of a

Byrne JAG application, id. § 10153(a), is sufficiently elastic to allow it to mandate certification of compliance with

only those “applicable Federal laws” that further its own policy priorities.

7

Although the DOJ’s 2017 announcement of the notice and access conditions called compliance with those conditions

“an authorized and priority purpose” of the Byrne JAG grants, the DOJ has not taken the matter any further. Before

us, it has neither defined the term “priority purpose” nor explained why compliance with the challenged conditions

constitutes a “priority purpose.” Any argument to the effect that the “determining priority purposes for formula

grants” language in section 10102(a)(6) authorized the imposition of the challenged conditions is, therefore, waived.

See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed waived.”).

8

Even so, the panel went on to invalidate the notice and access conditions on the ground that they did not constitute

“special conditions.” See City of Los Angeles, 941 F.3d at 944. Concurring in the judgment, Judge Wardlaw

concluded—as we do now—that section 10102(a)(6) is not an independent grant of statutory authority to the

Assistant AG to impose special conditions. See id. at 945-46 (Wardlaw, J., concurring in the judgment).

9

Because we conclude that the DOJ lacked statutory authority to impose the challenged conditions, we do not

attempt to assess the merits of the several other arguments—including arguments that the imposition of the

challenged conditions was arbitrary and capricious and that the challenged conditions violate the Spending

Clause—advanced by the Cities.

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