U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:18-cv-06474-ER

The City of New York v. Whitaker et al Assigned to: Judge Edgardo Ramos Related Case: 1:18-cv-06471-ER Cause: 05:702 Administrative Procedure Act

Date Filed: 07/18/2018 Date Terminated: 05/03/2021 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff The City of New York

represented by

Jyotin Hamid Debevoise & Plimpton, LLP (NYC) 919 Third Avenue, 3rd Floor New York, NY 10022 2129091031 Fax: 2129096836 Email: jhamid@debevoise.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dana Rehnquist Debevoise & Plimpton LLP 919 Third Avenue New York, NY 10022 (212)-909-6858 Email: dana.rehnquist@usdoj.gov TERMINATED: 07/31/2020
Doris F. Bernhardt New York City Law Department 100 Church Street Room 6-188 New York, NY 10007 (212) 788-0996 Fax: (212) 227-1633 Email: dbernhar@law.nyc.gov ATTORNEY TO BE NOTICED
Matthew E. Fishbein Debevoise & Plimpton, LLP (NYC) 919 Third Avenue, 3rd Floor New York, NY 10022 212 909-6000 Fax: 212-521-7077 Email: mefishbe@debevoise.com TERMINATED: 01/10/2019
Meryl Holt Debevoise & Plimpton, LLP (NYC) 919 Third Avenue, 3rd Floor New York, NY 10022 (212)-909-6889 Email: meryl.holt@gmail.com ATTORNEY TO BE NOTICED

V. Consolidated Plaintiff State of New York

Sabita Lakshmi Krishnan New York City Law Department 100 Church Street Room 6-188 New York, NY 10007 212-442-0588 Fax: 212-788-1633 Email: skrishna@law.nyc.gov ATTORNEY TO BE NOTICED
Tonya Jenerette Corporation Counsel, Special Federal Litigation Division 100 Church Street New York, NY 10007 (212)-788-0993 Fax: (212)-788-0367 Email: tjeneret@law.nyc.gov ATTORNEY TO BE NOTICED

represented by

Jessica A. Attie New York State Office of The Attorney General 28 Liberty St. New York, NY 10522 (917)-210-2200 Email: jessica.attie@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Milagros Trasande New York State Office of the Attorney General (28 Liberty) 28 Liberty Street, 15th Floor New York, NY 10005 (212) 416-8905 Email: nancy.trasande@ag.ny.gov

ATTORNEY TO BE NOTICED

V.
Defendant
Jefferson B. Sessions, III in his official capacity as Attorney General of the United States of America TERMINATED: 11/30/2018

represented by

Charles E.T. Roberts DOJ-Civ 1100 L St. NW Rm. 11308 Washington, DC 20005 202-305-8628 Email: charles.e.roberts@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Mauler U.S. Department of Justice Federal Programs Branch, 950 Pennsylvania Ave, Nw, Room 6141 Washington, DC 20530 (202)-616-0773 Email: dan.mauler@usdoj.gov TERMINATED: 02/28/2020 LEAD ATTORNEY

Defendant
United States Department of Justice

represented by

Charles E.T. Roberts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Mauler (See above for address) TERMINATED: 02/28/2020 LEAD ATTORNEY

Defendant

Matthew G. Whitaker in his official capacity as Acting Attorney General of the United States

represented by

Charles E.T. Roberts (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel Mauler (See above for address) TERMINATED: 02/28/2020 LEAD ATTORNEY

Amicus Jerrold Nadler

represented by

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

Amicus Yvette D. Clarke
Amicus Joseph Crowley
Amicus

represented by

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

represented by

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

Eliot L. Engel
Amicus Adriano Espaillat
Amicus Brian Higgins
Amicus Hakeem Jeffries
Amicus Nita Lowey
Amicus

represented by

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

represented by

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

represented by

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

represented by

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

represented by

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

Congresswoman Carolyn Maloney
Amicus Sean Patrick Maloney
Amicus Gregory W. Meeks
Amicus Grace Meng
Amicus Kathleen M. Rice
Amicus

represented by

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

represented by

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

represented by

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

represented by

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

represented by

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

Jose Serrano
Amicus Paul D. Tonko
Amicus Nydia M. Velazquez
Amicus ACLU Foundation, et al.

represented by

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

represented by

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

represented by

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

Date Filed

#

07/18/2018

1

07/18/2018

2

Docket Text
COMPLAINT against Department Of Justice, Jefferson B. Sessions. (Filing Fee $ 400.00, Receipt Number 0208-15336838)Document filed by CITY OF NEW YORK.(Jenerette, Tonya) (Entered: 07/18/2018)
CIVIL COVER SHEET filed. (Jenerette, Tonya) (Entered: 07/18/2018)

07/18/2018 07/18/2018 07/18/2018 07/19/2018
07/19/2018
07/19/2018

3

FILING ERROR - WRONG EVENT TYPE SELECTED FROM

MENU - RELATED CASE AFFIRMATION of Tonya Jenerette re:

that this action be filed as related to 18-06471. Document filed by

CITY OF NEW YORK.(Jenerette, Tonya) Modified on 7/19/2018

(sj). (Entered: 07/18/2018)

4

REQUEST FOR ISSUANCE OF SUMMONS as to Jefferson B.

Sessions, re: 1 Complaint. Document filed by CITY OF NEW

YORK. (Jenerette, Tonya) (Entered: 07/18/2018)

5

REQUEST FOR ISSUANCE OF SUMMONS as to United States

Department of Justice, re: 1 Complaint. Document filed by CITY

OF NEW YORK. (Jenerette, Tonya) (Entered: 07/18/2018)

***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Tonya Jenerette. The party information for the following party/parties has been modified: The City of New York; Jefferson B. Sessions III; United States Department of Justice. The information for the
party/parties has been modified for the following reason/reasons: party name contained a typographical error; party name was entered in all caps; party role was
entered incorrectly. (sj) (Entered: 07/19/2018)
***NOTICE TO ATTORNEY REGARDING CIVIL. CASE OPENING STATISTICAL ERROR CORRECTION: Notice to
attorney Tonya Jenerette. The following case opening statistical information was erroneously selected/entered: Fee Status code due (due). The following correction(s) have been made to your case entry: the Fee Status code has been
modified to pd (paid). (sj) (Entered: 07/19/2018)
***NOTICE TO ATTORNEY REGARDING DEFICIENT RELATED CASE STATEMENT. Notice to attorney Tonya
Jenerette to RE-FILE Document No. 3 Statement of Relatedness. The filing is deficient for the following reason(s): the wrong event type was used to file the related case statement. Re-file the document using the event type Statement of Relatedness found under the event list Other Documents - select the correct filer - enter the related case number when prompted - and attach the correct PDF. (sj)
(Entered: 07/19/2018)

07/19/2018 07/19/2018 07/19/2018 07/19/2018 07/19/2018 07/19/2018
07/19/2018 07/26/2018 07/26/2018 07/26/2018

CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Unassigned. (sj)
(Entered: 07/19/2018)

Case Designated ECF. (sj) (Entered: 07/19/2018)

CASE REFERRED TO Judge Edgardo Ramos as possibly related to 1:18cv6471. (sj) (Entered: 07/19/2018)

6

ELECTRONIC SUMMONS ISSUED as to Jefferson B. Sessions,

III. (sj) (Entered: 07/19/2018)

7

ELECTRONIC SUMMONS ISSUED as to United States

Department of Justice. (sj) (Entered: 07/19/2018)

8

FILING ERROR - DEFICIENT DOCKET ENTRY -STATEMENT

OF RELATEDNESS re: that this action be filed as related to 18

cv 06474. Document filed by The City of New York.(Jenerette,

Tonya) Modified on 7/19/2018 (pne). (Entered: 07/19/2018)

9

STATEMENT OF RELATEDNESS re: that this action be filed as

related to 18-06471. Document filed by The City of New

York.(Jenerette, Tonya) (Entered: 07/19/2018)

CASE ACCEPTED AS RELATED. Create association to 1:18-cv-06471-ER. Notice of Assignment to follow. (ma)
(Entered: 07/26/2018)

NOTICE OF CASE REASSIGNMENT to Judge Edgardo Ramos. Judge Unassigned is no longer assigned to the case. (ma) (Entered: 07/26/2018)

Magistrate Judge Stewart D. Aaron is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the
necessary form at the following link: http://nysd.uscourts.gov/forms.php. (ma) (Entered: 07/26/2018)

07/26/2018

10 NOTICE OF APPEARANCE by Matthew E. Fishbein on behalf of The City of New York. (Fishbein, Matthew) (Entered: 07/26/2018)

07/26/2018 07/27/2018
07/31/2018 08/01/2018 08/03/2018 08/06/2018 08/08/2018

11

NOTICE OF APPEARANCE by Meryl Holt on behalf of The City

of New York. (Holt, Meryl) (Entered: 07/26/2018)

12

ORDER granting [15 in 18-CV-6471] Letter Motion for

Conference: A pre-motion conference will be held in this case

and the related case, No. 18 Civ. 6474, on August 2, 2018, at

11:30 a.m. Defendants are directed to respond to Plaintiffs' letter

by July 31, 2018. (Responses due by 7/31/2018. Pre-Motion

Conference set for 8/2/2018 at 11:30 AM before Judge Edgardo

Ramos.) (Signed by Judge Edgardo Ramos on 7/27/2018) (jwh)

(Entered: 07/27/2018)

13

NOTICE OF APPEARANCE by Doris F. Bernhardt on behalf of

The City of New York. (Bernhardt, Doris) (Entered: 07/31/2018)

14

NOTICE OF APPEARANCE by Daniel Mauler on behalf of

Jefferson B. Sessions, III, United States Department of Justice.

(Mauler, Daniel) (Entered: 08/01/2018)

Minute Entry for proceedings held before Judge Edgardo Ramos: Pre-Motion Conference held on 8/3/2018. Plaintiffs' counsel
present. Defendants' counsel present. Amended pleading due August 6, 2018. (jar) (Entered: 10/26/2018)

15

FIRST AMENDED COMPLAINT amending 1 Complaint against

Jefferson B. Sessions, III, United States Department of

Justice.Document filed by The City of New York. Related

document: 1 Complaint.(Fishbein, Matthew) (Entered:

08/06/2018)

16

AFFIDAVIT OF SERVICE of Summons and Complaint served.

Jefferson B. Sessions, III served on 7/30/2018, answer due

9/28/2018. Service was made by certified mail. Document filed

by The City of New York. (Fishbein, Matthew) (Entered:

08/08/2018)

08/08/2018 08/14/2018 08/15/2018

17

AFFIDAVIT OF SERVICE of Summons and Complaint served.

United States Department of Justice served on 7/31/2018,

answer due 10/1/2018. Service was made by certified mail.

Document filed by The City of New York. (Fishbein, Matthew)

(Entered: 08/08/2018)

18

MEMO ENDORSEMENT on re: (44 in 1:18-cv-06471-ER) Letter

filed by State of New York. ENDORSEMENT: The application is

granted. (Motions due by 9/14/2018. Responses due by

9/26/2018. Replies due by 10/8/2018.) (Signed by Judge

Edgardo Ramos on 8/14/2018) (jwh) (Entered: 08/14/2018)

19

PROPOSED STIPULATION AND ORDER. Document filed by

The City of New York. (Fishbein, Matthew) (Entered: 08/15/2018)

08/16/2018 08/17/2018

20

STIPULATION: Plaintiff the City of New York ("Plaintiff'), and

Defendants Jefferson B. Sessions III and United States

Department of Justice ("Defendants"), do HEREBY STIPULATE

AND AGREE as follows: 1. This stipulation shall remain in effect

for a period of 60 days from the date hereof, i.e., until October

13, 2018. On October 13, 2018, and every 30 days thereafter,

this stipulation shall automatically be extended for a 30-day

period (the "extension term"), except in the case that Defendants

give notice to Plaintiff 14 days in advance of the end of an

extension term that Defendants do not agree to renew the

stipulation for the next extension term, thus ending the stipulation

at the end of the then-operational extension term; 2. For the

duration of this stipulation, Defendants shall not disburse,

expend, or revert to the Treasury the Fiscal Year ("FY") 2017

Edward Byrne Memorial Justice Assistance Grant ("Byrne JAG")

funds allocated to Plaintiff; and 3. This stipulation applies only to

the parties that are currently before the Court in this litigation. No

party that is not currently named as a party to this litigation shall

be entitled to any rights or benefits whatsoever under this

stipulation. (Signed by Judge Edgardo Ramos on 8/16/2018)

(jwh) (Entered: 08/17/2018)

21

MOTION for Summary Judgment / Notice of Motion for Partial

Summary Judgment. Document filed by The City of New

York.(Fishbein, Matthew) (Entered: 08/17/2018)

08/17/2018
08/17/2018 08/17/2018 08/17/2018

22

MEMORANDUM OF LAW in Support re: 21 MOTION for

Summary Judgment / Notice of Motion for Partial Summary

Judgment. / Memorandum of Law in Support of Plaintiffs' Motion

for Partial Summary Judgment. Document filed by The City of

New York. (Fishbein, Matthew) (Entered: 08/17/2018)

23

RULE 56.1 STATEMENT. Document filed by The City of New

York. (Fishbein, Matthew) (Entered: 08/17/2018)

24

PROPOSED ORDER. Document filed by The City of New York.

Related Document Number: 21 . (Fishbein, Matthew) Proposed

Order to be reviewed by Clerk's Office staff. (Entered:

08/17/2018)

25 DECLARATION of Michael Lawlor in Support re: 21 MOTION for Summary Judgment / Notice of Motion for Partial Summary
Judgment.. Document filed by The City of New York. (Fishbein, Matthew) (Entered: 08/17/2018)

08/17/2018

33

DECLARATION of Meryl Holt in Support re: 21 MOTION for

Summary Judgment / Notice of Motion for Partial Summary

Judgment.. Document filed by The City of New York.

(Attachments: # 1 Exhibit 1 - SNY DOJ-BJA FY 17 Byrne JAG

Award Approval Letter, # 2 Exhibit 2 - SCT DOJ-BJA FY 17

Byrne JAG Award Approval Letter, # 3 Exhibit 3 - SNJ DOJ-BJA

FY 17 Byrne JAG Award Approval Letter, # 4 Exhibit 4 - SRI

DOJ-BJA FY 17 Byrne JAG Award Approval Letter, # 5 Exhibit 5

- SWA DOJ-BJA FY 17 Byrne JAG Award Approval Letter, # 6

Exhibit 6 - CMA DOJ-BJA FY 17 Byrne JAG Award Approval

Letter, # 7 Exhibit 7 - CVA DOJ-BJA FY 17 Byrne JAG Award

Approval Letter, # 8 Exhibit 8 - Index to DOJ-BJA Byrne JAG FY

2017 Admin. Record, # 9 Exhibit 9 - AR-00001 to AR-00375 of

DOJ-BJA Byrne JAG FY 2017 Admin. Record, # 10 Exhibit 10 -

AR-00376 to AR-00452 of DOJ-BJA Byrne JAG FY 2017 Admin.

Record, # 11 Exhibit 11 - AR-00453 to AR-00484 of DOJ-BJA

Byrne JAG FY 2017 Admin. Record, # 12 Exhibit 12 - AR-00485

to AR-00549 of DOJ-BJA Byrne JAG FY 2017 Admin. Record, #

13 Exhibit 13 - AR-00550 to AR-00593 of DOJ-BJA Byrne JAG

FY 2017 Admin. Record, # 14 Exhibit 14 - AR-00594 to

AR-00655 of DOJ-BJA Byrne JAG FY 2017 Admin. Record, # 15

Exhibit 15 - AR-00656 to AR-00726 of DOJ-BJA Byrne JAG FY

2017 Admin. Record, # 16 Exhibit 16 - AR-00727 to AR-00964 of

DOJ-BJA Byrne JAG FY 2017 Admin. Record, # 17 Exhibit 17 -

AR-00965 to AR-01037 of DOJ-BJA Byrne JAG FY 2017 Admin.

Record, # 18 Exhibit 18 - Controlling Crime Through More

Effective Law Enforcement, # 19 Exhibit 19 - Senate Report No.

90-1097 (1968), # 20 Exhibit 20 - Amendments to Title I (LEAA)

of the Omnibus Crime Control and Safe Streets Act, # 21 Exhibit

21 (Part 1 of 4) - LEAA, General Briefing (Feb. 1977), # 22

Exhibit 21 (Part 2 of 4) - LEAA, General Briefing (Feb. 1977), #

23 Exhibit 21 (Part 3 of 4) - LEAA, General Briefing (Feb. 1977),

# 24 Exhibit 21 (Part 4 of 4) - LEAA, General Briefing (Feb.

1977), # 25 Exhibit 22 - DOJ, Restructuring the Justice Depart's

Program of Assistance to State and Local Govts., # 26 Exhibit 23

- Restructuring the Law Enforcement Assistance Admin., # 27

Exhibit 24 - 42 Fed. Reg. 45625 (Sept. 1977) (Excerpt), # 28

Exhibit 25 - Federal Assistance to State and Local Criminal

Justice Agencies, # 29 Exhibit 26 (Part 1 of 3) - Law Enforcement

Assistance Admin.: Guideline Manual, # 30 Exhibit 26 (Part 2 of

3) - Law Enforcement Assistance Admin.: Guideline Manual, # 31

Exhibit 26 (Part 3 of 3) - Law Enforcement Assistance Admin.:

Guideline Manual, # 32 Exhibit 27 - Law Enforcement Assistance

08/18/2018 08/18/2018 08/18/2018

Reform, Hearings, # 33 Exhibit 28 - Office of Representative Peter W. Rodino, Press Release, # 34 Exhibit 29 - Justice System Improvement Act of 1979, # 35 Exhibit 30 - John K.
Hudzik et al., Federal Aid to Criminal Justice, # 36 Exhibit 31 Paul G. Dembling & Malcolm S. Mason, Essentials of Grant Law Practice, # 37 Exhibit 32 - DOC, Justice, and State, the Judiciary, and Related Agencies Appropriations for 2004, # 38 Exhibit 32.1 - 28 CFR 66.12 (2006), # 39 Exhibit 33 - DOJ-BJA Byrne JAG FY
2017 Local Solicitation, # 40 Exhibit 34 - FY 17 Byrne JAG Award Letter Recipients, attaching revised certifications files, # 41 Exhibit 35 - City of Chicago v. Sessions, 17-2991 ECF No. 128, # 42 Exhibit 36 - City of Chicago v. Sessions, 17-2991, ECF No. 134, # 43 Exhibit 37 - City of Chicago, No. 1:17-cv-5770, ECF No. 208, # 44 Exhibit 37.1 - City of Philadelphia v. Sessions,
No. 17-cv-3894, ECF No. 121-2, # 45 Exhibit 38 - City of Philadelphia v. Sessions, No. 17-cv-3894, ECF No. 200, # 46 Exhibit 39 - City of Philadelphia v. Sessions, 17-cv-3894, ECF No. 228, # 47 Exhibit 40 - California ex rel. Becerra v. Sessions,
No. 17-cv-4701, ECF No. 88, # 48 Exhibit 41 - City of San Francisco v. Sessions, No. 17-cv-4642, ECF No. 78, # 49 Exhibit 42 - United States v. California, No. 18-cv-00490, ECF No. 2-1, # 50 Exhibit 43 - United States v. California, 18-cv-490), ECF No. 193, # 51 Exhibit 44 - City of Evanston, 18-cv-4853 (N.D. Ill. Aug.
9 2018), ECF No. 23)(Holt, Meryl) (Entered: 08/18/2018)

26

AFFIRMATION of Michael J. Hogan in Support re: 21 MOTION

for Summary Judgment / Notice of Motion for Partial Summary

Judgment.. Document filed by The City of New York. (Fishbein,

Matthew) (Entered: 08/18/2018)

27

DECLARATION of Shannon Dion in Support re: 21 MOTION for

Summary Judgment / Notice of Motion for Partial Summary

Judgment.. Document filed by The City of New York. (Fishbein,

Matthew) (Entered: 08/18/2018)

28

DECLARATION of Richard Torrance in Support re: 21 MOTION

for Summary Judgment / Notice of Motion for Partial Summary

Judgment.. Document filed by The City of New York.

(Attachments: # 1 Exhibit A- Theodore Article)(Fishbein,

Matthew) (Entered: 08/18/2018)

08/18/2018
08/18/2018 08/18/2018 08/18/2018 08/18/2018 08/18/2018

29 DECLARATION of William G. Kelly, Jr. in Support re: 21 MOTION for Summary Judgment / Notice of Motion for Partial Summary Judgment.. Document filed by The City of New York. (Attachments: # 1 Exhibit Albany Executive Order, # 2 Exhibit Hanson Letter, # 3 Exhibit 12/7/17 Sheehan Response, # 4 Exhibit Adler Letter, # 5 Exhibit 5 (A-C) Sheehan Response, # 6 Exhibit 5D- Sheehan Response, # 7 Exhibit 5E- Sheehan Response)(Fishbein, Matthew) (Entered: 08/18/2018)

30

DECLARATION of Jennifer E. Fradel in Support re: 21 MOTION

for Summary Judgment / Notice of Motion for Partial Summary

Judgment.. Document filed by The City of New York.

(Attachments: # 1 Exhibit Middlesex)(Fishbein, Matthew)

(Entered: 08/18/2018)

31

DECLARATION of Chia-Chia Wang in Support re: 21 MOTION

for Summary Judgment / Notice of Motion for Partial Summary

Judgment.. Document filed by The City of New York. (Fishbein,

Matthew) (Entered: 08/18/2018)

32

DECLARATION of Mayor Lovely A. Warren in Support re: 21

MOTION for Summary Judgment / Notice of Motion for Partial

Summary Judgment.. Document filed by The City of New York.

(Attachments: # 1 Exhibit Rochester Resolution)(Fishbein,

Matthew) (Entered: 08/18/2018)

34

DECLARATION of Diane Klontz in Support re: 21 MOTION for

Summary Judgment / Notice of Motion for Partial Summary

Judgment.. Document filed by The City of New York.

(Attachments: # 1 Exhibit Washington JAG App, # 2 Exhibit

Washington JAG Award)(Fishbein, Matthew) (Entered:

08/18/2018)

35

DECLARATION of Candice Cho in Support re: 21 MOTION for

Summary Judgment / Notice of Motion for Partial Summary

Judgment.. Document filed by The City of New York.

(Attachments: # 1 Exhibit Order No. 34, # 2 Exhibit Order No. 41,

# 3 Exhibit Section 10-178)(Fishbein, Matthew) (Entered:

08/18/2018)

08/18/2018 08/18/2018 08/18/2018 08/18/2018 08/18/2018 08/18/2018
08/18/2018

36

DECLARATION of Michael Charles Green in Support re: 21

MOTION for Summary Judgment / Notice of Motion for Partial

Summary Judgment.. Document filed by The City of New York.

(Attachments: # 1 Exhibit 1 - State NY 2017 Award Letter, # 2

Exhibit 2 - NYS DCJS App.)(Holt, Meryl) (Entered: 08/18/2018)

37 DECLARATION of Kim Y. Royster in Support re: 21 MOTION for Summary Judgment / Notice of Motion for Partial Summary
Judgment.. Document filed by The City of New York. (Fishbein, Matthew) (Entered: 08/18/2018)

38

DECLARATION of Mary Travis Bassett in Support re: 21

MOTION for Summary Judgment / Notice of Motion for Partial

Summary Judgment.. Document filed by The City of New York.

(Attachments: # 1 Exhibit : Bassett CV)(Fishbein, Matthew)

(Entered: 08/18/2018)

39

DECLARATION of Adrian Diaz in Support re: 21 MOTION for

Summary Judgment / Notice of Motion for Partial Summary

Judgment.. Document filed by The City of New York.

(Attachments: # 1 Exhibit A - Complaint)(Holt, Meryl) (Entered:

08/18/2018)

40

DECLARATION of Daniel J. Bennett in Support re: 21 MOTION

for Summary Judgment / Notice of Motion for Partial Summary

Judgment.. Document filed by The City of New York. (Fishbein,

Matthew) (Entered: 08/18/2018)

41

DECLARATION of Marcos Soler in Support re: 21 MOTION for

Summary Judgment / Notice of Motion for Partial Summary

Judgment.. Document filed by The City of New York.

(Attachments: # 1 Exhibit A - 2016 Compliance Validation, # 2

Exhibit B - 10/11/17 Hanson Letter, # 3 Exhibit C - 10/27/17

Carter Response, # 4 Exhibit D - 1/24/18 Adler Letter, # 5 Exhibit

E - 2/23/18 Carter Response)(Holt, Meryl) (Entered: 08/18/2018)

42

DECLARATION of Laura Negron in Support re: 21 MOTION for

Summary Judgment / Notice of Motion for Partial Summary

Judgment.. Document filed by The City of New York.

(Attachments: # 1 Exhibit A - Sections 9-131, 14-154, # 2 Exhibit

B - Section 4-210, # 3 Exhibit C - Ex. Order No. 124, # 4 Exhibit

D - Section 8, # 5 Exhibit E - Section 23-1201-1205, # 6 Exhibit F

- Ex. Order No. 34)(Holt, Meryl) (Entered: 08/18/2018)

08/20/2018 08/22/2018 08/22/2018 08/24/2018
08/27/2018
08/28/2018

***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. 24 Proposed Order was reviewed and approved as to form. (km) (Entered: 08/20/2018)

43 AFFIDAVIT OF SERVICE of Summons and Amended Complaint, Complaint served. Service was accepted by Haojun Li.
Document filed by The City of New York. (Fishbein, Matthew) (Entered: 08/22/2018)

44 AFFIDAVIT OF SERVICE of Summons and Amended Complaint, Complaint served. Service was accepted by Haojun Li.
Document filed by The City of New York. (Fishbein, Matthew) (Entered: 08/22/2018)

45

MOTION for Leave to File Amici Curiae Brief of Members of

Congress. Document filed by Jerrold Nadler, Yvette D. Clarke,

Joseph Crowley, Eliot L. Engel, Adriano Espaillat, Brian Higgins,

Hakeem Jeffries, Nita Lowey, Carolyn Maloney, Sean Patrick

Maloney, Gregory W. Meeks, Grace Meng, Kathleen M. Rice,

Jose Serrano, Paul D. Tonko, Nydia M. Velazquez. (Attachments:

# 1 Motion for Leave To File, # 2 Exhibit Proposed Amici Curiae

Brief, # 3 Text of Proposed Order)(Gans, David) (Entered:

08/24/2018)

46

MEMO ENDORSEMENT on re: (78 in 1:18-cv-06471-ER)

MOTION for Leave to File Amici Curiae Brief; (45 in

1:18-cv-06474-ER) MOTION for Leave to File Amici Curiae Brief.

ENDORSEMENT: Defendants are directed to respond by August

30, 2018. (Set Deadlines/Hearing as to (78 in 1:18-cv-06471-ER)

MOTION for Leave to File Amici Curiae Brief; (45 in

1:18-cv-06474-ER) MOTION for Leave to File Amici Curiae Brief:

Responses due by 8/30/2018) (Signed by Judge Edgardo Ramos

on 8/27/2018) (jwh) (Entered: 08/27/2018)

47

LETTER addressed to Judge Edgardo Ramos from Daniel

Mauler dated August 28, 2018 re: Response to ECF No. 45.

Document filed by Jefferson B. Sessions, III, United States

Department of Justice.(Mauler, Daniel) (Entered: 08/28/2018)

08/28/2018 08/28/2018 09/14/2018 09/14/2018
09/14/2018

48

ORDER granting 45 Letter Motion for Leave to File Document.

Upon consideration of the motion of members of Congress for

leave to file their proposed amici curiae brief in support of

plaintiffs, it is hereby ORDERED that the motion is GRANTED.

(Signed by Judge Edgardo Ramos on 8/28/2018) (mro) (Entered:

08/29/2018)

49 MEMO ENDORSEMENT on re: (81 in 1:18-cv-06471-ER) Letter, filed by State of New Jersey, Commonwealth of Massachusetts, Commonwealth of Virginia, State of Rhode Island, State of New York, State Of Connecticut, State of Washington. ENDORSEMENT: The application is granted. ( Brief due by 9/24/2018.) (Signed by Judge Edgardo Ramos on 8/28/2018) (mro) (Entered: 08/29/2018)

50

MOTION to Dismiss or alternatively, motion for partial summary

judgment. Document filed by Jefferson B. Sessions, III, United

States Department of Justice.(Mauler, Daniel) (Entered:

09/14/2018)

51 MEMORANDUM OF LAW in Support re: 50 MOTION to Dismiss or alternatively, motion for partial summary judgment.
Memorandum in Opposition to Plaintiff's Motion for Partial Summary Judgment (ECF No. 21). Document filed by Jefferson
B. Sessions, III, United States Department of Justice. (Attachments: # 1 Supplement Defendants' Response to Plaintiff
LR 56.1 Statement, # 2 Supplement Defendants' LR 56.1 Statement of Undisputed Material Facts, # 3 Text of Proposed
Order)(Mauler, Daniel) (Entered: 09/14/2018)
52 DECLARATION of Francisco Madrigal in Support re: 50 MOTION to Dismiss or alternatively, motion for partial summary judgment.. Document filed by Jefferson B. Sessions, III, United States Department of Justice. (Mauler, Daniel) (Entered: 09/14/2018)

09/14/2018 09/25/2018

53

DECLARATION of Tracey Trautman in Support re: 50 MOTION

to Dismiss or alternatively, motion for partial summary judgment..

Document filed by Jefferson B. Sessions, III, United States

Department of Justice. (Attachments: # 1 Exhibit A, # 2 Exhibit

B)(Mauler, Daniel) (Entered: 09/14/2018)

54 NOTICE OF APPEARANCE by Dana Rehnquist on behalf of The City of New York. (Rehnquist, Dana) (Entered: 09/25/2018)

09/26/2018

55

PROPOSED STIPULATION AND ORDER. Document filed by

The City of New York. (Fishbein, Matthew) (Entered: 09/26/2018)

09/26/2018 09/26/2018 09/26/2018
10/03/2018 10/04/2018

56 REPLY MEMORANDUM OF LAW in Support re: 21 MOTION for Summary Judgment / Notice of Motion for Partial Summary Judgment. / Plaintiffs' Reply Memorandum in Support of Plaintiffs' Motion for Partial Summary Judgment and in Opposition to Defendants' Motion to Dismiss, or Alternatively,
Motion for Summary Judgment. Document filed by The City of New York. (Fishbein, Matthew) (Entered: 09/26/2018)

57

RESPONSE re: 51 Memorandum of Law in Support of Motion,,

//Plaintiffs' Responses to Defendants' Local Rule 56.1 Statement

of Undisputed Material Facts. Document filed by The City of New

York. (Fishbein, Matthew) (Entered: 09/26/2018)

58

DECLARATION of Meryl Holt in Support re: 21 MOTION for

Summary Judgment / Notice of Motion for Partial Summary

Judgment.. Document filed by The City of New York.

(Attachments: # 1 Exhibit 45 - Edward Byrne Memorial Justice

Assistance Grant (JAG) Program FY 2018 State Solicitation, # 2

Exhibit 46 - OJJDP FY 2018 Title II Formula Grants Program

Solicitation, # 3 Exhibit 47 - Evanston v. Sessions, No.

1:18-cv-04853, ECF 23, Order, # 4 Exhibit 48 - U.S. Conference

of Mayors v. Sessions, 18-2734, ECF 13, Order, # 5 Exhibit 49 -

City of Los Angeles v. Sessions, No. 2:17-cv-07215-R-JC, ECF

94, Order, # 6 Exhibit 50 - Memorandum from Dep't of Justice to

General Counsel (May 18, 1999), # 7 Exhibit 51 - DOJ OJP Part

200 Uniform Requirements, # 8 Exhibit 52 - Spreadsheet drafted

by counsel summarizing special conditions)(Holt, Meryl)

(Entered: 09/26/2018)

59

CONSENT LETTER MOTION for Leave to File Excess Pages

addressed to Judge Edgardo Ramos from Daniel Mauler dated

October 3, 2018. Document filed by Jefferson B. Sessions, III,

United States Department of Justice.(Mauler, Daniel) (Entered:

10/03/2018)

60

ORDER granting 59 Letter Motion for Leave to File Excess

Pages. The application is granted. (HEREBY ORDERED by

Judge Edgardo Ramos)(Text Only Order) (Ramos, Edgardo)

(Entered: 10/04/2018)

10/05/2018 10/08/2018 10/10/2018

61

NOTICE OF APPEARANCE by Sabita Lakshmi Krishnan on

behalf of The City of New York. (Krishnan, Sabita) (Entered:

10/05/2018)

62

REPLY to Response to Motion re: 50 MOTION to Dismiss or

alternatively, motion for partial summary judgment. . Document

filed by Jefferson B. Sessions, III, United States Department of

Justice. (Mauler, Daniel) (Entered: 10/08/2018)

63 NOTICE of supplemental authority. Document filed by The City of New York. (Attachments: # 1 Exhibit A - 10-5-18 San Francisco California - Byrne - Opinion)(Holt, Meryl) (Entered: 10/10/2018)

10/15/2018
10/23/2018 10/23/2018 10/25/2018 10/25/2018

64

ORDER: The Clerk of the Court is unable to copy all of these

documents as requested. However, the Court will re-file its own

entries and documents so that they appear on the docket of both

actions. As to the remaining documents, the parties and amici in

No. 18 Civ. 6471 are directed to re-file their respective

documents in No. 18 Civ. 6474. (Signed by Judge Edgardo

Ramos on 10/15/2018) (jwh) (Entered: 10/15/2018)

65

LETTER addressed to Judge Edgardo Ramos from Matthew E.

Fishbein dated October 23, 2018 re: notice of change in facts.

Document filed by The City of New York.(Fishbein, Matthew)

(Entered: 10/23/2018)

66

MEMO ENDORSEMENT on re: 65 Letter filed by The City of

New York. ENDORSEMENT: Defendants are directed to respond

by the close of business on October 26, 2018. (Signed by Judge

Edgardo Ramos on 10/23/2018) (jwh) (Entered: 10/23/2018)

67

LETTER MOTION for Conference addressed to Judge Edgardo

Ramos from Jessica Attie dated 07/26/2018. Document filed by

State of New York.(Attie, Jessica) (Entered: 10/25/2018)

68 LETTER addressed to Judge Edgardo Ramos from Jessica Attie dated 8/10/2018 re: Proposed briefing schedule for motion for
summary judgment/motion to dismiss. Document filed by State of New York.(Attie, Jessica) (Entered: 10/25/2018)

10/25/2018 10/25/2018 10/25/2018 10/26/2018 10/26/2018
10/31/2018
11/01/2018 11/01/2018

69 LETTER addressed to Judge Edgardo Ramos from Jessica Attie dated 8/28/2018 re: Filing of amicus briefs. Document filed by State of New York.(Attie, Jessica) (Entered: 10/25/2018)

70

LETTER addressed to Judge Edgardo Ramos from Lourdes

Rosado dated 10/24/2018 re: Oral argument. Document filed by

State of New York.(Attie, Jessica) (Entered: 10/25/2018)

71

BRIEF of Amici Curiae. Document filed by ACLU Foundation, et

al..(Jadwat, Omar) (Entered: 10/25/2018)

72

LETTER addressed to Judge Edgardo Ramos from Daniel

Mauler dated October 26, 2018 re: Response to ECF No. 65.

Document filed by Jefferson B. Sessions, III, United States

Department of Justice.(Mauler, Daniel) (Entered: 10/26/2018)

73

LETTER addressed to Judge Edgardo Ramos from Daniel

Mauler dated July 31, 2018 re: Copy of letter filed in related case

(1:18-cv-6471), per Court's Order. Document filed by Jefferson B.

Sessions, III, United States Department of Justice.(Mauler,

Daniel) (Entered: 10/26/2018)

74

LETTER addressed to Judge Edgardo Ramos from Daniel

Mauler dated October 31, 2018 re: Update on Available Dates for

Oral Argument. Document filed by Jefferson B. Sessions, III,

United States Department of Justice.(Mauler, Daniel) (Entered:

10/31/2018)

75

NOTICE OF APPEARANCE by Nancy Milagros Trasande on

behalf of State of New York. (Trasande, Nancy) (Entered:

11/01/2018)

76 MEMO ENDORSEMENT on re: (107 in 1:18-cv-06471-ER) Letter filed by Jefferson B. Sessions III, United States Department of Justice, (74 in 1:18-cv-06474-ER) Letter filed by United States Department of Justice, Jefferson B. Sessions, III. ENDORSEMENT: Oral Argument will be held on November 16, 2018, at 2:30 p.m. SO ORDERED. (Oral Argument set for
11/16/2018 at 02:30 PM before Judge Edgardo Ramos.) (Signed by Judge Edgardo Ramos on 11/1/2018) (jca) (Entered: 11/01/2018)

11/08/2018
11/08/2018
11/13/2018 11/14/2018

77

TRANSCRIPT of Proceedings re: conference held on 8/2/2018

before Judge Edgardo Ramos. Court Reporter/Transcriber:

Jennifer Thun, (212) 805-0300. Transcript may be viewed at the

court public terminal or purchased through the Court

Reporter/Transcriber before the deadline for Release of

Transcript Restriction. After that date it may be obtained through

PACER. Redaction Request due 11/29/2018. Redacted

Transcript Deadline set for 12/10/2018. Release of Transcript

Restriction set for 2/6/2019.(McGuirk, Kelly) (Entered:

11/08/2018)

78

NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is

hereby given that an official transcript of a CONFERENCE

proceeding held on 8/2/18 has been filed by the court

reporter/transcriber in the above-captioned matter. The parties

have seven (7) calendar days to file with the court a Notice of

Intent to Request Redaction of this transcript. If no such Notice is

filed, the transcript may be made remotely electronically available

to the public without redaction after 90 calendar days...(McGuirk,

Kelly) (Entered: 11/08/2018)

79

NOTICE of Withdrawal of Attorney Jessica Attie. Document filed

by State of New York. (Trasande, Nancy) (Entered: 11/13/2018)

80

MEMO ENDORSEMENT on re: (111 in 1:18-cv-06471-ER)

Letter. ENDORSEMENT: The application is granted. (Signed by

Judge Edgardo Ramos on 11/14/2018) (jwh) (Entered:

11/15/2018)

11/30/2018 12/19/2018

81 OPINION AND ORDER re: 21 MOTION for Summary Judgment / Notice of Motion for Partial Summary Judgment; 50 MOTION to Dismiss or alternatively, motion for partial summary judgment: Plaintiffs' motion for partial summary judgment is GRANTED, and Defendants' motion for partial summary judgment or in the alternative to dismiss is DENIED. Specifically, the Court hereby ORDERS as follows: 1. The Notice, Access, and Compliance Conditions are ultra vires and not in accordance with law under the APA. Summary judgment is GRANTED to the States on their Counts II and III and to the City on its Count II. 2. 8 U.S.C. § 1373(a)(b), insofar as it applies to states and localities, is facially unconstitutional under the anticommandeering doctrine of the Tenth Amendment. Summary judgment is GRANTED to the States on their Count V and to the City on its Counts V and XI. 3. The Notice, Access, and Compliance Conditions violate the constitutional separation of powers. Summary judgment is GRANTED to the States on their Count I and to the City on its Count I. The motions for summary judgment with respect to the City's Count IV (violation of the Spending Clause) are DENIED as moot. 4. The Notice, Access, and Compliance Conditions are arbitrary and capricious under the APA. Summary judgment is GRANTED to the States on their Count IV and to the City on its Count III. 5. Defendants are MANDATED to reissue the States' FY 2017 Byrne JAG award documents without the Notice, Access, or Compliance Conditions, and upon acceptance, to disburse those awards as they would in the ordinary course without regard to those conditions. 6. Defendants are ENJOINED from imposing or enforcing the Notice, Access, or Compliance Conditions for FY 2017 Byrne JAG funding for the States, the City, or any of their agencies or political subdivisions. The Clerk of the Court is respectfully directed to terminate the motions, Docs. 56 and 88 in No. 18 Civ. 6471, and Docs. 21 and 50 in No. 18 Civ. 6474, and to update the docket as noted in the caption. (Matthew G. Whitaker added. Jefferson B. Sessions, III (in his official capacity as Attorney General of the United States of America) terminated.) (Signed by Judge Edgardo Ramos on 11/30/2018) (jwh) (Entered: 11/30/2018)

82

LETTER MOTION for Conference regarding motion for

modification of November 30, 2018 Order addressed to Judge

Edgardo Ramos from Daniel Mauler dated December 19, 2018.

Document filed by United States Department of Justice, Matthew

G. Whitaker.(Mauler, Daniel) (Entered: 12/19/2018)

12/20/2018 12/28/2018 12/28/2018
01/02/2019

83 ORDER entered 82 Motion for Conference. Plaintiff is directed to respond by Friday, December 28, 2018. (HEREBY ORDERED by Judge Edgardo Ramos)(Text Only Order) (jar) (Entered: 12/20/2018)

84

MEMO ENDORSEMENT on re: (119 in 1:18-cv-06471-ER)

Response to Motion, filed by State of New Jersey,

Commonwealth of Massachusetts, Commonwealth of Virginia,

State of Rhode Island, State of New York, State Of Connecticut,

State of Washington. ENDORSEMENT: Defendants are directed

to respond by Wednesday, January 2, 2019. SO ORDERED.

(Responses due by 1/2/2019) (Signed by Judge Edgardo Ramos

on 12/28/2018) (jca) (Entered: 12/28/2018)

85

LETTER addressed to Judge Edgardo Ramos from Dana

Rehnquist dated December 28, 2018 re: Enclosed Letter from

Lourdes M. Rosado to Judge Ramos on behalf of Plaintiffs and in

Response to Defendants' Request for a Pre-Motion Conference

Regarding a Motion for Modification of the Court's Order of

November 30, 2018. Document filed by The City of New York.

(Attachments: # 1 Letter from Lourdes M. Rosado to Judge

Ramos in Response to Defendants' Request for a Pre-Motion

Conference Regarding a Motion for Modification of the Court's

Order of November 30, 2018)(Rehnquist, Dana) (Entered:

12/28/2018)

86

LETTER addressed to Judge Edgardo Ramos from Daniel

Mauler dated January 2, 2019 re: Government's Response to

ECF No. 85. Document filed by United States Department of

Justice, Matthew G. Whitaker.(Mauler, Daniel) (Entered:

01/02/2019)

01/04/2019
01/09/2019 01/09/2019 01/10/2019 01/18/2019 01/24/2019

87

ORDER terminating 82 Letter Motion for Conference.

Accordingly, Paragraph 5 of the "Conclusion" section of the

Court's Opinion and Order is hereby modified to read as follows:

"Defendants are MANDATED to issue the States' FY 2017 Byrne

JAG award documents, and upon acceptance by those

jurisdictions, to disburse those awards as they would in the

ordinary course but without regard to the Notice, Access, or

Compliance Conditions. Acceptance of the FY 2017 awards shall

not be construed as acceptance of the enjoined conditions."

Upon restoration of appropriations to the Department of Justice

and Plaintiffs' acceptance of the award documents, Defendants

are directed to inform Plaintiffs of the expected timing of the

disbursement of their FY 2017 Byrne JAG funds. The Court

expects that, upon the occurrence of these events, Defendants

will disburse the funds without further delay. The Clerk of Court is

respectfully directed to terminate the motions, Doc. 117 in No.

18civ.6471, and Doc. 82 in No. 18Civ6474. SO ORDERED.

(Signed by Judge Edgardo Ramos on 1/4/2019) (kv) (Entered:

01/04/2019)

88

NOTICE OF APPEARANCE OF PRO BONO COUNSEL by

Jyotin Hamid on behalf of The City of New York (Hamid, Jyotin)

(Entered: 01/09/2019)

89

LETTER addressed to Judge Edgardo Ramos from Matthew

Fishbein dated January 9, 2019 re: Request for Withdrawal.

Document filed by The City of New York.(Fishbein, Matthew)

(Entered: 01/09/2019)

90

MEMO ENDORSEMENT on re: 89 Letter filed by The City of

New York. ENDORSEMENT: SO ORDERED. Attorney Matthew

E. Fishbein terminated. (Signed by Judge Edgardo Ramos on

1/10/2019) (mro) (Entered: 01/11/2019)

91

LETTER addressed to Judge Edgardo Ramos from Meryl Holt

dated January 18th 2019 re: Enclosed Letter Motion for

Conference from Lilia I. Toson to Judge Edgardo Ramos on

behalf of Plaintiffs. Document filed by The City of New York.

(Attachments: # 1 Exhibit Letter to Court re briefing

schedule)(Holt, Meryl) (Entered: 01/18/2019)

92

PROPOSED STIPULATION AND ORDER. Document filed by

The City of New York. (Holt, Meryl) (Entered: 01/24/2019)

01/24/2019 01/28/2019 01/28/2019
01/28/2019 01/28/2019 01/28/2019

93

LETTER addressed to Judge Edgardo Ramos from Daniel

Mauler dated January 24, 2019 re: Response to Plaintiffs' Letter

(ECF No. 91). Document filed by United States Department of

Justice, Matthew G. Whitaker. (Attachments: # 1 Exhibit

A)(Mauler, Daniel) (Entered: 01/24/2019)

94

FILING ERROR - NO ORDER SELECTED FOR APPEAL -

NOTICE OF INTERLOCUTORY APPEAL. Document filed by

United States Department of Justice, Matthew G. Whitaker. Form

C and Form D are due within 14 days to the Court of Appeals,

Second Circuit. (Attachments: # 1 Exhibit A, # 2 Exhibit

B)(Mauler, Daniel) Modified on 1/28/2019 (tp). (Entered:

01/28/2019)

***NOTICE TO ATTORNEY REGARDING DEFICIENT APPEAL. Notice to attorney Mauler, Daniel to RE-FILE Document No. 94 Notice of Interlocutory Appeal. The filing is deficient for the following reason(s): the order/judgment being appealed
was not selected. Re-file the appeal using the event type Corrected Notice of Appeal found under the event list
Appeal Documents - attach the correct signed PDF - select the correct named filer/filers - select the correct
order/judgment being appealed. (tp) (Entered: 01/28/2019)

95 NOTICE OF INTERLOCUTORY APPEAL from 81 Memorandum & Opinion,,,,,,,,,, Add and Terminate Parties,,,,,,,,, 87 Order on Motion for Conference,,,,. Document filed by United States Department of Justice, Matthew G. Whitaker. Form C and Form
D are due within 14 days to the Court of Appeals, Second Circuit. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Mauler, Daniel) (Entered: 01/28/2019)

Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 95 Notice of Interlocutory Appeal. (tp) (Entered: 01/28/2019)

Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 95 Notice of Interlocutory Appeal, filed by Matthew G. Whitaker, United States Department of Justice were transmitted to the U.S. Court of Appeals. (tp)
(Entered: 01/28/2019)

01/28/2019

96

STIPULATION: Plaintiff the City of New York("Plaintiff"), and

Defendants Matthew G. Whitaker and the United States

Department of Justice ("Defendants"), do HEREBY STIPULATE

AND AGREE as follows: This stipulation shall remain in effect for

a period of 60 days from the date hereof, i.e., until March 24,

2019. On March 24, 2019, and every 30 days thereafter, this

stipulation shall automatically be extended for a 30-day period

(the "extension term"), except in the case that Defendants give

notice to Plaintiff 14 days in advance of the end of an extension

term that Defendants do not agree to renew the stipulation for the

next extension term, thus ending the stipulation at the end of the

then- operational extension term; For the duration of this

stipulation, Defendants shall not disburse, expend, or revert to

the Treasury the Fiscal Year ("FY") 2018 Edward Byrne Memorial

Justice Assistance Grant ("Byrne JAG") funds allocated to

Plaintiff; and This stipulation applies only to the parties that are

currently before the Court in this litigation. No party that is not

currently named as a party to this litigation shall be entitled to

any rights or benefits whatsoever under this stipulation. IT IS

STIPULATED AND AGREED. SO ORDERED. (Signed by Judge

Edgardo Ramos on 1/28/2019) (anc) Modified on 1/28/2019

(anc). (Entered: 01/28/2019)

01/28/2019
01/28/2019 01/29/2019 01/29/2019

97

MEMO ENDORSEMENT on re: 93 Letter terminating [123 in

case 18-cv-6471] Letter Motion for Conference.

ENDORSEMENT: Defendants' motion for a stay is denied as

moot. See Further Additional Continuing Appropriations Act,

2019, H.J. Res. 28, 116th Cong. (enacted Jan. 25, 2019).

Defendants are directed to confirm that the administrative record

filed in other cases regarding the FY 2018 Byrne JAG funds is

the appropriate administrative record for purposes of this case or

file the appropriate administrative record for this case. The

parties are granted leave to file motions regarding the FY 2018

conditions with the following briefing schedule: Plaintiffs (the

States and New York City) will file a joint motion and brief for

summary judgment (including, if necessary, a supplemental brief

addressing issues specific to the City of New York) by February

15, 2019 (the joint brief and any supplemental brief shall not

exceed 60 pages in total); Defendants will file a combination

motion to dismiss and opposition, or, alternatively, a motion for

summary judgment and opposition to Plaintiffs' motion by March

29, 2019; Plaintiffs will file their opposition to the motion to

dismiss/motion for summary judgment and reply in support of

their motion by April 19, 2019; and Defendants will file their reply

by May 3, 2019. The page limit for opening briefs and opposition

briefs is extended to 60 pages. The Clerk of the Court is

respectfully directed to terminate the motion, Doc. 123 in No. 18

Civ. 6471. SO ORDERED. (Signed by Judge Edgardo Ramos on

1/28/2019)(anc) (Entered: 01/28/2019)

Set/Reset Deadlines: Motions due by 4/19/2019. Responses due by 4/19/2019. Replies due by 5/3/2019. (anc) (Entered: 01/28/2019)

98

LETTER addressed to Judge Edgardo Ramos from Meryl Holt

dated January 29th, 2019 re: Enclosed Letter Motion for

Extension of Time to File from Lilia I. Toson to Judge Edgardo

Ramos on behalf of Plaintiffs. Document filed by The City of New

York. (Attachments: # 1 Exhibit Letter to Court re briefing

schedule)(Holt, Meryl) (Entered: 01/29/2019)

99 MEMO ENDORSEMENT on re: (98 in 1:18-cv-06474-ER) Letter, filed by The City of New York. ENDORSEMENT: The application is granted. SO ORDERED. (Motions due by 3/1/2019., Responses due by 4/12/2019, Replies due by 5/3/2019., Surreplies due by 5/17/2019.) (Signed by Judge Edgardo Ramos on 1/29/2019) (kv) (Entered: 01/30/2019)

02/19/2019

100

LETTER addressed to Judge Edgardo Ramos from Meryl Holt

dated February 19, 2019 re: notice of change in facts. Document

filed by The City of New York.(Holt, Meryl) (Entered: 02/19/2019)

03/01/2019 03/01/2019

101 MOTION for Partial Summary Judgment . Document filed by The City of New York. Responses due by 4/12/2019(Hamid, Jyotin) (Entered: 03/01/2019)

102

DECLARATION of Meryl Holt in Support re: 101 MOTION for

Partial Summary Judgment .. Document filed by The City of New

York. (Attachments: # 1 Exhibit Ex. 53 NY FY18 BJA Award

Letter, # 2 Exhibit Ex. 54 CT FY18 BJA Award Letter, # 3 Exhibit

Ex. 55 NJ FY18 BJA Award letter, # 4 Exhibit Ex. 56 RI FY18

BJA Award Letter, # 5 Exhibit Ex. 57 WA FY18 BJA Award Letter,

# 6 Exhibit Ex. 58 MA FY18 BJA Award Letter, # 7 Exhibit Ex. 59

VA FY18 BJA Award Letter, # 8 Exhibit Exhibit 60 Notice of Filing

Admin. Record and Index to BJA FY18 Admin. Record, # 9

Exhibit Exhibit 61 AR-00001 to AR-00095, # 10 Exhibit Exhibit 62

AR-00096 to AR-00368, # 11 Exhibit Exhibit 63 AR-00369 to

AR-00445, # 12 Exhibit Exhibit 64 AR-00446 to AR-00466, # 13

Exhibit Exhibit 65 AR-00467 to AR-00526, # 14 Exhibit Exhibit 66

AR-00527, # 15 Exhibit Exhibit 67 AR-00528 to AR-00568, # 16

Exhibit Exhibit 68 AR-00569 to AR-00640, # 17 Exhibit Exhibit 69

AR-00641 to AR-00677, # 18 Exhibit Exhibit 70 AR-00678 to

AR-00733, # 19 Exhibit Exhibit 71 AR-00734 to AR-00775, # 20

Exhibit Exhibit 72 AR-00776 to AR-00805, # 21 Exhibit Exhibit 73

AR-00806 to AR-00835, # 22 Exhibit Exhibit 74 AR-00836 to

AR-00892, # 23 Exhibit Exhibit 75 AR-00893 to AR-00978, # 24

Exhibit Exhibit 76 AR-00979 to AR-01267, # 25 Exhibit Exhibit 77

AR-01268 to AR-01701, # 26 Exhibit Exhibit 78 AR-01702 to

AR-01749, # 27 Exhibit Exhibit 79 AR-01750 to AR-01867, # 28

Exhibit Exhibit 80 City of San Francisco v. Whitaker, 18-cv-5146,

ECF No. 27, # 29 Exhibit Exhibit 81 City of San Francisco v.

Whitaker, 18-cv-5146, ECF No. 51, # 30 Exhibit Exhibit 82 City of

Los Angeles v. Sessions, 18-cv-7347, ECF No. 49, # 31 Exhibit

Exhibit 83 City of Los Angeles v. Sessions, 18-cv-7347, ECF No.

62, # 32 Exhibit Exhibit 84 Jan. 31, 2019 email)(Holt, Meryl)

(Entered: 03/01/2019)

03/01/2019 03/01/2019 03/01/2019

103 DECLARATION of Jennifer E. Fradel in Support re: 101 MOTION for Partial Summary Judgment .. Document filed by The City of New York. (Attachments: # 1 Exhibit Exhibit 1 NJ FY18 BJA Award, # 2 Exhibit Exhibit 2 NJ AG Directive 2018-6)(Holt, Meryl) (Entered: 03/01/2019)
104 DECLARATION of Diane Klontz in Support re: 101 MOTION for Partial Summary Judgment .. Document filed by The City of New York. (Attachments: # 1 Exhibit Exhibit A WA FY18 BJA Award)(Holt, Meryl) (Entered: 03/01/2019)
105 DECLARATION of Darren C. Ullman in Support re: 101 MOTION for Partial Summary Judgment .. Document filed by The City of New York. (Holt, Meryl) (Entered: 03/01/2019)

03/01/2019 03/01/2019 03/01/2019 03/01/2019 03/01/2019

106 DECLARATION of Shannon Dion in Support re: 101 MOTION for Partial Summary Judgment .. Document filed by The City of New York. (Attachments: # 1 Exhibit Exhibit 1 VA FY18 BJA Award)(Holt, Meryl) (Entered: 03/01/2019)

107 DECLARATION of Michael J. Hogan in Support re: 101 MOTION for Partial Summary Judgment .. Document filed by The City of New York. (Attachments: # 1 Exhibit Exhibit 1 RI FY18 BJA Award, # 2 Exhibit Exhibit 2 2018 BJA Program Sheet)(Holt, Meryl) (Entered: 03/01/2019)

108

DECLARATION of Marc Pelka in Support re: 101 MOTION for

Partial Summary Judgment .. Document filed by The City of New

York. (Attachments: # 1 Exhibit Exhibit 1 CT FY18 BJA

Award)(Holt, Meryl) (Entered: 03/01/2019)

109 DECLARATION of Michael C. Green in Support re: 101 MOTION for Partial Summary Judgment .. Document filed by The City of New York. (Attachments: # 1 Exhibit Exhibit 1 NY FY18 BJA Award, # 2 Exhibit Exhibit 2 NY FY18 BJA Program Narrative)(Holt, Meryl) (Entered: 03/01/2019)

110

DECLARATION of Thomas A. Turco, III in Support re: 101

MOTION for Partial Summary Judgment .. Document filed by The

City of New York. (Attachments: # 1 Exhibit Exhibit A MA FY18

BJA Award)(Holt, Meryl) (Entered: 03/01/2019)

03/01/2019 03/01/2019 03/01/2019 03/01/2019 03/04/2019 04/12/2019 04/12/2019
04/19/2019

111 DECLARATION of Marcos Soler in Support re: 101 MOTION for Partial Summary Judgment .. Document filed by The City of New York. (Holt, Meryl) (Entered: 03/01/2019)

112

RULE 56.1 STATEMENT. Document filed by The City of New

York. (Holt, Meryl) (Entered: 03/01/2019)

113 PROPOSED ORDER. Document filed by The City of New York. Related Document Number: 101 . (Holt, Meryl) Proposed Order to be reviewed by Clerk's Office staff. (Entered: 03/01/2019)

114 MEMORANDUM OF LAW in Support re: 101 MOTION for Partial Summary Judgment . . Document filed by The City of New York. (Hamid, Jyotin) (Entered: 03/01/2019)

***NOTICE TO COURT REGARDING PROPOSED ORDER. Document No. 113 Proposed Order was reviewed and approved as to form. (km) (Entered: 03/04/2019)

115 MOTION to Dismiss or alternatively, motion for partial summary judgment. Document filed by United States Department of Justice, Matthew G. Whitaker.(Mauler, Daniel) (Entered: 04/12/2019)
116 MEMORANDUM OF LAW in Support re: 115 MOTION to Dismiss or alternatively, motion for partial summary judgment. Opposition to Plaintiffs' Motion for Partial Summary Judgment (ECF No. 101). Document filed by United States Department of Justice, Matthew G. Whitaker. (Attachments: # 1 Supplement Response to Plaintiffs' LR 56.1 Statement, # 2 Supplement Defendants' LR 56.1 Statement, # 3 Text of Proposed Order)(Mauler, Daniel) (Entered: 04/12/2019)
117 LETTER addressed to Judge Edgardo Ramos from T. Komatsu, dated 4/19/19 re: Non-party T. Komatsu submits this letter purs. to the remarks which the Hon. Judge William H. Pauley expressed about permissive intervention between pages 2 and 3 in docket entry 49 in the case of U.S. v. New York City Housing Authority, 18-cv-5213(WHP) to request an authorization to intervene as an interested party in the case of City of New York v. Whitaker, No. 18-cv6474(ER) to which Judge Ramos is the assigned judge etc. (sc) Modified on 4/22/2019 (sc). (Entered: 04/22/2019)

04/29/2019 05/03/2019
05/03/2019 05/03/2019

118

MEMO ENDORSEMENT on re: 117 Letter. ENDORSEMENT:

The application is denied. SO ORDERED. (Signed by Judge

Edgardo Ramos on 4/29/2019) (kv) (Entered: 04/29/2019)

119

MEMORANDUM OF LAW in Opposition re: 115 MOTION to

Dismiss or alternatively, motion for partial summary judgment. /

Memorandum of Law in Opposition to Defendants' Motion to

Dismiss, or Alternatively, Motion for Partial Summary Judgment

and in Further Support of Plaintiffs' Motion for Partial Summary

Judgment. Document filed by The City of New York. (Hamid,

Jyotin) (Entered: 05/03/2019)

120 RESPONSE re: 116 Memorandum of Law in Support of Motion, / Plaintiffs' Responses to Defendants' Local Rule 56.1 Statement of Undisputed Material Facts. Document filed by The City of New York. (Hamid, Jyotin) (Entered: 05/03/2019)

121

DECLARATION of Meryl Holt in Opposition re: 115 MOTION to

Dismiss or alternatively, motion for partial summary judgment..

Document filed by The City of New York. (Attachments: # 1

Exhibit 85 - JAG Award Special Notices, # 2 Exhibit 86 - Special

Conditions Spreadsheet)(Holt, Meryl) (Entered: 05/03/2019)

05/16/2019 05/17/2019 05/17/2019 08/16/2019

122 LETTER MOTION for Leave to File Excess Pages addressed to Judge Edgardo Ramos from Daniel D. Mauler dated May 16,
2019. Document filed by Jefferson B. Sessions, III, United States Department of Justice, Matthew G. Whitaker.(Mauler, Daniel) (Entered: 05/16/2019)

123

REPLY to Response to Motion re: 115 MOTION to Dismiss or

alternatively, motion for partial summary judgment. . Document

filed by Jefferson B. Sessions, III, United States Department of

Justice, Matthew G. Whitaker. (Mauler, Daniel) (Entered:

05/17/2019)

126

ORDER granting 122 Letter Motion for Leave to File Excess

Pages. The application is granted. (Signed by Judge Edgardo

Ramos on 5/17/2019) (kv) (Entered: 08/27/2019)

124

PROPOSED STIPULATION AND ORDER. Document filed by

The City of New York. (Holt, Meryl) (Entered: 08/16/2019)

08/19/2019 12/17/2019

125 STIPULATION: HEREBY STIPULATE AND AGREE as follows: 1. This stipulation shall remain in effect for a period of 60 days from the date hereof, i.e., October 12, 2019. On October 12, 2019, and every 30 days thereafter, this stipulation shall automatically be extended for a 30-day period (the "extension term"), except in the case that Defendants give notice to Plaintiff 14 days in advance of the end of an extension term that Defendants do not agree to renew the stipulation for the next
extension term, thus ending the stipulation at the end of the then operational extension term; 2. For the duration of this stipulation, Defendants shall not disburse, expend, or revert to the Treasury
the Fiscal Year (FY) 2018 Edward Byrne Memorial Justice Assistance Grant ("Byrne JAG") funds allocated to Plaintiff; and 3. For the duration of this stipulation, Defendants shall not deny
Plaintiff its FY 2018 Byrne JAG award (in keeping with its FY 2018 Byrne JAG formula allocation) on the basis of failure to accept the FY 2018 Byrne JAG award within 45 days of receiving the award documents;4. If this stipulation is in effect at the time a resolution of this matter on the merits is reached, Defendants shall not deny Plaintiff its FY 2018 Byrne JAG award for failure to accept the award within the deadline to accept without first advising Plaintiff in writing of a new period (of not less than 45 days) within which to accept and allowing that period to expire. If after a determination on the merits, Plaintiff remains eligible for an FY 2018 Byrne JAG award and the Courts order does not require alteration of the award documents, Defendants will issue a new deadline within 7 days; 5. This stipulation replaces the Stipulation and Order previously entered and agreed between the Defendants and Plaintiff (ECF No. 96), which is no longer in effect; and 6. This stipulation applies only to the parties that are currently before the Court in this litigation. No party that is not currently named as a party to this litigation shall be entitled to any rights or benefits whatsoever under this stipulation. IT IS STIPULATED AND AGREED. SO ORDERED. (Signed by Judge
Edgardo Ramos on 8/19/2019) (kv) (Entered: 08/19/2019)

127

NOTICE of Withdrawal as Counsel as to the City of New York..

Document filed by The City of New York. (Holt, Meryl) (Entered:

12/17/2019)

02/26/2020

128

USCA OPINION (Certified) as to 95 Notice of Interlocutory

Appeal, filed by Matthew G. Whitaker, United States Department

of Justice. USCA Case Number 19-275(con). On appeal from a

judgment entered in the United States District Court for the

Southern District of New York (Edgardo Ramos, Judge), which

(1) mandates that defendants release withheld 2017 Byrne

Program Criminal Justice Assistance funds to plaintiffs, and (2)

enjoins defendants from imposing certain immigrationrelated

conditions on such grants, defendants argue that the district

court erred in holding that the challenged conditions violate the

Administrative Procedure Act and the United States Constitution.

To summarize, we conclude as follows: (1) The Attorney General

was statutorily authorized to impose all three challenged

conditions on Byrne grant applications. a. The Certification

Condition (1) is statutorily authorized by 34 U.S.C. §

10153(a)(5)(D)s requirement that applicants comply with all other

applicable Federal laws, and (2) does not violate the Tenth

Amendments anticommandeering principle; b. The Notice

Condition is statutorily authorized by 34 U.S.C. § 10153(a)(4)s

reporting requirement, § 10153(a)(5)(C)s coordination

requirement, and § 10155s rulemaking authority; c. The Access

Condition is statutorily authorized by 34 U.S.C. § 10153(a)(5)(C)s

coordination requirement, and § 10155s rule-making authority.

(2) The Attorney General did not overlook important detrimental

effects of the challenged conditions so as to make their

imposition arbitrary and capricious. Accordingly, (1) We

REVERSE the district courts award of partial summary judgment

to plaintiffs; (2) We VACATE the district courts mandate ordering

defendants to release withheld 2017 Byrne funds to plaintiffs, as

well as its injunction barring defendants from imposing the three

challenged immigration-related conditions on such grants; and

(3) We REMAND the case to the district court, a. with directions

that it enter partial summary judgment in favor of defendants on

plaintiffs challenge to the three immigration-related conditions

imposed on 2017 Byrne Program grants; and b. insofar as there

remains pending in the district court plaintiffs challenge to

conditions imposed by defendants on 2018 Byrne Program

grants, for further proceedings consistent with this opinion..

Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit.

Certified: 02/26/2020. [This document also entered in the related

case: 18-cv-6471]..(nd) (Entered: 02/26/2020)

02/26/2020 02/27/2020 02/27/2020 02/28/2020
07/30/2020 07/31/2020 03/19/2021 03/19/2021
03/19/2021

Transmission of USCA Opinion to the District Judge re: 128 USCA Opinion..(nd) (Entered: 02/26/2020)

129 NOTICE OF APPEARANCE by Charles E.T. Roberts on behalf of Jefferson B. Sessions, III, United States Department of Justice, Matthew G. Whitaker..(Roberts, Charles) (Entered: 02/27/2020)

130

PROPOSED ORDER FOR SUBSTITUTION OF ATTORNEY.

Document filed by Jefferson B. Sessions, III, United States

Department of Justice, Matthew G. Whitaker..(Roberts, Charles)

(Entered: 02/27/2020)

131

CONSENT ORDER GRANTING SUBSTITUTION OF

ATTORNEY, The substitution of attorney is hereby approved and

so ORDERED. Attorney Charles E.T. Roberts for United States

Department of Justice,Charles E.T. Roberts for Matthew G.

Whitaker added. Attorney Daniel Mauler terminated. (Signed by

Judge Edgardo Ramos on 2/28/2020) (kv) (Entered: 02/28/2020)

132

LETTER addressed to Judge Edgardo Ramos from Dana

Rehnquist dated July 30, 2020 re: withdrawal as attorney for

Plaintiff The City of New York. Document filed by The City of New

York..(Rehnquist, Dana) (Entered: 07/30/2020)

133

MEMO ENDORSEMENT on re: 132 Letter filed by The City of

New York. ENDORSEMENT: The application is granted. Attorney

Dana Rehnquist terminated. (Signed by Judge Edgardo Ramos

on 7/31/2020) (mro) (Entered: 08/03/2020)

134

JOINT LETTER MOTION to Stay / Hold Proceedings in

Abeyance addressed to Judge Edgardo Ramos from Sabita

Krishnan dated March 19, 2021. Document filed by The City of

New York..(Krishnan, Sabita) (Entered: 03/19/2021)

135

ORDER granting 134 Letter Motion to Stay re: 134 JOINT

LETTER MOTION to Stay / Hold Proceedings in Abeyance

addressed to Judge Edgardo Ramos from Sabita Krishnan dated

March 19, 2021. The parties' request to stay the case for thirty

days is granted. (Signed by Judge Edgardo Ramos on

3/19/2021) (cf) (Entered: 03/19/2021)

Case Stayed (jar) (Entered: 04/01/2021)

03/31/2021
03/31/2021 04/29/2021 04/30/2021

136

MANDATE of USCA (Certified Copy) as to 95 Notice of

Interlocutory Appeal, filed by Matthew G. Whitaker, United States

Department of Justice. USCA Case Number 19-275.. IT IS

HEREBY ORDERED, ADJUDGED and DECREED that the

award of partial summary judgment to plaintiffs is REVERSED;

the district court's mandate ordering defendants to release

withheld 2017 Byrne funds to plaintiffs, as well as its injunction

barring defendants from imposing the three challenged

immigration-related conditions of such grants is VACATED; and

the case is REMANDED to the district court for further

proceedings consistent with this Court's opinion... Catherine

O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As

Mandate: 03/31/2021. [This document also entered in related

civil case no. 18-cv-6471]. .(nd) (Entered: 03/31/2021)

Transmission of USCA Mandate to the District Judge re: 136 USCA Mandate,,,..(nd) (Entered: 03/31/2021)

137 FILING ERROR - DEFICIENT DOCKET ENTRY - SIGNATURE ERROR - STIPULATION OF VOLUNTARY DISMISSAL It is
hereby stipulated and agreed by and between the parties and/or their respective counsel(s) that the above-captioned action is
voluntarily dismissed, without prejudice against the defendant(s) United States Department of Justice and without costs pursuant
to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure. Document filed by The City of New York. Proposed document
to be reviewed and processed by Clerk's Office staff (No action required by chambers)...(Bernhardt, Doris) Modified on
4/30/2021 (km). (Entered: 04/29/2021)

***NOTICE TO ATTORNEY REGARDING DEFICIENT VOLUNTARY DISMISSAL. Notice to Attorney Doris Bernhardt. RE-FILE Document No. 137 Stipulation of Voluntary Dismissal. The filing is deficient for the following reason(s): the stipulation of voluntary dismissal was not signed by all parties who have appeared (handwritten signatures). Re-file the document using the event type Stipulation of Voluntary Dismissal found under the event list Other Documents - select the correct filer/filers - select the correct party/parties the voluntary dismissal is against - and attach the correct signed PDF. (km) (Entered: 04/30/2021)

04/30/2021 04/30/2021 04/30/2021 05/03/2021
05/03/2021

138

STIPULATION OF VOLUNTARY DISMISSAL It is hereby

stipulated and agreed by and between the parties and/or their

respective counsel(s) that the above-captioned action is

voluntarily dismissed, without prejudice against the defendant(s)

United States Department of Justice and without costs pursuant

to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure.

Document filed by The City of New York. Proposed document

to be reviewed and processed by Clerk's Office staff (No

action required by chambers)...(Krishnan, Sabita) (Entered:

04/30/2021)

***NOTICE TO COURT REGARDING STIPULATION OF VOLUNTARY DISMISSAL Document No. 138 Stipulation of Voluntary Dismissal, was reviewed and referred to Judge Edgardo Ramos for approval for the following reason(s):
The action is Stayed. (dt) (Entered: 04/30/2021)

139 ORDER: Accordingly, the Clerk is respectfully directed to lift the stay in both actions so that the stipulations of voluntary dismissal may be entered. It is SO ORDERED. (Signed by Judge Edgardo Ramos on 4/30/2021) (rro) (Entered: 04/30/2021)

140

STIPULATION OF DISMISSAL: NOW, THEREFORE, IT IS

HEREBY STIPULATED AND AGREED UPON, by and among

the undersigned, on behalf of all parties who have appeared in

this action, as follows: 1. Pursuant to Federal Rule of Civil

Procedure 41(a)(1)(A)(ii), all claims in above-captioned action

against Defendants are dismissed without prejudice, with each

party bearing its own costs, expenses, and attorney's fees. 2.

This stipulation may be executed in any number of counterparts,

all of which taken together shall constitute one stipulation, and

may be executed by facsimile or electronically-transmitted

signature. 3. This stipulation may be filed with the Court by any

party without further notice. SO ORDERED. (Signed by Judge

Edgardo Ramos on 5/3/2021) (nb) Modified on 5/3/2021 (nb).

(Entered: 05/03/2021)

Terminate Transcript Deadlines (nb) (Entered: 05/03/2021)

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 Case 1:18-cv-06474-ER Document 15 Filed 08/06/18 Page 1 of 39

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

THE CITY OF NEW YORK,
Plaintiff,
v.
JEFFERSON B. SESSIONS III, in his official capacity as Attorney General of the United States of America, and the UNITED STATES DEPARTMENT OF JUSTICE,
Defendants.

18-CV-06474 (ER) (SDA)
FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF

Plaintiff the City of New York hereby alleges as follows:
OVERVIEW 1. The City of New York (“New York City” or “the City”) brings this action to enjoin the Attorney General of the United States and the U.S. Department of Justice (“DOJ”) from imposing new and unlawful conditions on congressionally approved federal funding for the Edward Byrne Memorial Justice Assistance Grant Program (“JAG Program”), and to seek a declaration that these new conditions are unlawful, unconstitutional, and arbitrary and capricious. The City further seeks a declaration that Section 1373 of Title 8 of the United States Code (“Section 1373”) is unconstitutional, or, to the extent that Section 1373 lawfully applies to the JAG Program, a declaration that the City’s laws and policies comply with Section 1373. The City also seeks a permanent injunction prohibiting DOJ from imposing the new conditions and accompanying mandamus relief, pursuant to 28 U.S.C. § 1361, to compel the immediate release of its funding. 2. The JAG Program has long been an important source of funding for the City’s criminal justice programs. JAG funds help finance the City’s emergency response teams, diversion programs for nonviolent felony drug offenders, efforts to fight cybercrime and identity

Case 1:18-cv-06474-ER Document 15 Filed 08/06/18 Page 2 of 39
theft, and school safety initiatives, to name only a few initiatives. New York City has applied for and received its local allocation under the federal grant formula every year since the JAG Program’s inception in 2005.
3. That is all changing. In connection with its fiscal year (“FY”) 2016 JAG Program award, DOJ demanded that New York City, along with eight other jurisdictions, certify its compliance with Section 1373 by June 30, 2017. Section 1373 is a statute that bars states and localities from adopting policies that restrict communications regarding immigration and citizenship status between state and local officials and the federal government. DOJ’s action marked the first time since the enactment of Section 1373 roughly twenty years earlier that any federal agency had required compliance with Section 1373 as a condition for receipt of federal funding. The City submitted a legal opinion validating its compliance with Section 1373, to the extent that provision is constitutionally applicable, on June 27, 2017.
4. Then, on July 25, 2017, DOJ announced that the City, along with all other FY 2017 JAG recipients, must comply with two new conditions, along with another mandatory certification of compliance with Section 1373, in order to receive any JAG funds in FY 2017. The City had to: (1) certify that it complies with Section 1373 (the “Section 1373 condition”); (2) provide at least 48 hours’ advance notice to the U.S. Department of Homeland Security (“DHS”) regarding the “scheduled release date and time” of an inmate for whom DHS requests such advance notice (the “advance notification condition”); and (3) permit officials from DHS, which oversees U.S. Immigration and Customs Enforcement (“ICE”), to access “any detention facility” maintained by the City in order to meet with persons of interest to DHS (the “jail access condition”). The City timely submitted its FY 2017 application on September 5, 2017.
5. DOJ has never communicated to the City a final determination as to its compliance with Section 1373 or a final decision on its FY 2017 application. Meanwhile, on June 27, 2018, DOJ announced that, although “reviews of some applications remain ongoing,” it was distributing nearly $200 million in JAG Program funds to jurisdictions that shared its commitment to “keeping criminal aliens off our streets and our law abiding citizens safe.”
2

Case 1:18-cv-06474-ER Document 15 Filed 08/06/18 Page 3 of 39
6. On July 20, 2018, DOJ released the FY 2018 JAG award solicitation (the “FY 2018 Local Solicitation”). In the FY 2018 Local Solicitation, DOJ seeks to impose new immigrationrelated conditions on grantees in addition to those that DOJ imposed on FY 2017 grantees. Any recipient that accepts the FY 2018 award will also need to certify that it does not or will not: violate 8 U.S.C. § 1644, another federal statute prohibiting restrictions on sharing information about an individual’s immigration status with federal authorities; violate, aid or abet violation of 8 U.S.C. § 1324(a), which prohibits the knowing or reckless concealment or harboring of aliens; impede federal authorities in their arrest or removal of aliens as authorized by 8 U.S.C. § 1226(a) and (c), and 8 U.S.C. § 1231(a)(4); impede federal immigration agents in their interrogation of individuals as authorized by 8 U.S.C. § 1357(a)(1); and impede reporting by the Attorney General of the United States of the number of individuals without lawful status incarcerated in federal and state prisons for having committed felonies and all efforts to ensure their prompt removal pursuant to 8 U.S.C. § 1366(1) and (3).
7. DOJ’s abrupt shift in implementation of the JAG Program is not only unprecedented, but also lacks statutory basis or authority. No statute grants the Attorney General the authority to impose these conditions on the JAG Program. And even if Congress had delegated the authority to impose these conditions, DOJ’s requirement that the City comply in order to receive JAG funding violates Congress’s Spending Clause powers, the Tenth Amendment, and principles of federalism, as well as the Administrative Procedure Act.
8. In short, the Attorney General and DOJ’s imposition of these immigration-related conditions on FY 2016, 2017, and 2018 JAG funds is unlawful, unconstitutional, and arbitrary and capricious.
9. As the largest municipality in the United States, New York City is responsible for the health, safety, and general welfare of its 8.6 million residents, in addition to millions of commuters and tourists. The City is also home to one of the most diverse populations in the United States. More than 3 million of the City’s residents were born outside of the United States.
3

Case 1:18-cv-06474-ER Document 15 Filed 08/06/18 Page 4 of 39
10. The City has adopted laws and policies that encourage people of all backgrounds to access City services, especially those services dedicated to law enforcement and public safety. The City’s laws and policies, some of which have been in place for years before the JAG Program’s inception, protect the confidentiality of individuals’ information, including but not limited to immigration and citizenship status information, by restricting unnecessary collection and disclosure to external parties. Exceptions to this policy permit the City to communicate with federal immigration authorities in connection with persons the City deems to be public safety risks.
11. These laws and policies are predicated on the understanding that: (1) the City as a whole benefits when all individuals, regardless of personal attributes, feel safe reporting crimes, cooperating with police investigations, accessing emergency medical treatment and public health programs, and sending their children to school; and (2) residents, including members of the immigrant community, may not seek out critical services if they fear that the sensitive personal information they provide the City in order to obtain these services will be disclosed.
12. The City has also adopted laws and policies clearly defining the terms on which it will cooperate with federal immigration enforcement in order to protect public safety.
13. New York City is now the safest big city in the nation. The City has learned from decades of experience that policies fostering cooperation with law enforcement and other City officials by all residents, including members of the immigrant community, are integral to a successful law enforcement strategy and to public health and safety. Although the Attorney General has asserted that New York City is “crumbling under the weight of illegal immigration and violent crime” due to its “soft on crime stance,” the City’s historic streak of declining crime paints a very different picture. Crime in the City is at the lowest level since the City started keeping reliable records in the 1950s, with decreases in every major felony category. The City’s track record contradicts the Attorney General’s repeated—and factually unsupported—claim that “the lawless practices of so-called ‘sanctuary’ jurisdictions … make our country less safe.”
14. Through this action, the City seeks declaratory, injunctive, and mandamus relief from
4

Case 1:18-cv-06474-ER Document 15 Filed 08/06/18 Page 5 of 39
this Court. Specifically, the City seeks a declaration that DOJ’s imposition of the conditions on the JAG Program has no statutory basis, is contrary to the Constitution’s Separation of Powers, and is arbitrary and capricious. Even if Congress had delegated authority to the Attorney General to impose these conditions, they would violate the Spending Clause. Moreover, the Section 1373 condition violates the Tenth Amendment. The City therefore seeks a declaration that Section 1373 is unconstitutional, or, in the alternative, that the City is in full compliance with Section 1373 to the extent that statute may be lawfully applied to it. The City also asks this Court to permanently enjoin DOJ from imposing these conditions, as applicable, on FY 2016, 2017, and 2018 JAG funds, as well as any future grants under this program.
PARTIES 15. Plaintiff New York City is a municipal corporation organized pursuant to the laws of the State of New York. The City is a political subdivision of the State and derives its powers through the State Constitution, State laws, and the New York City Charter. 16. New York City is the largest city in the United States and is home to more than 8.6 million people. Nearly six out of every ten New York City residents are immigrants or the children of immigrants, including an estimated undocumented population of 560,000. Approximately one million residents live in a household where at least one member is undocumented. 17. Defendant Jefferson B. Sessions III is the Attorney General of the United States. He oversees DOJ, including the Office of Justice Programs (“OJP”), which administers JAG funding. He is sued in his official capacity pursuant to 5 U.S.C. § 702. 18. Defendant the U.S. Department of Justice is an executive department of the United States pursuant to 5 U.S.C. § 101. As such, it engages in agency action and is named as a defendant in this action pursuant to 5 U.S.C. § 702. DOJ is responsible for administering the JAG funds appropriated by Congress.
JURISDICTION AND VENUE 19. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1346.
5

Case 1:18-cv-06474-ER Document 15 Filed 08/06/18 Page 6 of 39
The Court is authorized to issue the relief sought here under the Administrative Procedure Act, 5 U.S.C. §§ 702, 705, 706; the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202; and the Mandamus Statute, 28 U.S.C. § 1361.
20. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e), because Plaintiff is located in this District and a substantial part of the events or omissions giving rise to this action occurred herein.
FACTUAL ALLEGATIONS I. THE JAG PROGRAM AND GRANT CONDITIONS
A. Background on the JAG Program 21. The JAG Program has its roots in the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, Title I, 82 Stat. 197 (codified as amended at 34 U.S.C. § 10101 et seq.), which created the first block grants for states and local governments to use for law enforcement and criminal justice programs. 22. 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 Section 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 the JAG Program. 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. 23. Congress created the JAG Program in its current form in 2005, authorizing up to $1.1 billion per year in funding for criminal justice programming. The JAG Program aims to “give
6

Case 1:18-cv-06474-ER Document 15 Filed 08/06/18 Page 7 of 39
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). Congress named the JAG Program after Edward Byrne, a New York City police officer killed while protecting a Guyanese immigrant who was acting as a cooperating witness.
24. Congress designed the JAG Program as a formula grant. The JAG funding formula allocates money based upon states’ population and the incidence of violent crime; local governments are awarded a portion of their state’s allocation based upon the ratio of violent crime in the locality versus that of the state as a whole. 34 U.S.C. § 10156(a), (d) (formerly 42 U.S.C. § 3755).
25. The program provides awardees with discretion to use funds for “any one or more” of eight types of programs, including law enforcement, crime prevention and education, drug treatment, and crime victim and witness programs. Id. § 10152(a)(1).
26. New York City has applied for and received JAG funds each and every year since 2005, as a direct grantee. Awards have ranged from $2.2 million to $8.7 million. In FY 2016, the City received $4.3 million under its direct JAG Program award. Per the statutory formula, the City is entitled to a direct grant in the amount of $4.1 million for both FY 2017 and 2018.
27. The City uses JAG funds to support critical public safety personnel and programs aimed at reducing crime and promoting fairness in the criminal justice system. For instance, the New York City Police Department (“NYPD”) has drawn upon JAG funding to pay the salaries of 911 emergency responders. JAG funds are also used to help finance: diversion programs for nonviolent felony drug offenders run through the District Attorney’s Offices; efforts to fight cybercrime and identity theft; drug prosecutions by the City’s Office of the Special Narcotics Prosecutor; upgrades to the City’s criminal justice data collection, organization, and evaluation systems; interventions for individuals with mental and behavioral health needs; and school safety initiatives.
B. Conditions for JAG Program Funding 28. The JAG authorizing statute provides that “the Attorney General shall allocate to each
7

Case 1:18-cv-06474-ER Document 15 Filed 08/06/18 Page 8 of 39
unit of local government” grant money based on the statutory formula. 34 U.S.C. § 10156(d)(2)(A). Consequently, DOJ, as the administering agency, has limited discretion.
29. The JAG statute provides the Attorney General with limited authority in administering the grant program. First, the Attorney General can require that applicants supply information about their intended use of the grant funding and show that they will spend the money on purposes envisioned by the statute. See 34 U.S.C. § 10153(a)(2), (5). Second, the statute allows the Attorney General to require that applicants provide programmatic and financial information; the Attorney General can insist that a recipient “maintain and report such data, records, and information … as the Attorney General may reasonably require.” Id. § 10153(a)(4). Third, the Attorney General can demand that localities certify, alongside their funding applications, that they “will comply with all provisions of this part and all other applicable Federal laws.” Id. § 10153(a)(5)(D). Finally, the statute authorizes the Attorney General to “issue rules to carry out this part.” Id. § 10155.
30. The JAG statute contains no express provision authorizing the Attorney General to impose new, generally-applicable substantive conditions. Congress chose not to confer such agency discretion in awarding grants under the JAG Program.
31. Further, provisions found elsewhere in the JAG statute demonstrate that Congress intended to limit the Attorney General’s ability to deviate from the statutory formula. For example, 34 U.S.C. § 10157(b) permits DOJ to reserve up to five percent of appropriated JAG funds and reallocate them to a state or locality if DOJ determines that reallocation is necessary to combat “extraordinary increases in crime” or to “mitigate significant programmatic harm resulting from” the formula. This explicit limitation on DOJ’s authority to redirect JAG funds speaks to Congress’s intent that DOJ otherwise abide by the statutory formula.
C. Section 1373 Condition 32. Section 1373, which was enacted in 1996, provides, in relevant part, that a “[s]tate, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service
8

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information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”
33. Section 1373 does not require localities receiving JAG grants to collect immigration status information or take any action upon receipt of immigration status information. The statute also does not address ICE detainer requests or requests for notification of release and historically has been narrowly construed by DOJ.
34. In response to a February 2016 inquiry from a member of Congress regarding whether DOJ grant recipients complied with Section 1373, DOJ’s Office of the Inspector General (“OIG”) conducted a review of ten state and local jurisdictions, including New York City. OIG’s report, dated May 31, 2016, noted “concerns” with several of the localities’ laws and policies in connection with Section 1373. The report identified New York City as having “policies and ordinances that raised such concerns.”
35. This report apparently triggered DOJ’s unprecedented announcement that Section 1373 is an applicable federal law for purposes of the JAG Program. This marked the first time since the enactment of Section 1373 twenty years earlier that any federal agency imposed compliance with Section 1373 as a condition for receipt of federal funding.
D. Advance Notification and Jail Access Conditions 36. DOJ announced on July 25, 2017 that, in order to receive FY 2017 JAG funds, recipients would have to agree to comply with two additional conditions it unilaterally decided to impose. Beyond requiring that recipients of the FY 2017 JAG award certify compliance with Section 1373, recipients would have to adhere to two new conditions related to civil immigration enforcement: (1) the advance notification condition and (2) the jail access condition. 37. On August 24, 2017, DOJ revised—and expanded—what the advance notification condition and the jail access condition, neither of which are statutorily prescribed, would actually entail. Under the revised advance notification condition, JAG grantees must have in place a “local ordinance, -rule, -regulation, -policy, or -practice … that is designed to ensure that, when a local-government … correctional facility receives from DHS a formal written request … [for]
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advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and—as early as practicable … provide the requested notice to DHS.” DOJ did not define or clarify the term “scheduled release date,” which could on its face be interpreted as applying to inmates in pre-trial detention in addition to those convicted of crimes and serving sentences.
38. Under the revised jail access condition, DOJ now requires JAG grantees to have in place a “local ordinance, -rule, -regulation, -policy, or -practice … that is designed to ensure that [any, not just DHS] agents of the United States … are given access [to] a local-government … correctional facility” to meet with and question individuals believed to be aliens. Like the advance notification condition, the jail access condition is vague and ambiguous; it gives no indication of what “access” means, nor does it specify whether jurisdictions will be deemed compliant as long as they permit ICE personnel to access their facilities in order to meet with inmates who have consented to such meetings. According to its broadest construction, this condition appears to mandate that federal immigration agents be given unprecedented and unfettered access to local correctional or detention facilities, including to meet with and to question inmates on a non-consensual basis and/or without notice that they may have counsel present.
39. Neither the July 25, 2017 announcement nor the August 24, 2017 revision was accompanied by any explanation for the imposition of these new conditions on JAG Program grants, including how the newly-imposed conditions, which were characterized as “commonsense measures,” relate to, let alone serve to advance, the interests of the JAG Program. DOJ also failed to provide grantees with any guidance as to how the conditions will operate in practice.
40. On September 15, 2017, Judge Harry Leinenweber of the Northern District of Illinois issued a nationwide preliminary injunction against the advance notification and jail access conditions. See City of Chicago v. Sessions, No. 1:17-cv-05720 (N.D. Ill. Sept. 15, 2017). A panel of the Seventh Circuit affirmed. City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018).
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The Seventh Circuit then voted to consider the appropriateness of the nationwide scope of the remedy en banc, and to stay the nationwide element of the injunction pending that consideration, while leaving intact the holding that the conditions are unlawful and were properly enjoined as to the plaintiff, the City of Chicago. City of Chicago v. Sessions, No. 17-2991 (7th Cir. June 26, 2018).
41. On June 6, 2018, Judge Michael Baylson of the Eastern District of Pennsylvania issued a decision finding that the advance notification, jail access, and Section 1373 conditions on the JAG Program grants were unlawful. City of Philadelphia v. Sessions, No. 17-3894 (E.D. Pa. June 6, 2018). The court also declared Section 1373 unconstitutional, in violation of the Tenth Amendment. On June 28, 2018, the court issued a permanent injunction as to the three conditions and ordered mandamus relief for the City of Philadelphia.
42. On June 27, 2018, immediately after the Seventh Circuit stayed the nationwide element of the City of Chicago injunction, DOJ announced that it was distributing JAG funds and released a list of awardees that did not include New York City.
43. Also on July 27, 2018, after those awardees were announced and Plaintiff filed the complaint in this case, the district court in City of Chicago entered a permanent nationwide injunction barring DOJ’s enforcement of all three conditions, ruling that DOJ lacked the statutory authority to impose the advance notification and jail access conditions, and that Section 1373 is unconstitutional because that statute seeks to commandeer state and local governments in violation of the Tenth Amendment. The district court stayed the nationwide scope of the injunction to limit its effect to Chicago pending the Seventh Circuit’s en banc consideration of the injunction. Mem. Opinion & Order, City of Chicago v. Sessions, 17-5720 (N.D. Ill. July 27, 2018).
44. Most recently, on August 1, 2018, the Ninth Circuit considered the applicability of Section 1373 in the context of Executive Order 13,768, “Enhancing Public Safety in the Interior of the United States,” which directed the withholding of federal grants to so-called sanctuary jurisdictions. The Ninth Circuit held that that “[b]ecause the Executive Order directs Executive
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Branch administrative agencies to withhold funding that Congress has not tied to compliance with § 1373, there is no reasonable argument that the President has not exceeded his authority” and “the Executive Order violates the constitutional principle of the Separation of Powers.” City & Cnty. of San Francisco v. Trump, No. 17-17478, 2018 WL 3637911 at *5 (9th Cir. Aug. 1, 2018).
E. DOJ’s FY 2018 Immigration-Related JAG Conditions 45. Two days after the complaint in this action was filed, on July 20, 2018, DOJ released the FY 2018 Local Solicitation, which includes additional immigration-related conditions for FY 2018 JAG funds on top of those imposed on FY 2017 funding. 46. According to the FY 2018 Local Solicitation, when applying for the FY 2018 JAG funding, each applicant must answer the following questions:
 (1) Does your jurisdiction have any laws, policies, or practices related to whether, when, or how employees may communicate with DHS or ICE?
 (2) Is your jurisdiction subject to any laws from a superior political entity (e.g., a state law that binds a city) that meet the description in question 1?
47. If the answer to either question is yes, the applicant must provide a copy of each law or policy, describe each practice, and explain how the law, policy, or practice complies with Section 1373. States also must collect this information from all of their subgrantees.
48. The FY 2018 Local Solicitation also requires each recipient to certify that it does not or will not:
 Violate 8 U.S.C. § 1644, which prohibits certain restrictions on sharing information relating to immigration status;
 Violate, or “aid or abet any violation of, 8 U.S.C. § 1324(a),” which prohibits the knowing or reckless concealment or harboring of aliens;
 “[I]mpede the exercise of the authority of the federal government under 8 U.S.C. § 1226(a) & (c) … and 8 U.S.C. § 1231(a)(4),” which grants certain powers concerning the arrest or removal of
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aliens;
 “[I]mpede the exercise by DHS agents … of their authority under 8 U.S.C. § 1357(a)(1) to ‘interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States’”; and
 Impede congressional reporting by the Attorney General of the United States of the number of individuals without lawful status incarcerated in federal and state prisons for having committed felonies and efforts to ensure their prompt removal pursuant to 8 U.S.C. § 1366(1) and (3).
49. The City’s Chief Executive, i.e., the Mayor, must attest to the City’s compliance with Sections 1373 and 1644, as well with 8 U.S.C. §§ 1226(a) and (c), 1231(a)(4), 1357(a), and 1366(1) and (3).1 The City’s Chief Legal Officer must separately certify the City’s compliance with the same as well as 8 U.S.C. § 1324(a).
50. Each certification carries the risk of personal criminal prosecution, civil penalties, and administrative remedies.
51. 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 JAG statute. Moreover, it is using several of these immigration statutes as a vehicle to provide post hoc statutory authority for the advance notification and jail access conditions—conditions that every court to date has held DOJ lacks the statutory authority to impose. For example, the FY 2018 Local Solicitation suggests that noncompliance with the advance notification condition would impede the authority of the federal government to arrest, detain, and remove “aliens” under 8 U.S.C. § 1226(a) & (c) and 8 U.S.C. § 1231(a)(4), as well as to report on such actions under 8 U.S.C. § 1366(1) & (3). Likewise, the solicitation suggests that noncompliance with the jail access condition would impede the authority of the federal government to interrogate those it suspects of being in the country unlawfully pursuant to 8 U.S.C. § 1357(a)(1).
52. By their terms, none of these statutes applies to state or local government actions.
1 DOJ requires this certification in order to consider the City’s JAG funding application complete.
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53. The deadline for submitting an application for JAG funding for FY 2018 is August 22, 2018. II. NEW YORK CITY’S LAWS AND POLICIES
54. The City is home to over 8.6 million people, more than 3 million of whom were born outside of the United States but have chosen to work, study, and raise families in the City. Over half a million more people travel to the City every day to work, and 50 million tourists visit every year. The City has the enormous responsibility of protecting the health, safety, and general welfare of all of these people.
55. Over decades, the City’s laws and policies have developed to ensure that all residents seek out and obtain essential services. The City as a whole benefits when residents seek treatment and medical attention for contagious diseases, report crime when they are victims, assist the police as witnesses, and come forward when they have information about potential crimes, unsafe conditions, or other threats to public safety and welfare. It is clear that this approach works. New York City is now the safest big city in the nation.
56. Five main categories of laws and policies are germane for purposes of this Complaint, namely the City’s: (1) General Confidentiality Policy, (2) Identifying Information Laws, (3) laws and policies regarding ICE detainer and notification requests, (4) laws and policies on access to jails, and (5) law regarding the use of City resources for immigration enforcement.
A. General Confidentiality Policy 57. In 2001, New York City voters recognized the need for a general confidentiality policy that protects information obtained and collected by City employees, in order to allow the City to perform its legitimate municipal functions. Voters therefore enacted a revision to the New York City Charter authorizing the Mayor to “promulgate rules requiring that information obtained by city employees be kept confidential to the extent necessary to preserve the trust of individuals who have business with city agencies.” N.Y.C. Charter § 8(g). 58. Then-Mayor Michael R. Bloomberg acted on this Charter revision in 2003 by issuing Executive Orders Nos. 34 and 41, which together form the “General Confidentiality Policy.”
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The General Confidentiality Policy generally bars City employees from affirmatively seeking “confidential information” from individuals in the first instance, and, if such information is nevertheless acquired, from disclosing it to third parties, with limited exceptions. Confidential information is broadly defined to include an individual’s sexual orientation, status as a victim of domestic violence, status as a victim of sexual assault, status as a crime witness, receipt of public assistance, immigration status, and information contained in income tax records. Exec. Order No. 41 § 1 (Sept. 17, 2003).
59. Executive Order No. 41 states that one of the overarching goals is to assure residents “that they may seek and obtain the assistance of City agencies regardless of personal or private attributes, without negative consequences to their personal lives.” The order further notes that “the obtaining of pertinent information, which is essential to the performance of a wide variety of government functions, may in some cases be difficult or impossible if some expectation of confidentiality is not preserved, and preserving confidentiality in turn requires that governments regulate the use of such information by their employees.”
60. The General Confidentiality Policy restricts when City officers and employees may inquire about a person’s immigration status. Id. § 3(a). Specifically, it provides that law enforcement officers “shall not inquire about a person’s immigration status unless investigating illegal activity other than mere status as an undocumented alien.” Id. § 4(a). The Policy also prohibits law enforcement officers from inquiring “about the immigration status of crime victims, witnesses, or others who call or approach the police seeking assistance.” Id. § 4(c).
61. In the event that officers and employees come into possession of confidential information, the General Confidentiality Policy limits disclosure of such information to the following situations: (1) disclosure has been authorized in writing by the individual to whom such information pertains; (2) disclosure is required by law; (3) disclosure is to another City officer or employee and is necessary to fulfill the purpose or achieve the mission of any City agency; (4) for confidential information other than information related to immigration status, disclosure is to a third party and is necessary to fulfill the purpose or achieve the mission of any
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City agency; and, (5) for information relating to immigration status, (a) the individual to whom such information pertains is suspected of engaging in illegal activity, (b) the information is necessary to apprehend someone suspected of engaging in illegal activity, or (c) disclosure is necessary in furtherance of an investigation of potential terrorist activity. Id. § 2. “Illegal activity” is defined as unlawful activity, other than “mere status as an undocumented alien.” Id. § 3(d).
B. Identifying Information Laws 62. In December 2017, the City augmented the New York City Charter and New York City Administrative Code to further protect the vast scope of sensitive, personal information collected by the City and the non-government agencies with which it contracts to provide human services. See N.Y.C. Charter § 8(h); N.Y.C. Admin. Code §§ 23-1201 – 1205 (collectively, the “Identifying Information Laws”). 63. The Identifying Information Laws, which became effective June 15, 2018, set out a uniform, City-wide approach to the collection, disclosure, and retention of any information that “may be used on its own or with other information to identify or locate an individual.” N.Y.C. Admin. Code § 23-1201. Such “identifying information” includes but is not limited to an individual’s “name, sexual orientation, gender identity, race, marital or partnership status, status as a victim of domestic violence or sexual assault, status as a crime victim or witness, citizenship or immigration status, eligibility for or receipt of public assistance or city services, all information obtained from an individual’s income tax records, information obtained from any surveillance system operated by, for the benefit of, or at the direction of the police department, motor vehicle information or license plate number, biometrics such as fingerprints and photographs, languages spoken, religion, nationality, country of origin, place of birth, arrest record or criminal conviction, employment status, employer information, current and previous home and work addresses, contact information such as phone number and email address, information concerning social media accounts, date and/or time of release from the custody of the administration for children’s services, the department of correction, or the police department,
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any scheduled court appearances, or any scheduled appointments with any employee, contractor, or subcontractor.” Id.
64. Under the Identifying Information Laws, the City has designated a chief privacy officer to issue policies and protocols and provide guidance to City agencies regarding the collection, retention, and disclosure of identifying information. N.Y.C. Charter § 8(h); N.Y.C. Admin. Code § 23-1203; see also Exec. Order 34 of 2018 (Apr. 12, 2018). Each City agency also has its own agency-specific privacy officer, to oversee implementation as well as monitor and approve routine and non-routine disclosures. See N.Y.C. Admin. Code §§ 23-1201 – 1202. Unauthorized disclosures must be reported to the City’s chief privacy officer and, in certain circumstances, reasonable efforts must be made to notify the individual in writing of the identifying information disclosed and to whom it was disclosed as soon as practicable. Id. § 231202(c)(4).
65. In general, City employees may not collect or disclose identifying information unless: (1) there are exigent circumstances; (2) the agency-specific privacy officer approves in advance certain routine collections or disclosures, or approves on a case-by-case basis certain collections or disclosures; (3) the City’s chief privacy officer determines in advance that a collection of such information is in the City’s best interest; or (4) the individual to whom the identifying information pertains—or, where the individual lacks capacity, a parent or legal representative— provides written authorization. Id. §§ 23-1202(b)(1), 23-1202(b)(2)(b), 23-1202(c)(1), 231202(c)(2)(b).
66. The Identifying Information Laws allow the NYPD to collect and disclose identifying information in connection with the investigation of a crime or an attempted or impending crime. Collection or disclosure is also permitted by City employees in connection with an investigation concerning the welfare of a minor or individual who is otherwise not legally competent. Id. §§ 23-1202(b)(2)(c), 23-1202(c)(2)(c).
C. Laws and Policies Regarding ICE Detainer and Notification Requests 67. Consistent with its Fourth Amendment obligations, the City has a policy of
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cooperating with “civil immigration detainers”—requests sent by ICE to maintain custody of a person beyond the time the person would otherwise be released, so that ICE can assume custody—for persons the City considers to be public safety risks and where those requests are accompanied by a judicial warrant establishing probable cause. See Galarza v. Szalczyk, 745 F.3d 634 (3rd Cir. 2014).
68. Specifically, Local Laws 58 and 59 of 2014, as well as Local Law 226 of 2017 (the “City’s detainer laws”), generally provide that the New York City Department of Correction (“DOC”), NYPD, and the New York City Department of Probation (“DOP”) may detain an individual for additional time pursuant to an ICE request where the individual has been convicted of a violent or serious crime—one of approximately 170 felonies defined in New York State law, or their equivalents under federal law or the law of another state—or is identified as a possible match in the terrorist screening database. See N.Y.C. Admin. Code §§ 9-131(b)(2), 9-205(b)(2), 14-154(b)(2). Additionally, ICE must present a judicial warrant, issued by a federal district or magistrate judge, authorizing federal immigration authorities to take the person into custody. See id. §§ 9-131(b)(1), 9-205(b)(1), 14-154(b)(1).
69. The City’s detainer laws specify that “[n]othing … shall be construed to prohibit any city agency from cooperating with federal immigration authorities when required under federal law.” Id. §§ 9-131(d), 14-154(d); see also § 9-205(d) (“Nothing in this section shall be interpreted or applied so as to create any power, duty or obligation in conflict with any applicable law.”).
70. DOC and NYPD similarly cooperate with ICE’s requests for notification of release information relating to persons the City considers to be public safety risks by providing ICE with the release date and time for any individual who has been convicted of a violent or serious crime or is identified as a possible match in the terrorist screening database. See N.Y.C. Admin. Code § 9-131(h)(1). Unlike the detainer requests, for which ICE must produce a judicial warrant, the agencies require an administrative warrant before cooperating with notification requests and transfers of custody to ICE without additional detention by the City.
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71. New York City’s policies concerning ICE detainer requests and requests for notification prior to release of individuals in City custody are calibrated to advance public safety, foster community trust in local law enforcement, safeguard individuals’ civil rights, and protect the City’s finances.
D. Laws and Policies on Access to Jails 72. New York City’s DOC manages 12 inmate facilities. For the first three months of FY 2018, the average daily population was roughly 9,100 inmates. 73. Since December 2009, DOC’s policy has permitted ICE to interview an inmate where the inmate provides written consent. DOC implements this policy by providing to the inmate a written notice and form stating that ICE would like to interview the inmate and that the inmate may either consent or decline to be interviewed. 74. The purpose of DOC’s consent-based policy is to ensure that inmates are made aware that they may decline to speak with federal immigration enforcement authorities, or request the presence of counsel at their own expense should they consent to such an interview. 75. Under Local Law 246 of 2017, the City also limits access to non-public areas of City property, including DOC inmate facilities, to personnel of the City, the City’s Department of Education, or a local public benefit corporation or local public authority, subject to enumerated exceptions. N.Y.C. Admin. Code § 4-210(b). Other governmental personnel empowered to enforce civil or criminal laws, including but not limited to federal immigration authorities, may gain access to non-public areas of City property where: such personnel are authorized to have access pursuant to an agreement or contract; such personnel present a judicial warrant; access is otherwise required by law; such personnel are accessing the property as part of a cooperative arrangement involving City, state, or federal agencies; access furthers the purpose or mission of a City agency; or exigent circumstances exist. Id. E. Law on Use of City Resources for Immigration Enforcement 76. Local Law 228 of 2017 sets forth the circumstances under which the City may use its own resources for federal immigration enforcement. The law permits City resources to be used
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to support federal immigration enforcement where City officers and employees are acting in accordance with their duties under state and local law; for example, DOC and NYPD may take actions consistent with the City’s laws and policies related to detainer requests, and NYPD officers may act in furtherance of public safety. N.Y.C. Admin. Code § 10-178(c), (e). Furthermore, nothing in the law “shall prevent any city officer or employee from complying with federal law or restrict their discretion to take any action if such restriction is prohibited by federal law.” Id. § 10-178(e).
77. The law also forbids City agencies from entering into agreements under which local officers are deputized by ICE to perform immigration enforcement, or otherwise subjecting City employees to the supervision of DHS primarily in furtherance of immigration enforcement. Id. § 10-178(b). III. NEW YORK CITY’S JAG APPLICATIONS
78. New York City’s General Confidentiality Policy was in place years before the City applied and qualified for its first JAG grant in 2005, and it continued to be City policy over the next 11 years during which the City applied for and was awarded 11 subsequent JAG grants. During this time, which extended over two presidential administrations, no one ever suggested that the City’s policies failed to comply with “applicable Federal laws,” including Section 1373’s provision that a local government may not prohibit “any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status” of any individual.
79. The cloud of uncertainty hanging over the City’s policies did not emerge until July 7, 2016, when OJP first issued guidance asserting, without explanation or legal support, its determination that Section 1373 is an applicable federal law for purposes of the JAG Program. Two months later, on September 6, 2016, OJP notified New York City that its application for funding under the FY 2016 JAG program had been approved subject to “Special Condition 53,” which stated that, as a recipient, New York City “agrees to undertake a review to validate its compliance with [Section] 1373” and submit a legal opinion supporting such validation by June
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30, 2017. 80. On October 6, 2016, OJP released a document entitled “Additional Guidance
Regarding Compliance with 8 U.S.C. § 1373,” which addressed the question: “Does OJP’s guidance on 8 U.S.C. § 1373 impact FY 2016 funding?” The response: “No FY 2016 or prior year [JAG Program] funding will be impacted.”
81. On April 21, 2017, DOJ sent letters to New York City and eight other jurisdictions with a reminder that “under the terms of your FY 2016 Byrne JAG grant … your jurisdiction is required to submit documentation to OJP that validates your jurisdiction is in compliance with 8 U.S.C. § 1373.” The letter instructed recipients to provide an “official legal opinion from counsel” by June 30, 2017, and warned that “[f]ailure to comply with this condition could result in the withholding of grant funds, suspension, or termination of the grant, ineligibility for future OJP grants or subgrants, or other action, as appropriate.”
82. New York City submitted a legal opinion signed by Corporation Counsel Zachary W. Carter to DOJ on June 27, 2017. The City certified that its laws and policies comply with and operate within the constitutional bounds of Section 1373.
83. Specifically, the City explained that its detainer laws are consistent with Section 1373, as Section 1373 does not speak to the issue of civil immigration detainer requests, local compliance with which is voluntary.
84. The City also explained that its General Confidentiality Policy complies with Section 1373 because that statute may not be read to abrogate a state or local confidentiality policy that is general both as to information covered and disclosures regulated. The City further explained that to interpret Section 1373 otherwise would improperly undermine state and local governments’ control over their own employees in a manner that is impermissible under principles of federalism. Moreover, the City noted that Section 1373’s prohibition on states’ and localities’ adoption of policies that restrict immigration-related communications between state and local officials and the federal government violates the Tenth Amendment and the Constitution’s federalist structure.
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85. In the June 27, 2017 legal opinion, the City reserved its right to challenge the Section 1373 condition. The City notified DOJ of its position that Section 1373 is not an applicable federal law for the purposes of the JAG Program, and that it had identified significant constitutional limits on the application of this statute to its General Confidentiality Policy.
86. Days after receiving certifications from jurisdictions including New York City, DOJ issued a press release stating: “[S]ome of these jurisdictions have boldly asserted that they will not comply with requests from federal immigration authorities,” and “[i]t is not enough to assert compliance, the jurisdictions must actually be in compliance.”
87. New York City filed a timely application for the FY 2017 JAG grant on September 5, 2017. The City was not required to and did not certify compliance with the Section 1373, advance notification, and jail access conditions.
88. On October 11, 2017, DOJ formally responded to the City’s legal opinion, stating that, “based on a preliminary review, the Department has determined that your jurisdiction appears to have laws, policies, or practices that violate 8 U.S.C. § 1373.” DOJ directed the City to change its policies and to “certify that it has communicated this interpretation to its officers and employees.”
89. DOJ nevertheless asserted that it had yet to reach a “final” determination as to the City’s compliance or non-compliance with Section 1373.
90. On October 27, 2017, New York City replied to DOJ’s “preliminary” assessment of its non-compliance with Section 1373 and reiterated its legal opinion that its laws, policies, and practices complied with Section 1373, as lawfully applied. The City also reasserted its position that DOJ’s required certification with respect to Section 1373 is unlawful.
91. Most recently, on January 24, 2018, DOJ sent the City a letter reiterating that it “remains concerned that your jurisdiction’s laws, policies, or practices may violate 1373” and requesting, under threat of subpoena, “[a]ll documents reflecting any orders, directives, instructions, or guidance to your law enforcement employees … regarding whether and how these employees may, or may not, communicate with the Department of Justice, the Department
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of Homeland Security, and/or Immigration and Customs Enforcement, or their agents, whether directly or indirectly.” This letter further warned that, should DOJ determine that the City is out of compliance with Section 1373, it might claw back FY 2016 grant funds (contrary to prior representations), require additional conditions for receipt of any FY 2017 funding, and/or deem the City ineligible for FY 2017 JAG funds.
92. The City sent DOJ a timely submission with responsive materials on February 23, 2018.
93. Since then, the City has received no further communications from DOJ with respect to its JAG funding or its compliance with Section 1373—even though DOJ has processed and distributed FY 2017 JAG funds to a list of state and local awardees. IV. ALL OF THE IMMIGRATION-RELATED CONDITIONS ARE UNLAWFUL
94. All of DOJ’s newly-imposed conditions on the JAG Program are unlawful. None of these conditions fits within the authority Congress delegated to the Attorney General to administer and oversee the program and funding provided to grantees, or expressly applies to grantees under the JAG authorizing statute. Moreover, Congress has repeatedly considered and failed to enact bills that would have conditioned federal grants on compliance with Section 1373.
95. The new conditions are not only unauthorized, but unprecedented. DOJ has never attached any conditions of this nature to JAG funds, consistent with the formula grant structure under the statute.
96. DOJ’s actions violate the Separation of Powers by usurping authority reserved to Congress. They also exceed limits on the federal government’s ability to place conditions on federal funds under the Spending Clause, as Congress did not impose these conditions. Moreover, the conditions, which relate to civil immigration enforcement, do not reasonably relate to the criminal justice purpose of the JAG Program.
97. These immigration-related conditions also violate 34 U.S.C. § 10228(a), which is codified in the same chapter of the U.S. Code as the JAG statute and provides that “[n]othing in this title or any other Act shall be construed to authorize any department, agency, officer, or
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employee of the United States to exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision thereof.” This language has been carried forward in every law enforcement grant since the Omnibus Crime Control and Safe Streets Act of 1968—a predecessor to the JAG program and the first federal block grant program for state and local law enforcement. 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 JAG to interfere with state and local law enforcement policy.
98. All of the immigration-related conditions violate Section 10228(a) because they compel the City to act as an enforcement arm of federal immigration authorities by, for example, preventing New York City from exercising control over local law enforcement officials and local law enforcement policies.
99. DOJ’s requirement that the City certify compliance with the additional immigrationrelated statutes listed in the FY 2018 Local Solicitation particularly runs afoul of Section 10228(a)’s prohibition on 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. § 1226(a) & (c) (granting certain powers to the Attorney General of the United States with respect to the arrest and detention of aliens) and 8 U.S.C. § 1357(a)(1) (authorizing federal immigration officers to interrogate any alien or any person believed to be an alien). DOJ’s attempt to bootstrap compliance with the advance notification and jail access conditions into these statutes similarly violates Section 10228(a)’s anti-commandeering principle.
100. The Section 1373 condition is invalid because Section 1373 violates the anticommandeering principle by seeking to unequivocally dictate what the City may and may not do. Under the Tenth Amendment, the federal government does not have the power to issue orders directly to the states, nor can it conscript state officers or those of their political subdivisions.
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101. Similarly, the newly-added Section 1644 condition, which, like Section 1373, prohibits restrictions on sharing information about an individual’s immigration status with federal authorities, violates the anti-commandeering principle under the Tenth Amendment by seeking to unequivocally dictate what the City may and may not do. V. NEW YORK CITY IS HARMED BY DOJ’S IMPOSITION OF THE
IMMIGRATION-RELATED CONDITIONS ON JAG FUNDING 102. The new conditions imposed by DOJ upon applicants for FY 2016, 2017, and 2018 JAG funding threaten New York City with serious and irreparable harm. 103. The imposition of these conditions places the City in an untenable position. If the City does not acquiesce to the conditions, it would lose JAG funding and thereby jeopardize the critical law enforcement and criminal justice programs those funds support. And if it accepts these conditions, DOJ would seek to require the City to change its confidentiality policies, undermining deep-seated relationships of trust with its immigrant communities, which may detract from effective crime reporting and deter people from seeking primary care and preventative health services. 104. The Section 1373 condition effectively strips New York City of its authority to control its workforce by insisting that the City allow its employees to, at their own discretion, share residents’ personal information with federal immigration authorities. 105. The Section 1373 condition also purports to force New York City to substantially alter laws and policies the City has enacted for the benefit of its residents based on the City’s priorities. Moreover, complying with these conditions would jeopardize historic improvements in public safety, health, and welfare. 106. In cities where immigrant communities believe that local authorities operate in concert with federal immigration enforcement, residents have retreated into the shadows, to the detriment of their own safety and that of the public. Crime reporting in many immigrant communities dropped precipitously in the wake of the current administration’s sweeping executive order instructing law enforcement agencies to target more immigrants for deportation,
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encouraging state and local government participation in federal immigration enforcement, and unilaterally withdrawing all federal funding from whatever jurisdictions the Attorney General deemed “sanctuary jurisdictions,” Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (that order has already been found unconstitutional as an unprecedented attempt to coerce local governments into serving as federal immigration agents, Cnty. of Santa Clara v. Trump, 275 F. Supp. 3d 1196 (N.D. Cal. 2017) (affirmed in relevant part by City & Cnty. of San Francisco, 2018 WL 3637911 at *5 (holding that “[b]ecause Congress did not authorize withholding of funds, the Executive Order violates the constitutional principle of the Separation of Powers.”)).
107. By contrast, New York City has seen no decline in crime reporting associated with ZIP codes with the highest foreign-born and non-citizen populations. This encouraging trend extends to crimes like harassment and rape, where a greater chilling effect would be expected if residents were afraid to contact the police because of immigration concerns. Crimes continue to be reported—and, therefore, dangerous criminals continue to be arrested and prosecuted. Similarly, New York City’s system of public clinics and hospitals found no chilling effect in utilization, including for hospitals in the neighborhoods with the largest foreign-born and noncitizen populations, and there was no decrease in New York City school attendance, including when controlling for neighborhood.
108. New York City officials attribute these successes to the City’s policies protecting confidential information and to the City’s ability to demonstrate its independence from federal immigration authorities. While the City cooperates with ICE and other federal agencies, immigrant communities clearly understand that the City does so in accordance with its own policies. That understanding is the basis for the trust built up over decades between immigrant communities and City agencies.
109. The Attorney General’s imposition of the new conditions would destroy that trust by forcing City officials to act as instruments of federal immigration efforts in order to receive the critical public safety funding to which the City is already entitled. Unlike now, immigrant communities would blame local officials for federal policy choices.
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110. If the City’s applications for the FY 2017 and 2018 JAG awards are rejected or withheld, or if awards from earlier years are clawed back, based on a finding of non-compliance by DOJ, the City faces a significant risk of harm to its criminal justice programming and longstanding approach to protecting public safety.
CAUSES OF ACTION FIRST CAUSE OF ACTION Violation of Separation of Powers (FY 2017 Conditions) 111. Plaintiff incorporates by reference the allegations in the preceding paragraphs. 112. Article I of the Constitution vests Congress with the power to appropriate funding to “provide for the … general Welfare of the United States.” U.S. Const. art I, § 8, cl. 1. Congress must set forth the conditions of funding for states and local governments explicitly and unambiguously. 113. An Executive Branch agency may exercise only the authority conferred upon it by Congress. Thus, absent a clear Congressional directive, the Executive cannot redirect or impose additional conditions on funds that have been appropriated by Congress for a particular purpose. 114. The JAG statute does not condition participation in the program on compliance with Section 1373, the advance notification, and jail access conditions, or civil immigration enforcement more generally. See 34 U.S.C. § 10151 et seq. Additionally, there is nothing in either the text or legislative history of Section 1373 that conditions federal funding on compliance with Section 1373. 115. Defendants’ imposition of new funding conditions that Congress did not explicitly and unambiguously enact or authorize impermissibly arrogates to the Executive Branch power that is reserved to Congress. 116. As the imposition of these three conditions amounts to an improper usurpation of Congress’s Spending Power by the Executive Branch, Plaintiff is entitled to a declaration that Defendants’ imposition of the Section 1373, advance notification, and jail access conditions, as applicable, on FY 2016 and 2017 JAG funds violates the constitutional principle of separation of
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powers. See 28 U.S.C. § 2201. Plaintiff is also entitled to a permanent injunction preventing Defendants from putting those conditions into effect.
117. Pursuant to 28 U.S.C. § 1361 and 5 U.S.C. § 706(1), Plaintiff is further entitled to a writ of mandamus to compel Defendants to disburse New York City’s FY 2017 JAG award as the agency is unreasonably delaying its issuance and doing so for reasons that are contrary to law.
SECOND CAUSE OF ACTION Violation of the Administrative Procedure Act Through Ultra Vires Conduct (2017
Conditions) 118. Plaintiff incorporates by reference the allegations in the preceding paragraphs. 119. As an agency pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 551(1), DOJ may only exercise authority conferred by statute. See, e.g., City of Arlington v. FCC, 569 U.S. 290, 297-98 (2013). 120. The JAG statute provides no authority to the Attorney General to impose conditions on the receipt of JAG funds that are neither reflected in “applicable Federal laws” nor concern the administration of the JAG program itself. No other statute provides the Attorney General with this authority. 121. The three conditions added to the FY 2017 JAG grant by Defendants are neither “applicable Federal laws” nor conditions that deal with the administration and expenditure of JAG funds. 122. Defendants’ imposition of the new conditions is unauthorized by statute. 123. Defendants’ imposition of the new conditions also contradicts the JAG Program’s formula grant structure. See 34 U.S.C. § 10156(d)(2)(A). 124. Additionally, the advance notification, jail access, and Section 1373 conditions are invalid under 34 U.S.C. § 10228(a), which prohibits Executive Branch officials from using lawenforcement grants to exert “any direction, supervision, or control” over any state or local police force or criminal justice agency.
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125. Under the APA, agency action is unlawful and must be set aside where it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; “contrary to constitutional right, power, privilege, or immunity”; or “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2).
126. The APA also calls upon courts to “compel agency action [that is] unlawfully withheld or unreasonably delayed.” Id. § 706(1).
127. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiff is entitled to a declaration that Defendants are without the statutory authority to impose the Section 1373, advance notification, and jail access conditions, as applicable, on FY 2016 and FY 2017 JAG funds, and in doing so, has acted contrary to law under the APA. Plaintiff is also entitled to a permanent injunction preventing Defendants from putting those conditions into effect.
128. Pursuant to 28 U.S.C. § 1361 and 5 U.S.C. § 706(1), Plaintiff is further entitled to a writ of mandamus to compel Defendants to disburse New York City’s FY 2017 JAG award as the agency is unreasonably delaying its issuance and doing so for reasons that are contrary to law.
THIRD CAUSE OF ACTION Violation of the Administrative Procedure Act Through Arbitrary and Capricious Agency
Action (FY 2017 Conditions) 129. Plaintiff incorporates by reference the allegations in the preceding paragraphs. 130. Even if Defendants had a statutory basis to impose the three new conditions, which they do not, Defendants’ decision to impose the advance notification, jail access, and Section 1373 conditions on recipients of JAG funds was arbitrary and capricious. 131. First, Defendants’ deviated from their prior practice of imposing only limited programmatic and grant-related conditions on JAG funds, as opposed to immigration enforcement mandates, without reasoned explanation or justification. Since the enactment of Section 1373 in 1996, neither DOJ nor any other agency has made compliance with the statute a requirement of receiving a federal grant. Moreover, until 2016 and 2017, Defendants have never
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made Section 1373, jail access, or advance notification a condition for receiving JAG funds, or remotely indicated that it viewed those types of conditions as related to the purpose of JAG funding.
132. Second, the new conditions bear no relation to the administration or goals of the JAG Program. The purpose of the JAG Program is to provide funding to state and local governments for: local law enforcement initiatives; prosecution and court programs; prevention and education programs; corrections and community corrections programs; drug treatment and enforcement; mental health programs; crime victim and witness initiatives; and planning, evaluation, and technology improvement programs. 34 U.S.C. § 10152. None of the three conditions has a reasonable relationship to the program areas that the JAG Program supports.
133. Third, to the extent Defendants justify the three new conditions as promoting public safety, there is a glaring disconnect between Defendants’ stated reasons for imposing the three new conditions and the actual effects of the conditions. Far from promoting public safety, compliance with the conditions would deter City residents from interacting with local law enforcement and harm the City’s efforts to reduce crime.
134. Pursuant to 28 U.S.C. § 2201, Plaintiff is entitled to a declaration that Defendants’ imposition of the three conditions on FY 2017 funding is arbitrary and capricious. Plaintiff is also entitled to a permanent injunction preventing Defendants from implementing these conditions.
135. Pursuant to 28 U.S.C. § 1361 and 5 U.S.C. § 706(1), Plaintiff is further entitled to a writ of mandamus to compel Defendants to disburse New York City’s FY 2017 JAG award as the agency is unreasonably delaying its issuance and doing so for reasons that are contrary to law.
FOURTH CAUSE OF ACTION Violation of the Spending Clause (FY 2017 Conditions) 136. Plaintiff incorporates by reference the allegations in the preceding paragraphs. 137. In order to satisfy the requirements of the Spending Clause under the Constitution, the
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conditions for receipt must be stated clearly and the funding condition must be reasonably related to the federal interest in the project or program that the federal government is funding.
138. Even if Congress had clearly conditioned receipt of JAG Program funds on the three new conditions, which it did not, all three of Defendants’ conditions violate the Spending Clause because they are not reasonably related to the federal interest in the JAG Program.
139. The three new conditions relate to civil immigration enforcement, and therefore do not reasonably relate to the criminal justice purpose of the JAG Program, which is intended to provide funding to states and localities for local law enforcement initiatives.
140. Under 28 U.S.C. § 2201, Plaintiff is entitled to a declaration that Defendants’ imposition of the three immigration-related conditions for the FY 2017 JAG Program, including the condition requiring compliance with Section 1373 that was first imposed in relation to the FY 2016 JAG Program, violates the Constitution’s Spending Clause. Plaintiff is further entitled to an injunction preventing these conditions from going into effect.
141. Under 28 U.S.C. § 1361 and 5 U.S.C. § 706(1), Plaintiff is further entitled to a writ of mandamus to compel Defendants to disburse New York City’s FY 2017 JAG award as the agency is unreasonably delaying its issuance and doing so for reasons that are contrary to law.
FIFTH CAUSE OF ACTION Violation of the Tenth Amendment and Constitutional Principles of Federalism (FY 2017
Conditions) 142. Plaintiff incorporates by reference the allegations in the preceding paragraphs. 143. The Section 1373 condition violates the Tenth Amendment by requiring City personnel to perform federal functions and compelling changes to the City’s policies and laws. The Tenth Amendment prohibits the federal government from requiring states and localities to govern according to Congress’s instructions and from commanding local officers to administer or enforce a federal regulatory program. This anti-commandeering principle applies to situations in which Congress compels a state to enact, or prohibits a state from enacting, legislation. Murphy v. NCAA, 138 S. Ct. 1461, 1478 (2018). A balance between the powers of the federal
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government and the states is grounded in the structure of the Constitution. 144. Defendants’ interpretation of Section 1373 blocks the City from enacting a policy that
controls the time, manner, and instances in which its employees exchange immigration status information with federal officials. The City’s effective local strategies to protect public safety and public health would be subordinated to the federal government’s immigration efforts, and local officers and employees would be free to turn their time and attention to the latter. As a result, the City’s personnel would be commandeered to perform federal functions rather than to pursue local priorities. This is precisely the sort of prohibition on state and local policymaking that is forbidden under the Tenth Amendment.
145. Moreover, as read by DOJ, Section 1373 would impose upon the City significant fiscal and political burdens: immigrant communities would come to distrust and disengage from local government because of choices made by the federal government, blaming the former for the policies of the latter and blurring lines of political accountability between federal and local authorities.
146. Further, the Section 1373 condition is unconstitutional as its primary objective is to direct the functioning of state and local governments. Section 1373 directly governs the actions of a “[s]tate, or local government entity or official” and prohibits them from enacting certain rules or policies and from controlling their own work force. Such interference poses a direct affront to state sovereignty under the Tenth Amendment. Thus, Section 1373 is unconstitutional.
147. Pursuant to 28 U.S.C. § 2201, Plaintiff is entitled to a declaration that Section 1373 violates the Tenth Amendment. Plaintiff is entitled to a permanent injunction preventing Defendants from imposing the Section 1373 condition or otherwise enforcing Section 1373 against the City.
148. Pursuant to 28 U.S.C. § 1361 and 5 U.S.C. § 706(1), Plaintiff is further entitled to a writ of mandamus to compel Defendants to disburse New York City’s FY 2017 JAG award as the agency is unreasonably delaying its issuance and doing so for reasons that are contrary to
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law.2 SIXTH CAUSE OF ACTION
Violation of Separation of Powers (FY 2018 Conditions) 149. Plaintiff incorporates by reference the allegations in the preceding paragraphs. 150. The FY 2018 immigration-related conditions—Sections 1373 and 1644, and 8 U.S.C. §§ 1226(a) & (c), 1231(a)(4), 1324(a), 1357(a), and 1366(1) & (3)—amount to a refusal to spend money appropriated by Congress, in violation of the Executive’s constitutional authority to administer the law. 151. The JAG statute does not condition participation in the program on compliance with Section 1373, the advance notification, and jail access conditions, or the additional immigrationrelated conditions in the FY 2018 Local Solicitation. See 34 U.S.C. § 10151 et seq. Additionally, there is nothing in either the text or legislative history of Section 1373 that conditions federal funding on compliance with Section 1373. 152. Congress did not authorize the advance notification, jail access, or Section 1373 conditions, nor did it authorize the additional immigration-related conditions in the FY 2018 Local Solicitation. Rather, those conditions were imposed by Defendants. Therefore, these immigration-related conditions amount to an improper usurpation of Congress’s Spending Power by the Executive. 153. Pursuant to 28 U.S.C. § 2201, Plaintiff is entitled to a declaration that Defendants’ imposition of the immigration-related conditions in the FY 2018 Local Solicitation violates the constitutional principle of separation of powers and impermissibly arrogates to the Executive power that is reserved to Congress. Plaintiff is also entitled to a permanent injunction preventing
2 The Second Circuit rejected a prior Tenth Amendment challenge to Section 1373 involving different policies of the City. See City of New York v. United States, 179 F.3d 29, 36 (2d Cir. 1999). That decision explicitly left open whether Section 1373 would be constitutional as applied to “generalized confidentiality policies that are necessary to the performance of legitimate municipal functions,” 179 F.3d at 37, such as the New York City laws and policies at issue now. Moreover, the Supreme Court’s intervening ruling in Murphy has undermined the core reasoning of City of New York by making clear that a federal law may run afoul of the anticommandeering principle even if it does not affirmatively compel state or local action.
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Defendants from putting those conditions into effect. SEVENTH CAUSE OF ACTION
Violation of the Administrative Procedure Act Through Ultra Vires Conduct (FY 2018 Conditions)
154. Plaintiff incorporates by reference the allegations in the preceding paragraphs. 155. The JAG statute does not authorize the Attorney General to impose conditions on the receipt of JAG funds, or to deny funds to states or local governments that fail to comply with those conditions. See City of Chicago, 888 F.3d at 283-87. 156. Defendants also lack statutory authority to condition JAG funds on compliance with Sections 1373 and 1644 or 8 U.S.C. §§ 1226(a) & (c), 1231(a)(4), 1324(a), 1357(a), and 1366(1) & (3). The JAG statute’s requirement that grantees comply with “all applicable Federal laws” does not encompass these immigration-related statutes. Rather, the phrase “all applicable Federal laws” refers to the laws that regulate the conduct of federal grant recipients as grant recipients and not to every section of the U.S. Code that could possibly apply to a state or local government. None of these statutes regulate grantees as grantees nor does it mention federal grants or funds. 157. Additionally, the immigration-related conditions in the FY 2018 Local Solicitation 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. 158. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiff is entitled to a declaration that Defendants lack authority to impose the immigration-related conditions in the FY 2018 Local Solicitation and, in doing so, have acted contrary to law in violation of the APA. Plaintiff is also entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
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EIGHTH CAUSE OF ACTION Violation of the Administrative Procedure Act Through Arbitrary and Capricious Agency
Action (FY 2018 Conditions) 159. Plaintiff incorporates by reference the allegations in the preceding paragraphs. 160. Even if Defendants had a statutory basis to impose the new conditions, which they do not, Defendants’ decision to impose the immigration-related conditions on recipients of JAG funds was arbitrary and capricious. 161. First, Defendants deviated from their prior practice of imposing only limited programmatic and grant-related conditions on JAG funds, as opposed to immigration enforcement mandates, without reasoned explanation or justification. Since the enactment of Section 1373 in 1996, neither DOJ nor any other agency has made compliance with the statute a requirement of receiving a federal grant. Moreover, until 2016, 2017 and 2018, Defendants have never made Section 1373, Section 1644 or 8 U.S.C. §§ 1226(a) & (c), 1231(a)(4), 1324(a), 1357(a), and 1366(1) & (3) a condition for receiving JAG funds, or remotely indicated that they viewed those types of conditions as related to the purpose of JAG funding. 162. Second, the new conditions bear no relation to the administration or goals of the JAG Program. The purpose of the JAG Program is to provide funding to state and local governments for: local law enforcement initiatives; prosecution and court programs; prevention and education programs; corrections and community corrections programs; drug treatment and enforcement; mental health programs; crime victim and witness initiatives; and planning, evaluation, and technology improvement programs. 34 U.S.C. § 10152. None of the immigration-related conditions has a reasonable relationship to the program areas that the JAG Program supports. 163. Third, to the extent Defendants justify the immigration-related conditions as promoting public safety, there is a glaring disconnect between Defendants’ stated reasons for imposing the new conditions and the actual effects of the conditions. Far from promoting public safety, compliance with the conditions would deter City residents from interacting with local law enforcement and harm the City’s efforts to reduce crime.
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164. Pursuant to 5 U.S.C. § 706 and 28 U.S.C. § 2201, Plaintiff is entitled to a declaration that the immigration-related conditions in the FY 2018 Local Solicitation violate the APA. Plaintiff is also entitled to a permanent injunction preventing the Attorney General from putting those conditions into effect.
NINTH CAUSE OF ACTION Violation of the Spending Clause (FY 2018 Conditions) 165. Plaintiff incorporates by reference the allegations in the preceding paragraphs. 166. In order to satisfy the requirements of the Spending Clause under the Constitution, the conditions for receipt must be stated clearly and the funding condition must be reasonably related to the federal interest in the project or program that the federal government is funding. 167. Even if Congress had clearly conditioned receipt of JAG Program funds on the immigration-related conditions, which it did not, all of Defendants’ conditions violate the Spending Clause because they are not reasonably related to the federal interest in the JAG Program. 168. The new conditions imposed on FY 2018 JAG funds relate to civil immigration enforcement, and therefore do not reasonably relate to the criminal justice purpose of the JAG Program, which is intended to provide funding to states and localities for local law enforcement initiatives. 169. Under 28 U.S.C. § 2201, Plaintiff is entitled to a declaration that Defendants’ imposition of the immigration-related conditions for the FY 2018 JAG Program violates the Constitution’s Spending Clause. Plaintiff is further entitled to an injunction preventing these conditions from going into effect.
TENTH CAUSE OF ACTION Violation of the Tenth Amendment and Constitutional Principles of Federalism (FY 2018
Conditions) 170. Plaintiff incorporates by reference the allegations in the preceding paragraphs. 171. Just as Section 1373 violates the Tenth Amendment by compelling changes to the City’s policies and laws, so too does Section 1644. The Tenth Amendment prohibits the federal
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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 principle applies to situations in which Congress compels a state to enact, or prohibits a state from enacting, legislation. Murphy, 138 S. Ct. at 1478. A balance between the powers of the federal government and the states is grounded in the structure of the Constitution.
172. Pursuant to 28 U.S.C. § 2201, Plaintiff is entitled to a declaration that the Section 1373 and 1644 conditions imposed in the Local Solicitation process for FY 2018 violate the Tenth Amendment. Plaintiff is also entitled to a permanent injunction preventing Defendants from putting those conditions into effect.
ELEVENTH CAUSE OF ACTION Declaratory Judgment that New York City Complies with 8 U.S.C. § 1373 173. Plaintiff incorporates by reference the allegations in the preceding paragraphs. 174. To the extent that Section 1373 can constitutionally be applied to New York City, if at all, New York City’s laws and policies comply with and operate within the proper constitutional bounds of Section 1373. 175. The City’s laws and policies broadly restrict the collection of sensitive, personal information by City officers and employees and protect such information from unauthorized disclosure. Protected information is defined broadly to include an individual’s sexual orientation, status as a victim of domestic violence, status as a victim of sexual assault, status as a crime witness, receipt of public assistance, and immigration status, to name only a few. These laws and policies are designed to assure residents that their information will be protected, unless disclosure is authorized, and are deeply embedded in the City’s regular business practices and day-to-day operations. 176. The City’s generalized laws and policies not only are necessary to the performance of its legitimate municipal functions, but also do not contravene Section 1373 as they are not designed to bar disclosures to federal immigration authorities, but to third parties generally.
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177. Moreover, the City’s laws and policies authorize local law enforcement to cooperate with federal authorities in situations that the City determines legitimately implicate public safety, such as exigent circumstances or where an individual has been convicted of a violent or serious crime or is identified as a possible match in a terrorist screening database.
178. The City’s overarching posture of non-disclosure with respect to sensitive, personal information, especially where that information pertains to residents seeking City services to which they are entitled, is consistent with Section 1373, to the extent Defendants can apply Section 1373 to JAG funds—notwithstanding that they lack a statutory basis, their imposition was arbitrary and capricious, and the condition violates the Separation of Powers, Spending Clause, and the Tenth Amendment.
179. Pursuant to 28 U.S.C. § 2201, Plaintiff is entitled to a declaration that Section 1373 is unconstitutional, or, in the alternative, that the City complies with Section 1373.
PRAYER FOR RELIEF WHEREFORE, Plaintiff requests that this Court enter judgment as follows:
a. Declare that the three immigration-related conditions imposed, as applicable, upon the FY 2016 and FY 2017 JAG Program are unlawful;
b. Declare that the immigration-related conditions for the FY 2018 JAG program are unlawful;
c. Declare that 8 U.S.C. § 1373 is unconstitutional; d. Declare that New York City complies with 8 U.S.C. § 1373, as that statute is properly
read in light of the Constitution; e. Permanently enjoin Defendants from imposing compliance with 8 U.S.C. § 1373, as
well as the advance notification and jail access conditions, upon New York City as a recipient of JAG funds; f. Permanently enjoin Defendants from enforcing the immigration-related conditions contained in the FY 2018 Local Solicitation on New York City and retain jurisdiction
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to monitor DOJ’s compliance with this Court’s judgment; g. Issue a writ of mandamus compelling Defendants to immediately disburse New York
City’s FY 2017 JAG award, without further delay; h. Issue a writ of mandamus compelling Defendants to immediately issue a new
FY 2018 Local Solicitation without the immigration-related conditions; i. Award the City reasonable fees, costs, and expenses, including attorneys’ fees,
pursuant to 28 U.S.C. § 2412; and j. Award such other relief as this Court may deem just and proper.

Dated: August 6, 2018

Respectfully submitted,
ZACHARY W. CARTER Corporation Counsel of the City of New York 100 Church Street New York, NY 10007 Tel: (212) 356-2296 tjeneret@law.nyc.gov

Of Counsel Noah Kazis

By: /s/ Tonya Jenerette Tonya Jenerette Sabita Krishnan Doris Bernhardt Gail Rubin
DEBEVOISE & PLIMPTON LLP 919 Third Avenue New York, NY 10022 Tel: (212) 909-6889 mfishbein@debevoise.com

Of Counsel Dana Rehnquist

By: /s/ Matthew E. Fishbein Matthew E. Fishbein Meryl Holt

Attorneys for Plaintiff the City of New York

39

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

OPINION AND ORDER 18 Civ. 6471 (ER)

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

18 Civ. 6474 (ER)

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

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

the history of the program, the U.S. Department of Justice (“DOJ”) and Attorney General (collectively, “Defendants”) imposed three immigration-related conditions that grantees must comply with in order to receive funding. Plaintiffs bring this suit challenging these new conditions. Consistent with every other court that has considered these issues, the Court concludes that Defendants did not have lawful authority to impose these conditions. For the reasons set forth below, Plaintiffs’ motion for partial summary judgment is GRANTED, and Defendants’ motion for partial summary judgment or in the alternative to dismiss is DENIED. I. Background
A. The Byrne JAG Program The Byrne JAG program has its origins in the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, tit. I, 82 Stat. 197, which created grants to assist the law enforcement efforts of state and local authorities. After undergoing several amendments, the modern Byrne JAG program was created through the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, § 1111, 119 Stat. 2960, 3094 (2006). The Byrne JAG program is now codified at 34 U.S.C. §§ 10151–10158. Under the Byrne JAG program, states and localities may apply for funds to support criminal justice programs in a variety of categories, including law enforcement, prosecution, crime prevention, corrections, drug treatment, technology, victim and witness services, and mental health. 34 U.S.C. §§ 10152(a)(1), 10153(a). The funds are disbursed according to a formula based on the particular jurisdiction’s population and violent crime statistics. Id. § 10156. Grantees may also make subgrants to localities or community organizations, id. § 10152(b), and some state funds are set aside for subgrants to localities, id. § 10156(c)(2).
2

On July 25, 2017, Defendants announced that they were imposing three new
immigration-related conditions on applicants for Byrne JAG funds in fiscal year (“FY”) 2017.1
According to the press release announcing the change, the conditions were intended to
“encourage . . . ‘sanctuary’ jurisdictions to change their policies and partner with federal law
enforcement to remove criminals.”2 Holt Decl. Ex. 17, at AR-00992, Doc. 33-17.3
The first condition requires grantees, upon request, to give advance notice to the
Department of Homeland Security (“DHS”) of the scheduled release date and time of aliens
housed in state or local correctional facilities (the “Notice Condition”). As stated in the award
documents, the Notice Condition provides:
1 In 2016, Defendants imposed a related but different condition on the City of New York’s Byrne JAG grant. The condition required the City to “undertake a review to validate its compliance with 8 U.S.C § 1373,” a statute which prohibits states and localities from restricting their officials from communicating with immigration authorities regarding anyone’s citizenship or immigration status (as will be discussed in detail below). City’s FY 2016 Byrne JAG Grant ¶ 53, Trautman Decl. Ex. A, Doc. 53-1. The City was further required to submit documentation several months after accepting the grant showing that it was in compliance or that it came into compliance. Id. The City accepted the condition and submitted documents certifying that “its laws and policies comply with and operate within the constitutional bounds of § 1373.” City’s June 27, 2017 Letter 2, Soler Decl. Ex. A, Doc. 41-1. This condition was not imposed on the Plaintiff States. See New York State’s FY 2016 Byrne JAG Grant, Trautman Decl. Ex. B, Doc. 53-2; Trautman Decl. ¶ 3, Doc. 53.
2 The Court notes that the label of “sanctuary” cities or states “is commonly misunderstood.” City of Chicago v. Sessions, 888 F.3d 272, 281 (7th Cir. 2018), vacated in part, No. 17-2991, 2018 WL 4268814 (7th Cir. Aug. 10, 2018). Although Defendants claim that “‘sanctuary’ policies . . . intentionally undermine our laws and protect illegal aliens who have committed crimes,” AR-00992, many so-called sanctuary jurisdictions “do[] not interfere in any way with the federal government’s lawful pursuit of its civil immigration activities, and presence in such localities will not immunize anyone to the reach of the federal government,” Chicago, 888 F.3d at 281. Indeed, many such jurisdictions will cooperate with immigration enforcement authorities for persons most likely to present a threat to the community, and “refuse such coordination where the threat posed by the individual is lesser, reflect[ing] the decision by the state and local authorities as how best to further the law enforcement objectives of their communities with the resources at their disposal.” Id.; see also United States v. California, 314 F. Supp. 3d 1077, 1105 (E.D. Cal. 2018) (“Standing aside does not equate to standing in the way.”).
3 Unless otherwise indicated, references to “Doc.” relate to documents filed in the City’s action, No. 18 Civ. 6474. The motion papers and supporting documents submitted in the two related actions are essentially identical.
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A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that, when a State (or State-contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and — as early as practicable . . . — provide the requested notice to DHS.
New York State’s FY 2017 Byrne JAG Grant ¶ 55(1)(B), Holt Decl. Ex. 1, Doc. 33-1.
The second condition requires grantees to give federal agents access to aliens in state or
local correctional facilities in order to question them about their immigration status (the “Access
Condition”). The Access Condition provides:
A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given to access any State (or State-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals’ right to be or remain in the United States. Id. ¶ 55(1)(A).4
The third condition requires grantees to certify their compliance with 8 U.S.C. § 1373,
which prohibits states and localities from restricting their officials from communicating with
immigration authorities regarding anyone’s citizenship or immigration status (the “Compliance
Condition”). The Compliance Condition provides:
[N]o State or local government entity, -agency, or -official may prohibit or in any way restrict — (1) any government entity or -official from sending or receiving information regarding citizenship or immigration status as described in 8 U.S.C. 1373(a); or (2) a government entity or -agency from sending, requesting or receiving, maintaining, or exchanging information regarding immigration status as described in 8 U.S.C. 1373(b).
Id. ¶ 53(1).
4 While the quoted provisions apply to state jurisdictions, similar terms apply to local jurisdictions. See New York State’s FY 2017 Byrne JAG Grant ¶ 56(1)(A)–(B).
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Grantees are also required to monitor any subgrantees’ compliance with the three conditions, and to notify DOJ if they become aware of “credible evidence” of a violation of the Compliance Condition. Id. ¶¶ 53(3), 54(1)(D), 55(2), 56(2). Grantees must certify their compliance with the three conditions, which carries the risk of criminal prosecution, civil penalties, and administrative remedies. Id. ¶ 1; Holt Decl. Ex. 17, at AR-01031, -01033.
B. Plaintiffs The States of New York, Connecticut, New Jersey, Rhode Island, and Washington, the Commonwealths of Massachusetts and Virginia (collectively, the “States”), and the City of New York (the “City”) have received Byrne JAG funds since at least 2006 (and some had received predecessor grants for decades). Pls.’ 56.1 ¶¶ 63, 66, 89, 114, Doc. 23. Plaintiffs have used these funds to support a broad array of law enforcement, criminal justice, public safety, and drug treatment programs. Id. ¶¶ 64, 115. On June 26, 2018, DOJ issued award letters to the States requiring their acceptance of the new conditions described above in order to receive their FY 2017 Byrne JAG funds, which collectively totaled over $25 million. Id. ¶¶ 26, 30. Although the City had also applied for a FY 2017 Byrne JAG grant of over $4 million, the City did not receive an award letter at that time. Id. ¶¶ 44, 51, 114. Instead, in letters sent several months earlier, DOJ informed the City that, “based on a preliminary review, the Department has determined that [the City] appears to have laws, policies, or practices that violate 8 U.S.C. § 1373,” DOJ’s Oct. 11, 2017 Letter 1, Soler Decl. Ex. B., Doc. 41-2, which could result in the City’s “ineligib[ility] for FY 2017 Byrne JAG funds,” DOJ’s Jan. 24, 2018 Letter 2, Soler Decl. Ex. D, Doc. 41-4. DOJ cited, among other things, the City’s Executive Order No. 41 as a policy that “appears to . . . violate” § 1373’s prohibition on restricting communications between local officials and immigration authorities regarding immigration status. DOJ’s Oct. 11, 2017 Letter
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1–2. Executive Order No. 41, together with Executive Order No. 34, forms the City’s “General Confidentiality Policy,” which was issued by then-Mayor Michael Bloomberg in 2003. Pls.’ 56.1 ¶ 143. This policy protects “confidential information,” which is defined as including, as relevant here, information concerning an individual’s immigration status.5 Exec. Order No. 41, § 1 (2003), Negrón Decl. Ex. B, Doc. 42-2. Under the policy, City employees may not disclose an individual’s immigration status except in limited circumstances, such as when the disclosure is authorized by the individual, is required by law, is to another City employee as necessary to fulfill a governmental purpose, pertains to an individual suspected of illegal activity (other than mere status as an undocumented immigrant), or is necessary to investigate or apprehend persons suspected of terrorist or illegal activity (other than mere undocumented status). Id. § 2. Additionally, police officers may not inquire about a person’s immigration status unless investigating illegal activity other than mere undocumented status, and may not inquire about the immigration status of crime victims or witnesses at all. Id. § 4(4). Other City employees may not inquire about any person’s immigration status unless the inquiry is required by law or is necessary to determine eligibility for or to provide government services. Id. § 4(3).
The purpose of the City’s General Confidentiality Policy is to assure residents that “they may seek and obtain the assistance of City agencies regardless of personal or private attributes, without negative consequences to their personal lives,” because “the obtaining of pertinent information, which is essential to the performance of a wide variety of governmental functions, may in some cases be difficult or impossible if some expectation of confidentiality is not preserved.” Id. at 1. The City maintains that its General Confidentiality Policy, in conjunction
5 “[C]onfidential information” also includes information relating to an individual’s sexual orientation, status as a victim of domestic violence or sexual assault, status as a crime witness, receipt of public assistance, or income tax records. Exec. Order No. 41, § 1.
6

with other privacy laws and policies, encourages residents to report crimes, seek medical treatment, and use other City services because they can trust that the City will protect their personal information. Pls.’ 56.1 ¶ 177. The City believes that these laws and policies are instrumental in maintaining the City’s historically low crime rates by promoting trust and cooperation between the New York Police Department and the public, including immigrant communities that otherwise may retreat into the shadows if they believe that the police will share their information with federal immigration authorities. Id. ¶¶ 184, 187, 189. Similarly, if people fear that the City could disclose their information to immigration authorities, they may refuse to cooperate with public health investigations or obtain medical services such as immunizations. Id. ¶ 194.
C. Related Litigation The new conditions on Byrne JAG funding have generated litigation throughout the country. In Chicago, a district court in the Northern District of Illinois issued a nationwide preliminary injunction against the Notice and Access Conditions. City of Chicago v. Sessions, 264 F. Supp. 3d 933 (N.D. Ill. 2017). On an interlocutory appeal, the Seventh Circuit affirmed that decision, City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018), but later stayed the nationwide scope of the injunction pending en banc review, see generally City of Chicago v. Sessions, No. 17-2991, 2018 WL 4268814, at *1 (7th Cir. Aug. 10, 2018). The district court, on summary judgment, then permanently enjoined not only the Notice and Access Conditions, but also the Compliance Condition, citing the Supreme Court’s intervening decision in Murphy v. NCAA, 138 S. Ct. 1461 (2018), and similarly stayed the injunction’s nationwide scope. City of Chicago v. Sessions, 321 F. Supp. 3d 855 (N.D. Ill. 2018). In a related case also in the Northern District of Illinois, the City of Evanston and the U.S. Conference of Mayors obtained a preliminary injunction against all three conditions, but the
7

district court stayed the injunction’s “near-nationwide effect” as to the Conference. City of Evanston v. Sessions, No. 18 Civ. 4853, slip op. at 11 (N.D. Ill. Aug. 9, 2018), Doc. 23. The Seventh Circuit then lifted the stay as to the Conference given that the injunction was “limited to the parties actually before the court.” U.S. Conference of Mayors v. Sessions, No. 18-2734, slip op. at 2 (7th Cir. Aug. 29, 2018), Doc. 13. In other words, the injunction applied only to the City of Evanston and those local jurisdictions that are actually members of the U.S. Conference of Mayors.6
In Philadelphia, a district court in the Eastern District of Pennsylvania preliminarily enjoined the Attorney General from denying that city FY 2017 Byrne JAG funds on the basis of the challenged conditions. City of Philadelphia v. Sessions, 280 F. Supp. 3d 579 (E.D. Pa. 2017). Following a bench trial, the district court then permanently enjoined all three conditions. City of Philadelphia v. Sessions, 309 F. Supp. 3d 289 (E.D. Pa. 2018). The Attorney General has appealed to the Third Circuit.
In California, the state and the City and County of San Francisco sued over the conditions in the Northern District of California, and the district court initially denied California’s request for a preliminary injunction against the Compliance Condition. California ex rel. Becerra v. Sessions, 284 F. Supp. 3d 1015 (N.D. Cal. 2018). Subsequently, with the benefit of a full record on summary judgment, the district court then permanently enjoined all three conditions but
6 The City of New York is a member of the U.S. Conference of Mayors. As a result of the Evanston litigation, DOJ issued the City’s FY 2017 Byrne JAG award on October 10, 2018, and represented that it will not at this time enforce the challenged conditions against the City. The parties agree that (1) the City’s claims are not moot because DOJ may in the future enforce the challenged conditions against the City if the preliminary injunction in Evanston is dissolved or reversed on appeal, see N.Y. State Nat. Org. for Women v. Terry, 159 F.3d 86, 92 (2d Cir. 1998) (“[V]oluntary cessation of misconduct does not engender mootness where the cessation resulted from a coercive order and a threat of sanctions.”), and (2) the City’s claims under the Administrative Procedure Act are ripe in light of DOJ’s reaching a decision on the City’s Byrne JAG application. See Docs. 65, 72.
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stayed the injunction’s nationwide scope. City & County of San Francisco v. Sessions, Nos. 17
Civ. 04642, 17 Civ. 04701 (WHO), 2018 WL 4859528 (N.D. Cal. Oct. 5, 2018).
D. This Case The States and the City brought two related actions on July 18, 2018, and filed amended
complaints on August 6, 2018. States’ First Am. Compl. (“FAC”), No. 18 Civ. 6471, Doc. 32;
City’s FAC, No. 18 Civ. 6474, Doc. 15. The States challenge the imposition of the three FY
2017 conditions on five bases: (1) the conditions violate the separation of powers, (2) the
conditions are ultra vires under the Administrative Procedure Act (“APA”), (3) the conditions are
not in accordance with law under the APA, (4) the conditions are arbitrary and capricious under
the APA, and (5) § 1373 violates the Tenth Amendment’s prohibition on commandeering.
States’ FAC ¶¶ 116–150. In addition to these claims, the City also asserts that the conditions
violate the Spending Clause and seeks a declaratory judgment that § 1373 is unconstitutional or, in the alternative, that the City complies with § 1373. City’s FAC ¶¶ 111–148, 173–179.7
The States and the City have moved for partial summary judgment on their claims
challenging the FY 2017 conditions. No. 18 Civ. 6471, Doc. 56; No. 18 Civ. 6474, Doc. 21.
Defendants have moved to dismiss or, alternatively, for partial summary judgment on those
7 In their amended complaints, the States and the City also assert related claims challenging identical conditions as well as additional conditions attached to FY 2018 funds, which were announced on July 20, 2018. States’ FAC ¶¶ 4, 151–173; City’s FAC ¶¶ 6, 149–172. According to the amended complaints, in addition to the three conditions imposed on FY 2017 grants, recipients of FY 2018 funds must also certify that they will not (1) violate 8 U.S.C. § 1644, another statute prohibiting restrictions on exchanging immigration status information with federal authorities; (2) violate 8 U.S.C. § 1324(a), which prohibits knowingly or recklessly concealing or harboring aliens; (3) impede federal authorities in the arrest or removal of aliens as authorized by 8 U.S.C. §§ 1226(a), (c), 1231(a)(4); (4) impede federal authorities in the interrogation of aliens as authorized by 8 U.S.C. § 1357(a)(1); or (5) impede the Attorney General’s reports on the number of undocumented immigrants incarcerated in federal and state prisons for felonies and efforts to remove them pursuant to 8 U.S.C. § 1366(1), (3). States’ FAC ¶ 4; City’s FAC ¶ 6. The FY 2018 conditions are not at issue in the instant motions for partial summary judgment.
9

claims. No. 18 Civ. 6471, Doc. 88; No. 18 Civ. 6474, Doc. 50. The motions are fully briefed, and oral argument was held on November 16, 2018. II. Legal Standard
Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “An issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Senno v. Elmsford Union Free Sch. Dist., 812 F. Supp. 2d 454, 467 (S.D.N.Y. 2011) (citing SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)). A fact is “material” if it might affect the outcome of the litigation under the governing law. Id.
The party moving for summary judgment is initially responsible for demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets its burden, the nonmoving party must “come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” FDIC. v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010).
In deciding a motion for summary judgment, the Court must “construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)). However, in opposing a motion for summary judgment, the non-moving party may not rely on unsupported assertions, conjecture, or surmise. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). Rather, “the non-moving party must set forth significant, probative evidence on which a reasonable fact-finder could decide in its favor.” Senno, 812 F. Supp. 2d at 467–68 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 256–57 (1986)).
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In challenges to agency action under the APA, summary judgment is the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and is otherwise consistent with the APA standard of review. Chen v. Bd. of Immigration Appeals, 164 F. Supp. 3d 612, 617 (S.D.N.Y. 2016). “Where, as here, a party seeks review of agency action under the APA and ‘the entire case on review is a question of law,’ summary judgment is generally appropriate.” Noroozi v. Napolitano, 905 F. Supp. 2d 535, 541 (S.D.N.Y. 2012) (quoting Citizens Against Casino Gambling in Erie Cty. v. Hogen, No. 07 Civ. 0451 (S), 2008 WL 2746566, at *25 (W.D.N.Y. July 8, 2008)). III. Discussion
This case challenges the authority of the Executive Branch of the federal government to compel states to adopt its preferred immigration policies by imposing conditions on congressionally authorized funding to which the states are otherwise entitled. As such, this case is fundamentally about the separation of powers among the branches of our government and the interplay of dual sovereign authorities in our federalist system. “The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny” through limits on concentrated power. Chicago, 888 F.3d at 277. “Concentration of power in the hands of a single branch is a threat to liberty,” which “is always at stake when one or more of the branches seek to transgress the separation of powers.” Clinton v. City of New York, 524 U.S. 417, 450 (1998) (Kennedy, J., concurring). “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.” Gregory v. Ashcroft, 501 U.S. 452, 458–59 (1991). That balance of power must be maintained “[b]y guarding against encroachments by the Federal Government on fundamental aspects of
11

state sovereignty.” Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 769 (2002). It is incumbent on the judiciary “to act as a check on such usurpation of power,” whether among the branches of government or the federal and state governments. Chicago, 888 F.3d at 277. With these principles in mind, the Court turns to the legal issues that govern this case.
A. Statutory Authority for the Conditions Under the APA, courts must “hold unlawful and set aside agency action . . . found to be . . . in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” “or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A), (C). In determining whether an agency action is ultra vires, “the question . . . is always whether the agency has gone beyond what Congress has permitted it to do.” City of Arlington v. FCC, 569 U.S. 290, 297–98 (2013); see also NRDC v. Abraham, 355 F.3d 179, 202 (2d Cir. 2004) (discussing the “well-established principle” that “an agency literally has no power to act . . . unless and until Congress confers power upon it” (quoting La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986))). At the outset, the Court notes that the Byrne JAG grant is “a formula grant rather than a discretionary grant,” Chicago, 888 F.3d at 285, which means it is “not awarded at the discretion of a state or federal agency, but . . . pursuant to a statutory formula,” City of Los Angeles v. McLaughlin, 865 F.2d 1084, 1088 (9th Cir. 1989). Under the Byrne JAG statute, “the Attorney General shall . . . allocate” grant money pursuant to a statutory formula based on the state’s population and violent crime statistics. 34 U.S.C. § 10156(a)(1) (emphasis added). Because § 10156(a)(1) does not give the Attorney General discretion to award or withhold Byrne JAG grants or determine the conditions under which they are disbursed, the authority for the challenged conditions must come from some other statutory provision, if at all. Defendants point to two potential provisions: 34 U.S.C. § 10102(a)(6) and 34 U.S.C. § 10153(a)(5)(D).
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i. 34 U.S.C. § 10102(a)(6) Section 10102, which is located in a different subchapter from the Byrne JAG program, sets out the duties of the Assistant Attorney General for the Office of Justice Programs8 and
provides as follows:
The Assistant Attorney General shall— (1) publish and disseminate information on the conditions and progress of the criminal justice systems; (2) maintain liaison with the executive and judicial branches of the Federal and State governments in matters relating to criminal justice; (3) provide information to the President, the Congress, the judiciary, State and local governments, and the general public relating to criminal justice; (4) maintain liaison with public and private educational and research institutions, State and local governments, and governments of other nations relating to criminal justice; (5) coordinate and provide staff support to coordinate the activities of the Office and the Bureau of Justice Assistance, the National Institute of Justice, the Bureau of Justice Statistics, the Office for Victims of Crime, and the Office of Juvenile Justice and Delinquency Prevention; and (6) exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.
34 U.S.C. § 10102(a) (emphasis added).
Defendants contend that the italicized language permits the Assistant Attorney General to
“prioritize federal grant monies for those state and local jurisdictions that assist in furthering
relevant federal purposes,” by imposing “special conditions” such as those challenged here “on
all grants” including the Byrne JAG program. Defs.’ Mem. 15, 18 (emphases omitted), Doc. 51.
8 By statute, DOJ’s Office of Justice Programs is headed by this Assistant Attorney General. 34 U.S.C. § 10101.
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However, Defendants’ “interpretation is contrary to the plain meaning of the statutory language.” Chicago, 888 F.3d at 284. The problem for Defendants is that the italicized language begins with the word “including,” which “by definition is used to designate that a . . . thing is part of a particular group.” Id. (citing Including, Oxford English Dictionary (3d ed. 2016)). Thus, the Assistant Attorney General can only place special conditions or determine priority purposes to the extent that power already “may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General.” 34 U.S.C. § 10102(a)(6). In other words, the italicized language is not a “stand-alone grant of authority to the Assistant Attorney General to attach any conditions to any grants”; rather, such authority must come from elsewhere in the chapter or have been delegated by the Attorney General, who may only delegate it to the extent that he has such power himself. Chicago, 888 F.3d at 285. Because Defendants cannot cite another provision granting that power to the Assistant Attorney General or the Attorney General, § 10102(a)(6) does not provide authority for imposing any of the challenged conditions.
Moreover, the statutory structure indicates that § 10102(a)(6) is “an unlikely place for Congress to place a power as broad” as Defendants would have it. Id. The “including” clause is tacked on to a catch-all provision at the end of a list of explicit powers, which “would be an odd place indeed to put a sweeping power to impose any conditions on any grants—a power much more significant than all of the duties and powers that precede it in the listing, and a power granted to the Assistant Attorney General that was not granted to the Attorney General.” Id. It would also be “inconsistent with the goal of the statute to support the needs of law enforcement while providing flexibility to state and local governments” and “at odds with the nature of the Byrne JAG grant, which is a formula grant rather than a discretionary grant.” Id. “[I]t is inconceivable that Congress would have anticipated that the Assistant Attorney General could
14

abrogate the entire distribution scheme and deny all funds to states and localities . . . based on the Assistant Attorney General’s decision to impose his or her own conditions—the putative authority for which is provided in a different statute.” Id. at 286.9
ii. 34 U.S.C. § 10153(a)(5)(D) Defendants contend that § 10153(a)(5)(D) provides authority for imposing the Compliance Condition only. This section provides that applicants for Byrne JAG funds must submit an application with a number of certifications, assurances, and details, including: A certification, made in a form acceptable to the Attorney General and executed by the chief executive officer of the applicant (or by another officer of the applicant, if qualified under regulations promulgated by the Attorney General), that—
(A) the programs to be funded by the grant meet all the requirements of this part; (B) all the information contained in the application is correct; (C) there has been appropriate coordination with affected agencies; and (D) the applicant will comply with all provisions of this part and all other applicable Federal laws. 34 U.S.C. § 10153(a)(5) (emphasis added). Defendants argue that 8 U.S.C. § 1373 is an “applicable Federal law,” with which applicants must certify compliance. Defendants contend that § 10153(a)(5)(D) covers all federal laws applicable to Byrne JAG applicants, i.e., states and localities (as opposed to private individuals or entities). Defs.’ Mem. 20. They further contend that the authority to require a
9 The Court need not address whether Defendants’ “argument might fail for an additional reason, that the term ‘special conditions’ is a term of art referring to conditions for high-risk grantees with difficulty adhering to grant requirements” that does not apply to the challenged conditions. Chicago, 888 F.3d at 285 n.2 (citing Philadelphia, 280 F. Supp. 3d at 617).
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“certification, made in a form acceptable to the Attorney General,” 34 U.S.C. § 10153(a)(5),10
constitutes “a delegation to the Attorney General to determine whether a particular federal law
constitutes an ‘applicable Federal law[],’” Defs.’ Mem. 19 (alteration in original) (quoting 34
U.S.C. § 10153(a)(5)(D)).
Plaintiffs respond that “applicable Federal laws” refers to only those laws that expressly
apply to federal grants. Pls.’ Mem. 26, Doc. 22. For example, prohibitions on discrimination in
“any program or activity receiving Federal financial assistance” would meet this definition, 42
U.S.C. § 2000d, while the provisions concerning communications with immigration authorities
in § 1373 would not. They argue that Congress could not have intended to require applicants to
certify, under threat of criminal prosecution, their compliance with every possible law that could
conceivably apply to them.11 They argue that such a broad interpretation would be inconsistent
with the structure of § 10153, which sets forth largely technical and ministerial application
requirements pertaining to the grant itself;12 past practice of DOJ, which understood applicable
laws to have the narrower construction;13 and the goal of the program to reduce administrative
10 See also 34 U.S.C. § 10153(a) (providing that applicants “shall submit an application to the Attorney General . . . in such form as the Attorney General may require”). 11 While vast, presumably the range of applicable laws would be limited by the constitutional principle that the conditions must “bear some relation to the purpose of the federal funds.” Chicago, 264 F. Supp. 3d at 945 (citing South Dakota v. Dole, 483 U.S. 203, 207–08 (1987)). 12 See 34 U.S.C. § 10153(a)(1) (Byrne JAG funds may not be used to supplant state or local funds); id. § 10153(a)(2)–(3) (application must be submitted for review and public comment); id. § 10153(a)(4) (applicant must report programmatic and financial data during the grant period); id. § 10153(a)(6) (applicant must set forth plan for how the funds will be used). 13 See Dep’t of Justice Study Grp., Report to the Attorney General: Restructuring the Justice Department’s Program of Assistance to State and Local Governments for Crime Control and Criminal Justice System Improvement 8–9 (1977) (identifying “over twenty Federal statutes impos[ing] controls and limitations on the use of [Law Enforcement Assistance Administration] grant funds”), Holt Decl. Ex. 22, Doc. 33-25; see also New York State’s FY 2016 Byrne JAG Grant, Trautman Decl. Ex. B (requiring compliance with certain laws applicable to federal grants, such as those pertaining to nondiscrimination, but not § 1373). Even a certification form currently in use still appears to equate “applicable federal
16

burdens in the grant process.14 Pls.’ Mem. 27–29; see also ACLU’s Amici Br. 3–8, Doc. 71.
Plaintiffs further argue that the Attorney General’s authority to determine the “form” of the
application cannot constitute authority to alter the substantive requirements of compliance with
particular laws, 34 U.S.C. § 10153(a)(5), and in any event, Congress could not have intended to
delegate the authority to determine what constitutes an “applicable” law, because otherwise it would have done so explicitly, as it has done in other statutes.15 Pls.’ Reply 16–17, Doc. 56.
On this final point, Plaintiffs are surely correct that the Attorney General’s authority to
determine the “form” of the application does not include the ability to dictate the “substance” of
which laws an applicant must comply with as a condition of grant funding. Form, Black’s Law
Dictionary (10th ed. 2014) (defining “form” as “[t]he outer shape, structure, or configuration of
something, as distinguished from its substance or matter”). “There is no indication that an
acceptable form of the certification would encompass additional substantive compliance with
laws not directly required by Congress.” San Francisco, 2018 WL 4859528, at *18; see
Gonzales v. Oregon, 546 U.S. 243, 262 (2006) (stating that “[i]t would be anomalous for
Congress to have so painstakingly described the Attorney General’s limited authority . . . but to
have given him, just by implication,” much broader authority). If Congress wanted to delegate
statutes and regulations” with “federal statutes and regulations applicable to the award.” Holt Decl. Ex. 17, at AR-01037 (emphasis added) (certifying that “(a) the Applicant will comply with all award requirements and all federal statutes and regulations applicable to the award; (b) the Applicant will require all subrecipients to comply with all applicable award requirements and all applicable federal statutes and regulations”). 14 See S. Rep. No. 96-142, at 8 (1979) (listing “reduced red tape” as the first goal of reforms to a predecessor program); Federal Assistance to State and Local Criminal Justice Agencies: Hearing on S. 1245, S. 1882, S. 3270, and S. 3280 Before the Subcomm. on Criminal Laws and Procedures of the S. Comm. on the Judiciary, 95th Cong. 383 (1978) (letter of Att’y Gen. Griffin B. Bell) (stating that the bill was “designed” to “simplify[] the grant process”), Holt Decl. Ex. 25, Doc. 33-28. 15 See 26 U.S.C. § 432(e)(9)(E)(iv)(II) (referencing compliance with “other applicable law, as determined by the Secretary of the Treasury” (emphasis added)).
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this substantive authority to the Attorney General, it would have done so explicitly. “Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001).
However, the question remains as to the scope of “applicable” federal laws with which applicants must certify compliance: Does this mean laws applicable to the state or locality, or laws applicable to the grant? “Both positions are plausible,” Chicago, 264 F. Supp. 3d at 944, and “the question is a ‘close call,’” Philadelphia, 280 F. Supp. 3d at 619. On one hand, “Congress could expect an entity receiving federal funds to certify its compliance with federal law, as the entity is—independent of receiving federal funds—obligated to comply.” Chicago, 264 F. Supp. 3d at 945. And the command that “the applicant will comply with . . . all other applicable Federal laws,” by virtue of the proximity of the words, suggests laws that are applicable to the “applicant.” 34 U.S.C. § 10153(a)(5)(D). But this does not answer the question of whether this means laws applicable to the applicant as a state or locality, or laws applicable to the applicant as an applicant for federal grant funding. The structure of § 10153, which concerns requirements pertaining to the grant and the application, points toward the latter reading. See San Francisco, 2018 WL 4859528, at *17 (“[B]ecause all the other conditions in Section 10153(a) apply to the grant itself, the statutory context does not support imposing a condition beyond the grant administration process.”).
In any event, it is unclear from the statutory language whether Congress intended to condition Byrne JAG funds on compliance with all federal laws applicable to the state or locality or compliance with all federal laws applicable to federal grants. What is clear, however, is that “if Congress intends to impose a condition on the grant of federal moneys, it must do so
18

unambiguously.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). “By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation.” Id. Under this “clear notice” rule, the Court must view the statute “from the perspective of a state official who is engaged in the process of deciding whether the State should accept [the] funds and the obligations that go with those funds,” and “must ask whether such a state official would clearly understand that one of the obligations of the Act is the [purported] obligation,” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006), i.e., to comply with all federal laws “applicable” to the state. “This malleable language does not provide the ‘clear notice that would be needed to attach such a condition to a State’s receipt of . . . funds.’” Philadelphia, 280 F. Supp. 3d at 647 (quoting Arlington Cent., 548 U.S. at 300). Conversely, given the structure of § 10153, which concerns the requirements of the application and the grant, as well as the parties’ long history of treating “applicable Federal laws” as encompassing laws applicable to federal grants, grant recipients, and the grant-making process, such a construction gives fair notice of the terms of the funding. Accordingly, the Court concludes that “applicable Federal laws” for purposes of 34 U.S.C. § 10153(a)(5)(D) means federal laws applicable to the grant.
As the parties do not dispute, § 1373 is not one of those applicable laws under this narrower construction of § 10153(a)(5)(D). Accordingly, Defendants did not have statutory authority to condition Byrne JAG funding on compliance with § 1373. But even if Defendants’ broader interpretation of § 10153(a)(5)(D) carried the day, § 1373 would still not be an “applicable” law because it is unconstitutional, as will be explained below, and “no matter the breadth of this provision, it will never capture an unconstitutional statute.” Chicago, 321 F. Supp. 3d at 875.
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B. Section 1373 and the Tenth Amendment i. The Anticommandeering Doctrine
The Tenth Amendment provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X. “[T]he Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States.” New York v. United States, 505 U.S. 144, 157 (1992).
The Tenth Amendment embodies an “anticommandeering principle,” which “withhold[s] from Congress the power to issue orders directly to the States.” Murphy v. NCAA, 138 S. Ct. 1461, 1475 (2018); see Printz v. United States, 521 U.S. 898, 935 (1997) (“The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”); New York, 505 U.S. at 188 (“The Federal Government may not compel the States to enact or administer a federal regulatory program.”).
There are three significant purposes served by the anticommandeering doctrine. First, by “divid[ing] authority between federal and state governments,” it promotes a “healthy balance of power between the States and the Federal Government [that reduces] the risk of tyranny and abuse from either front.” Murphy, 138 S. Ct. at 1477 (quoting New York, 505 U.S. at 181). Second, the anticommandeering doctrine supports “political accountability,” because “if a State imposes regulations only because it has been commanded to do so by Congress, responsibility is blurred.” Id. And third, the anticommandeering rule “prevents Congress from shifting the costs of regulation to the States,” because “if Congress can compel the States to enact and enforce its program, Congress need not” “weigh the expected benefits of the program against its costs.” Id.
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Most recently, in Murphy, the Supreme Court held that the Professional and Amateur Sports Protection Act (“PASPA”), which prohibited states from authorizing sports gambling, violated the anticommandeering rule because it “unequivocally dictates what a state legislature may and may not do.” Id. at 1478. The Court explained that PASPA operated “as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals,” which was a “direct affront to state sovereignty.” Id.
In Murphy, the supporters of PASPA argued that commandeering occurs only when Congress “command[s] ‘affirmative’ action as opposed to imposing a prohibition,” but the Supreme Court rejected that distinction as “empty.” Id. “The basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event.” Id.
There are two important limits on the anticommandeering doctrine. First, “[t]he anticommandeering doctrine does not apply when Congress evenhandedly regulates an activity in which both States and private actors engage.” Id. Thus, Congress may enact laws that “appl[y] equally to state and private actors.” Id. at 1479.
Second, commandeering does not occur when Congress validly preempts state law through the Supremacy Clause. In preemption, “Congress enacts a law that imposes restrictions or confers rights on private actors; a state law confers rights or imposes restrictions that conflict with the federal law; and therefore the federal law takes precedence and the state law is preempted.” Id. at 1480. To qualify as a preemption provision, the law “must represent the exercise of a power conferred on Congress by the Constitution,” and it “must be best read as one that regulates private actors” because “the Constitution ‘confers upon Congress the power to regulate individuals, not States.’” Id. at 1479 (quoting New York, 505 U.S. at 166). Although a
21

preemption provision that prohibits contrary state law “might appear to operate directly on the
States,” in fact, it “confers on private entities . . . a federal right to engage in certain conduct
subject only to certain (federal) constraints” and “to be free from any other . . . requirements.”
Id. at 1480–81. In sum, “every form of preemption is based on a federal law that regulates the
conduct of private actors, not the States.” Id. at 1481. Thus, the PASPA provision prohibiting
state authorization of sports gambling, which did not confer any federal rights nor impose any
federal restrictions on private actors, could not be understood “as anything other than a direct
command to the States,” which put it firmly in the category of impermissible commandeering
and not permissible preemption. Id.
ii. Section 1373 Section 1373 provides, in relevant part:
(a) In general Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. (b) Additional authority of government entities Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity. 8 U.S.C. § 1373(a)–(b).
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In sum, § 1373 “prohibits any ‘government entity or official’ from restricting any other
‘government entity or official’ from exchanging immigration status information” with
immigration authorities.16 Chicago, 321 F. Supp. 3d at 868. Plaintiffs contend that this
command to state and local governments offends the Tenth Amendment’s anticommandeering
rule.
The Second Circuit has once before passed on the constitutionality of § 1373, in City of
New York v. United States, 179 F.3d 29 (2d Cir. 1999), nineteen years before Murphy was
decided. There, the court rejected the City’s facial challenge under the Tenth Amendment to
§ 1373 and the related provision 8 U.S.C. § 1644, which had conflicted with a mayoral executive
order that prohibited City employees from transmitting immigration information to federal
immigration authorities specifically, except in certain circumstances.17 Id. at 31–32. Crucially,
the court reasoned that through these provisions,
Congress has not compelled state and local governments to enact or administer any federal regulatory program. Nor has it affirmatively conscripted states, localities, or their employees into the federal government’s service. These Sections do not directly compel states or localities to require or prohibit anything. Rather, they prohibit state and local governmental entities or officials only from directly restricting the voluntary exchange of immigration information with [federal immigration authorities].
16 For purposes of this case, subsections (a) and (b) essentially overlap. Subsection (a) applies the prohibition on restricting government communication to any “government entity or official,” and subsection (b) applies a similar prohibition to any “person or agency.” 8 U.S.C. § 1373 (a)–(b). “Subsection (b) does not meaningfully expand the statute’s scope by including ‘person[s]’: Who but a government actor can restrict the activities of a government entity or official?” Chicago, 321 F. Supp. 3d at 868–69 (alteration in original). 17 The court expressly declined to opine on whether § 1373 “would survive a constitutional challenge in the context of generalized confidentiality policies that are necessary to the performance of legitimate municipal functions and that include federal immigration status.” City of New York, 179 F.3d at 37. The City’s current General Confidentiality Policy repealed and replaced the executive order at issue in City of New York. Exec. Order No. 34, § 1 (2003), Negrón Decl. Ex. A, Doc. 42-1.
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Id. at 35. The court thus drew a clear distinction “between invalid federal measures that seek to impress state and local governments into the administration of federal programs and valid federal measures that prohibit states from compelling passive resistance to particular federal programs,” and concluded that the challenged provisions fell into the latter category. Id.
This Court is, of course, required to follow Second Circuit precedent. But this Court is also duty bound to follow the U.S. Constitution as authoritatively interpreted by the Supreme Court. “When ‘a subsequent decision of the Supreme Court so undermines [Second Circuit precedent] that it will almost inevitably be overruled,’ the District Court is bound by the Supreme Court’s ruling and not by the Second Circuit’s prior decisions.” Austin v. United States, 280 F. Supp. 3d 567, 572 (S.D.N.Y. 2017) (alteration in original) (quoting United States v. Emmenegger, 329 F. Supp. 2d 416, 429 (S.D.N.Y. 2004)).
It is clear that City of New York cannot survive the Supreme Court’s decision in Murphy. See Chicago, 321 F. Supp. 3d at 873 (“Murphy’s holding deprives City of New York of its central support . . . .”); United States v. California, 314 F. Supp. 3d 1077, 1108 (E.D. Cal. 2018) (“[T]he Supreme Court’s holding in Murphy undercuts portions of the Second Circuit’s reasoning [in City of New York] and calls its conclusion into question.”). City of New York rested on the premise that § 1373 does not “affirmatively conscript[] states, localities, or their employees into the federal government’s service” or “directly compel states or localities to require or prohibit anything,” and rather merely “prohibit[s] state and local governmental entities or officials” from taking certain action. City of New York, 179 F.3d at 35. In other words, City of New York depended on “the distinction it draws between affirmative obligations and proscriptions.” Chicago, 321 F. Supp. 3d at 873. That is precisely the distinction that the Supreme Court in Murphy characterized as “empty.” Murphy, 138 S. Ct. at 1478. Whether Congress attempts to
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command affirmative action or impose a prohibition, “[t]he basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event.” Id. Accordingly, this Court is not bound by City of New York and must follow the Supreme Court’s clear direction in Murphy.
It necessarily follows that § 1373 is unconstitutional under the anticommandeering principles of the Tenth Amendment. Section 1373 “unequivocally dictates what a state legislature may and may not do.” Id. Section 1373’s prohibition on states and localities from restricting their officials from communicating with immigration authorities constitutes a “direct order[]” to states and localities in violation of the anticommandeering rule. Id.
The purposes served by the anticommandeering rule illustrate why it compels this result. First, § 1373 impinges on Plaintiffs’ sovereign authority and their citizens’ liberty to be regulated under their preferred state and local policies. Section 1373 requires Plaintiffs “to submit control of their own officials’ communications to the federal government and forego passing laws contrary to Section 1373.” San Francisco, 2018 WL 4859528, at *15. “[T]he statute prevents [Plaintiffs] from extricating [themselves] from federal immigration enforcement,” Chicago, 321 F. Supp. 3d at 870, and thereby denies Plaintiffs the “critical alternative” required by the Tenth Amendment to “decline to administer the federal program,” New York, 505 U.S. at 176–77.18
Second, § 1373 undermines political accountability because “the statute makes it difficult for citizens to distinguish between state and federal policy in the immigration context by barring states from adopting policies contrary to those preferred by the federal government.” Chicago,
18 See also Jessica Bulman-Pozen, Preemption and Commandeering Without Congress, 70 Stan. L. Rev. 2029, 2046 (2018) (“Because states operate through their officials, the power of the state to decline to carry out a federal program entails the power to forbid state officials from carrying out that federal program.”).
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321 F. Supp. 3d at 870. Faced with the “appearance of a uniform federal/state/local immigration enforcement policy indiscernible to [Plaintiffs’] residents,” those residents cannot properly credit or blame their state or local officials when their policies are compelled by the federal government. San Francisco, 2018 WL 4859528, at *15.
Third, § 1373 “shifts a portion of immigration enforcement costs onto the States.” Id. at *16. “The statute . . . forces states to allow their employees to participate in the federal scheme, shifting employee time—and thus corresponding costs—to federal initiatives and away from state priorities.” Chicago, 321 F. Supp. 3d at 870.
Defendants attempt to save § 1373 by claiming that it is a preemption provision, Defs.’ Mem. 38–39, “but it is no such thing,” Murphy, 138 S. Ct. at 1479. To validly preempt, the provision “must be best read as one that regulates private actors.” Id. A preemption provision “confers on private entities . . . a federal right to engage in certain conduct subject only to certain (federal) constraints.” Id. at 1480. Parroting back this language, Defendants claim that “Section 1373 confers upon entities or individuals a federal right to engage in certain conduct (the voluntary transmission of information to federal immigration authorities) subject only to certain federal constraints.” Defs.’ Mem. 39. Conspicuously absent from this recitation is the key word “private.” That is because by its own terms, § 1373 confers this purported federal right to transmit information only on “government entit[ies] or official[s].” 8 U.S.C. § 1373(a) (emphasis added); see San Francisco, 2018 WL 4859528, at *14 (“Section 1373 . . . does not regulate private actors or provide private actors with any additional rights in the [Immigration and Nationality Act]’s statutory scheme.”); Philadelphia, 309 F. Supp. 3d at 329 (“Given their plain language, neither Section 1373(a) nor Section 1373(b) can be best read as regulating private actors. On their face, they regulate state and local governmental entities and officials,
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which is fatal to their constitutionality under the Tenth Amendment.”). Defendants have failed to show that § 1373 regulates private actors at all, let alone that it is “best read as . . . regulat[ing] private actors.” Murphy, 138 S. Ct. at 1479.19
Next, Defendants attempt to fit § 1373 into a commandeering carve-out for statutes facilitating “the provision of information to the Federal Government,” relying on dicta in Printz, 521 U.S. at 918; Defs.’ Mem. 40. This argument is similarly unavailing. First, the Supreme Court has never actually held that such an exception to the anticommandeering doctrine exists. See Printz, 521 U.S. at 918 (“[Some statutes], which require only the provision of information to the Federal Government, do not involve the precise issue before us here, which is the forced participation of the States’ executive in the actual administration of a federal program. We of course do not address these or other currently operative enactments that are not before us; it will be time enough to do so if and when their validity is challenged in a proper case.”); see also id. at 936 (O’Connor, J., concurring) (“[T]he Court appropriately refrains from deciding whether other purely ministerial reporting requirements imposed by Congress on state and local authorities pursuant to its Commerce Clause powers are similarly invalid.”). Second, even if a commandeering exception for certain information reporting did exist, § 1373 would not qualify for it. “Section 1373 is more than just an information-sharing provision,” Chicago, 321 F. Supp. 3d at 872, because it prevents states and localities from doing anything that “in any way
19 Defendants’ reliance on Arizona v. United States, 567 U.S. 387 (2012), is misplaced. While the federal government has “broad, undoubted power over the subject of immigration and the status of aliens,” id. at 394, Arizona underscores that federal immigration laws may preempt because they “not only impose federal registration obligations on aliens but also confer a federal right to be free from any other registration requirements,” Murphy, 138 S. Ct. at 1481 (emphasis added) (discussing Arizona). Here, Defendants have not shown that § 1373 imposes any obligations or confers any rights on aliens, let alone that it is “best read” as doing so. Id. at 1479. To the contrary, “[o]n [its] face, [§ 1373] regulate[s] state and local governmental entities and officials.” Philadelphia, 309 F. Supp. 3d at 329.
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restrict[s]” the flow of certain information to immigration authorities, 8 U.S.C. § 1373(a). As
such, § 1373 prevents state and local policymakers from enacting a wide range of information-
governance rules, Chicago, 321 F. Supp. 3d at 872, and even prevents them from “disciplining
an employee for choosing to spend her free time or work time assisting in the enforcement of
federal immigration laws,” Philadelphia, 280 F. Supp. 3d at 651. Section 1373 thus presents a
graver intrusion into state sovereignty than merely requiring the reporting of certain data. San Francisco, 2018 WL 4859528, at *16; Chicago, 321 F. Supp. 3d at 872.20
The Court acknowledges Defendants’ argument that access to the information covered by § 1373 would assist them in their immigration enforcement duties.21 Defs.’ Mem. 40–41.
However, a “federal need for state information does not automatically free the federal
government of the sometimes laborious requirement to acquire that information by constitutional
means.” Chicago, 321 F. Supp. 3d at 872. “[T]he federalist diffusion of power necessarily
creates political barriers and inefficiencies. But these inefficiencies are part of federalism’s
intended structure, not imperfections to be remedied by judicially-wrought consolidation of
power.” Id.
20 Defendants also suggest that § 1373 is permissible because it “regulates the States as the owners of data bases,” as the Driver’s Privacy Protection Act of 1994 (“DPPA”) validly did in Reno v. Condon, 528 U.S. 141, 151 (2000). But it is clear that the DPPA was constitutional because it “applied equally to state and private actors.” Murphy, 138 S. Ct. at 1479 (discussing Reno); see Reno, 528 U.S. at 151 (“The DPPA regulates the universe of entities that participate as suppliers to the market for motor vehicle information—the States as initial suppliers of the information in interstate commerce and private resellers or redisclosers of that information in commerce.”). Here, as previously discussed, § 1373 applies only to state actors. See Chicago, 321 F. Supp. 3d at 869 (“Section 1373 does not evenhandedly regulate activities in which both private and government actors engage. Thus, the saving grace of Reno does not apply here.”). 21 For instance, Defendants claim that this information assists federal officials in interrogating aliens as to their status, 8 U.S.C. § 1357(a)(1), removing certain deportable aliens, id. §§ 1227(a), 1228, or detaining certain deportable aliens when they are released from criminal custody, id. § 1226(c)(1).
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Finally, Defendants contend that the Tenth Amendment does not apply to the challenged conditions here because the Byrne JAG program is a voluntary federal grant, and “a perceived Tenth Amendment limitation on congressional regulation of state affairs d[oes] not concomitantly limit the range of conditions legitimately placed on federal grants.” South Dakota v. Dole, 483 U.S. 203, 210 (1987); Defs.’ Mem. 36–37. To be sure, Congress may offer funds conditioned on compliance with specified conditions to “induce the States to adopt policies that the Federal Government itself could not impose,” such as raising the state drinking age to 21. Nat’l Fed’n of Indep. Bus. v. Sebelius (“NFIB”), 567 U.S. 519, 537 (2012) (citing Dole, 483 U.S. at 205–06). But Defendants’ point misunderstands the nature of Plaintiffs’ challenge. Congress may impose “conditions legitimately placed on federal grants,” Dole, 483 U.S. at 210 (emphasis added), but Defendants—an agency and official of the Executive Branch administering a nondiscretionary formula grant—did not have statutory authority to legitimately place the three conditions here. With respect to the Compliance Condition, Defendants claimed statutory authority on the basis that § 1373 was an “applicable Federal law[]” requiring compliance under § 10153(a)(5)(D). “As an unconstitutional law, Section 1373 automatically drops out of the possible pool of ‘applicable Federal laws’ described in the Byrne JAG statute.” Chicago, 321 F. Supp. 3d at 875. “Thus, the Compliance Condition does not fail because it violates the anticommandeering doctrine. It fails because the statutory authority on which it depends sanctions only the imposition of ‘applicable’ federal laws; because Section 1373 no longer falls within that category, the authority for the Compliance Condition has been stripped away.” Id. at 876.
Accordingly, the Court holds that 8 U.S.C. § 1373(a)–(b), insofar as it applies to states and localities, is facially unconstitutional under the anticommandeering doctrine of the Tenth
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Amendment.22 San Francisco, 2018 WL 4859528, at *17; Chicago, 321 F. Supp. 3d at 872; Philadelphia, 309 F. Supp. 3d at 331.
C. Separation of Powers In light of Defendants’ lack of authority to impose the three conditions on federal funding, Plaintiffs contend that the conditions violate the separation of powers. Pls.’ Mem. 41– 42. The Constitution vests Congress with the spending power to “provide for the common Defence and general Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1. “[I]n exercising its spending power, Congress may offer funds to the States, and may condition those offers on compliance with specified conditions.” NFIB, 567 U.S. at 537. Congress may also “delegate such authority to the Executive Branch.” Chicago, 888 F.3d at 283. But for the reasons explained above, Congress has neither conditioned Byrne JAG funds on the three conditions here nor delegated the authority to impose these conditions to the Executive Branch. The Executive Branch does not have the power of the purse and “does not otherwise have the inherent authority as to the grant at issue here to condition the payment of such federal funds on adherence to its political priorities.” Id.; see also City & County of San Francisco v. Trump, 897 F.3d 1225, 1235 (9th Cir. 2018) (“Absent congressional authorization, the Administration may not redistribute or withhold properly appropriated funds in order to
22 This holding, of course, does not disturb § 1373 to the extent it regulates the activities of the federal government. See 8 U.S.C. § 1373(a)–(b) (imposing prohibitions on “Federal . . . government entit[ies] or official[s]”); see also id. § 1373(c) (requiring that federal immigration authorities respond to inquiries); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 508 (2010) (“‘Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem,’ severing any ‘problematic portions while leaving the remainder intact.’” (quoting Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 329 (2006))); Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1049 (9th Cir. 2007) (recognizing that “some of the provisions [of a statute] might be facially invalid, and [others] might not”).
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effectuate its own policy goals.”). The Byrne JAG statute provides “a firm commitment” of funding according to statutorily prescribed criteria, and the Executive Branch does not have “the seemingly limitless power to withhold funds” from grantees who refuse to accept its unilaterally imposed conditions. Train v. City of New York, 420 U.S. 35, 45–46 (1975).
The separation of powers acts as a check on tyranny and the concentration of power. “If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken.” Chicago, 888 F.3d at 277. Because that is what Defendants attempted to do here by imposing the three challenged conditions, these conditions violate the separation of powers.23 Id.; San Francisco, 2018 WL 4859528, at *33; Philadelphia, 309 F. Supp. 3d at 321.
D. Arbitrary and Capricious Agency Action Aside from the three conditions’ statutory and constitutional flaws, Plaintiffs also contend that the conditions are arbitrary and capricious. Pls.’ Reply 24–28. Under the APA, courts must “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Under this standard, the agency is required to “examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). When an agency changes its policy, the agency
23 Because the Court concludes that the separation of powers prevents Defendants from imposing the three conditions at all, the Court need not consider Plaintiffs’ argument that the conditions are impermissibly unrelated or ambiguous under the Spending Clause. See Pls.’ Reply 38–43 & n.34.
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must “‘display awareness that it is changing position’ and ‘show that there are good reasons for the new policy.’” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)). Agency action is arbitrary and capricious if the agency “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” State Farm, 463 U.S. at 43.
In support of the decision to impose the three conditions, Defendants point to five documents in the administrative record: (1) a 2007 audit report by DOJ’s Office of the Inspector General on the cooperation of jurisdictions participating in the State Criminal Alien Assistance Program in the removal of criminal aliens (“2007 OIG Audit”), Holt Decl. Ex. 9, at AR-00001– 109, Doc. 33-9; (2) a May 2016 memorandum from DOJ’s Office of the Inspector General regarding alleged violations of § 1373 by grant recipients (“2016 OIG Memo”), Holt Decl. Ex. 9, at AR-00366–375; (3) a July 2016 memorandum from DOJ’s Office of Justice Programs responding to the aforementioned memo (“2016 OJP Memo”), Holt Decl. Ex. 10, at AR-00384– 391, Doc. 33-10; (4) a one-page “Backgrounder” on the FY 2017 Byrne JAG conditions distributed to the media “on background,” Holt Decl. Ex. 17, at AR-00993, Doc. 33-17; and (5) a July 2017 press release announcing the conditions that accompanied the Backgrounder (“Press Release”), Holt Decl. Ex. 17, at AR-00992.24 See Defs.’ Mem. 24–28.
24 Defendants also cite a declaration from Francisco Madrigal of Immigration and Customs Enforcement, Doc. 52, but because it was not part of the administrative record, the Court may not consider it for purposes of arbitrary-and-capricious review. See Citizens Against Casino Gambling in Erie Cty. v. Chaudhuri, 802 F.3d 267, 279 (2d Cir. 2015) (stating that review is “limited to examining the administrative record” (quoting NRDC v. Muszynski, 268 F.3d 91, 97 (2d Cir. 2001))).
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Defendants claim that the 2007 OIG Audit described a high level of cooperation on immigration between the federal and state governments, which later deteriorated. The audit concluded that “[t]he 99 jurisdictions that responded to the questionnaire stated almost unanimously that there was no legislation or policy impeding the ability of local officers and agencies to communicate with ICE on immigration-enforcement matters,” and noted that “many state, county, and local law enforcement agencies are unwilling to initiate immigration enforcement but have policies that suggest they are willing to cooperate with ICE when they arrest individuals on state or local charges and learn that those individuals may be criminal aliens.” AR-00040–41, -00044.
The 2016 OIG Memo reported on information that “differs significantly from what OIG personnel found nearly 10 years ago during the earlier audit.” AR-00367 n.1. The memo stated that the 10 jurisdictions reviewed had laws or policies that “limited in some way the authority of the jurisdiction to take action with regard to ICE detainers,” and opined that certain policies “may be causing local officials to believe and apply the policies in a manner that prohibits or restricts cooperation with ICE in all respects.” AR-00369, -00373. The memo suggested that DOJ “consider,” among other things, “[r]equir[ing] grant applicants to provide certifications specifying the applicants’ compliance with Section 1373, along with documentation sufficient to support the certification.” AR-00374.
The 2016 OJP Memo concluded that “Section 1373 is an applicable federal law for the purposes of the [Byrne JAG] program,” and stated that OJP had provided guidance to “grantees and applicants with clear direction on the requirements of Section 1373.” AR-00384. The memo noted that “OJP already requires all applicants for any grant program electronically to
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acknowledge and accept” a document that “assures and certifies compliance with all applicable Federal statutes, regulations, policies, guidelines, and requirements.” AR-00385.
The Backgrounder announced that DOJ would impose the Compliance Condition, Access Condition, and Notice Condition on FY 2017 Byrne JAG grantees, stating that these conditions have “the goal of increasing information sharing between federal, state, and local law enforcement” so that “federal immigration authorities have the information they need to enforce the law and keep our communities safe.” AR-00993. The Backgrounder stated that some grantees “have adopted policies and regulations that frustrate the enforcement of federal immigration law, including by refusing to cooperate with federal immigration authorities in information sharing about illegal aliens who commit crimes,” and the new conditions will “prevent the counterproductive use of federal funds for policies that frustrate federal immigration enforcement.” Id. Similarly, the Press Release declared DOJ’s intent to “encourage these ‘sanctuary’ jurisdictions to change their policies and partner with federal law enforcement to remove criminals.” AR-00992.
Conspicuously absent from all of these documents is any discussion of the negative impacts that may result from imposing the conditions, and the record is devoid of any analysis that the perceived benefits outweigh these drawbacks. This absence is particularly glaring given that Assistant Attorney General Peter J. Kadzik, in a 2015 letter to Senator Richard Shelby, stated that withholding Byrne JAG funding to jurisdictions that do not meet immigration-related conditions “would have a significant, and unintended, impact on the underserved local populations who benefit from these programs, most of whom have no connection to immigration
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policy.”25 Holt Decl. Ex. 9, at AR-00113. Defendants did not consider whether the perceived benefits of the conditions outweighed these negative impacts on underserved local populations or whether such impacts could be mitigated. Even though Defendants were aware of these detrimental effects, they are not addressed anywhere in the administrative record. While one may well argue about the weight to be given to such evidence relative to other factors, it cannot simply be ignored. See El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265, 1278 (D.C. Cir. 2005) (holding that agency action was arbitrary and capricious where the agency “failed adequately to address relevant evidence before it”); El Paso Elec. Co. v. FERC, 201 F.3d 667, 672 (5th Cir. 2000) (holding that the agency could not “rely on the potential advantages of [the action] . . . while ignoring the potential disadvantages”). In addition, the documents proffered by Defendants do not reflect that they in any way considered whether jurisdictions’ adherence to the conditions would undermine trust and cooperation between local communities and government, or the extent to which this would harm public welfare or frustrate local law enforcement, which is the very thing that the Byrne JAG program is supposed to assist. See Or. Nat. Res. Council v. Thomas, 92 F.3d 792, 798 (9th Cir. 1996) (“Whether an agency has overlooked ‘an important aspect of the problem’ . . . turns on what a relevant substantive statute makes ‘important.’”).
Defendants “entirely failed to consider an important aspect of the problem” by failing to recognize how the conditions would harm local populations, undermine relationships between local communities and law enforcement, and “interfere[] with local policies that promote public
25 Assistant Attorney General Kadzik also noted that “[i]n many cases . . . the Department does not have the discretion to suspend funding at all,” because “many Department grant funds are formula-based, with the eligibility criteria (and related penalties, if any) set firmly by statute.” AR-00113.
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health and safety.” Philadelphia, 280 F. Supp. 3d at 625 (quoting State Farm, 463 U.S. at 43). Accordingly, the three challenged conditions are arbitrary and capricious.
E. Mandamus Relief The States seek mandamus relief compelling Defendants to reissue their award letters without the three unlawful conditions and to disburse their FY 2017 awards without regard to those conditions.26 Pls.’ Mem. 47–48. Under the Mandamus Act, the Court has jurisdiction “to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Mandamus relief is appropriate only where “(1) the plaintiffs have a right to have the act performed, (2) the defendant is under a clear nondiscretionary duty to perform the act requested, and (3) plaintiff has exhausted all other avenues of relief.” City of New York v. Heckler, 742 F.2d 729, 739 (2d Cir. 1984). Defendants object to mandamus relief on the grounds that they are not legally required to issue the awards. Defs.’ Mem. 51. They point out that the Byrne JAG statute provides that the Attorney General “may” make grants for criminal justice programs. 34 U.S.C. § 10152(a)(1). The full text of this provision reads: (a) Grants authorized
(1) In general From amounts made available to carry out this part, the Attorney General may, in accordance with the formula established under section 10156 of this title, make grants to States and units of local government, for use by the State or unit of local government to provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information
26 As a result of the preliminary injunction obtained by the U.S. Conference of Mayors, of which the City is a member, the City obtained its FY 2017 Byrne JAG award and intends to withdraw its request for mandamus relief, as it confirmed at oral argument. See City’s Oct. 23, 2018 Letter, Doc. 65; see also U.S. Conference of Mayors, slip op. at 2; Evanston, slip op. at 11.
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systems for criminal justice, including for any one or more of the following programs:
(A) Law enforcement programs. (B) Prosecution and court programs. (C) Prevention and education programs. (D) Corrections and community corrections programs. (E) Drug treatment and enforcement programs. (F) Planning, evaluation, and technology improvement programs. (G) Crime victim and witness programs (other than compensation). (H) Mental health programs and related law enforcement and corrections programs, including behavioral programs and crisis intervention teams. Id. As noted above, the Byrne JAG grant is “a formula grant rather than a discretionary grant.” Chicago, 888 F.3d at 285. Thus, in the context of the structure of the statute and the nondiscretionary nature of the Byrne JAG formula grant, the single word “may” does not support the proposition that the Attorney General may withhold grants entirely. Rather, this provision means that the Attorney General may issue grants only for the statutorily prescribed purposes.27 The mandatory nature of this program is clear from § 10156, which provides that “the Attorney General shall . . . allocate” funds pursuant to the statutory formula. 34 U.S.C. § 10156(a)(1) (emphasis added); see San Francisco, 2018 WL 4859528, at *33 (“The Byrne JAG program is a formula grant that requires the Attorney General to disburse funds annually . . . .”); Philadelphia,
27 The subsection heading confirms that the provision is meant to list the particular “[g]rants authorized.” 34 U.S.C. § 10152(a); see Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S. Ct. 883, 893 (2018) (“Although section headings cannot limit the plain meaning of a statutory text, ‘they supply cues’ as to what Congress intended.” (citations omitted)).
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309 F. Supp. 3d at 343–44 (“[T]he JAG statute is a formula (rather than discretionary) grant,
[and] the JAG Program enabling statute is couched in mandatory language.” (citation omitted)).
Defendants also suggest that they are under no statutory deadline to issue grants. Defs.’
Mem. 51. However, an agency’s “unreasonable delay” may be “so egregious as to warrant
mandamus,” which the Court assesses in light of several principles:
(1) the time agencies take to make decisions must be governed by a “rule of reason”; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’”
Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70, 79–80 (D.C. Cir. 1984) (citations
omitted).
As the district court in San Francisco concluded, “[e]ach factor supports mandamus relief
for the Byrne JAG grant”:
For the first two factors, delays beyond a year time frame preclude recipients from receiving their awards when they need them to support more immediate projects or programs. The Byrne JAG program is a formula grant that requires the Attorney General to disburse funds annually . . . . Factor three favors relief because the delay impacts human health and welfare, particularly [because] Byrne JAG funds aid [law enforcement programs]. Similarly, factor five supports relief because the human welfare and community safety [programs] that [Plaintiffs’] grant funding [supports] are at risk of being discontinued for lack of funding and are prejudiced by this delay. Expediting this matter, as discussed in factor four, would not prejudicially affect the federal government’s tangentially related interest in federal immigration enforcement. Finally, the sixth factor . . . would favor relief because DOJ is withholding grant funding based on conditions that violate the separation of powers.
San Francisco, 2018 WL 4859528, at *33–34 (citations omitted); see also Philadelphia, 309 F.
Supp. 3d at 343 (“[I]t bears emphasis that Congress specifically set the JAG Program as an
38

annual award, and the DOJ’s delay has precluded the City from receiving the intended award at such time as the City can make timely use of it.”).
Accordingly, the Court will grant the States mandamus relief compelling Defendants to reissue their award letters without the three unlawful conditions and to disburse their FY 2017 awards without regard to those conditions.
F. Injunctive Relief Plaintiffs seek a permanent injunction to bar Defendants from imposing the three unlawful conditions. Pls.’ Mem. 42–47. A plaintiff seeking a permanent injunction must show “(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” Entergy Nuclear Vt. Yankee, LLC v. Shumlin, 733 F.3d 393, 422 (2d Cir. 2013) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156 (2010)). Each of these factors is satisfied here. As to the first two factors, Plaintiffs have demonstrated an irreparable “constitutional injury” that cannot be adequately compensated by monetary damages because Defendants have imposed on them unlawful conditions that violate the separation of powers. San Francisco, 2018 WL 4859528, at *30; see Scelsa v. City Univ. of N.Y., 806 F. Supp. 1126, 1135 (S.D.N.Y. 1992) (“[A] constitutional deprivation constitutes per se irreparable harm.”). Plaintiffs have also demonstrated that complying with the unlawful conditions would undermine trust between immigrant communities and local government, which would discourage individuals from reporting crimes, cooperating with investigations, and obtaining medical services, thereby harming public safety and welfare. E.g., Pls.’ 56.1 ¶¶ 184, 194. “Trust once lost is not easily
39

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

unnecessary to accord relief to the parties and would short circuit the percolation of these issues in courts around the country. Defs.’ Mem. 52–55.
“Once a constitutional violation is found, a federal court is required to tailor ‘the scope of the remedy’ to fit ‘the nature and extent of the constitutional violation.’” Hills v. Gautreaux, 425 U.S. 284, 293–94 (1976) (quoting Milliken v. Bradley, 418 U.S. 717, 744 (1974)). Although “the scope of a district court’s equitable powers to remedy past wrongs is broad,” Swann v. CharlotteMecklenburg Bd. of Ed., 402 U.S. 1, 15 (1971), “‘injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs’ before the court,” L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)). Thus, “[w]here relief can be structured on an individual basis, it must be narrowly tailored to remedy the specific harm shown,” but “an injunction is not necessarily made over-broad by extending benefit or protection to persons other than prevailing parties in the lawsuit—even if it is not a class action—if such breadth is necessary to give prevailing parties the relief to which they are entitled.” Bresgal v. Brock, 843 F.2d 1163, 1170–71 (9th Cir. 1987) (emphasis omitted).
Here, Plaintiffs have not made a sufficient showing of “nationwide impact” demonstrating that a nationwide injunction is necessary to completely accord relief to them. City & County of San Francisco v. Trump, 897 F.3d 1225, 1244 (9th Cir. 2018). Moreover, the Court notes that of the courts handling the Byrne JAG litigation around the country, only one has issued a nationwide injunction, which was briefly affirmed by the Seventh Circuit, only to be stayed as to the nationwide scope pending en banc review. See generally City of Chicago v. Sessions, No. 17-2991, 2018 WL 4268814, at *1 (7th Cir. Aug. 10, 2018). Since then, each district court to consider a nationwide injunction against the Byrne JAG conditions has stayed
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the injunction’s nationwide scope. See San Francisco, 2018 WL 4859528, at *30; Chicago, 321
F. Supp. 3d at 882. At this juncture, the Court will similarly limit injunctive relief to the parties
before the Court and their political subdivisions.28
IV. Conclusion
Plaintiffs’ motion for partial summary judgment is GRANTED, and Defendants’ motion
for partial summary judgment or in the alternative to dismiss is DENIED. Specifically, the Court
hereby ORDERS as follows:
1. The Notice, Access, and Compliance Conditions are ultra vires and not in accordance with law under the APA. Summary judgment is GRANTED to the States on their Counts II and III and to the City on its Count II.
2. 8 U.S.C. § 1373(a)–(b), insofar as it applies to states and localities, is facially unconstitutional under the anticommandeering doctrine of the Tenth Amendment. Summary judgment is GRANTED to the States on their Count V and to the City on its Counts V and XI.
3. The Notice, Access, and Compliance Conditions violate the constitutional separation of powers. Summary judgment is GRANTED to the States on their Count I and to the City on its Count I. The motions for summary judgment with respect to the City’s Count IV (violation of the Spending Clause) are DENIED as moot.
4. The Notice, Access, and Compliance Conditions are arbitrary and capricious under the APA. Summary judgment is GRANTED to the States on their Count IV and to the City on its Count III.
5. Defendants are MANDATED to reissue the States’ FY 2017 Byrne JAG award documents without the Notice, Access, or Compliance Conditions, and upon acceptance,
28 At oral argument, the States requested that, to the extent the Court limits injunctive relief to the parties, such relief also extend to the States’ political subdivisions, which may be direct grantees or subgrantees of the Byrne JAG program. The political subdivisions experience the same injuries described earlier, which necessarily flow to the States by virtue of the subdivisions’ position within the States’ geographic boundaries and political systems, and which are compounded insofar as the States must make and monitor compliance with subdivisions’ subgrants with unlawful conditions. Accordingly, the Court agrees that in order to accord complete relief to the States, an injunction must protect both the States and their political subdivisions. See California ex rel. Becerra v. Sessions, No. 17 Civ. 04701 (WHO), 2018 WL 6069940, at *1 (N.D. Cal. Nov. 20, 2018) (enjoining the challenged conditions from being imposed on “any California state entity” or “any California political subdivision”).
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 CasCea1s:e181-9c-v2-6076,4D74o-cEuRmenDto1c9u8m, e0n2t/2162/8202F0il,e2d70827/12368/2, 0PaPgea1geof17o7f 77N.Y.S.D. Case #

19‐267 (L)

18-cv-6471(ER)

New York et al. v. United States Dep’t of Justice et al.

18-cv-6474(ER)

In the
United States Court of Appeals
for the Second Circuit

AUGUST TERM 2018 Nos. 19‐267(L); 19‐275(con)

Feb 26 2020

STATE OF NEW YORK, STATE OF CONNECTICUT, STATE OF NEW JERSEY, STATE OF WASHINGTON, COMMONWEALTH OF MASSACHUSETTS,
COMMONWEALTH OF VIRGINIA, STATE OF RHODE ISLAND, CITY OF NEW YORK,
Plaintiffs‐Appellees,

v.

UNITED STATES DEPARTMENT OF JUSTICE, WILLIAM P. BARR, in his official capacity as Attorney General of the United States, Defendants‐Appellants.

On Appeal from the United States District Court for the Southern District of New York
ARGUED: JUNE 18, 2019 DECIDED: FEBRUARY 26, 2020
_____ Before: WINTER, CABRANES, and RAGGI, Circuit Judges.
_____

CERTIFIED COPY ISSUED ON 02/26/2020

CasCea1s:e181-9c-v2-6076,4D74o-cEuRmenDto1c9u8m, e0n2t/2162/8202F0il,e2d70827/12368/2, 0PaPgea2geof27o7f 77
On appeal from a judgment entered in the United States District Court for the Southern District of New York (Edgardo Ramos, Judge), which (1) mandates that defendants release withheld 2017 Byrne Program Criminal Justice Assistance funds to plaintiffs, and (2) enjoins defendants from imposing certain immigration‐related conditions on such grants, defendants argue that the district court erred in holding that the challenged conditions violate the Administrative Procedure Act and the United States Constitution.
REVERSED AND REMANDED.
______________
BRAD HINSHELWOOD (Mark B. Stern, Daniel Tenny, on the brief) for JOSEPH H. HUNT, ASSISTANT ATTORNEY GENERAL, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Defendants‐Appellants.
ANISHA S. DASGUPTA, for LETITIA JAMES, ATTORNEY GENERAL OF THE STATE OF NEW YORK, New York, New York (Barbara D. Underwood, Eric R. Haren, Linda Fang, New York State Office of the Attorney General, New York, New York; Mark Francis Kohler, Michael Skold, for William Tong, Attorney General of the State of Connecticut, Hartford, Connecticut; Jeremy Feigenbaum, for Gurbir S. Grewal, Attorney General of the State of New Jersey, Trenton, New Jersey; Luke Alexander Eaton, for Robert W. Ferguson, Attorney General of the State of Washington, Olympia, Washington; David Urena for Maura Healey, Attorney General of the Commonwealth of Massachusetts, Boston, Massachusetts; Victoria Pearson, for Mark R. Herring,
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Attorney General of the Commonwealth of Virginia, Richmond, Virginia; Michael W. Field, for Peter F. Neronha, Attorney General of the State of Rhode Island, Providence, Rhode Island, on the brief) for Plaintiffs‐ Appellees the States of New York, Connecticut, New Jersey, Washington, Rhode Island, and the Commonwealths of Massachusetts and Virginia.
Jamison Davies, Richard Dearing, Devin Slack, for Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York for Plaintiff‐Appellee the City of New York.
Adam Lurie, Caitlin Potratz Metcalf, Linklaters LLP, Washington, D.C., Counsel for Amicus Curiae American Jewish Committee.
SPENCER E. AMDUR, Lee Gelernt, Omar C. Jadwat, American Civil Liberties Union Foundation, New York, New York; Christopher Dunn, New York Civil Liberties Union, New York, New York; Mark Fleming, Heartland Alliance, Chicago, Illinois; Cody H. Wofsy, American Civil Liberties Union of California Immigrants’ Rights Project, San Francisco, California; Counsel for Amici Curiae American Civil Liberties Union, New York Civil Liberties Union, National Immigrant Justice Center, National Immigration Law Center, Immigrant Legal Resource Center, Asian Americans Advancing Justice— Asian Law Caucus, Washington Defender Association, and the New Orleans Workers’ Center for Racial Justice.
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CasCea1s:e181-9c-v2-6076,4D74o-cEuRmenDto1c9u8m, e0n2t/2162/8202F0il,e2d70827/12368/2, 0PaPgea4geof47o7f 77
REENA RAGGI, Circuit Judge:
INTRODUCTION
The principal legal question presented in this appeal is whether the federal government may deny grants of money to State and local governments that would be eligible for such awards but for their refusal to comply with three immigration‐related conditions imposed by the Attorney General of the United States. Those conditions require grant applicants to certify that they will (1) comply with federal law prohibiting any restrictions on the communication of citizenship and alien status information with federal immigration authorities, see 8 U.S.C. § 1373; (2) provide federal authorities, upon request, with the release dates of incarcerated illegal aliens; and (3) afford federal immigration officers access to incarcerated illegal aliens.
The case implicates several of the most divisive issues confronting our country and, consequently, filling daily news headlines: national immigration policy, the enforcement of immigration laws, the status of illegal aliens in this country, and the ability of States and localities to adopt policies on such matters contrary to, or at odds with, those of the federal government.
Intertwined with these issues is a foundational legal question: how, if at all, should federal, State, and local governments coordinate in carrying out the nation’s immigration policy? There is also a corollary question: to what extent may States and localities seeking federal grant money to facilitate the enforcement of their own laws
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adopt policies to extricate themselves from, hinder, or even frustrate the enforcement of federal immigration laws?
At its core, this appeal presents questions of statutory construction. In proceedings below, the United States District Court for the Southern District of New York (Edgardo Ramos, Judge) determined that the Attorney General was not statutorily authorized to impose the challenged conditions and, therefore, enjoined their application. See New York v. Dep’t of Justice, 343 F. Supp. 3d 213 (S.D.N.Y. 2018). The thoughtful opinion of the district court requires us to examine the authorization question in detail. For reasons explained in this opinion, we conclude that the plain language of the relevant statutes authorizes the Attorney General to impose the challenged conditions.
In concluding otherwise, the district court relied on, among other things, an opinion of the Seventh Circuit in City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018). While mindful of the respect owed to our sister circuits, we cannot agree that the federal government must be enjoined from imposing the challenged conditions on the federal grants here at issue. These conditions help the federal government enforce national immigration laws and policies supported by successive Democratic and Republican administrations. But more to the authorization point, they ensure that applicants satisfy particular statutory grant requirements imposed by Congress and subject to Attorney General oversight.
Nor can we agree with the district court that the challenged conditions impermissibly intrude on powers reserved to the States.
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See U.S. CONST. Amend. X. As the Supreme Court has repeatedly observed, in the realm of immigration policy, it is the federal government that maintains “broad,” Arizona v. United States, 567 U.S. 387, 394 (2012), and “preeminent,” power, Toll v. Moreno, 458 U.S. 1, 10 (1982), which is codified in an “extensive and complex” statutory scheme, Arizona v. United States, 567 U.S. at 395. Thus, at the same time that the Supreme Court has acknowledged States’ “understandable frustrations with the problems caused by illegal immigration,” it has made clear that a “State may not pursue policies that undermine federal law.” Id. at 416. As Chief Justice John Marshall wrote over 200 years ago, “the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government.” McCulloch v. Maryland, 17 U.S. 316, 436 (1819). This fundamental principle, a bedrock of our federalism, is no less applicable today. Indeed, it pertains with particular force when, as here, Congress acts pursuant to its power under the Spending Clause. See U.S. CONST. art. I, § 8.
BACKGROUND
Invoking this court’s interlocutory jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), defendants the United States Department of Justice and the Attorney General of the United States (hereinafter, collectively, “DOJ”) appeal from an award of partial summary judgment entered on November 30, 2018. See New York v. Dep’t of Justice, 343 F. Supp. 3d 213 (S.D.N.Y. 2018). That judgment grants
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plaintiffs, the States of New York, Connecticut, New Jersey, Rhode Island, and Washington, the Commonwealths of Massachusetts and Virginia (hereinafter, collectively, the “States”), and the City of New York (the “City”), injunctive relief from three immigration‐related conditions imposed by DOJ on the receipt of 2017 Byrne Program Criminal Justice Assistance grants (“Byrne grants”). Those conditions required 2017 Byrne grant applicants (1) to certify their willingness to comply with 8 U.S.C. § 1373, which law precludes government entities and officials from prohibiting or restricting the sharing of citizenship or alien‐status information with federal immigration authorities (the “Certification Condition”); (2) to provide assurance that, upon written request of federal immigration authorities, grant recipients would provide notice of an incarcerated alien’s scheduled release date (the “Notice Condition”); and (3) to certify that grant recipients would afford federal authorities access to State‐ incarcerated suspected aliens in order for those authorities to determine the aliens’ right to remain in the United States (the “Access Condition”).1 The district court’s judgment not only enjoins DOJ from enforcing these three requirements as to any of plaintiffs’ 2017 Byrne grants (which DOJ has otherwise awarded), but also mandates that DOJ release the withheld 2017 funds to plaintiffs without regard to the challenged conditions. See id. at 245–46; App. at 45 (modifying mandate).
1 Defendants have imposed still further conditions on 2018 Byrne grants, which plaintiffs also challenge before the district court. Because no judgment has yet been entered on that part of plaintiffs’ case, we do not address plaintiffs’ challenge to those conditions on this appeal.
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Three of our sister circuits have now upheld injunctions precluding enforcement of some or all of the challenged conditions as to other jurisdictions applying for Byrne grants. See City of Los Angeles v. Barr, 941 F.3d 931 (9th Cir. 2019) (ruling as to Notice and Access Conditions); City of Philadelphia v. Attorney Gen., 916 F.3d 276 (3d Cir. 2019) (ruling as to all three conditions); City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018) (ruling as to Notice and Access Conditions), reh’g en banc granted in part, opinion vacated in part, No. 17‐2991, 2018 WL 4268817 (7th Cir. June 4, 2018) (vacating nation‐wide injunction), reh’g grant vacated, No. 17‐2991, 2018 WL 4268814 (7th Cir. Aug. 10, 2018). The district court relied on the Seventh Circuit decision in entering the challenged judgment, see New York v. Dep’t of Justice, 343 F. Supp. 3d at 226–45; the later Third and Ninth Circuit decisions were not then available to it.
In urging reversal, DOJ argues that the district court erred in holding that the challenged conditions violate the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., and the Constitution. As to the APA, DOJ faults the district court for holding that (1) the Attorney General (and his designee, the Assistant Attorney General (“AAG”)) lacked the requisite statutory authority to impose the challenged conditions; and (2) the conditions are, in any event, arbitrary and capricious because DOJ failed to consider their negative ramifications for applicants. As to the Constitution, DOJ argues that (1) the district court having found the conditions invalid under the APA, there was no need for it to consider their constitutionality; and (2) the challenged conditions do not raise either the separation‐of‐ powers or Tenth Amendment concerns identified by the district court.
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For reasons explained herein, we conclude that the challenged conditions do not violate either the APA or the Constitution. We therefore reverse the challenged judgment in favor of plaintiffs and remand the case to the district court for further proceedings consistent with this opinion.
I. The Byrne Justice Assistance Grant Program The Edward Byrne Memorial Justice Assistance Grant Program
(“Byrne Program”), codified at 34 U.S.C. §§ 10151–10158, is the vehicle through which Congress annually provides more than $250 million in federal funding for State and local criminal justice efforts.2 The Byrne Program was created in 2006 as part of the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109‐162, § 1111, 119 Stat. 2960, 3094 (2006). That Act amended provisions of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90‐351, tit. I, 82 Stat. 197, which itself had
2 The Byrne Program is named for New York City Police Officer Edward Byrne who, at age 22, was shot to death while guarding the home of a Guyanese immigrant cooperating with authorities investigating drug trafficking. The case is well known in this circuit, where five persons were convicted in the Eastern District of New York for their roles in Byrne’s murder. Among these was Howard “Pappy” Mason, a drug dealer who, from his New York State prison cell, ordered subordinates to kill a police officer in retaliation for Mason’s own incarceration. See Joseph P. Fried, Officer Guarding Drug Witness Is Slain, N.Y. Times, Feb. 27, 1988, at A1, 34; Leonard Buder, Trial Is By a Defendant In Police Slaying, N.Y. Times, Nov. 29, 1989, at B5.
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provided federal funding for State and local law enforcement initiatives.
The Byrne Program is a formula grant program, i.e., Congress appropriates a fixed amount of funding for the program and specifies “how the funds will be allocated among the eligible recipients, as well as the method by which an applicant must demonstrate its eligibility for that funding.” Office of Justice Programs, Grant Process Overview.3 The Byrne Program’s statutory formula awards the States 50% of allocated funds based on their relative populations, see 34 U.S.C. § 10156(a)(1)(A), and the other 50% based on their relative rates of violent crime, see id. § 10156(a)(1)(B). The formula further provides that, of total Byrne funds awarded to a State, the State itself keeps 60%, with the remaining 40% percent allocated to local governments within the State. See id. § 10156(b).
Congress affords States and localities wide discretion in using Byrne grants. While awarded funds cannot substitute for a state’s own expenditures, see id. § 10153(a)(1), Byrne grants may be used to support such diverse needs as “additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems,” pertaining to a broad range of criminal justice initiatives:
(A) Law enforcement programs. (B) Prosecution and court programs. (C) Prevention and education programs. (D) Corrections and community corrections
3 Available at http://go.usa.gov/xPmkA (last visited Feb. 24, 2020).
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programs. (E) Drug treatment and enforcement programs. (F) Planning, evaluation, and technology improvement programs. (G) Crime victim and witness programs (other than compensation). (H) Mental health programs and related law enforcement and corrections programs, including behavioral programs and crisis intervention teams,
id. § 10152(a). As Congress has explained, its intent was thus to afford States and localities the “flexibility to spend money for programs that work for them rather than to impose a ‘one‐size fits all’ solution.” H.R. REP. NO. 109‐233, at 89 (2005), as reprinted in 2005 U.S.C.C.A.N. 1636, 1640.
Plaintiffs have received Byrne grants each year since that program’s inception. They have used these grants for a variety of purposes, including, but not limited to, supporting various investigative task forces, funding both prosecutors’ and public defenders’ offices, paying 911 operators, improving their criminal records systems and forensic laboratories, identifying and mentoring criminally at‐risk youth and young adults, operating drug courts and diversion programs for nonviolent felony offenders, mitigating gang violence in prison, and funding prisoner re‐entry services.
While the Byrne fund‐distribution formula is statutorily mandated, and while Byrne applicants can use such funds for almost any law‐enforcement‐related purpose, no State or locality is automatically entitled to receive a Byrne grant. Rather, a jurisdiction seeking Byrne funding must submit an application satisfying a host of statutory requirements. For example, a jurisdiction is statutorily
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required to make its Byrne Program application public and to afford an opportunity for public comment before submitting its final application to the Attorney General. See 34 U.S.C. § 10153(a)(3)(A)– (B). Also, a Byrne grant application must include a “comprehensive Statewide plan” detailing, as specified in § 10153(a)(6)(A)–(E), how awarded grants will be used to improve the jurisdiction’s criminal justice system. A Byrne grant applicant must satisfy these, and all other statutory requirements, “in such form as the Attorney General may require,” id. § 10153(a), and subject to such “rules” as the Attorney General “shall issue” to carry out the program, id. § 10155.4
Three statutory requirements for Byrne grants are particularly relevant to this appeal. First, an applicant must certify that it “will comply with all provisions of this part [i.e., part of chapter pertaining to Byrne Program] and all other applicable Federal laws.” Id. § 10153(a)(5)(D). Second, an applicant must provide assurance that it “shall maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require.” Id. § 10153(a)(4). Third, an applicant must certify
4 The APA defines the term “rule” broadly to mean “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing organization, procedure, or practice requirements of an agency . . . .” 5 U.S.C. § 551(4); see Safari Club Int’l v. Zinke, 878 F.3d 316, 332 (D.C. Cir. 2017) (recognizing that APA defines “rule” “very broadly” (internal quotation marks omitted)). At the same time, the APA exempts rules pertaining to grants from the notice‐and‐comment procedures generally attending federal rule‐making. See 5 U.S.C. § 553(a)(2); City of Los Angeles v. McLaughlin, 865 F.2d 1084, 1087 (9th Cir. 1989); cf. Richard B. Cappalli, Rights and Remedies Under Federal Grants 247 (1979) (observing that “a significant number of formula [grant] programs contain no mention of Due Process rights”).
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that “there has been appropriate coordination with affected agencies.” Id. § 10153(a)(5)(C).
The Attorney General’s authority to disapprove Byrne applications not satisfying the program’s statutory requirements is implicit in the statutory provision tempering that authority with a required opportunity for correction: the Attorney General “shall not finally disapprove” a deficient application “without first affording the applicant reasonable notice of any deficiencies in the application and opportunity for correction and reconsideration.” Id. § 10154. The authority to deny funds is further evident in Congress’s instruction as to how appropriated funds are to be distributed if the Attorney General determines “that a State will be unable to qualify or receive [Byrne Program] funds”: that State’s allocation under the statutory formula “shall be awarded by the Attorney General to units of local government, or combinations thereof, within such State,” giving priority to those with the highest reported number of violent crimes. Id. § 10156(f). Such denial authority is, moreover, consistent with the discretion Congress has afforded the Attorney General to waive certain statutory program requirements, see id. § 10152(c)(2), and to develop “guidelines” for the statutorily required “program assessment component” of every Byrne grant that is awarded, id. § 10152(c)(1).
The Attorney General is statutorily authorized to delegate the “powers and functions” thus vested in him by Title 34 to the AAG responsible for DOJ’s Office of Justice Programs, which office now administers the Byrne Program. Id. § 10102(a)(6). Congress has made
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plain that the powers and functions that may be so delegated “includ[e] placing special conditions on all grants, and determining priority purposes for formula grants.” Id.
II. The Challenged Immigration‐Related Conditions
In soliciting 2017 applications for Byrne Program grants, then‐ Attorney General Jefferson B. Sessions III, on July 25, 2017, announced the three immigration‐related conditions at issue in this case.
First, the Certification Condition requires a Byrne grant applicant to execute a “Certification of Compliance with 8 U.S.C. § 1373.” App. at 288, ¶¶ 52–53. That statute, which the Attorney General identified as an “applicable Federal law” for purposes of the certification requirement of 34 U.S.C. § 10153(a)(5)(D), see supra at 12, states, in pertinent part, as follows:
Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service5 information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
5 The Immigration and Naturalization Service, which had been a part of DOJ, see 8 U.S.C. § 1101(a)(34), was disbanded in 2002, see 6 U.S.C. § 291, and its duties divided among three services operating within the new cabinet‐level Department of Homeland Security: the United States Citizenship and Immigration Service, the Immigration and Customs Enforcement Service, and the Customs and Border Protection Service, see id. §§ 111, 211, 251–52, 271.
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18 U.S.C. § 1373(a). The Certification Condition thus requires that,
with respect to the “program or activity” funded in whole or part under this award (including any such “program or activity” of any subrecipient at any tier), throughout the period of performance for the award, no State or local government entity, ‐agency, or ‐official may prohibit or in any way restrict—(1) any government entity or ‐official from sending or receiving information regarding citizenship or immigration status as described in 8 U.S.C. § 1373(a); or (2) a government entity or ‐agency from sending, requesting or receiving, maintaining, or exchanging information regarding immigration status as described in 8 U.S.C. § 1373(b).
App. at 288–89, ¶¶ 52–53.
Second, the Notice Condition requires Byrne grant recipients to have in place throughout the grant period a law, rule, or policy for informing federal authorities, upon request, of the scheduled release date of an alien in the recipient’s custody. It states that,
as of the date the recipient accepts [a Byrne] award, and throughout the remainder of the period of performance for the award— . . . A State statute, or a State rule, ‐regulation, ‐policy, or ‐practice, must be in place that is designed to ensure that, when a State (or State‐contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will
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honor such request and—as early as practicable . . .— provide the requested notice to DHS.
Id. at 291, ¶ 55(1)(B).
Finally, the Access Condition requires grant recipients to have a law, rule, or policy in place allowing federal authorities to meet with incarcerated aliens in order to inquire about their rights to remain in the United States. It states that,
as of the date the recipient accepts [a Byrne] award, and throughout the remainder of the period of performance for the award— . . . A State statute, or a State rule, ‐regulation, ‐policy, or ‐practice, must be in place that is designed to ensure that agents of the United States acting under color of federal law . . . are given . . . access [to] any State (or State‐ contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals’ rights to be or remain in the United States.
Id. at 291, ¶ 55(1)(A).
In announcing these conditions, Attorney General Sessions stated an intent to “increase information sharing between federal, state, and local law enforcement, ensuring that federal immigration authorities have the information they need to enforce immigration laws and keep our communities safe.” Press Release, Attorney General Sessions Announces Immigration Compliance Requirements
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for Edward Byrne Memorial Justice Assistance Programs (July 25, 2017).6 The Attorney General was specifically critical of “[s]o‐called ‘sanctuary’ policies [that] make all of us less safe because they intentionally undermine our laws and protect illegal aliens who have committed crimes.” Id. He stated that DOJ needed to “encourage these ‘sanctuary’ jurisdictions to change their policies and partner with federal law enforcement to remove [alien] criminals.” Thus, “[f]rom now on,” DOJ would “only provide Byrne JAG grants to cities and states that comply with federal law, allow federal immigration access to detention facilities, and provide 48 hours[’] notice before they release an illegal alien wanted by federal authorities.” Id.7
III. Title 8 U.S.C. § 1373 Because an understanding of how 8 U.S.C. § 1373 became the
focus of the Certification Condition is useful to a consideration of plaintiffs’ challenge to that condition, we set forth that history here.
Section 1373 was enacted in 1996, when Congress took notice that certain states and localities were restricting their officials’ cooperation with federal immigration authorities. See generally H.R. REP. NO. 104‐725, at 391 (1996) (Conf. Rep.), as reprinted in 1996 U.S.C.C.A.N. 2649, 2779 (noting that various state statutes and local
6 Available at https://www.justice.gov/opa/pr/attorney‐general‐sessions‐ announces‐immigration‐compliance‐requirements‐edward‐byrne‐memorial. 7 As indicated in the text quoted supra at 15–16, the actual Notice Condition sets no firm 48‐hour deadline but, rather, requires notification “as early as practicable.”
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laws prevent disclosure of individuals’ immigration status to federal officials).8
Members of the Senate Judiciary Committee voiced particular concern with granting federal funds to “State and local governments passing ordinances and rules which prohibit State and local agencies from cooperating or communicating with INS.” See The Impact of Immigration on the United States and Proposals to Reform U.S. Immigration Laws: Hearing Before the Subcomm. on Immigration and Refugee Affairs of the Comm. on the Judiciary, 103d Cong. 45 (1994) [hereinafter Immigration Reform Hearings] (statement of Sen. Simpson, R. Wyo. (“I believe cooperation has to be [a] condition[] for any Federal reimbursement. In other words, you are not going to get bucks from the Federal Government if the local governments can’t communicate with the INS about illegal immigration and those who are involved in it.”)); see also id. at 26 (statement of Sen. Feinstein, D.
8 This conference report specifically pertains to 8 U.S.C. § 1644, a provision of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. 104‐193), which states that, “notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States.” As this court has recognized, § 1373, enacted a month after § 1644 as part of the Immigration Reform Act, “expands” on the earlier statute insofar as it provides generally that no Federal, State, or local government entity may restrict another government entity from sending to, or receiving from INS, any immigration status information. See City of New York v. United States, 179 F.3d 29, 32 (2d Cir. 1999) (rejecting constitutional challenge to both laws). Thus, the conference report pertaining to § 1644 is relevant to § 1373.
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Cal. (signaling that she would not support providing immigration “impact aid” to “States and local governments that declined to cooperate in enforcement of [federal immigration] laws”));9 id. (statement of Committee Chairman Sen. Kennedy, D. Mass. (acknowledging concerns of some mayors that cooperation with federal immigration authorities could be counterproductive to local law enforcement efforts, and observing that federal aid had to be provided “in ways that are going to get the[ir immigration] cooperation but also, . . . [allow them] to deal with . . . violence and gangs and drug problems and the rest. We are looking for balance . . . .”)).
In its report accompanying the proposed legislation that would become § 1373, the Senate Judiciary Committee expressly recognized that the “acquisition, maintenance, and exchange of
9 Senator Feinstein’s comment was made in signaling agreement with a recommendation of the Commission on Immigration Reform, a body created by Congress in 1990 to “evaluate the impact of” changes in federal immigration law. The relevant exchange is as follows:
Commissioner Teitelbaum: There is a further condition [on recommended immigration impact aid] that was unanimously supported by the Commission . . . [and] it should be highlighted, and that is a requirement for cooperation by State and local governments with Federal authorities to enforce the immigration laws of the United States. I don’t think the Commission would support the notion of impact aid for States and local governments that declined to cooperate in enforcement of such laws.
Senator Feinstein: Nor would I, sir, so I agree with you.
Immigration Reform Hearings, 103d Cong. at 26.
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immigration‐related information by State and local agencies is consistent with, and potentially of considerable assistance to, the Federal regulation of immigration and the achieving of the purposes and objectives of the Immigration and Nationality Act.” S. REP. NO. 104‐249, at 19–20 (1996) (quoted in City of New York v. United States, 179 F.3d at 32–33). Thus, in enacting § 1373, as in enacting § 1644, Congress sought “to give State and local officials the authority to communicate with [federal immigration authorities] regarding the presence, whereabouts, or activities of illegal aliens,” notwithstanding any local laws to the contrary. H.R. REP. NO. 104‐ 725, at 383 (Conf. Rep.), as reprinted in 1996 U.S.C.C.A.N. at 2771 (quoted in City of New York v. United States, 179 F.3d at 32).
In the twenty years that followed, political debates over federal immigration policies grew more contentious, and the number of State and local jurisdictions limiting official cooperation with federal immigration authorities increased. In February 2016, Representative John Culberson (R. Tex.), then the Chairman of the House Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies, forwarded to Attorney General Loretta E. Lynch a report by the Center for Immigration Studies, which concluded that “over 300 ‘sanctuary’ jurisdictions [were] refus[ing] to comply with [federal immigration] detainers or [were] otherwise imped[ing] information sharing with federal immigration officials.” App. at
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134.10 Representative Culberson asked the Attorney General to investigate whether DOJ “grant recipients were complying with federal law, particularly . . . § 1373.” Id. (emphasis added).
The ensuing investigation was conducted by DOJ’s Inspector General (“IG”) who, in May 2016, reported a significant, decade‐long decline in state and local cooperation with federal immigration authorities. He reported that a 2007 congressionally mandated IG audit of seven jurisdictions then receiving federal funds pursuant to the State Criminal Alien Assistance Program (“SCAAP”) revealed that all but one (San Francisco) were accepting federal detainers and providing federal authorities with timely notice of aliens’ release dates. See App. at 134–35 n.1. By contrast, the IG’s 2016 examination of ten jurisdictions receiving a combined 63% of relevant DOJ grants,11
10 An immigration detainer is the instrument by which federal authorities formally “advise another law enforcement agency that [they] seek[] custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien.” 8 C.F.R. § 287.7(a). Supported by an administrative warrant issued on a showing of probable cause, the detainer generally requests the agency then having custody of the alien to provide federal authorities with advance notice of the alien’s intended release date or to detain the alien for a brief time to allow federal authorities to assume custody. See U.S. Immigration and Customs Enf’t, Fiscal Year 2017 ICE Enforcement and Removal Operations Report 7–8 (2017); see also Hernandez v. United States, 939 F.3d 191, 200 (2d Cir. 2019).
11 The IG reviewed ten jurisdictions receiving federal grants administered by the DOJ’s Office of Justice Programs (e.g., Byrne Program grants) and/or the DOJ’s Office of Violence Against Women: “the States of Connecticut and California; City of Chicago, Illinois; Clark County, Nevada; Cook County, Illinois; Miami‐Dade
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revealed that “all . . . had ordinances or policies that placed limits on cooperation” with federal immigration authorities. Id.; see id. at 137, 145–49 (detailing limitations found).12 The IG observed that insofar
County, Florida; Milwaukee County, Wisconsin; Orleans Parish, Louisiana; New York, New York; and Philadelphia, Pennsylvania.” App. at 136.
12 To illustrate with some examples, the IG reported that Cook County, Illinois (Chicago), prohibited its on‐duty employees from communicating with federal immigration authorities “regarding individuals’ incarceration status or release dates.” Id. at 140 (internal quotation marks omitted). Similarly, Orleans Parish, Louisiana (New Orleans) prohibited its officials from “provid[ing] information on an inmate’s release date” to federal authorities. Id. By executive order, Philadelphia employees were prohibited from providing federal authorities with release date information about the subject of an immigration detainer unless that person was incarcerated “for a first or second degree felony involving violence and the detainer is supported by a judicial warrant,” and not merely an administrative one. Id. at 141 (internal quotation marks omitted).
New York City appears to have placed restrictions on its employees’ cooperation with federal immigration authorities as early as 1989. See City of New York v. United States, 179 F.3d at 31 (discussing 1989 executive order prohibiting city officials or employees from communicating individual’s immigration status to federal authorities unless (1) required to do so by law, (2) expressly authorized to do so by alien, or (3) alien is suspected of criminal behavior). Then, in a 2003 Executive Order, the City established a “General Confidentiality Policy” summarized by the district court as follows:
City employees may not disclose an individual’s immigration status, except in limited circumstances, such as when the disclosure is authorized by the individual, is required by law, is to another City employee as necessary to fulfill a governmental purpose, pertains to an individual suspected of illegal activity (other than mere status as an undocumented immigrant), or is necessary to investigate or apprehend persons suspected of terrorist or illegal activity (other than mere documented status). Additionally, police
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as these limitations “may be causing local officials to believe and apply the[se] policies in a manner that prohibits or restricts cooperation with [federal immigration officials] in all respects,” that would be “inconsistent with and prohibited by Section 1373.” Id. at 141. Thus, “to the extent [DOJ]’s focus is on ensuring that grant applicants comply with Section 1373,” the IG stated that it could consider taking “several steps,” including (1) clarifying that § 1373 “is an ‘applicable federal law’” that DOJ grant recipients “would be expected to comply with in order to satisfy relevant grant rules and regulations”; and (2) “[r]equir[ing] grant applicants to provide certifications specifying the applicants’ compliance with Section 1373, along with documentation sufficient to support the certification.” Id. at 142.
Following this IG report, in July 2016, DOJ, then still headed by Attorney General Lynch, specifically identified § 1373 as “an
officers may not inquire about a person’s immigration status unless investigating illegal activity other than mere undocumented status, and may not inquire about the immigration status of crime victims or witnesses at all. Other city employees may not inquire about any person’s immigration status unless the inquiry is required by law or is necessary to determine eligibility for or to provide government services.
New York v. Dep’t of Justice, 343 F. Supp. 3d at 223 (citations omitted). The IG reported that by law enacted in November 2014, New York City further prohibited its Corrections personnel from communicating inmate release dates to federal immigration authorities unless the inmate is subject to a detainer supported by a judicial warrant. See App. at 141.
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applicable federal law” for purposes of both Byrne and SCAAP grants and began providing applicants and recipients with guidance as to the requirements of that statute. That guidance explained that § 1373 imposed no affirmative obligation on States and localities but, rather, prohibited such entities from taking actions to restrict the exchange of immigration information with federal authorities.13 For some jurisdictions identified by the IG, notably plaintiff New York City, DOJ conditioned the continuance of their 2016 Byrne grants on the submission of documentation validating their compliance with § 1373.14
13 In that respect, DOJ stated,
Section 1373 does not impose on states and localities the affirmative obligation to collect information from private individuals regarding their immigration status, nor does it require that states and localities take specific actions upon obtaining such information. Rather, the statute prohibits government entities and officials from taking action to prohibit or in any way restrict the maintenance or intergovernmental exchange of such information, including through written or unwritten policies or practices.
App. at 151 (internal quotation marks omitted).
14 The validation requirement imposed by DOJ on New York City’s 2016 Byrne grant stated as follows:
The recipient agrees to undertake a review to validate its compliance with 8 U.S.C. § 1373. If the recipient determines that it is in compliance with 8 U.S.C. § 1373 at the time of review, then it must submit documentation that contains a validation to that effect and includes an official legal opinion from counsel (including related legal analysis) adequately supporting the validation. If the
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In October 2016, DOJ published further guidance stating that henceforth, “all” Byrne grant applicants “must certify compliance with all applicable federal laws, including Section 1373.” App. at 182. Grant applicants were advised “to examine their policies and procedures to ensure they will be able to submit the required assurances” in their 2017 applications. Id. at 183.
Thus, when in July 2017, a new Attorney General, serving a new, Republican administration, announced that applicants for 2017 Byrne grants would have to certify their compliance with § 1373, he was putting into effect the same condition earlier announced by DOJ under the preceding, Democratic administration.
recipient determines that it is not in compliance with 8 U.S.C. § 1373 at the time of review, then it must take sufficient and effective steps to bring it into compliance therewith and thereafter submit documentation that details the steps taken, contains a validation that the recipient has come into compliance, and includes an official legal opinion from counsel (including related legal analysis) adequately supporting the validation. Documentation must be submitted . . . by June 30, 2017. Failure to comply with this condition could result in the withholding of grant funds, suspension or termination of the grant, ineligibility for future [grants], or other administrative, civil, or criminal penalties as appropriate.
App. at 170, ¶ 53. By letter dated June 27, 2017, the City stated that “[n]otwithstanding [its] position that § 1373 is not an applicable federal law . . . the City certifies that its laws and policies comply with and operate within the constitutional bounds of § 1373.” 2016 Compliance Validation at 2, New York v. Dep’t of Justice, 343 F. Supp. 3d 213 (No. 18‐cv‐6474), ECF No. 41‐1.
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IV. Plaintiffs’ 2017 Byrne Grant Awards On June 26, 2018, DOJ applied the Byrne Program formula to
award the plaintiff States Byrne grants totaling $25 million—subject to their acceptance of the three immigration‐related conditions at issue. As to New York City, DOJ reiterated, in both October 2017 and January 2018, the concerns it had first expressed in 2016, i.e., that certain of the City’s laws or policies appeared to violate § 1373, which could render it ineligible for Byrne grants. See supra at n.14.
In response to these DOJ actions, the plaintiff States and City filed the instant related actions, challenging, inter alia, the Certification, Notice, and Access Conditions for 2017 Byrne grants as violative of both the APA and the Constitution.
V. The Award of Summary Judgment to Plaintiffs On the parties’ cross motions for summary judgment, the
district court granted partial judgment to plaintiffs, enjoining the enforcement of the challenged conditions as to them and mandating the release of 2017 Byrne grant funds to plaintiffs.
In so ruling, the district court held that the challenged conditions violated the APA in two respects: (1) the Attorney General lacked the statutory authority to impose the conditions, see New York v. Dep’t of Justice, 343 F. Supp. 3d at 22731; and (2) defendants’ failure to consider the conditions’ potential negative ramifications for plaintiffs’ law enforcement efforts rendered the conditions arbitrary and capricious, see id. at 23841.
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While the district court could have stopped there, it proceeded also to rule on certain of plaintiffs’ constitutional challenges. As to § 1373 in particular, the district court ruled that DOJ could not identify it as an “applicable law” requiring compliance certification under 34 U.S.C. § 10153(a)(5)(D) because, on its face, § 1373 violates the anticommandeering principle of the Tenth Amendment to the Constitution. See id. at 23137. Further, the district court concluded that, in the absence of statutory authority for the Attorney General to impose the challenged conditions, all three violated the separation of legislative and executive powers mandated by Articles I and II of the Constitution. See id. at 238.
Defendants timely appealed.
DISCUSSION
We review an award of summary judgment de novo, construing the record in the light most favorable to the non‐moving party. See, e.g., Bentley v. Autozoners, 935 F.3d 76, 85 (2d Cir. 2019). We will uphold such an award only if there is no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law. See id.
I. Statutory Authorization To Impose the Challenged Conditions
Except when acting pursuant to powers expressly conferred on the Executive Branch by the Constitution—which are not asserted here—an executive department or agency “literally has no power to act . . . unless and until Congress confers power upon it.” Louisiana
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Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). Thus, the APA requires that executive action taken in the absence of statutory authority be declared invalid. See 5 U.S.C. § 706(2)(C).15 When the challenged action is not only unauthorized but also intrusive on power constitutionally committed to a coordinate branch, the action may violate the Constitution, specifically, its mandate for the separation of legislative from executive powers.16
DOJ maintains that the Attorney General was statutorily authorized to impose each of the challenged conditions. Whether Congress conferred such authority depends on statutory text, which we construe de novo. See Kidd v. Thomson Reuters Corp., 925 F.3d 99,
15 The relevant statutory text states as follows:
[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . in excess of statutory jurisdiction, authority, or limitations, or short of statutory right . . . . 5 U.S.C. § 706(2)(C).
16 See generally New York v. United States, 505 U.S. 144, 182 (1992) (“[S]eparation of powers . . . is violated where one branch invades the territory of another.”). But see Dalton v. Specter, 511 U.S. 462, 472 (1994) (explaining that not every action “in excess of . . . statutory authority is ipso facto in violation of the Constitution,” and distinguishing between “claims of constitutional violations and claims that an official has acted in excess of his statutory authority”).
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103 (2d Cir. 2019); United States v. Shyne, 617 F.3d 103, 106 (2d Cir. 2010).17
A. Title 34 U.S.C. § 10102(a)(6) Does Not Itself Authorize the Challenged Conditions
Because DOJ devotes considerable energy on this appeal, as it did in the district court, to arguing that the challenged conditions are authorized by 34 U.S.C. § 10102(a)(6), we explain at the outset why that argument does not persuade. We will then discuss sections of Title 34 that do authorize the conditions at issue.
At the conclusion of a list of criminal‐justice‐related duties assigned to the AAG, § 10102(a)(6) authorizes the AAG,
[to] exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.
17 Defendants have not claimed Chevron deference for their own interpretation of the authority conferred by statutes pertaining to Byrne grants and, thus, on this appeal, we do not consider whether any such deference might be warranted. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 845 (1984); compare Neustar, Inc. v. FCC, 857 F.3d 886, 894 (D.C. Cir. 2017) (holding Chevron deference “forfeited” where not claimed on appeal), with Sierra Club v. United States Dep’t of the Interior, 899 F.3d 260, 286 (4th Cir. 2018) (explaining in case where parties assumed Chevron deference that parties “cannot waive the proper standard of review by failing to argue it” (internal quotation marks omitted)). Rather, we conclude on de novo review that the challenged conditions are statutorily authorized.
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34 U.S.C. § 10102(a)(6) (emphasis added). Focusing on the highlighted language, DOJ argues that § 10102(a)(6) does not merely authorize the Attorney General to delegate powers and functions to the AAG, but also grants “addition[al]” authority, which supports the three challenged conditions. Appellant Br. at 22; see Reply Br. at 4–5.
In rejecting this argument, the district court held that the highlighted text is not a “‘stand‐alone grant of authority to the Assistant Attorney General to attach any conditions to any grants.’” New York v. Dep’t of Justice, 343 F. Supp. 3d at 228 (quoting City of Chicago v. Sessions, 888 F.3d at 285). Rather, the introductory word “including” signals that the ensuing phrase is necessarily cabined by what went before it.
Thus, the Assistant Attorney General can only place special conditions or determine priority purposes to the extent that power already “may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General[,]” . . . who may only delegate it to the extent that he has such power himself.
Id. (quoting 34 U.S.C. § 10102(a)(6)).
This conclusion finds support not only in City of Chicago v. Sessions, the Seventh Circuit decision quoted by the district court, but also in subsequent decisions of the Third and Ninth Circuits. See City of Los Angeles v. Barr, 941 F.3d at 93839; City of Philadelphia v. Attorney Gen., 916 F.3d at 28789. We agree with that much of these courts’ decisions.
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Depending on context, the word “including” can be either illustrative or enlarging. Compare Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (construing word as illustrative of preceding section), with American Sur. Co. of N.Y. v. Marotta, 287 U.S. 513, 517 (1933) (observing that, “[i]n definitive provisions of statutes,” word frequently signifies extension rather than limitation), and Adams v. Dole, 927 F.2d 771, 776–77 (4th Cir. 1991) (noting dual meaning of word). The context here signals illustration rather than enlargement. It is the “other powers and functions” that may be vested in or delegated to the AAG that can “include” the authority to impose special conditions and to set priority purposes for Byrne Program grants. Thus, § 10102(a)(6) does not itself confer authority on the Attorney General (or AAG) to impose the conditions here at issue. The authority must originate in other provisions of law. That is the case here.
B. Statutory Provisions Authorizing the Attorney General To Impose the Challenged Conditions
1. Other Circuits Identify No Such Authority
In looking to whether the Attorney General is otherwise authorized to impose the challenged conditions, we are mindful that three sister circuits have considered that question before us and concluded that he is not. Their reasons for so holding have not been uniform.
The Seventh Circuit so ruled with respect to the Notice and Access Conditions, reasoning that no provision of law outside § 10102(a)(6) specifically mentions “special conditions” or “priority
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purposes” for Byrne grants. See City of Chicago v. Sessions, 888 F.3d at 285.
The Ninth Circuit did not think that omission determinative. Reasoning that Congress could not have enacted § 10102(a)(6) “for the purpose of expressly authorizing the Assistant AG to exercise powers that do not exist,” that court construed § 10102(a)(6) as effectively “confirming” what had been implicit in the overall statutory scheme, i.e., that the Attorney General has the authority to impose special conditions on, and to identify priority purposes for, Byrne grants, which authority he can delegate to the AAG. City of Los Angeles v. Barr, 941 F.3d at 939. We agree with that much of the Ninth Circuit’s reasoning. The court goes on, however, to construe the terms “special conditions” and “priority purposes” narrowly and, from that, concludes that the Attorney General is not statutorily authorized to impose the challenged Notice and Access Conditions. See id. at 93941 (construing “special conditions” as used in § 10102(a)(6) to reference only “tailored requirements” necessary to particular circumstance “such as when a grantee is [at] ‘high‐risk’” of violating a grant’s terms, not general conditions applicable to all grants); id. at 94142 (limiting “priority purposes” for Byrne awards to purposes set out in § 10152(a)).
We cannot adopt the Seventh or Ninth Circuit’s conclusions because we do not think the Attorney General’s authority to impose the three challenged conditions here derives from the words “special conditions” or “priority purposes.” Rather, we locate that authority in other provisions of law, specifically, those requiring Byrne grant
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applicants to satisfy the program’s statutory requirements in such “form” and according to such “rules” as the Attorney General prescribes. See 34 U.S.C. §§ 10153(a), 10153(a)(5), 10155. Considering that form‐ and rule‐making authority in light of three particular statutory requirements—(1) for certification of willingness to comply with “applicable Federal laws,” id. § 10153(a)(5)(D); (2) for assurance that required information will be maintained and reported, see id. § 10153(a)(4); and (3) for coordination with affected agencies, see id. § 10153(a)(5)(C)—we conclude that the Attorney General is statutorily authorized to impose the challenged conditions.
Before explaining that conclusion, we acknowledge that the Third Circuit, considering these same three statutory requirements, held that none supports the challenged conditions. See City of Philadelphia v. Attorney Gen., 916 F.3d at 28591. The Third Circuit, however, viewed the Attorney General’s statutory authority respecting Byrne Program grants as “exceptionally limited.” Id. at 28485. We do not.
The Third Circuit emphasized that the Byrne Program awards formula grants. See id. at 290. We agree that the Attorney General’s authority to depart from that formula when awarding grants to qualified applicants is extremely limited. But before there can be an award, there must be a demonstrated showing of qualification. Repeatedly and throughout its pronouncement of Byrne Program statutory requirements, Congress makes clear that a grant applicant demonstrates qualification by satisfying statutory requirements in such form and according to such rules as the Attorney General
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establishes. This confers considerable authority on the Attorney General.18
18 The following statutory sections confer on, or confirm, the Attorney General’s authority in this respect:
• 34 U.S.C. § 10152(c)(1) – Requiring every program funded with a Byrne grant to have a “program assessment component, developed pursuant to guidelines established by the Attorney General” together with the National Institute of Justice. • Id. § 10152(d)(2) – Authorizing Attorney General to certify that extraordinary and exigent circumstances warrant using Byrne grant funds for generally prohibited expenditures. • Id. § 10152(f) – Affording Attorney General discretion to extend Byrne grants beyond normal four‐year period. • Id. § 10153(a) – Requiring Byrne grant applicants to submit application to Attorney General “in such form as the Attorney General may require,” including statutorily required certifications and assurances. • Id. § 10153(a)(5)(C) – Requiring certification “in a form acceptable to the Attorney General” that “there has been appropriate coordination with affected agencies.” • Id. § 10153(a)(5)(D) – Requiring certification “in a form acceptable to the Attorney General” that “applicant will comply with all provisions of this part and all other applicable Federal laws.” • Id. § 10154  Requiring Attorney General to afford applicant notice and opportunity to correct any application deficiencies before finally disapproving application. • Id. § 10155 – Requiring Attorney General to “issue rules to carry out this part.”
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To be sure, the Attorney General’s authority in identifying qualified Byrne applicants is not limitless but, rather, a function of the particular requirements prescribed by Congress. Not surprisingly, however, Congress has prescribed those requirements broadly, enlisting the Attorney General to delineate the rules and forms for them to be satisfied. See generally United States v. Haggar Apparel Co., 526 U.S. 380, 39293 (1999) (explaining that because “Congress need not, and likely cannot, anticipate all circumstances in which a general policy must be given specific effect[,]” agency may issue rules so that statute “may be applied . . . in a manner consistent with Congress’ general intent”). While the Attorney General certainly cannot exercise that authority arbitrarily or capriciously, see infra Point II, the authority itself cannot fairly be characterized as “exceptionally limited.”
With that understanding, we proceed to consider each challenged condition and the statutory provisions supporting it.
2. The Certification Condition Is Statutorily Authorized by 34 U.S.C. § 10153(a)(5)(D)
a. The Statutory Text Requires Applicants To Certify a Willingness To Comply With “All . . . Applicable Federal Laws”
The Certification Condition requires a Byrne grant applicant to certify that, throughout the grant period, it will comply with 8 U.S.C. § 1373, the federal law prohibiting any government entity or official from restricting the receipt, maintenance, or exchange of information regarding citizenship or immigration status as specified in that
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statute. See supra at 15 (quoting condition). The Attorney General’s statutory authority to impose this condition derives from 34 U.S.C. § 10153(a)(5)(D). Therein, Congress specifically requires a Byrne grant applicant to include in its application “[a] certification, made in a form acceptable to the Attorney General” stating that “the applicant will comply with all provisions of this part and all other applicable Federal laws.” 34 U.S.C. § 10153(a)(5)(D) (emphasis added).
The conjunctive structure of § 10153(a)(5)(D) makes plain that a Byrne grant applicant must certify its willingness to comply with more than those provisions of law specifically pertaining to the Byrne Program (“this part”). It must also certify its willingness to comply with “all other applicable Federal laws.” Id. At the same time that this phrase expands an applicant’s certification obligation, the word “applicable,” as used in the phrase, serves a limiting function. A Byrne applicant is not required to certify its willingness to comply with the United States Code in its entirety as well as all accompanying regulations. Rather, an applicant must certify its willingness to comply with those laws—beyond those expressly stated in Chapter 34—that can reasonably be deemed “applicable.” This raises two questions: What is an “applicable” law? And who identifies it? We answer the second question first because it is not seriously disputed and, thus, requires only brief discussion.
1. The Attorney General Is Authorized To Identify “Other Applicable Federal Laws” Requiring § 10153(a)(5)(D) Compliance Certification
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The statutory text signals that the Attorney General identifies the laws requiring § 10153(a)(5)(D) compliance certification. This is evident in the requirement that Byrne grant applicants provide certification in a “form acceptable to the Attorney General.” Id. § 10153(a)(5). A “form” is commonly understood to be a “document” for providing “required or requested specific information.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 892 (1986). By requiring that § 10153(a)(5)(D) certification be in a “form acceptable to the Attorney General,” the statute makes clear that it is the Attorney General who has authority to “require[] or request[] specific information,” to ensure a grant applicant’s intended compliance with all other applicable federal laws. See id. Thus, § 10153(a)(5)(D) authorizes the Attorney General to decide not only the style (e.g., format and typeface) for § 10153(a)(5)(D) certification, but also the specificity of its content, i.e., whether certification is “acceptable” in a form that references “all other applicable Federal laws” generally, or whether such certification needs to be in a form that identifies specific applicable laws.19
That Congress would vest such authority in the Attorney General makes sense for several reasons. First, while Congress itself requires compliance certification as to “all other applicable Federal laws,” the number of laws that could apply to States and localities seeking Byrne funding is large, variable, and not easily identified in a
19 While matters of “substance” are frequently distinguished from matters of “form,” see, e.g., PPL Corp. v. Comm’r of Internal Revenue, 569 U.S. 329, 340–41 (2013) (distinguishing between form and substance of a tax), a form serves to ensure the communication of required substance.
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single statutory provision. Second, the Attorney General, as the nation’s chief federal law enforcement official, is particularly suited to identify the federal laws applicable to persons and circumstances. Third, having the Attorney General identify specific laws requiring § 10153(a)(5)(D) certification serves the salutary purpose of affording applicants clear notice of what is expected of them as Byrne grant recipients.20
2. “All Other Applicable Federal Laws” Encompasses Both Laws Applying To the Entity Seeking a Grant and Laws Applying To the Proposed Grant Program
The district court nevertheless concluded that the Attorney General was not authorized to identify § 1373 as an applicable law. It held that “‘applicable Federal laws’ for purposes of 34 U.S.C. § 10153(a)(5)(D) means federal laws applicable to the grant,” not to the grant applicant. New York v. Dep’t of Justice, 343 F. Supp. 3d at 230– 31. Because it thought that § 1373 applies only to applicants in their capacities as State and local governments, not to their grants, the district court ruled that the statute could not be an “applicable” law requiring § 10153(a)(5)(D) certification. Id. at 231. The Third Circuit subsequently reached the same conclusion. See City of Philadelphia v. Attorney Gen., 916 F.3d at 28890. In so ruling, both courts acknowledged that it would be reasonable to construe the statutory text to mean laws applicable to a grant applicant as well as to a requested grant. See id. at 288; New York v. Dep’t of Justice, 343 F. Supp.
20 We discuss this notice point further infra at 47–49.
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3d at 23031. Nevertheless, the Third Circuit concluded that a narrower construction was required by the canon against surplusage, the structure of the statute, the historical practice of DOJ, and the formula‐grant nature of the program. See City of Philadelphia v. Attorney Gen., 916 F.3d at 28991. The district court relied on similar reasoning, as well as Congress’s obligation “unambiguously” to impose conditions on grants of federal money, to justify its narrow reading of § 10153(a)(5)(D). New York v. Dep’t of Justice, 343 F. Supp. 3d at 231 (internal quotation marks omitted). We cannot agree.
First and foremost, we do not think the statutory text admits such narrowing. See generally Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992) (stating that “when the words of a statute are unambiguous . . . judicial inquiry is complete” (internal quotation marks omitted)); accord Mei Xing Yu v. Hasaki Rest., Inc., 944 F.3d 395, 403 (2d Cir. 2019) (citing Connecticut Nat’l Bank v. Germain). The word “applicable,” as used in § 10153(a)(5)(D), is not statutorily defined. Thus, it is properly construed according to its contemporary dictionary definition, see Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012); accord Munoz‐Gonzalez v. D.L.C. Limousine Serv., Inc., 904 F.3d 208, 213 (2d Cir. 2018), which is “capable of being applied: having relevance,” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 105. Statutes are “capable of being applied,” and can be relevant both to persons and to circumstances. A second dictionary definition for the word “applicable”—“fit, suitable, or right to be applied,” id.—only reinforces that conclusion, in that a statute may be
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fit, suitable, or right to apply both to persons and to circumstances.21 Thus, an “applicable Federal law” under § 10153(a)(5)(D) is one pertaining either to the State or locality seeking a Byrne grant or to the grant being sought.
To the extent the district court might be understood to have construed “all other applicable laws” to mean only laws applying to States and localities as recipients of federal grants, nothing in the statutory text suggests that Congress there used the word “applicable” only in that limited sense. To the contrary, Congress’s use of the adjective “all” to introduce the phrase “all other applicable Federal laws” signals an intent to give the word “applicable” its full effect, not to narrow it. See Norfolk & W. Ry. Co. v. Am. Train Dispatchers Assʹn, 499 U.S. 117, 128–29 (1991) (explaining that phrase “all other law” is “clear, broad, and unqualified” and “indicates no limitation” (internal quotation marks omitted)).
Second, we cannot agree with the Third Circuit that a redundancy or surplusage problem arises if “all other applicable Federal laws” is construed to mean laws pertaining both to Byrne applicants and to the grants they seek. See City of Philadelphia v. Attorney Gen., 916 F.3d at 289 (concluding that such construction effectively equates phrase with “other Federal laws,” making word “applicable” mere surplusage). As explained supra at 36, the word
21 See Ransom v. FIA Card Servs., N.A., 562 U.S. 61, 69–70 (2011) (using both dictionary definitions in construing phrase “debtor’s applicable monthly expense amounts” in provision of Bankruptcy Code (emphasis added) (quoting 11 U.S.C. § 707(b)(2)(A)(ii)(I))).
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“applicable” does serve a limiting function in the statutory text—even if not as limiting as plaintiffs might wish. Thus, to raise a redundancy concern, the Third Circuit must imply that if Congress had used the phrase “all other Federal laws” in § 10153(a)(5)(D), then courts would have to infer the word “applicable” because of the improbability of Congress requiring certification for the entirety of federal law. But Congress did not use that broader phrase in § 10153(a)(5)(D). And we do not think its use of a modifying word—“applicable”—to make explicit in actual statutory text what our sister circuit thinks would have to be implied in a hypothetical alternative manifests surplusage. Rather, we think it demonstrates clear drafting.
Third, the formula nature of the Byrne Program does not warrant limiting the phrase “all other applicable Federal laws.” While Congress’s intent in appropriating funds for formula (as distinct from discretionary) grants is to have all the money distributed, even a formula grant applicant must satisfy the program’s requirements before being entitled to receive funding. Cf. Richard B. Cappalli, Rights and Remedies Under Federal Grants 40 (1979) (remarking that states typically qualify for formula grants after submitting document statutorily described as “state plan,” which serves as “vehicle by which the state commits itself to abide by the conditions which Congress attaches to the funds”). As to the Byrne Program, this is evident from the fact that Congress has expressly provided for alternative distributions of appropriated funds if “a State will be unable to qualify” for a Byrne granta matter Congress also leaves for “the Attorney General [to] determine[].” 34 U.S.C. § 10156(f); see supra at 13. Thus, Byrne Program formula funding can
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be denied to an applicant that fails to provide the required § 10153(a)(5)(D) certification as to any “applicable Federal law[],” whether that law pertains to the particular grant sought or to the applicant seeking it.22
Indeed, whether a grant is awarded by formula or by discretion, there is something disquieting in the idea of States and localities seeking federal funds to enforce their own laws while themselves hampering the enforcement of federal laws, or worse, violating those laws. One has only to imagine millions of dollars in
22 The Third Circuit inferred from the fact that qualifying Byrne (and other federal) grant recipients could lose a specified (often small) percentage of their annual distribution if they fail to comply with certain other statutes, that the Attorney General was not statutorily authorized “to withhold all of a [Byrne] grantee’s funds for any reason the Attorney General chooses.” City of Philadelphia v. Attorney Gen., 916 F.3d at 286 (emphases in original) (citing 34 U.S.C. § 20927(a) (providing mandatory 10% penalty for failure to comply with Sex Offender Registration and Notification Act); id. § 30307(e)(2) (mandating 5% penalty for failure to comply with Prison Rape Elimination Act); id. § 40914(b) (withholding up to 4% of funding for failure to meet requirements of National Instant Criminal Background Check System)). That reasoning does not apply here, where the issue is not whether the Attorney General can withhold Byrne funding for any reason from qualifying applicants, but whether he can deny any such funding to an applicant that fails to demonstrate qualification under the Program’s statutory requirements, indeed, fails to satisfy them in a “form acceptable to the Attorney General,” as Congress has mandated. 34 U.S.C. § 10153(a)(5). To be sure, the form acceptable to the Attorney General must be grounded in the qualifying requirements it serves, but where that is the case, an applicant’s failure—or refusal—to satisfy the statutory requirement in that form can result in denial of a Byrne grant. While the Attorney General cannot “finally disapprove” a deficient Byrne grant application “without first affording the applicant reasonable notice of any deficiencies . . . and opportunity for correction and reconsideration,” id. § 10154, if those deficiencies persist after such notice and opportunity, then the Attorney General is authorized to deny the grant in its entirety and to reallocate funds as provided in § 10156(f).
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Byrne funding being sought by a locality that is simultaneously engaged in persistent, serious violations of federal environmental laws. The formula nature of the Byrne Program does not dictate that such an applicant must be given federal money even as it continues to flout federal law. To the contrary, § 10153(a)(5)(D) authorizes the Attorney General to condition the locality’s receipt of a Byrne grant on its certified willingness to comply with all federal laws applicable to that locality, which includes environmental laws.
The conclusion obtains with even more force here, where enactment of the law at issue, 8 U.S.C. § 1373, was informed by Congress’s concern that States and localities receiving federal grants were hampering the enforcement of federal immigration laws. See supra at 17–20. Subsequent reports that increasing numbers of federal grant recipients were limiting cooperation with federal immigration authorities prompted a congressional request for DOJ investigation, the results of which led two successive Attorneys General serving different administrations to identify § 1373 as an “applicable Federal law” requiring compliance certification. See supra at 20–25.23 We are satisfied that these identifications are authorized by the plain
23 The IG’s findings, see supra at 21–23, might well be found to demonstrate the “high risk” identified by the Ninth Circuit for imposing “special conditions” on Byrne grants, see City of Los Angeles v. Barr, 941 F.3d at 940 (holding that “special conditions,” as referenced in § 10102(a)(6), means “unusual” or “extraordinary” conditions for a “high‐risk grantee,” i.e., a grantee with “a history of noncompliance with grant requirements, financial stability issues, or other factors that suggest[] a propensity toward violation of a grant’s terms” (internal quotation marks omitted)).
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language of § 10153(a)(5)(D), and the formula nature of the Byrne Program requires no contrary conclusion.
Fourth, the Third Circuit observes that certain § 10153(a)(5) certification requirements appear, on their face, to pertain to the requested grant rather than to the grant applicant. See City of Philadelphia v. Attorney Gen., 916 F.3d at 289 (citing § 10153(a)(5)(A) (requiring certification that “the programs to be funded by the grant meet all the requirements of this part”); § 10153(a)(5)(B) (requiring certification that “all the information contained in the application is correct”); and § 10153(a)(5)(C) (requiring certification that “there has been appropriate coordination with affected agencies”)). That, however, is insufficient reason to impose a similar limitation on § 10153(a)(5)(D), when the plain language of that provision—“all other applicable Federal laws”—reaches more broadly. See generally Norfolk & W. Ry. Co. v. Am. Train Dispatchers Ass’n, 499 U.S. at 127, 129 (rejecting argument that exemption from “antitrust laws and from all other law” was limited to antitrust‐related laws; ejusdem generis canon does not apply where neither statutory text nor context supports urged limitation (emphasis added) (internal quotation marks omitted)).
In urging otherwise, plaintiffs point to 34 U.S.C. § 10228, which states that “[n]othing in this chapter or any other Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision thereof.” As the Fourth Circuit has
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observed in construing § 10228’s predecessor statute, the provision is intended “to guard against any tendency towards federalization of local police and law enforcement agencies.” Ely v. Velde, 451 F.2d 1130, 1136 (4th Cir. 1971) (construing statute to prohibit federal authorities from “[prescribing] the type of shoes and uniforms to be worn by local law enforcement officers, the type or brand of ammunition to be purchased and used by police departments and many other vital matters pertaining to the day‐to‐day operations of local law enforcement” (citation omitted)). Section 1373 raises no such federalization concern. It does not direct, control, or supervise the day‐to‐day operations of any State or local police force or law enforcement agency. It does not mandate that State or local law enforcement authorities cooperate with federal immigration officers. It requires only that nothing be done to prohibit voluntary communication about citizenship or immigration status among such officials. See supra at 24. To hold that § 10228 places such a statutory requirement outside the scope of applicable laws requiring § 10153(a)(5)(D) compliance certification is to render that qualification condition a nullity, as compliance with every federal law necessarily places some limits on a grant applicant’s actions. Indeed, that conclusion applies whether the law pertains to the applicant or the grant program. We decline to construe § 10228 so broadly as to render § 10153(a)(5)(D) inoperative. Cf. Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 250 (1985) (noting “elementary canon of construction that a statute should be interpreted so as not to render one part inoperative” (internal quotation marks omitted)). See generally Ely v. Velde, 451 F.2d at 1136 (declining to construe predecessor provision “so broadly as unnecessarily to undercut
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solutions adopted by Congress to preserve and protect other societal values”).24
Fifth, DOJ’s own focus on laws pertaining to grants rather than applicants in its past identifications of “applicable” federal laws does not itself limit the word. Given the scope of local programs that can be funded with Byrne grants, it is not surprising that DOJ would most frequently identify laws applicable to a particular program in specifying the form of an acceptable § 10153(a)(5)(D) certification. See generally City of Philadelphia v. Attorney Gen., 916 F.3d at 290 (observing that if requested grant was to be used for body armor purchases or human research, applicants were expected to certify willingness to comply with applicable federal regulations in those areas). Far fewer, one expects, will be the occasions when States and localities seeking Byrne grants are themselves violators of federal laws applicable to them. Nevertheless, in such circumstances, the violated laws fall within the plain meaning of the phrase “all other applicable Federal laws” as used in § 10153(a)(5)(D). To illustrate, while the Attorney General can—and has—required applicants proposing to use Byrne grants for construction or renovation projects to comply with federal environmental laws specifically applicable to such work, that hardly means he cannot also require an applicant that has a history of violating environmental laws generally from certifying its willingness going forward to comply with such laws. The laws are applicable in
24 Insofar as plaintiffs rely not only on § 10228, but also on the Tenth Amendment to argue that § 1373 cannot be an “applicable” law requiring Compliance Certification, we discuss that constitutional point infra at 49–61.
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the former instance to the grant purpose; in the latter, to the grant applicant. In either case, the Attorney General is requiring compliance certification as to “applicable Federal laws.”
Sixth, Congress’s duty to speak unambiguously in imposing conditions on federal grant money also does not require “all other applicable Federal laws” to be construed to mean only laws pertaining to grants and not to grant applicants. See New York v. Dep’t of Justice, 343 F. Supp. 3d at 231. The duty derives from Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981). The Supreme Court there analogized federal spending legislation to “a contract: in return for federal funds, the States agree to comply with federally imposed conditions.” Id. at 17. It concluded therefrom that Congress must “speak with a clear voice” in placing conditions on federal grants because there “can . . . be no knowing acceptance [of the putative contract] if a State is unaware of the conditions or is unable to ascertain what is expected of it.” Id.
“Knowing acceptance” is no concern here. Section 10153(a)(5)(D) provided plaintiffs with clear notice that their Byrne grant applications had to include a certification, in a form acceptable to the Attorney General, of their willingness to comply not only with laws specifically applicable to the Byrne Program, but also with “all other applicable Federal laws.” To the extent the quoted phrase fails to specify precisely which laws are “applicable,” that uncertainty can pertain as much for laws applicable to requested grants as for those applicable to grant applicants. Thus, the district court’s Pennhurst reasoning does not support its conclusion that “applicable Federal
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laws” can pertain only to requested Byrne grants, not to grant applicants.
But more to the point, no Pennhurst concern arises here because plaintiffs were given advance notice that their 2017 Byrne grant applications had to certify a willingness to comply with § 1373. Indeed, they were given such notice twice, first in 2016, and again in 2017. See supra at 23–25. To be sure, that notice was provided by DOJ rather than Congress. But the Supreme Court has recognized that, in establishing federal grant programs, Congress cannot always “prospectively resolve every possible ambiguity concerning particular applications of the [program’s statutory] requirements.” Bennett v. Kentucky Dep’t of Educ., 470 U.S. 656, 666, 669 (1985) (making point in context of federal education grant program). Thus, it has upheld an administering agency’s clarifying interpretations, and even its violation determinations, as long they were grounded in “statutory provisions, regulations, and other guidelines provided by the Department” at the time of the grant. Id. at 670–71; see also United States v. O’Hagan, 521 U.S. 642, 67273 (1997) (recognizing agency authority to prescribe legislative rules consistent with statute). Plaintiffs here may disagree with the identification of § 1373 as an “applicable Federal law,” but they can hardly complain of inadequate notice.
In a final argument in support of their APA challenge to the Attorney General’s identification of § 1373 as an applicable federal law, plaintiffs point to Congress’s rejection of various legislative proposals to impose immigration‐related conditions on receipt of
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federal funds. As the Supreme Court has cautioned, “subsequent legislative history is a hazardous basis for inferring the intent of an earlier Congress.” Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (internal quotation marks omitted). Such legislative history “is a particularly dangerous ground” of construction where, as here, the “proposal[s] . . . do[] not become law.” Id. Indeed, “several equally untenable inferences may be drawn from” congressional inaction, “including the inference that the existing legislation already incorporated the offered change.” Id. (internal quotation marks omitted). Thus, this challenge to the Attorney General’s § 10153(a)(5)(D) authority to identify § 1373 as an “applicable” law also fails.
In sum, we conclude that the plain language of § 10153(a)(5)(D), authorizes the Attorney General to require certification in a form that specifically references federal laws applicable either to the Byrne grant sought or to the State or locality seeking that grant. Because 8 U.S.C. § 1373 is a law applicable to all plaintiffs in this action, the Attorney General was authorized to impose the challenged Certification Condition and did not violate either the APA or separation of powers by doing so.
b. Tenth Amendment Challenge (1) “As Applied” Review
The district court ruled not only that the Certification Condition was not statutorily authorized, but also that it could not be so authorized without violating the Constitution. Specifically, the district court held that 8 U.S.C. § 1373, the law for which the condition
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required certification, “is facially unconstitutional under the anticommandeering doctrine of the Tenth Amendment,” and, as such, “drops out of the possible pool of ‘applicable federal laws’” requiring § 10153(a)(5)(D) certification. New York v. Dep’t of Justice, 343 F. Supp. 3d at 237 (internal quotation marks omitted). The district court did not have to reach this constitutional question, having already found the Certification Condition to violate the APA. See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988) (noting that “longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them”); accord Camreta v. Greene, 563 U.S. 692, 705 (2011). This court, however, cannot avoid the issue in light of our ruling that the Certification Condition is statutorily authorized.
For reasons briefly explained herein, we think the district court’s reasoning insufficient to support its declaration of facial unconstitutionality. We do not pursue the matter in detail, however, because § 1373’s constitutionality is properly assessed here not on the face of the statute, but as applied to clarify a federal funding requirement.25 In that context, § 1373 does not constitute commandeering in violation of the Tenth Amendment.
25 As the Supreme Court has long recognized, “as‐applied challenges are the basic building blocks of constitutional adjudication,” and it is not the court’s “traditional institutional role to resolve questions of constitutionality with respect to each potential situation that might develop.” Gonzales v. Carhart, 550 U.S. 124, 168 (2007) (internal quotation marks and alterations omitted); see Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494–95 (1982) (holding that courts
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To the extent the district court thought that § 1373 had to be constitutional in all its applications to be identified as an “applicable Federal law[]” warranting § 10153(a)(5)(D) certification, it was mistaken. Even assuming arguendo that § 1373 can constitutionally be applied to States and localities only when they are seeking federal funding—a matter we do not here decide—the principle of severability would warrant upholding the statute as so narrowed. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 685 (1987) (discussing severability in addressing constitutional challenges to statutes); accord National Fed’n of Indep. Bus. (“NFIB”) v. Sibelius, 567 U.S. 519, 586–88 (2012) (severing part of Affordable Care Act raising constitutional concerns and upholding remainder); United States v. Booker, 543 U.S. 220, 245 (2005) (remedying constitutional defect in Sentencing Guidelines by severing provision for mandatory application). There can be no question that Congress would have enacted the law, even as so narrowed. Legislative history indicates that § 1373’s enactment was animated by reports that States and localities receiving federal
should consider constitutional challenge to statute as applied to plaintiff before considering other applications); Yazoo & Miss. Valley R.R. Co. v. Jackson Vinegar Co., 226 U.S. 217, 219–20 (1912) (upholding statute as applied to instant case without speculating as to how it might apply in other circumstances); accord United States v. Holcombe, 883 F.3d 12, 17 (2d Cir. 2018) (explaining that where First Amendment rights are not implicated, court considers constitutional challenge “in light of the specific facts of the case at hand” (internal quotation marks omitted)). Section 1373 is not here challenged as constitutionally vague, much less constitutionally vague in a way implicating First Amendment rights, so as to warrant more than as‐ applied review. See Farrell v. Burke, 449 F.3d 470, 496 (2d Cir. 2006) (“The general rule disfavoring facial vagueness challenges does not apply in the First Amendment context.”); see also United States v. Davis, 139 S. Ct. 2319, 2323 (2019) (“In our constitutional order, a vague law is no law at all.”).
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funding were hindering cooperation with immigration authorities. See supra at 17–20. Nor is there any reason to think that the law would not operate as Congress intended as applied in the funding context. See generally Alaska Airlines, Inc. v. Brock, 480 U.S. at 684–85 (discussing two factors informing severability).
With this understanding, that, in the end, the proper scope of constitutional inquiry is “as applied,” we briefly discuss concerns raised by the district court’s facial assessment before explaining our conclusion that § 1373 does not violate the Tenth Amendment as applied here to States and localities seeking Byrne Program grants.
(2) The District Court’s Identification of Facial Unconstitutionality
The Tenth Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. CONST. amend. X. From this text, the Supreme Court has derived an “anticommandeering principle,” which prohibits the federal government from compelling the States to enact or administer a federal regulatory program. See Printz v. United States, 521 U.S. 898, 935 (1997) (“The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”).
This court has already considered, and rejected, a facial commandeering challenge to § 1373. See City of New York v. United States, 179 F.3d 29 (2d Cir. 1999). We reasoned that § 1373 does not
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“compel[] state and local governments to enact or administer any federal regulatory program.” Id. at 35. Nor does it “affirmatively conscript[] states, localities, or their employees into the federal government’s service.” Id. Rather, the law prohibits state and local governments and officials “only from directly restricting the voluntary exchange of immigration information” with federal immigration authorities. Id.
The district court acknowledged this precedent, but concluded that it does not survive Murphy v. National Collegiate Athletic Association, 138 S. Ct. 1461 (2018).26 The Supreme Court there held that federal legislation prohibiting States from authorizing sports gambling violates the Tenth Amendment’s anticommandeering rule because it “unequivocally dictates what a state legislature may and may not do.” Id. at 1478. The Court explained that it did not matter whether Congress issued such a dictate by commanding affirmative action or imposing a prohibition: “The basic principle—that Congress cannot issue direct orders to state legislatures—applies in either event.” Id. The district court concluded that Murphy’s reasoning required it to hold § 1373 facially violative of the Tenth Amendment because the statute’s proscriptions prevent States from “adopting [immigration] policies contrary to those preferred by the federal government,” or “extricating themselves from federal immigration
26 It has long been the rule in this circuit that a panel decision controls “unless and until . . . reversed en banc or by the Supreme Court.” In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144, 154 (2d Cir. 2015) (internal quotation marks omitted).
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enforcement.” New York v. Dep’t of Justice, 343 F. Supp. 3d at 235 (internal quotation marks and alterations omitted).
Murphy may well have clarified that prohibitions as well as mandates can manifest impermissible commandeering. But the conclusion that § 1373, on its face, violates the Tenth Amendment does not follow.
A commandeering challenge to a federal statute depends on there being pertinent authority “reserved to the States.” In Murphy, there was no question that, but for the challenged federal law, the States’ police power allowed them to decide whether to permit sports gambling within their borders. That conclusion is not so obvious in the immigration context where it is the federal government that holds “broad,” Arizona v. United States, 567 U.S. at 394, and “preeminent” power, Toll v. Moreno, 458 U.S. at 10. Title 8 of the United States Code, commonly known as the Immigration and Nationality Act (“INA”), see 8 U.S.C. § 1101 et seq., is Congress’s “extensive and complex” codification of that power, Arizona v. United States, 567 U.S. at 395.
This does not mean that States can never enact any laws pertaining to aliens. See id. at 404 (observing that “[w]hen there was no comprehensive federal program regulating the employment of unauthorized aliens . . . State had authority to pass its own laws on the subject”). But courts must carefully identify the powers reserved to States in this area of extensive and complex federal legislation and the effect of their exercise on federal immigration laws and policies. It is doubtful that States have reserved power to adopt—in the words of the district court—immigration policies “contrary to those preferred
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by the federal government.” New York v. Dep’t of Justice, 343 F. Supp. 3d at 235 (internal quotation marks omitted) (emphasis added). As Chief Justice Marshall famously pronounced, “The states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government.” McCulloch v. Maryland, 17 U.S. at 436. The Supreme Court recently made the same point in the immigration context. While acknowledging a State’s “understandable frustrations with the problems caused by illegal immigration,” the Court held that the “State may not pursue policies that undermine federal law.” Arizona v. United States, 567 U.S. at 416.
Here, the district court declared § 1373 facially violative of the Tenth Amendment without identifying what reserved power States have to enact laws or policies seemingly foreclosed by 8 U.S.C. § 1373, i.e., laws prohibiting their officials and agencies from engaging in even voluntary communications about citizenship and immigration status with federal authorities. A court undertaking that inquiry would have to recognize, as the Supreme Court has, that “[c]onsultation between federal and state officials is an important feature of the immigration system” established by the INA. Id. at 411. A court would then have to consider how various INA provisions establish that consultation feature. In Arizona v. United States, the Supreme Court discussed various INA provisions encouraging or prohibiting restrictions on federal‐state sharing of immigration‐status information before concluding that the “federal scheme thus leaves room for a [State] policy requiring state officials to contact [federal
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immigration authorities] as a routine matter.” Id. at 413 (emphasis added). The same conclusion may not be so easy to reach, however, with respect to a State policy prohibiting information sharing. Among the statutes cited in Arizona v. United States to illustrate the importance placed on federal‐state consultation by the INA is 8 U.S.C. § 1644. See 567 U.S. at 412–13. As discussed supra at 17–20, § 1644, like § 1373, prohibits restricting State or local government entities from communicating with federal immigration authorities “‘regarding the immigration status, lawful or unlawful, of an alien in the United States.’’’ Id. (quoting 8 U.S.C. § 1644). Further, even outside the immigration context, the Supreme Court has not decided whether a federal law imposing “purely ministerial reporting requirements” on the States violates the Tenth Amendment. See Printz v. United States, 521 U.S. at 936 (O’Connor, J., concurring) (noting open question regarding statute’s missing child reporting requirement).
While this authority casts doubt on the district court’s identification of facial unconstitutionality, we do not ourselves pursue the point further because, even assuming some power reserved for the States to prohibit information sharing with federal immigration authorities, we conclude that § 1373 does not violate the Tenth Amendment as applied here to a federal funding requirement.27
27 For that same reason, we need not conclusively decide the preemptive effect of § 1373. We note only that, insofar as the district court concluded that the statute could claim no preemptive effect because it confers a “purported federal right to transmit information only on government entities and officials,” not on private
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(3) Section 1373 Raises No Commandeering Concerns as Applied to a Federal Funding Requirement
While Congress cannot regulate the States, its constitutional powers, notably under the Spending Clause, see U.S. CONST. art. I, § 8, cl. 1, do allow it to “fix the terms on which it shall disburse federal money to the States,” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. at 17. By setting such terms, Congress can “influenc[e] a State’s policy choices,” New York v. United States, 505 U.S. at 166, and even “implement federal policy it could not impose directly under its enumerated powers,” NFIB v. Sibelius, 567 U.S. at 578; see South Dakota v. Dole, 483 U.S. 203, 207 (1987) (explaining that “objectives not thought to be within Article I’s enumerated legislative fields may nevertheless be attained through the use of the spending power and the conditional grant of federal funds” (internal quotation marks omitted)); United States v. Butler, 297 U.S. 1, 66 (1936) (holding that Congress’s power to place conditions on disbursement of federal funds “is not limited by the direct grants of legislative power found in the Constitution”). Thus, where Congress places conditions on a State’s receipt of federal funds—whether directly, or by delegation of
persons, its focus may have been too narrow. New York v. Dep’t of Justice, 343 F. Supp. 3d at 235 (internal quotation marks and alterations omitted); see Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. at 1480 (observing that “Constitution . . . confers upon Congress the power to regulate individuals, not States” (internal quotation marks omitted)). As already noted, § 1373 is one provision of a larger statute, the INA, which certainly confers rights and places restrictions on large numbers of private persons.
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clarifying authority to an executive agency—there is no commandeering of reserved State power so long as the State has “a legitimate choice whether to accept the federal conditions in exchange for federal funds.” NFIB v. Sibelius, 567 U.S. at 578.28
A State is deprived of “legitimate choice” only when the federal government imposes grant conditions that pass the point at which “pressure turns into compulsion.” Id. at 577–78 (internal quotation marks omitted). On this point, even the NFIB dissenters agreed. See id. at 681 (Scalia, J., with Kennedy, Thomas, and Alito, JJ., dissenting) (observing that “courts should not conclude that legislation is unconstitutional . . . unless the coercive nature of an offer is unmistakably clear”). Pressure can turn into compulsion when the
28 The law further requires that federal grant conditions (1) promote the “general welfare,” (2) “unambiguously” inform States what is demanded of them, (3) reasonably relate “to the federal interest in particular national projects or programs,” and not “induce the States to engage in activities that would themselves be unconstitutional.” South Dakota v. Dole, 483 U.S. at 207–08, 210 (internal quotation marks omitted). None of these requirements is at issue on this appeal. Section 10153(a)(5)(D)’s requirement that Byrne grant applicants certify their willingness to comply with “all . . . applicable Federal laws” promotes the respect for law necessary to the general welfare. See, e.g., City of Los Angeles v. Barr, 929 F.3d 1163, 1176 (9th Cir. 2019) (“[C]ooperation relating to enforcement of federal immigration law is in pursuit of the general welfare, and meets the low bar of being germane to the federal interest in providing the funding.”). Such a certification condition reasonably relates to the Byrne Program, whose focus, after all, is law enforcement. For reasons discussed supra at 47–48, Congress avoids ambiguity by itself stating that § 10153(a)(5)(D) certification must be made as to all applicable Federal laws, and then authorizing the Attorney General to require certification in a form that references specifically identified applicable laws. Finally, nothing about § 10153(a)(5)(D) induces unconstitutional conduct by the State‐applicants.
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amount of funding that a State would lose by not acceding to the federal conditions is so significant to the States’ overall operations as to leave it with no real choice but to agree.
Such was the case with the Medicaid expansion provision of the Affordable Care Act, which the Supreme Court held invalid in NFIB v. Sebelius because it threatened States rejecting expansion with the withholding of 100% of their Medicaid funding, which constituted 10% to 16% of most States’ total budgets. The Supreme Court concluded that “[t]he threatened loss of over 10 percent of a State’s overall budget . . . is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.” Id. at 581– 82 (describing condition as “a gun to the head”).
The funding loss associated with most grant conditions, however, does not raise such coercion concerns. See id. at 684–85 (Scalia, J., with Kennedy, Thomas, and Alito, JJ., dissenting) (observing that Medicaid expansion provision was “quite unlike anything that we have seen in a prior spending‐power case” in that it “threatened to withhold 42.3% of all federal outlays to the States”). In South Dakota v. Dole, the Supreme Court described a threatened loss of 5% of federal highway funding—less than 0.5% of South Dakota’s budget—if the state did not raise its legal drinking age to 21, as only “mild encouragement” and “a valid use of the spending power.” 483 U.S. at 211–12.
This case is much more akin to Dole than to NFIB. While plaintiffs emphasize that a failure to provide § 10153(a)(5)(D) certification in a form acceptable to the Attorney General, i.e., a form
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certifying a willingness to comply with 8 U.S.C. § 1373, can result in the denial of any Byrne funding for that year, plaintiffs do not—and cannot—claim that such a loss represents so significant a percentage of their annual budgets as to cross the line from pressure to coercion. For example, New York’s anticipated 2017 Byrne award is $8,879,161, a significant amount of money to be sure, but one representing less than 0.1% of the State’s annual $152.3 billion budget, a smaller percentage loss even than that in Dole.29 Massachusetts’ anticipated 2017 Byrne award is $3,453,006, also representing less than 0.1% of its annual $38.92 billion budget.30 Thus, however much the plaintiff States would prefer to receive Byrne awards without having to certify their willingness to comply with 8 U.S.C. § 1373, they cannot complain that the consequences for failing to do so are so severe as to leave them with no real choice in the matter. As the Supreme Court has observed in connection with the conditions attached to most federal funding programs: “The States are separate and independent sovereigns. Sometimes they have to act like it.” NFIB v. Sebelius, 567 U.S. at 579.
In sum, the district court erred in holding 8 U.S.C. § 1373 unconstitutional because the statute does not violate the
29 See NEW YORK DIVISION OF THE BUDGET, FY 2017 ENACTED BUDGET FINANCIAL PLAN 69 (May 2016), available at https://www.budget.ny.gov/pubs/ archive/fy17archive/enactedfy17/FY2017FP.pdf.
30 See Press Release, Governor Baker Signs Fiscal Year 2017 Budget (July 8, 2016), available at https: www.mass.gov/news/governor‐baker‐signs‐fiscal‐year‐2017‐ budget.
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anticommandeering principle of the Tenth Amendment as applied here to a federal funding requirement.
In the absence of any such Tenth Amendment concern, and in light of our holding that the challenged Certification Condition is statutorily authorized by 34 U.S.C. § 10153(a)(5)(D), we conclude that the condition does not violate either the APA or the Constitution. Accordingly, we vacate the district court’s injunction prohibiting application of the Certification Condition.
3. The Notice Condition Is Statutorily Authorized by 8 U.S.C. §§ 10153(a)(4), 10153(a)(5)(C), and 10155
The challenged Notice Condition requires States and localities accepting Byrne grants to have in effect during the grant period a “statute, or a state rule, ‐regulation, ‐policy, or ‐practice” for their criminal detention facilities to respond “as early as practicable” to written requests from federal immigration authorities for notice of identified aliens’ scheduled release dates. Supra at 15–16 (quoting condition). The Attorney General’s statutory authority to impose this condition derives from 34 U.S.C. §§ 10153(a)(4), 10153(a)(5)(C), and 10155.
Section 10153(a)(4) requires a State or locality seeking Byrne funding to include in its application, “in such form as the Attorney General may require,” “[a]n assurance” that throughout the grant period, “the applicant shall maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require.” Section 10153(a)(5)(C) requires a
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Byrne grant applicant to provide “[a] certification, made in a form acceptable to the Attorney General,” that “there has been appropriate coordination with affected agencies.” Section 10155 authorizes the Attorney General to “issue rules to carry out” these requirements and any other parts of the Byrne Program.
The district court did not discuss these statutory conditions. It concluded simply that the Notice Condition was not authorized by § 10102(a)(6), as DOJ maintained. The Third Circuit, however, did consider §§ 10153(a)(4) and 10153(a)(5)(C). It concluded that § 10153(a)(4) did not authorize the Notice Condition because “[its] data‐reporting requirement is expressly limited to ‘programmatic and financial’ information—i.e., information regarding the handling of federal funds and the programs to which those funds are directed. It does not cover Department priorities unrelated to the grant program.” City of Philadelphia v. Attorney Gen., 916 F.3d at 285. As for § 10153(a)(5)(C), the Third Circuit concluded that it did not authorize the Notice Condition because its “coordination requirement” operated only in the past tense, i.e, “to require certification that there was appropriate coordination in connection with the grantee’s application. This does not serve as a basis to impose an ongoing requirement to coordinate on matters unrelated to the use of grant funds.” Id. (emphases in original).
To explain why we conclude otherwise, we discuss each statutory requirement in turn.
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a. Section 10153(a)(4)’s Reporting Requirement
The plain language of § 10153(a)(4) authorizes the Attorney General to decide both what data, records, and information a Byrne grant recipient must maintain and report and the form of an applicant’s assurance that it will do so. This authority is cabined only by the parenthetical modifier “(programmatic and financial),” which serves to limit the referenced data, records, and information to those pertaining to the particular program being funded by a Byrne grant or to related financial matters. In this respect, at least, we agree with the Third Circuit. See id.
But unlike that court, we think the release information required by the Notice Condition is “programmatic,” at least for Byrne‐funded programs that relate in any way to the criminal prosecution, incarceration, or release of persons, some of whom will inevitably be aliens subject to removal.31 This includes most, if not all, of the programs for which plaintiffs seek Byrne funding, for example, (1) programs for task forces targeting certain crimes, the object of which is undoubtedly the arrest, prosecution, and eventual incarceration of perpetrators; (2) programs for prosecutors’ offices, whose attorneys decide when to pursue (or forego) the prosecution and incarceration
31 As this court observed in Cuomo v. Barr, 7 F.3d 17 (2d Cir. 1993), plaintiff “New York houses many illegal aliens in its prison system. As of March 1992, New York held approximately 60,000 prisoners in state correctional facilities, 8% of whom were known to be aliens and an additional 4% of whom were suspected to be aliens. Of this number, 6,096 had been convicted of aggravated felonies, making them subject to deportation.” Id. at 18. While the record on appeal does not provide current statistics, there is no reason to suspect a marked decline in these percentages.
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of criminal suspects; (3) programs for defenders’ offices, whose attorneys work to secure persons’ release from criminal detention and to avoid their conviction and incarceration; (4) diversion programs for persons who might otherwise remain in criminal custody; (5) programs for persons while incarcerated or for the facilities maintaining them; (6) programs for persons upon their release from incarceration. As to such programs, we conclude that the Attorney General is statutorily authorized by 8 U.S.C. § 10153(a)(4) to require Byrne grant recipients to report when identified aliens in their custody will be released.32
Insofar as the Notice Condition specifically requires a grant applicant to have a statute, rule, regulation, policy, or practice in place for its criminal detention facilities to report identified aliens’ release dates “as early as practicable” after receipt of a written federal request, we are satisfied that the requirement falls within the Attorney General’s authority to determine the “form” of an acceptable Byrne grant application, which necessarily includes the form of an acceptable assurance. 34 U.S.C. § 10153(a). That conclusion is reinforced by the Attorney General’s authority to “issue rules to carry out this part.” Id. § 10155. See generally Federal Election Campaign Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981) (“[D]eference should be presumptively afforded” to
32 Because plaintiffs have not sought to distinguish among their grant purposes in defending the challenged injunction and judgment, we have no occasion on this appeal to consider whether Byrne Program funding could be sought for a purpose so unrelated to prosecution, incarceration, or release that the Notice Condition would not be statutorily authorized in those circumstances.
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agency authorized to make rules in administering statute.); National Broad. Co. v. United States, 319 U.S. 190, 215, 219 (1943) (explaining that statute delegating authority, inter alia, to “[m]ake such rules and regulations . . . as may be necessary to carry out the provisions of this Act” gave agency “expansive powers” (internal quotation marks omitted)).
b. Section 10153(a)(5)(C)’s Coordination Requirement
Further statutory authority for the Notice Condition is supplied by § 10153(a)(5)(C)’s requirement for certification, in “a form acceptable to the Attorney General,” that “there has been appropriate coordination with affected agencies.” The Third Circuit observed that Congress’s use of the past tense in the quoted text signals that “appropriate coordination” must have occurred by the time a State or locality formally files its Byrne Program application. See City of Philadelphia v. Attorney Gen., 916 F.3d at 285. While we agree with that construction, we do not think that means the required coordination need not continue into the future. See id. Rather, we think appropriate coordination frequently, perhaps invariably, must determine future conduct.
The plain meaning of “coordination” is “the functioning of parts in cooperation and normal sequence.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 502. “Coordination” strives to bring a “combination [of parts] in suitable relation for most effective or harmonious results.” Id. The definition does not describe a static concept that ends as soon as the suitable relation of parts and
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sequence of their operation is determined. Rather, coordination contemplates that relation and sequence are agreed upon in order to establish how parts will operate going forward to achieve effective and harmonious results.
The “parts” pertinent to § 10153(a)(5)(C)’s coordination requirement are the grant applicant and the agencies that will be affected by that grant. Thus, the certification required by § 10153(a)(5)(C) demands that, in advance of any Byrne award, States and localities coordinate with affected agencies to determine their relationship and sequence of conduct as necessary throughout the grant period to ensure effective and harmonious results.
Put more concretely, if a State were to seek Byrne Program funding for its State police to pursue a law enforcement initiative involving undercover operations across several municipalities, “appropriate coordination” might well require the State to reach an understanding with the affected localities as to how notice will be given to them when those undercover activities are occurring within their borders, thus ensuring that local authorities do not misidentify the State undercover officers as real criminals, with possibly tragic consequences for both sides. In sum, the parties reach an understanding about necessary coordination before the State files its formal Byrne grant application, and the parties’ conduct during the funding period is coordinated as thus agreed upon.
Similarly, were a State or locality to seek a Byrne grant to modernize equipment used to track terrorist threats, “appropriate coordination” might require the applicant to consult with other state
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and federal agencies engaged in similar tracking and to reach agreement as to the type of compatible equipment to be acquired and how obtained information will be shared and secured. Such coordination before formal application then determines the parties’ conduct after receipt of the grant.
So, here, when a State seeks Byrne funding for programs that relate to the prosecution, incarceration, or release of persons, some of whom will be removable aliens, there must be coordination with the affected federal agency, the Department of Homeland Security (“DHS”), before a formal application is filed, but what makes that coordination “appropriate” is that it will establish the parties’ relationship and the sequence of their conduct throughout the grant period.
To explain what makes DHS an affected agency, we begin with the ordinary and clear meaning of “affect,” which is to “produce a material influence upon.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 35; see BLACK’S LAW DICTIONARY (9th ed. 2009) (defining “affect” to mean “to produce an effect on; to influence in some way”). The degree of influence need not be significant for the law to recognize that something has been “affected” in a range of contexts. See, e.g., Jones v. United States, 529 U.S. 848, 854 (2000) (holding that “statutory term ‘affecting . . . commerce,’ . . . when unqualified, signal[s] Congress’ intent to invoke its full authority under the Commerce Clause”); United States v. Wiant, 314 F.3d 826, 830 (6th Cir. 2003) (holding, in context of “affected a financial institution” that “breadth of [its] definition indicates that” word “affect” “is intended
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to encompass even minimal impacts”); United States v. SKW Metals & Alloys, Inc., 195 F.3d 83, 90 (2d Cir. 1999) (“The sum of what dictionaries say about the relevant meaning is that the verb ‘to affect’ expresses a broad and open‐ended range of influences.”).
When States use Byrne grants in ways related to the prosecution, incarceration, or release of aliens, the DHS Secretary’s performance of numerous statutory responsibilities with respect to such aliens is affected. For example, the Secretary must “begin any removal proceeding” for an alien convicted of a deportable offense “as expeditiously as possible after the date of the conviction,” 8 U.S.C. § 1229(d)(1); must effect the removal of such an alien “within . . . 90 days” after an order of removal becomes final, see id. § 1231(a)(1)(A)– (a)(1)(B)(i)–(ii); and must detain the alien during that 90‐day period, see id. § 1231(a)(2).33 The Secretary, however, “may not remove an alien who is sentenced to imprisonment”—whether by federal or State authorities—ʺuntil the alien is released.” Id. § 1231(a)(4)(A). In that case, the 90‐day removal period starts to run from the date of the alien’s release from custody. See id. § 1231(a)(1)(B)(iii).34 Moreover, in
33 While these statutory sections refer to the Attorney General, the removal responsibilities stated therein and in other statutory provisions referenced in this part of the opinion have been transferred to the Secretary of DHS. See 6 U.S.C. §§ 251(2), 552(d).
34 States are under no obligation to incarcerate criminal aliens convicted of state felony crimes, but if they do so, they may then request that the federal government either (1) pay “compensation . . . as may be appropriate” to the State “with respect to the incarceration” of the alien, or (2) “take the undocumented criminal alien into the custody of the Federal Government and incarcerate the alien.” 8 U.S.C.
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circumstances where a removable alien is released from custody before a final removal order has been obtained, the law authorizes the Secretary to issue a warrant for the alien’s arrest and detention, see id. § 1226(a), and (with limited exceptions) requires the Secretary to do so if the alien has a certain criminal history or has engaged in terrorist activities, see id. § 1226(c)(1), (2).35
As even this brief review makes plain, a removable alien’s State incarceration and release from incarceration will affect DHS’s performance of its own statutory duties throughout the grant period. In these circumstances, “appropriate coordination” requires that, by the time a State or locality files its Byrne grant application, it have reached an agreement with DHS as to their mutual relationship and sequence of conduct throughout the grant period. Any less coordination would not be “appropriate”; indeed, it would be meaningless.
§ 1231(i). It appears that, in 2017, plaintiff the State of New York received $13.9 million in such compensation pursuant to the SCAAP program referenced supra at 21. See Bureau of Justice Assistance, Fiscal Year 2017 SCAAP Award Details, available at https://bja.ojp.gov/program/state‐criminal‐alien‐assistance‐program‐ scaap/archives (last visited Feb. 24, 2020) (follow “FY 2017” hyperlink below “SCAAP Awards” subheading). 35 In 1992, New York attempted to sue federal authorities for failing to comply with a predecessor statute requiring them to take into custody, upon release, aliens convicted of aggravated felonies under state as well as federal law. See Cuomo v. Barr, 812 F. Supp. 324 (N.D.N.Y. 1993), appeal dismissed, 7 F.3d 17 (2d Cir. 1993).
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The Notice Condition serves to ensure such appropriate coordination. It advises States that, at the time they file a Byrne grant application, they must agree to respond as soon as practicable to a written DHS request for the release date of an identified State‐ incarcerated alien and to have a statute, rule, or policy in force throughout the grant period.
We conclude that the Attorney General is authorized to impose such a condition by § 10153(a)(5)(C), which empowers him to determine the acceptable form for certifying appropriate coordination. See supra at 37 (discussing dictionary definition of “form” as something requiring “specific information”).36 It is further supported by § 10155, which authorizes the Attorney General to issue rules for carrying out Byrne Program requirements. Of course, we recognize that plaintiffs would prefer not to coordinate at all with DHS, but that option is denied to them by § 10153(a)(5)(C) when the States seek Byrne grants for programs relating to prosecution, incarceration, or release that will affect DHS’s performance of its own statutory duties.
36 Where, as here, the affected agency is federal, the Attorney General can be expected to have particular insights into what coordination is appropriate to establish the relationship and sequence of conduct necessary for a grant applicant and the affected federal agency both to perform their respective duties in an effective and harmonious manner. But even where the affected agency is not federal, the Attorney General’s form‐ and rule‐authority may allow him to help parties resolve coordination disputes that surface after the application is made public but before it is approved. See 34 U.S.C. § 10153(a)(3)(B).
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In sum, we conclude that the Notice Condition is statutorily authorized by § 10153(a)(4)’s reporting requirement, § 10153(a)(5)(C)’s coordination requirement, and § 10155’s rule‐ making authority for Byrne Program applications relating to prosecution, incarceration, and release. That being the purpose for which plaintiffs have generally sought Byrne funding, we vacate the district court’s injunction barring any application of the Notice Condition.
4. The Access Condition Is Statutorily Authorized by 34 U.S.C. §§ 10153(a)(5)(C) and 10155
Title 34 U.S.C. § 10153(a)(5)(C)’s coordination requirement and § 10155’s rule‐making provision also authorize the challenged Access Condition, and for much the same reason that they authorize the challenged Notice Condition. The Access Condition requires Byrne grant applicants to agree to have in place throughout the grant period a “statute, or a State rule, ‐regulation, ‐policy, or ‐practice” that ensures federal immigration officials “access” to State correctional facilities so that these officials can meet with detained aliens (or suspected aliens) to determine their legal status in this country. See supra at 16 (quoting condition).
As explained in discussing the Notice Condition, when States seek Byrne funding for programs related to the prosecution, incarceration, or release of persons, some of whom will inevitably be removable aliens, DHS is an “affected agency” for purposes of 34 U.S.C. § 10153(a)(5)(C). That is because a State’s incarceration of an alien requires DHS to delay acting on its own statutory obligations to
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arrest, detain, and remove certain aliens until the State releases the alien. See supra at 67–69. In such circumstances, coordination between the State and DHS is not only appropriate, but necessary, to allow the federal agency effectively to resume its obligations when the State has achieved its penal ones.
For DHS to be able to do so, it needs to ascertain not only when a removable alien will be released (the object of the Notice Condition), but also what aliens incarcerated by the State are removable. DHS does not ask the State to provide the latter information. Rather, it asks to be afforded access to State‐incarcerated aliens (or suspected aliens) so that DHS can itself ascertain their potential removability before release. That is what the challenged Access Condition ensures.37
Affording such access constitutes “appropriate coordination” in that it allows both the State seeking a Byrne grant for purposes relating to prosecution, incarceration, or release and an affected agency, DHS, to carry out their respective duties with respect to incarcerated aliens in an orderly sequence. Thus, as with the Notice Condition, we conclude that the Attorney General is statutorily authorized to impose the Access Condition pursuant to § 10153(a)(5)(C), which empowers him to determine the acceptable form for certifying appropriate coordination, and § 10155, which authorizes him to issue rules to carry out the coordination
37 What it does not ensure is that incarcerated aliens will then agree to talk with federal immigration authorities.
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requirement. Accordingly, we vacate the injunction prohibiting any application of the Access Condition.
II. The Attorney General’s Imposition of the Challenged Conditions Was Not Arbitrary and Capricious
Plaintiffs argue that, even if the Attorney General was statutorily authorized to impose the challenged conditions, the district court correctly concluded that it was arbitrary and capricious for him to do so here without considering the conditions’ negative consequences, particularly in undermining relationships between immigrant communities and local law enforcement. See New York v. Dep’t of Justice, 343 F. Supp. 3d at 240–41. The conclusion does not withstand de novo review. See Karpova v. Snow, 497 F.3d 262, 267 (2d Cir. 2007) (holding that appeals court reviewing summary judgment award on APA claim examines “administrative record de novo without according deference to the decision of the district court”).
While agency action may be overturned as arbitrary and capricious if the agency “entirely failed to consider an important aspect of the problem” at issue, Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), a court will not “lightly” reach that conclusion, Islander East Pipeline Co., LLC v. McCarthy, 525 F.3d 141, 151 (2d Cir. 2008) (citing approvingly to Patterson v. Caterpillar, Inc., 70 F.3d 503, 505 (7th Cir. 1995) (stating that court “must be very confident that the decisionmaker overlooked something important”)).
Here, DOJ did not overlook something important. As the district court acknowledged, DOJ was aware of the detrimental effects
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plaintiffs fear from the three challenged conditions. The court also acknowledged that the weight to be given these effects as compared to the conditions’ perceived benefits was at least arguable. See New York v. Dep’t of Justice, 343 F. Supp. 3d at 241. The sole ground on which the district court concluded that DOJ arbitrarily and capriciously “ignored” these detrimental effects in imposing the challenged conditions was its failure to mention such effects in any proffered document. See id. (observing that documents “do not reflect that [DOJ] in any way considered whether jurisdictions’ adherence to the conditions would undermine trust and cooperation between local communities and government”).
In fact, there was no need for DOJ to discuss the relative detriments and benefits of the Certification Condition. That condition identifies a specific statute, 8 U.S.C. § 1373, as an “other applicable Federal law[]” for purposes of the statutory compliance certification requirement of 34 U.S.C. § 10153(a)(5)(D). Thus, the sole question for DOJ to decide was whether 8 U.S.C. § 1373 is an applicable law. Having made that decision—which we uphold, see supra at 35–61— nothing in the statute authorized DOJ to excuse a Byrne applicant from certifying its willingness to comply with an applicable federal law on a finding that the detrimental effects of compliance outweigh the benefits. Indeed, that would be particularly unwarranted here where the legislative history shows that Congress was itself aware of the very detrimental effects raised by plaintiffs when it enacted § 1373. See supra at 19 (quoting Senator Kennedy’s acknowledgment of mayors’ concerns that cooperating with immigration authorities could be counterproductive). Thus, DOJ’s failure to discuss
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detrimental effects does not show that it arbitrarily or capriciously imposed the Certification Condition.
As for the Notice and Access Conditions, these apply only to persons in State custody, i.e., persons found guilty beyond a reasonable doubt of charged crimes, or persons for whom there is at least probable cause to think that they committed crimes. Such conditions do not put law‐abiding undocumented aliens who have been crime victims or witnesses at risk of removal and, thus, should not dissuade such aliens from reporting crimes or cooperating in their investigation.38 Thus, it was hardly arbitrary or capricious for DOJ to impose these conditions without discussing detrimental effects that they were unlikely to cause.
Nor are we persuaded by plaintiffs’ further argument that the challenged conditions are arbitrary and capricious because DOJ failed
38 See City of Philadelphia v. Attorney Gen., 916 F.3d at 282 (citing Philadelphia’s rationale for policy limiting employee cooperation with federal immigration authorities: to “foster trust between the immigrant community and law enforcement,” which is “critical to reassure law‐abiding residents that contact with the City government will not lead to deportation” by federal authorities (internal quotation marks omitted)); City of Chicago v. Sessions, 888 F.3d at 279 (observing that “City recognized . . . maintenance of public order and safety required the cooperation of witnesses and victims, whether documented or not”); Michael R. Bloomberg, Mayor Michael R. Bloomberg Signs Executive Order 41 Regarding City Services For Immigrants (Sept. 17, 2003) (remarking in public speech that “[w]hen the parents of an immigrant child forego vaccination for fear of being reported to the federal immigration authorities, we all lose . . . . Likewise, we all suffer when an immigrant is afraid to tell the police that she has been the victim of a sexual assault or domestic violence”), available at https://www1.nyc.gov/office‐ of‐the‐mayor/news/262‐03/mayor‐michael‐bloomberg‐signs‐executive‐order‐41‐ city‐services‐immigrants.
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to “display awareness that it [was] changing position” and did not show “good reasons for the new policy.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (internal quotation marks omitted). DOJ did not change its position; rather, the Attorney General exercised his authority to have Byrne grant applicants satisfy the §§ 10153(a)(4), 10153(a)(5)(C), and 10153(a)(5)(D) requirements in a more specific form. Even if it was necessary to show “good reasons” for this decision, however, that is satisfied here by the 2016 IG Report’s findings of a significant, decade‐long decline in cooperation between local law enforcement officials and federal immigration authorities, some achieved through policies in tension with, if not actually violative of, 8 U.S.C. § 1373.
CONCLUSION
To summarize, we conclude as follows:
(1) The Attorney General was statutorily authorized to impose all three challenged conditions on Byrne grant applications. a. The Certification Condition (1) is statutorily authorized by 34 U.S.C. § 10153(a)(5)(D)’s requirement that applicants comply with “all other applicable Federal laws,” and (2) does not violate the Tenth Amendment’s anticommandeering principle; b. The Notice Condition is statutorily authorized by 34 U.S.C. § 10153(a)(4)’s reporting requirement, § 10153(a)(5)(C)’s coordination requirement, and § 10155’s rule‐making authority;
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c. The Access Condition is statutorily authorized by 34 U.S.C. § 10153(a)(5)(C)’s coordination requirement, and § 10155’s rule‐making authority.
(2) The Attorney General did not overlook important detrimental effects of the challenged conditions so as to make their imposition arbitrary and capricious.
Accordingly,
(1) We REVERSE the district court’s award of partial summary judgment to plaintiffs;
(2) We VACATE the district court’s mandate ordering defendants to release withheld 2017 Byrne funds to plaintiffs, as well as its injunction barring defendants from imposing the three challenged immigration‐related conditions on such grants; and
(3) We REMAND the case to the district court, a. with directions that it enter partial summary judgment in favor of defendants on plaintiffs’ challenge to the three immigration‐related conditions imposed on 2017 Byrne Program grants; and b. insofar as there remains pending in the district court plaintiffs’ challenge to conditions imposed by defendants on 2018 Byrne Program grants, for further proceedings consistent with this opinion.
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 Case 1:18-cv-06474-ER Document 138 Filed 04/30/21 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
THE CITY OF NEW YORK.,
Plaintiffs, v.
GARLAND, et al.,
Defendants.

No. 18-CV-6474 (ER) STIPULATION OF DISMISSAL

WHEREAS in 2018, plaintiff the City of New York (“Plaintiff”) commenced this action, which challenges certain conditions imposed by defendants Merrick P. Garland, in his official capacity as the Attorney General of the United States, and the United States Department of Justice (“Defendants”) on grants awarded to Plaintiff under the Edward Byrne Memorial Justice Assistance Grant program for fiscal years 2016, 2017 and 2018;
WHEREAS on April 22, 2021, Defendants issued a written determination that they would no longer enforce or apply the conditions challenged in this action by Plaintiff; and
WHEREAS Plaintiff, by and through its counsel, pursuant to Federal Rule of Civil Procedure 41(a), now seeks to withdraw and dismiss all claims against Defendants;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED UPON, by and among the undersigned, on behalf of all parties who have appeared in this action, as follows:
1. Pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), all claims in abovecaptioned action against Defendants are dismissed without prejudice, with each party bearing its own costs, expenses, and attorney's fees.
2. This stipulation may be executed in any number of counterparts, all of which taken together shall constitute one stipulation, and may be executed by facsimile or electronically-transmitted signature.

Case 1:18-cv-06474-ER Document 138 Filed 04/30/21 Page 2 of 2

 
 Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT

I

FOR THE SOUTHERN DISTRICT OF NEW YORK

2

1 THE CITY OF NEW YORK,

4

Plaintffi

5

V

6 JEFFERSON B. SESSIONS III, in his official capacity as Attorney General of the United
7 States of America, and the UNITED STATES DEPARTMENT OF JUSTICE,
8
Defendants. 9

Case No

10

11

COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF

l2

Plaintiff the City ofNew York hereby alleges as follows

t3

OVERVIEW

t4

l. The City of New York ('New York City''or "the City') brings this action to enjoin the

15
Attorney General of the United States and the U.S. Department of Justice ("DOJ") from imposing

T6
new and unlawful conditions on congressionally approved federal funding for the Edward Byrne
l7
Memorial Justice Assistance Grant Program ("JAG Program"), and to seek a declaration that these

18
new conditions are unlawful, unconstitutional, and arbitrary and capricious. The City further seeks
l9
a declaration that Section 1373 of Title 8 of the United States Code ("Section 1373") is

20 unconstitutional, or, to the extent that Section 1373lawfully applies to the JAG Prograrn, a
2l
declaration that the City's laws and policies comply with Section 1373. The City also seeks a

22 permanent injunction prohibiting DOJ from imposing the new conditions and accompanying

23
mandamus relief, pursuant to 28 U.S.C. $ 1361, to compel the immediate release of its funding.

24

2. The JAG Program has long been an important source of funding for the City's criminal

25
justice programs. JAG funds help finance the City's emergency response teams, diversion

26 programs for nonviolent felony drug offenders, efforts to fight cybercrime and identity theft, and

27
school safety initiatives, to name only a few initiatives. New York Cityhas applied for and

28

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Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 2 of 30

I received its local allocation under the federal grant formula every year since the JAG Program's

2 inception in 2005.

J

3. That is all changing. In connection with its fiscal year ("FY") 2016 JAG Program

4 award, DOJ demanded that New York City, along with eight other jurisdictions, certify its
5 compliance with Section 1373 by June 30,2017 . Section 1373 is a statute that bars states and

6 localities from adopting policies that restrict communications regarding immigration and

7 citizenship status between state and local officials and the federal govemment. DOJ?s action

8 marked the first time since the enactment of Section 1373 roughly twenty years earlier that any

9 feideral agency had required compliance with Section T373 as a condition for receipt of federal

10 funding. The City submitted a legaiopinion validating its compliance with Section l373,to the

11 extent that provision is constitutionally applicable, on June 27,2017.

t2

4. Then, on July 25,2017, DOJ announced that the City, along with all other FY 2017

13 JAG recipients, must comply with two new conditions, along with another mandatory certification
T4 of compliance with Section 1373, in order to receive any JAG funds in FY 2017 . The City had to:

15 (1) certifythat it complies with Sectionl3T3 (the "Section1373 condition"); (2) provide at least

T6 48 hours' advance notice to the U.S. Department of Homeland Security ("DHS") regarding the

l7 "scheduled release date and time" of an inmate for whom DHS requests such advance notice (the l8 ooadvance notification condition"); and (3) permit officials from DHS, which oversees U.S.

I9 Immigration and Customs Enforcement (.'ICE"), to access "any detention facility''maintained by

20 the City in order to meet with persons of interest to DHS (the "jail access condition"). The City

2l timely submitted its FY 2017 application on September 5,2017.

22

5. DOJ has never communicated to the City a final determination as to its compliance

23 with Section 1373 or a final decision on its FY 2017 application. Meanwhile, on June 27,2018,

24 DOJ announced that, although'oreviews of some applications remain ongoing," it was distributing

25 nearly $200 million in JAG Program funds to jurisdictions that shared its commitment to "keeping

26 criminal aliens off our streets and our law abiding citizens safe."

27

6. DOJ's abrupt shift in implementation of the JAG Program is not only unprecedented,

28
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Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 3 of 30

1 but also lacks statutory basis or authority. No statute grants the Attorney General the authority to 2 impose the Section 1373, advance notification, and jail access conditions on the JAG Program.
J And even if Congress had delegated the authority to impose these conditions, DOJ's requirement

4 that the City comply in order to receive JAG funding violates Congress's Spending Clause

5 powers, the Tenth Amendment, and principles of federalism, as well as the Administrative

6 Procedure Act.

7

7. In short, the Attorney General and DOJ's imposition of these three conditions on FY

8 2017 JAG funds is unlawful, unconstitutional, and arbitrary and capricious.

9

8. As the largest municipality in the United States, New York City is responsible for the

10 health, safety, and general welfare of its 8.6 million residents, in addition to millions of commuters

11 and tourists. The City is also home to one of the most diverse populations in the United States.

t2 More than 3 million of the City's residents were born outside of the United States.

13

9. The City has adopted laws and policies that encourage people of all backgrounds to

l4 access City services, especially those services dedicated to law enforcement and public safety.

l5 The City's laws and policies, some of which have been in place for years before the JAG

l6 Program's inception, protect the confidentiality of individuals' information, including but not

t7 limited to immigration and citizenship status information, by restricting unnecessary collection

l8 and disclosure to external parties. Exceptions to this policy permit the City to communicate with l9 federal immigration authorities in connection with persons the City deems to be public safety

20 risks.

2l

10. These laws and policies are predicated on the understanding that: (1) the City as a

22 whole benefits when all individuals, regardless of personal attributes, feel safe reporting crimes,

23 cooperating with police investigations, accessing emergency medical treatment and public health

24 programs, and sending their children to school; and (2) residents, including members of the

25 immigrant community, ffi&y not seek out critical services if they fear that the sensitive personal

26 information they provide the City in order to obtain these services will be disclosed.

27

11. The City has also adopted laws and policies clearly defining the terms on which it will

28
J COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF

Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 4 of 30

1 cooperate with federal immigration enforcement in order to protect public safety.

2

12. New York City is now the safest big city in the nation. The City has learned from

J decades of experience that policies fostering cooperation with law enforcement and other City

4 officials by all residents, including members of the immigrant community, are integral to a

5 successful law enforcement strategy and to public health and safety. Although the Attorney

6 General has asserted that New York City is "crumbling under the weight of illegal immigration

7 and violent crime" due to its'osoft on crime stance," the City's historic streak of declining crime

8 paints a very different picture. Crime in the City is at the lowest level since the City started

9 keeping reliable records in the 1950s, with decreases in every major felony category. The City's

10 track record contradicts the Attorney General's repeated-and factually unsupported-claim that

11 "the lawless practices of so-called 'sanctuary' jurisdictions ... make our country less safe."

I2

13. Through this action, the City seeks declaratory, injunctive, and mandamus relief from

l3 this Court. Specifically, the City seeks a declaration that DOJ's imposition of the three conditions t4 on the JAG Program has no statutory basis, is contrary to the Constitution's Separation of Powers,

15 and is arbitrary and capricious. Even if Congress had delegated authority to the Attorney General l6 to impose these conditions, they would violate the Spending Clause. Moreover, the Section 1373 l7 condition violates the Tenth Amendment. The City therefore seeks a declaration that Section 1373

18 is unconstitutional, or, in the alternative, that the City is in full compliance with Section 1373 to
t9 the extent that statute may be lawfully applied to it. The City also asks this Court to permanently

20 enjoin DOJ from imposing the three conditions, as applicable, on FY 2016 and2017 JAG funds,
2l as well as any future grants under this program.

22

PARTIES

23

14. Plaintiff New York City is a municipal corporation orgarizedpursuant to the laws of

24 the State of New York. The City is a political subdivision of the State and derives its powers

25 through the State Constitution, State laws, and the New York City Charter.

26

15. New York City is the largest city in the United States and is home to more than 8.6

27 million people. Nearly six out of every ten New York City residents are immigrants or the

28

4 COMPLAINTFORDECLARATORY,INJUNCTIVE,ANDMANDAIITRELIEF

Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 5 of 30

1 children of immigrants, including an estimated undocumented population of 560,000.

2 Approximately one million residents live in a household where at least one member is

J undocumented.

4

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

5 oversees DOJ, including the Office of Justice Programs ("OJP"), which administers JAG funding.

6 He is sued in his official capacity pursuant to 5 U.S.C. $ 702.

7

17. Defendant the U.S. Department of Justice is an executive department of the United

8 States pursuant to 5 U.S.C. $ 101. As such, it engages in agency action and is named as a

9 defendant in this action pursuant to 5 U.S.C. $ 702. DOJ is responsible for administering the JAG

10 funds appropriated by Congress.

11

JURISDICTIO AND VENIIF],

t2

18. This Court has subject matter jurisdiction pursuant to 28 U.S.C. $$ l33l and 1346.

13 The Court is authorized to issue the relief sought here under the Administrative Procedure Act,

t4 5 U.S.C. $$ 702, 705,706; the Declaratory Judgment Act, 28 U.S.C. $$ 2201, 2202; and the

15 Mandamus Statute,23 U.S.C. $ 1361.

l6

19. Venue is proper in this Court pursuant to 28 U.S.C. $ 1391(e), because Plaintiff is

t7 located in this District and asubstantial part of the events or omissions giving rise to this action

18 occurred herein.

t9

FACTUAL ALLEGATIONS

20 I. THE JAG PROGRAM AI\D GRANT CONDITIONS

2l

A. Background on the JAG Program

22

20. The JAG Program has its roots in the Omnibus Crime Control and Safe Streets Act of

23 1968, Pub. L. No. 90-351, Title I, 82 Stat. 197 (codified as amended at 34 U.S.C. $ 10101 et seq.), 24 which created the first block grants for states and local goveflrments to use for law enforcement 25 and criminal justice progftrms. Congress created the JAG Program in its current form in 2005, 26 authorizing up to $1.1 billion per year in funding for criminal justice programming. The JAG 27 Program aims to "give state and local governments more flexibility to spend monoy for programs

28
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Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 6 of 30

1 that work for them rather than to impose a'one size fits all' solution." H.R. Rep. No. 109-233, at

2 89 (2005). Congress named the JAG Program after Edward Byrne, a New York City police

J officer killed while protecting a Guyanese immigrant who was acting as a cooperating witness.

4

21. Congress designed the JAG Program as a formula grant. The JAG funding formula

5 allocates money based upon states' population and the incidence of violent crime; local

6 governments are awarded a portion of their state's allocation based upon the ratio of violent crime

7 in the locality versus that of the state as a whole. 34 U.S.C. g 10156(a), (d) (formerly 42 U.S.C.

8 $ 37ss).

9

22. The program provides awardees with discretion to use funds for "any one or more" of

10 eight types of programs, including law enforcement, crime prevention and education, drug

ll treatment, and crime victim and witness programs. Id. $ 10152(a)(1)

t2

23. New York City has applied for and received JAG funds each and every year since

13 2005, as a direct grantee. Awards have ranged from $2.2 million to $8.7 million. In FY 2016,the

T4 City received $4.3 million under its direct JAG Program award. Per the statutory formula, the

15 city is entitled to a direct grant in the amount of $4.1 million for FY 2017.

I6

24. The City uses JAG funds to support critical public safety personnel and programs

t7 aimed at reducing crime and promoting fairness in the criminal justice system. For instance, the

18 New York City Police Department ("NYPD") has drawn upon JAG funding to pay the salaries of

I9 911 emergency responders. JAG funds are also used to help finance: diversion programs for

20 nonviolent felony drug offenders run through the District Attorney's Offices; efforts to fight

2T cybercrime and identity theft; drug prosecutions by the City's Office of the Special Narcotics

22 Prosecutor;upgrades to the City's criminal justice data collection, organization, and evaluation

23 systems; interventions for individuals with mental and behavioral health needs; and school safety

24 initiatives.

25

26

27

28

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1

B. Conditions for JAG Program Funding

2

25. The JAG authorizing statute provides that "the Attomey General shall allocate to each

J unit of local government" grant money based on the statutory formula. 34 U.S.C.

4 $ 10156(d)(2XA). Consequently, DOJ, as the administering agency, has limited discretion.

5

26. The JAG statute provides the Attorney General with limited authority in administering

6 the grant program. First, the Attorney General can require that applicants supply information

7 about their intended use of the grant funding and show that they will spend the money on purposes 8 envisioned by the statute. See 34 U.S.C. $ 10153(a)(2), (5). Second, the statute allows the
9 Attorney General to require that applicants provide programmatic and financial information; the

10 Attorney General can insist that a recipient "maintain and report such data, records, and

11 information ... as the Attorney General may reasonably require." Id. 5 10153(a)(a). Third, the t2 Attorney General can demand that localities certi$r, alongside their funding applications, that they

13 "will comply with all provisions of this part and all other applicable Federal laws." Id.

T4 $ 10153(a)(5XD). Finally, the statute authorizes the Attorney General to "issue rules to carry out

15 this part." 1d. $ 10155.

l6

27. The JAG statute contains no express provision authorizing the Attorney General to

l7 impose new, generally-applicable substantive conditions. Congress chose not to confer such

18 agency discretion in awarding grants under the JAG Program.

l9

28. Further, provisions found elsewhere in the JAG statute demonstrate that Conggess

20 intended to limit the Attorney General's ability to deviate from the statutory formula. For
2l example, 34 U.S.C. $ 10157(b) permits DOJ to reserve up to five percent of appropriated JAG 22 funds and reallocate them to a state or locality if DOJ determines that reallocation is necessary to

23 combat "extraordinary increases in crime" or to "mitigate significant programmatic harm resulting 24 from" the formula. This explicit limitation on DOJ's authority to redirect JAG funds speaks to

25 Congress's intent that DOJ otherwise abide by the statutory formula.

26

27

28
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1

C. Section 1373 Condition

2

29. Section 1373, which was enacted in 1996, provides, in relevant part, that a "[s]tate, or

J local government entity or official may not prohibit, or in any way restrict, any govefilment entity

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

5 information regarding the citizenship or immigration status, lawful or unlawful, of any

6 individual."

7

30. Section 1373 does not require localities receiving JAG grants to collect immigration

8 status information or take any action upon receipt of immigration status information. The statute

9 also does not address ICE detainer requests or requests for notification ofrelease and historically

10 has been narrowly construed by DOJ.

1l

31. In response to a February 2016 inquiry from a member of Congress regarding whether

t2 DOJ grant recipients complied with Section1373, DOJ's Office of the Inspector General ("OIG")

13 conducted a review of ten state and local jurisdictions, including New York City. OIG's report, t4 dated May 31,2016, noted "concerns" with several of the localities' laws and policies in

15 connection with Section 1373. The report identified New York City as having "policies and

t6 ordinances that raised such concerns."

77

32. This report apparently triggered DOJ's unprecedented announcement that Section 1373

18 is an applicable federal law for purposes of the JAG Program. This marked the first time since the
l9 enactment of Section 1373 twenty years earlier that any federal agency imposed compliance with

20 Section 1373 as a condition for receipt of federal funding.

2t

D. Advance Notification and Jail Access Conditions

22

33. DOJ announced on July 25,2017 that, in order to receive FY 2017 JAG funds,

23 recipients would have to agree to comply with two additional conditions it unilaterally decided to

24 impose. Beyond requiring that recipients of the FY 2017 JAG award certifu compliance with

25 Section l3T3,recipients would have to adhere to two new conditions related to civil immigration

26 enforcement: (1) the advance notification condition and (2) the jail access condition.

27

34. On August 24,2017, DOJ revised-and expanded-what the advance notification

28

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Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 9 of 30

1 condition and the jail access condition, neither of which are statutorily prescribed, would actually

2 entail. Under the revised advance notification condition, JAG grantees must have in place a "local

J ordinance, -rule, -regulation, -policy, or -practice ... that is designed to ensure that, when a local-

4 government ... correctional facility receives from DHS a formal written request ... [for] advance 5 notice of the scheduled release date and time for a particular alien in such facility, then such

6 facility will honor such request and-as early as practicable ... provide the requested notice to

7 DHS." DOJ did not define or clarify the term "scheduled release date," which could on its face be

8 interpreted as applying to inmates in pretrial detention in addition to those convicted of crimes

9 and serving sentences.

10

35. Under the revised jail access condition, DOJ now requires JAG grantees to have in

l1 place a "local ordinance, -rule, -regulation, -policy, or -practice ... that is designed to ensure that t2 [any, not just DHS] agents of the United States ... are glven access [to] a local-government ... 13 correctional facility''to meet with and question individuals believed to be aliens. Like the advance
t4 notification condition, the jail access condition is vague and ambiguous; it gives no indication of 15 what ooaccess" means, nor does it specify whether jurisdictions will be deemed compliant as long

t6 as they permit ICE personnel to access their facilities in order to meet with inmates who have l7 consented to such meetings. According to its broadest construction, this condition appears to

18 mandate that federal immigration agents be given unprecedented and unfettered access to local

t9 correctional or detention facilities, including to meet with and to question inmates on a non-

20 consensual basis and/or without notice that they may have counsel present,

2l

36. Neither the July 25,2017 announcement nor the August 24,2017 revision was

22 accompanied by any explanation for the imposition of these new conditions on JAG Program

23 grants, including how the newly-imposed conditions, which were characteized as "common-sense

24 measures," relate to, let alone serve to advance, the interests of the JAG Program. DOJ also failed

25 to provide grantees with any guidance as to how the conditions will operate in practice.

26

37. On September 15, 2017, Judge Harry Leinenweber of the Northern District of Illinois

27 issued a nationwide preliminary injunction against the advance notification and jail access

28
9
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Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 10 of 30

1 conditions. See City of Chicago v. Sessions, No. I :17-cv-05720 (N.D. Ill. Sept. 15,2017). A

2 panel of the Seventh Circuit affirmed. City of Chicago v. Sessions,888 F.3d 272 (7thCir. 2018).

J The Seventh Circuit then voted to consider the appropriateness of the nationwide scope of the

4 remedy en banc, and to stay the nationwide element of the injunction pending that consideration,

5 while leaving intact the holding that the conditions are unlawful and were properly enjoined as to 6 the plaintiff, the City of Chicago. City of Chicago v. Sessions, No. 17-2991 (7thCir. June26,

7 2018).

8

38. On June 6,2018, Judge Michael Baylson of the Eastern District of Pennsylvania issued

9 a decision finding that all three of the new conditions on the JAG Program grants were unlawful.
10 City of Philadelphia v. Sessions, No. l7-3894 (E.D. Pa. June 6,2018). The court also declared

11 Section 1373 unconstitutional, in violation of the Tenth Amendment. On June 28,2018,the court
l2 issued a permanent injunction as to the three conditions and ordered mandamus relief for the City

13 of Philadelphia.

l4

39. On June 27,2018, immediately after the Seventh Circuit stayed the nationwide element

15 of the City of Chicago injunction, DOJ announced that it was distributing JAG funds and released

l6 a list of awardees that did not include New York City.
T7 II. NEW YORK CITY'S LAWS AND POLICIES

18

40. The City is home to over 8.6 million people, more than 3 million of whom were born

I9 outside of the United States but have chosen to work, study, and raise families in the City. Over

20 half a million more people travel to the City every day to work, and 50 million tourists visit every

2l year. The City has the enormous responsibility of protecting the health, safety, and general

22 welfare of all of these people.

23

4I. Over decades, the City's laws and policies have developed to ensure that all residents

24 seek out and obtain essential services. The City as a whole benefits when residents seek treatment

25 and medical attention for contagious diseases, report crime when they are victims, assist the police

26 as witnesses, and come forward when they have informalion about potential crimes, unsafe

27 conditions, or other threats to public safety and welfare. It is clear that this approach works. New

28

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Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 11 of 30

I York City is now the safest big city in the nation.

2

42. Five main categories of laws and policies are germane for purposes of this Complaint,

namely the City's: (1) General Confidentiality Policy, (2) Identifying Information Laws, (3) laws

4 and policies regarding ICE detainer and notification requests, (4) laws and policies on access to

5 jails, and (5) law regarding the use of City resources for immigration enforcement.

6

A. General Confidentiality Policy

7

43. In 2001, New York City voters recognized the need for a general confidentiality

8 policy that protects information obtained and collected by City employees, in order to allow the

9 City to perform its legitimate municipal functions. Voters therefore enacted a revision to the New

t0 York City Charter authorizing the Mayor to "promulgate rules requiring that information obtained

11 by city employees be kept confidential to the extent necessary to preserve the trust of individuals

l2 who have business with city agencies." N.Y.C. Charter $ 8(g).

13

44. Then-Mayor Michael R. Bloomberg acted on this Charter revision in 2003 by issuing

l4 Executive Orders Nos. 34 and 41, which together form the ooGeneral Confidentiality Policy." The

15 General Confidentiality Policy generallybars City employees from affirmatively seeking
t6 ooconfidential information" from individuals in the first instance, and, if such information is

l7 nevertheless acquired, from disclosing it to third parties, with limited exceptions. Confidential

18 information is broadly defined to include an individual's sexual orientation, status as a victim of

T9 domestic violence, status as a victim of sexual assault, status as a crime witness, receipt of public

20 assistance, immigration status, and information contained in income tax records. Exec. Or<ter

2T No. 41 $ I (Sept. 17,2003).

22

45. Executive Order No. 41 states that one of the overarching goals is to assure residents

23 "that they may seek and obtain the assistance of City agencies regardless of personal or private

24 attributes, without negative consequences to their personal lives." The order further notes that

25 "the obtaining of pertinent information, which is essential to the performance of a wide variety of

26 govemment functions,ffi&y in some cases be difficult or impossible if some expectation of

27 confidentiality is not preserved, and preserving confidentiality in tum requires that governments

28
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Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 12 of 30

1 regulate the use of such information by their employees."

2

46. The General Confidentiality Policy restricts when City officers and employees may

J inquire about a person's immigration status. 1d. $ 3(a). Specifically, it provides that law

4 enforcement officers "shall not inquire about a person's immigration status unless investigating

5 illegal activity other than mere status as an undocumented alien." Id. $ a@). The Policy also 6 prohibits law enforcement officers from inquiring "about the immigration status of crime victims,

7 witnesses, or others who call or approach the police seeking assistance." Id. $ 4(c).

8

47. In the event that officers and employees come into possession of confidential

9 information, the General Confidentiality Policy limits disclosure of such information to the

10 following situations: (1) disclosure has been authorized in writing by the individual to whom such

11 information pertains; (2) disclosure is required by law; (3) disclosure is to another City officer or
l2 employee and is necessary to fulfill the purpose or achieve the mission of any City agency; (4) for

13 confidential information other than information related to immigration status, disclosure is to a
t4 third party and is necessary to fulfiII the purpose or achieve the mission of any City agency; and.,

15 (5) for information relating to immigration status, (a) the individual to whom such information

I6 pertains is suspected of engaging in illegal activity, (b) the information is necessary to apprehend

t7 someone suspected of engaging in illegal activity, or (c) disclosure is necessary in furtherance of

18 an investigation of potential terrorist activity. Id. S 2. "Illegal activity''is defined as unlawful

l9 activity, other than "mere status as an undocumented alien." /d. $ 3(d).
20 B. Identifying Information Laws

2T

48. In December 2017, the City augmented the New York City Charter and New York

22 City Administrative Code to further protect the vast scope of sensitive, personal information

23 collected by the City and the non-govemment agencies with which it contracts to provide human

24 services. ,See N.Y.C. Charter $ 8(h);N.Y.C. Admin. Code $$ 23-1201- 1205 (collectively, the

25 "Identifying Information Laws").

26

49. The Identifying Information Laws, which became effective June 15, 2018, set out a

27 uniform, City-wide approach to the collection, disclosure, and retention of any information that

28

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Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 13 of 30

1 "may be used on its own or with other information to identifli or locate an individual." N.Y.C. 2 Admin. Code $ 23-1201. Such "identifuing information" includes but is not limited to an J individual's "name, sexual orientation, gender identity, race, marital or partnership status, status as 4 a victim of domestic violence or sexual assault, status as a crime victim or witness, citizenship or

5 immigration status, eligibility for or receipt of public assistance or city services, all information

6 obtained from an individual's income tax records, information obtained from any surveillance

7 system operated by, for the benefit of, or at the direction of the police department, motor vehicle

8 information or license plate number, biometrics such as fingerprints and photographs, languages

9 spoken, religion, nationality, country of origin, place of birth, arrest record or criminal conviction,

10 employment status, employer information, current and previous home and work addresses, contact

11 information such as phone number and email address, information concerning social media

T2 accounts, date and/or time of release from the custody of the administration for children's services,

13 the department of correction, or the police department, any scheduled court appearances, or any

t4 scheduled appointments with any employee, contractor, or subcontractot." Id.

15

50. Under the Identifying Information Laws, the City has designated a chief privacy

16 officer to issue policies and protocols and provide guidance to City agencies regarding the
l7 collection, retention, and disclosure of identifying information. N.Y.C. Charter $ 8(h);N.Y.C. 18 Admin. Code g 23-1203; see also Exec. Order 34 of 2018 (Apr.12,2018). Each City agency also l9 has its own agency-specific privacy officer, to oversee implementation as well as monitor and
- 20 approve routine and non-routine disclosures. ,See N.Y.C. Admin. Code $$ 23-1201 1202.
2l Unauthorized disclosures must be reported to the City's chief privacy officer and, in certain

22 circumstances, reasonable efforts must be made to notif,i the individual in writing of the 23 identifying information disclosed and to whom it was disclosed as soon as practicable. Id. $ 23-

24 1202(c)().

25

51. In general, City employees may not collect or disclose identifying information unless:

26 (1) there are exigent circumstances; (2) the agency-specific privacy officer approves in advance

27 certain routine collections or disclosures, or approves on a case-by-case basis certain collections or

28
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1 disclosures; (3) the City's chief privacy officer determines in advance that a collection of such

2 information is in the City's best interest; or (4) the individual to whom the identiSring information

J pertains-or, where the individual lacks capacity, a parent or legal representative-provides

4 written authorization. Id. $$ 23-1202(bX1), 23-1202(b)(2)(b), 23-t202(c)(t),23-1202(c)(2)(b).

5

52. The Identifying Information Laws allow the NYPD to collect and disclose identifying

6 information in connection with the investigation of a crime or an attempted or impending crime.

7 Collection or disclosure is also permitted by City employees in connection with an investigation

8 concerning the welfare of a minor or individual who is otherwise not legally competent. 1d. $$ 23-

9 I 202(b) (2) (c), 23 - L 202( c) (2 ) ( c).

10

C. Laws and Policies Regarding ICE Detainer and Notification Requests

11

53. Consistent with its Fourth Amendment obligations, the City has a policy of

T2 cooperating with "civil immigration detainers"-requests sent by ICE to maintain custody of a

13 person beyond the time the person would otherwise be released, so that ICE can assume custody-

t4 for persons the City considers to be public safety risks and where those requests are accompanied 15 by a judicial warant establishing probable cause. See Galarza v. Szalczyk,745 F.3d,634 (3rd Cir.

t6 2014).
l7 54.

Specifically, Local Laws 58 and 59 of 2014, as well as Local Law 226 of 2017 (the

18 "City's detainer laws"), generallyprovide that the New York City Department of Correction

t9 ("DOC"), NYPD, and the New York City Department of Probation ("DOP") may detain an

20 individual for additional time pursuant to an ICE request where the individual has been convicted

2t of a violent or serious crime---one of approximately 170 felonies defined in New York State law,

22 or their equivalents under federal law or the law of another state--or is identified as a possible

23 match in the terrorist screening database. See N.Y.C. Admin. Code gg 9-131(bX2),9-205(b)(2),

24 I4-154(b)(2). Additionally, ICE must present a judicial warrant, issued by a federal district or

25 magistrate judge, authorizing federal immigration authorities to take the person into custody. See

26 ,d $$ e-l3 1(b)(1), e-205(b)(1), 14-1s4(b)(1).

27

55. The City's detainer laws specify that "fn]othing ... shall be construed to prohibit any

28

t4
UUMPLAINI}.OR

I(JKy, rNJUNUIlVE, ANI) MANDAMUS RbLIEF

Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 15 of 30

I city agency from cooperating with federal immigration authorities when required under federal

2 law." 1d. $$ 9-131(d), 1a-15a(d); see also $ 9-205(d) ("Nothing in this section shall be interpreted

J or applied so as to create any power, duty or obligation in conflict with any applicable law.").

4

56. DOC and NYPD similarly cooperate with ICE's requests for notification of release

5 information relating to persons the City considers to be public safety risks by providing ICE with

6 the release date and time for any individual who has been convicted of a violent or serious crime

7 or is identified as a possible match in the terrorist screening database. See N.Y.C. Admin. Code 8 $ 9-131(h)(1). Unlike the detainer requests, for which ICE must produce a judicial warrant, the 9 agencies require an administrative wa:rant before cooperating with notification requests and

10 transfers of custody to ICE without additional detention by the City.

l1

57. New York City's policies concerning ICE detainer requests and requests for

t2 notification prior to release of individuals in City custody are calibrated to advance public safety, 13 foster community trust in local law enforcement, safeguard individuals' civil rights, and protect

t4 the City's finances.

15

D. Laws and Policies on Access to Jails

t6

58. New York City's DOC manages 12 inmate facilities. For the first three months of FY

17 2018, the average daily population was roughly 9,100 inmates.

18

59. Since December 2009, DOC's policy has permitted ICE to interview an inmate where

t9 the inmate provides written consent. DOC implements this policy by providing to the inmate a

20 written notice ancl form stating that ICE would like to interview the inmate and that the inmate

2l may either consent or decline to be interviewed.

22

60. The purpose of DOC's consent-based policy is to ensure that inmates are made aware

23 that they may decline to speak with federal immigration enforcement authorities, or request the

24 presence of counsel at their own expense should they consent to such an interview.

25

61. Under Local Law 246 of 2017, the City also limits access to non-public areas of City

26 property, including DOC inmate facilities, to personnel of the City, the City's Department of

27 Education, or a local public benefit corporation or local public authority, subject to enumerated

28
15 COMPLAIN'I' FOR DECLARA I ORY, IN J UNU I IV.b, AND MANDAMUS RELIET.

Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 16 of 30

1 exceptions. N.Y.C. Admin. Code $ 4-2I0(b). Other govemmental personnel empowered to 2 enforce civil or criminal laws, including but not limited to federal immigration authorities, may

J gain access to non-public areas of City property where: such personnel are authorized to have

4 access pursuant to an agteement or contract; such personnel present a judicial wa:rant; access is

5 otherwise required by law; such personnel are accessing the property as part of a cooperative

6 arrangement involving City, state, or federal agencies; access furthers the purpose or mission of a

7 City agency; or exigent.circumstances exist. 1d.

8

E. Law on Use of City Resources for Immigration Enforcement

9

62. Local Law 228 of 2017 sets forth the circumstances under which the City may use its

10 own resources for federal immigration enforcernent. The law permits City resources to be used to

11 support federal immigration enforcement where City officers and employees are acting in

12 accordance with their duties under state and local law; for example, DOC and NYPD may take

13 actions consistent with the City's laws and policies related to detainer requests, and NYPD t4 officers may act in furtherance of public safety. N.Y.C. Admin. Code g l0-178(c), (e).

15 Furthermore, nothing in the law "shall prevent any city officer or employee from complying with

t6 federal law or restrict their discretion to take any action if such restriction is prohibited by federal

l7 law;' Id. $ 10-178(e).

18

63. The law also forbids City agencies from entering into agreements under which local

l9 officers are deputized by ICE to perform immigration enforcement, or otherwise subjecting City

20 employees to the supervision of DHS primarily in furtherance of immigration enforcement. 1d.

2l $ 10-178(b).
22 ilI. NEW YORK CITY'S.JAG APPLICATIONS

23

64. New York City's General Confidentiality Policy was in place years before the City

24 applied and qualified for its first JAG grant in 2005, and it continued to be City policy over the

25 next 11 years during which the City applied for and was awarded 11 subsequent JAG grants.

26 During this time, which extended over two presidential administrations, no one ever suggested that

27 the City's policies failed to comply with "applicable Federal laws," including Section 1,373's

28

t6
UOMPLAIN I'I.OR DECLARA'I'ORY, INJUNCTIVE, AND MANDAMUS RELfEF

Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 17 of 30

1 provision that a local government may not prohibit"ary government entity or official from

2 sending to, or receiving from, the Immigration and Naturalization Service information regarding

J the citizenship or immigration status" of any individual.

4

65. The cloud of uncertainty hanging over the City's policies did not emerge until July 7,

5 2016, when OJP first issued guidance asserting, without explanation or legal support, its

6 determination that Section 1373 is an applicable federal law for purposes of the JAG Program.

7 Two months later, on September 6,2016, OJP notified New York City that its application for

8 funding under the FY 2016 JAG program had been approved subject to "Special Condition 53,"

9 which stated that, as a recipient, New York City "agrees to undertake a review to validate its

10 compliance with fSection] 1373" and submit a legal opinion supporting such validation by June

11 30,2017.

t2

66. On October 6,2016, OJP released a document entitled "Additional Guidance

t3 Regarding Compliance with 8 U.S.C. $ 1373," which addressed the question: "Does OJP's

t4 guidance on 8 U.S.C. $ 1373 impact FY 2016 funding?" The response: "No FY 2016 or prior year

15 IJAG Program] funding will be impacted."

t6

67. On April 2I,2017, DOJ sent letters to New York City and eight other jurisdictions

l7 with a reminder that 'lrnder the terms of your FY 2016 Byrne JAG grant ... your jurisdiction is

18 required to submit documentation to OJP that validates your jurisdiction is in compliance with

t9 8 U.S.C. $ 1373." The letter instructed recipients to provide an "official legal opinion from 20 counsel" by June 30,2017, and warned that "fflailure to comply with this condition could result in

2t the withholding of grant funds, suspension, or termination of the grant, ineligibility for future OJP

22 grants or subgrants, or other action, as appropriate."

23

68. New York City submitted a legal opinion signed by Corporation CounselZacharyW.

24 Carter to DOJ on June 27,2017. The City certified that its laws and policies comply with and

25 operate within the constitutional bounds of Section 1373.

26

69. Specifically, the City explained that its detainer laws are consistent with Section 1373,

27 as Section 1373 does not speak to the issue of civil immigration detainer requests, local

28
l7
COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEf

Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 18 of 30

1 compliance with which is voluntary.

2

70. The City also explained that its General Confidentiality Policy complies with Section

J 1373 because that statute may not be read to abrogate a state or local confidentiality policy that is

4 general both as to information covered and disclosures regulated. The City further explained that

5 to interpret Section 1373 otherwise would improperly undermine state and local governments'

6 control over their own employees in a manner that is impermissible under principles of federalism.

7 Moreover, the City noted that Section 1373's prohibition on states' and localities' adoption of

8 policies that restrict immigration-related communications between state and local officials and the

9 federal govemment violates the Tenth Amendment and the Constitution's federalist structure.

10

71. In the June27,2017 legal opinion, the City reserved its right to challenge the Section

11 1373 condition. The City notified DOJ of its position that Section 1373 is not an applicable t2 federal law for the purposes of the JAG Program, and that it had identified significant

13 constitutional limits on the application of this statute to its General Confidentiality Policy.

t4

72. Days after receiving certifications from jurisdictions including New York City, DOJ

15 issued a press release stating: "[S]ome of these jurisdictions have boldly asserted that they will not

t6 comply with requests from federal immigration authorities," and "[i]t is not enough to assert

l7 compliance, the jurisdictions must actually be in compliance."

18

73. New York City filed a timely application for the FY 2017 JAG grant on September 5,

l9 2017. The City was not required to and did not certifu compliance with the Section 1373, advance

20 notification, and jail access conditions.

2t

74. On October 11,2017, DOJ formally responded to the City's legal opinion, stating that,

22 "based on a preliminary review, the Department has determined that your jurisdiction appears to

23 have laws, policies, or practices that violate 8 U.S.C. $ 1373." DOJ directed the City to change its

24 policies and to "certify that it has communicated this interpretation to its officers and employees."

25

75. DOJ nevertheless asserted that it had yet to reach aoofiril" determination as to the

26 City's compliance or non-compliance with Section 1373.

27

6. 7

On October 27 , 2017 , New York City replied to DOJ's "preliminary" assossment of its

28

18
UUMPLAIN I ! OR DECLARA'I'ORY, INJ UNC'I'IVE, AND MANDAMUS RELIEF

Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 19 of 30

1 non-compliance with Section 1373 and reiterated its legal opinion that its laws, policies, and 2 practices complied with Section1373, as lawfully applied. The City also reasserted its position

J that DOJ's required certification with respect to Section 1373 is unlawful.

4

77. Most recently, on January 24,2018, DOJ sent the City a letter reiterating that it

5 "remains concerned that your jurisdiction's laws, policies, or practices may violate 13J3" and

6 requesting, under threat of subpoena, "[a]ll documents reflecting any orders, directives,

7 instructions, or guidance to your law enforcement employees ... regarding whether and how these
8 employees may, or may not, communicate with the Department of Justice, the Department of

9 Homeland Security, and/or Immigration and Customs Enforcement, or their agents, whether

10 directly or indirectly." This letter further warned that, should DOJ determine that the City is out 11 of compliance with Section 1373, it might claw back FY 2016 grant funds (contrary to prior t2 representations), require additional conditions for receipt of any FY 2017 funding, and/or deem

13 the City ineligible for FY 2017 JAG tunds.

t4

78. The City sent DOJ a timely submission with responsive materials on February 23,

l5 2018.

16

79. Since then, the City has received no further communications from DOJ with respect to

T7 its JAG funding or its compliance with Section 1373-even though DOJ has processed and

18 distributed FY 2017 JAG funds to a list of state and local awardees.

t9 IV. EFFECT OF THE NEW' UNLAWFUL JAG CONDITIONS ON NEW YORK CITY

20

80. All three of DOJ's newly-imposed conditions on the JAG Program are unlawftil. None

2l of these conditions fits within the authority Congress delegated to the Attorney General to

22 administer and oversee the program and funding provided to grantees, or expressly applies to

23 grantees under the JAG authorizing statute. Moreover, Congress has repeatedly considered and

24 failed to enact bills that would have conditioned federal grants on compliance with Section 1373.

25

81. The new conditions are not only unauthoized, but unprecedented. DOJ has never

26 attached any conditions of this nature to JAG funds, consistent with the formula grant structure

27 under the statute.

28
l9
COMPLAINT FOR DECLARATORY, INJUNC'I'IV-B,, AND MANDAMTJS RbLIbI

Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 20 of 30

I

82. DOJ's actions violate the Separation of Powers by usurping authority reserved to

2 Congress. They also exceed limits on the federal govemment's ability to place conditions on

J federal funds under the Spending Clause, as Congress did not impose these conditions. Moreover,

4 the conditions, which relate to civil immigration enforcement, do not reasonably relate to the

5 criminal justice purpose of the JAG Program.

6

83. Further, the Section 1373 condition violates the anti-commandeering principle by

7 seeking to unequivocally dictate what the City may and may not do. Under the Tenth

8 Amendment, the federal government does not have the power to issue orders directly to the states,

9 nor can it conscript state officers or those of their political subdivisions.

l0

84. The Section 1373 condition effectively strips New York City of its authority to control

11 its workforce by insisting that the City allow its ernployees to, at their own discretion, share

t2 residents' personal information with federal immigration authorities.

13

85. The Section 1373 condition also purports to force New York City to substantially alter

t4 laws and policies the City has enacted for the benefit of its residents based on the City's priorities.

15 Moreover, complying with these conditions would jeopardize historic improvements in public

t6 safety, health, and welfare.

t7

86. In cities where immigrant communities believe that local authorities operate in concert

18 with federal immigration enforcement, residents have retreated into the shadows, to the detriment

T9 of their own safety and that of the public. Crime reporting in many immigrant communities

20 dropped precipitously in the wake of the current administration's sweeping executive order

2l instructing law enforcement agencies to target more immigrants for deportation, encouraging state

22 and local govemment participation in federal immigration enforcement, and unilaterally

23 withdrawing all federal funding from whatever jurisdictions the Attorney General deemed

24 'osanctuary jurisdictions," Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25,2017) (that order

25 has already been found unconstitutional as an unprecedented attempt to coerce local governments

26 into serving as federal immigration agents, Cnty. of Santa Clara v. Trump,27 5 F . Supp. 3d 1196 27 (N.D. CaI.20t7)).

28

20
UUMTLAIN I .t,UK L'-b,ULAKAI UKY, INJ UNU I IVE, AND MANDAMUS RbLIEF

Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 21 of 30

1

87. By contrast,.New York City has seen no decline in crime reporting associated with

2 ZIP codes with the highest foreign-born and non-citizen populations. This encouraging trend
if J extends to crimes like harassment and rape, where a greater chilling effect would be expected

4 residents were afraid to contact the police because of immigration concerns. Crimes continue to

5 be reported-and, therefore, dangerous criminals continue to be arrested and prosecuted. 6 Similarly, New York City's system of public clinics and hospitals found no chilling effect in

7 utilization, including for hospitals in the neighborhoods with the largest foreign-born and non-

8 citizenpopulations, and there was no decrease in New York City school attendance, including

9 when controlling for neighborhood.

10

88. New York City officials attribute these successes to the City's policies protecting

11 confidential information and to the City's ability to demonstrate its independence from federal
l2 immigration authorities. While the City cooperates with ICE and other federal agencies,

13 immigrant communities clearly understand that the City does so in accordance with its own
l4 policies. That understanding is the basis for the trust built up over decades between immigrant

15 communities and City agencies.

t6

89. The Attorney General's imposition of the new conditions would destroy that trust by

T7 forcing City officials to act as instruments of federal immigration efforts in order to receive the

18 critical public safety funding to which the City is already entitled. Unlike now, immigrant

t9 communities would blame local officials for federal policy choices.

20

90. if If the City's application for the FY 2017 .TAG award is rejected or withheld, or

2l awards from earlier years are clawed back, based on a finding of non-compliance by DOJ, the City

22 faces a significant risk of harm to its criminal justice programming and longstanding approach to

23 protecting public safety.

24

25

26

27

28
2l
UUMPLAIN I FUK IJEULAKAIUKY, INJUNUIIVb, ANL' MANL'AMUD T(T,LII,.t,

Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 22 of 30

I

CAUSES OF ACTION

2

FIRST CAUSE OF ACTION

J

Violation of the Administrative Procedure Act Through Ultra Vires Conduct

4

91. Plaintiff incorporates by reference the allegations in the preceding paragraphs.

5

92. As an agencypursuant to the Administrative Procedure Act ("APA"), 5 U.S.C.

6 $ 551(1), DOJ may only exercise authority conferred by statute. See, e.g., City of Arlington v.

7 FCC,569 U.S. 290,297-98 (2013).

8

93. The JAG statute provides no authority to the Attorney General to impose conditions

9 on the receipt of JAG funds that are neither reflected in "applicable Federal laws" nor concern the

10 administration of the JAG program itself. No other statute provides the Attorney General with this

11 authority.

T2

94. The three conditions added to the FY 2017 JAG grant by Defendants are neither

13 "applicable Federal laws" nor conditions that deal with the administration and expenditure of JAG

T4 funds.
15 95. t6 96.

Defendants' imposition of the new conditions is unauthorized by statute. Defendants' imposition of the new conditions also contradicts the JAG Program's

t7 formula grant structurc. See 34 U.S.C. $ 10156(d)(2)(A).

18

97. Under the APA, agency action is unlawful and must be set aside where it is ooarbitrary,

l9 capricious, an abuse of discretion, or otherwise not in accordance with law"; "contrary to

20 constitutional right, power, privilege, or immunity''; or'oin excess of statutory jurisdiction,

2l authority, or limitations, or short of statutory right." 5 U.S.C. $ 706(2).

22

98. The APA also calls upon courts to "compel agency action [that is] unlawfully

23 withheld or umeasonably delayed." Id. $ 706(1).

24

99. Pursuant to 5 U.S.C. $ 706 and28 U.S.C. S 2201, Plaintiff is entitled to a declaration

25 that Defendants are without the statutory authority to impose the Section 1373, advance

26 notification, and jail access conditions, as applicable, on FY 2016 and FY 2017 JAG funds, and in

27

28

22 UUMPLAINI T.ORI)

luKy, rNJUNUllv.b, ANL' MANDAMUS RbLlEI.

Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 23 of 30

I doing so, has acted contrary to law under the APA. Plaintiff is also entitled to a permanent

2 injunction preventing Defendants from putting those conditions into effect.

J

100. Pursuant to 28 U.S.C. $ 1361 and 5 U.S.C. $ 706(1), Plaintiff is further entitled to a

4 writ of mandamus to compel Defendants to disburse New York City's FY 2017 JAG award as the

5 agency is unreasonably delaying its issuance and doing so for reasons that are contrary to law.

6

SECOND CAUSE OF ACTION

7 Violation of the Administrative Procedure Act by Infringement on Separation of Powers

8

101. Plaintiff incorporates by reference the allegations in the preceding paragraphs.

9

102. Article I of the Constitution vests Congress with the power to appropriate funding to

10 "provide for the ... general Welfare of the United States." U.S. Const. artl, $ 8, cl. 1. Congress

11 must set forth the conditions of funding for states and local governments explicitly and

12 unambiguously.

13

103. An Executive Branch agency may exercise only the authority conferred upon it by

t4 Congress. Thus, absent a clear Congressional directive, the Executive cannot redirect or impose

15 additional conditions on funds that have been appropriated by Congress for a particular purpose.

16

104. The JAG statute does not condition participation in the program on compliance with

t7 Section l373,the advance notification, and jail access conditions, or civil immigration

18 enforcement more generally. See 34 U.S.C. $ 10151 et seq. Additionally, there is nothing in
l9 either the text or legislative history of Section 1373 that conditions federal funding on compliance

20 with Section 1373.

2l

105. Defendants' imposition of new funding conditions that Congress did not explicitly and

22 unambiguously enact or authorize impermissibly arrogates to the Executive Branch power that is

23 reserved to Congress.

24

106. As the imposition of these three conditions amounts to an improper usurpation of

25 Congress's Spending Power by the Executive Branch, Plaintiff is entitled to a declaration that

26 Defendants are without the statutory authority to impose the Section 1373, advance notification,
27 and jail access conditions, as applicable, on FY 2016 and20l7 JAG funds, and in doing so, has

28
23 COMPLAIN'I T.'OR DECLAKA I UK Y, IN J UN C'I'I V-b, AN D MAN IJAM U S I(bLI.bI

Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 24 of 30

1 acted contrary to law under the APA. See 28 U.S.C. $ 2201. Plaintiff is also entitled to a

2 permanent injunction preventing Defendants from putting those conditions into effect.

1

107. Pursuant to 28 U.S.C. $ 1361 and 5 U.S.C. $ 706(1), Plaintiff is further entitled to a

4 writ of mandamus to compel Defendants to disburse New York City's FY 2017 JAG award as the

5 agency is unreasonably delaying its issuance and doing so for reasons that are contrary to law.

6

THIRD CAUSE OF ACTION

Violation of the Administrative Procedure Act Through Arbitrary and Capricious Agency

7

Action

8

108. Plaintiff incorporates by reference the allegations in the preceding paragraphs.

9

109. Even if Defendants had a statutory basis to impose the three new conditions, which

10 they do not, Defendants' decision to impose the conditions on recipients of JAG funds was

1l arbitrary and capricious.

l2

110. First, DOJ deviated from its prior practice of imposing only limited programmatic and

13 grant-related conditions on JAG funds, as opposed to immigration enforcement mandates, without t4 reasoned explanation orjustification. Since the enactment of Section 1373 inlgg6,neither DOJ

15 nor any other agency has made compliance with the statute a requirement of receiving a federal t6 grant. Moreover, until 2016 and2017, DOJ has never made Section 1373, jail access, or advance I7 notification a condition for receiving JAG funds, or remotely indicated that it viewed those types

18 of conditions as related to the pu{pose of JAG funding.

t9

1. 11

Second, the new conditions bear no relation to the administration or goals of the JAG

20 Program. The purpose of the JAG Program is to provide funding to state and local governments

21, for: local law enforcement initiatives; prosecution and court programs; prevention and education

22 programs; corrections and community corrections programs; drug treatment and enforcement;

23 mental health programs; crime victim and witness initiatives; and planning, evaluation, and

24 technology improvement programs. 34 U.S.C. $ 10152. None of the three conditions has a

25 reasonable relationship to the program areas that the JAG Program supports.

26

lI2. Third, to the extent DOJ justifies the three new conditions as promoting public safety,

27 there is a glaring disconnect between DOJ's stated reasons for imposing the three new conditions

28

24 UUMPLAIN'I' FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF

Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 25 of 30

I and the actual effects of the conditions. Far from promoting public safety, compliance with the

2 conditions would deter City residents from interacting with local law enforcement and harm the

J City's efforts to reduce crime.

4

113. Pursuant to 28 U.S.C. $ 2201, Plaintiff is entitled to a declaration that Defendants'

5 imposition of the three conditions is arbitrary and capricious. Plaintiff is also entitled to a

6 permanent injunction preventing Defendants from implementing these conditions.

7

ll4. Pursuant to 28 U.S.C. $ 1361 and 5 U.S.C. $ 706(1), Plaintiff is further entitled to a

8 writ cif mandamus to compel Defendants to disburse New York City's FY 2017 JAG award as the

9 agency is unreasonably delaying its issuance and doing so for reasons that are contrary to law.

10

FOURTH CAUSE OF ACTION

l1

Violation of the Spending Clause

t2

I15. Plaintiff incorporates by reference the allegations in the preceding paragraphs.

13

116. In order to satisfy the requirernents of the Spending Clause under the Constitution, the

l4 conditions for receipt must be stated clearly and the funding condition must be reasonably related

15 to the federal interest in the project or program that the federal govemment is funding.

t6

Il7. Even if Congress had clearly conditioned receipt of JAG Program funds on the three

T7 new conditions, which it did not, all three of Defendants' conditions violate the Spending Clause

18 because they are not reasonably related to the federal interest in the JAG Program.

l9

118. The three new conditions relate to civil immigration enforcement, and therefore do not

20 reasonably relate to the criminal justice purpose of the JAG Program, which is intended to provide

2l funding to states and localities for local law enforcement initiatives.

22

Il9. Under 28 U.S.C. 5 2201, Plaintiff is entitled to a declaration that Defendants'

23 imposition of the three immigration-related conditions for the FY 2017 JAG Program, including

24 the condition requiring compliance with Section 1373 that was first imposed in relation to the FY

25 2016 JAG Program, violates the Constitution's Spending Clause. Plaintiff is further entitled to an

26 injunction preventing these conditions from going into effect.

27

28
25 COMPLAIN'I' F-OR DECLARA'I'ORY, IN J UN C'f IVE, AND MANDAM U S RELIb!

Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 26 of 30

1

120. Under 28 U.S.C. $ 1361 and 5 U.S.C. $ 706(t), Plaintiff is further entitled to a writ of

2 mandamus to compel Defendants to disburse New York City's FY 2017 JAG award as the agency

Ja is unreasonably delaying its issuance and doing so for reasons that are contrary to law.

4

FIFTH CAUSE OF ACTION

5

Violation of the Tenth Amendment and Constitutional Principles of Federalism

6

l2I. Plaintiff incorporates by reference the allegations in the preceding paragraphs.

7

122. The Section 1373 condition violates the Tenth Amendment by requiring City

8 personnel to perform federal functions and compelling changes to the City's policies and laws.

9 The Tenth Amendment prohibits the federal government from requiring states and localities to

10 govern according to Congress's instructions and from commanding local officers to administer or

1l enforce a federal regulatory program. This anti-commandeering principle applies to situations in I2 which Congress compels a State to enact, or prohibits a State from enacting, legislation. Murphy

13 v. NCAA,138 S. Ct.146l,1478 (2018). A balance between the powers of the federal government

t4 and the states is grounded in the structure of the Constitution.

15

I23. Defendants' interpretation of Section 1373 blocks the City from enacting a policy that

t6 controls the time, manner, and instances in which its employees exchange immigration status

t7 information with federal officials. The City's effective local strategies to protect public safety and

l8 public health would be subordinated to the federal government's immigration efforts, and local

l9 officers and employees would be free to turn their time and attention to the latter. As a result, the

20 City's personnel would be commandeered to perform federal functions rather than to pursue local

2T priorities. This is precisely the sort of prohibition on state and local policymaking that is

22 forbidden under the Tenth Amendment.

23

124. Moreover, as read by DOJ, Section 1373 would impose upon the City significant

24 fiscal and political burdens: immigrant communities would come to distrust and disengage from

25 local government because of choices made by the federal government, blaming the former for the

26 policies of the latter and blurring lines of political accountability between federal and local

27 authorities.

28
26 C OMPLAINT FOR DEC LARATOR-Y

Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 27 of 30

1

125. Further, the Section 1373 condition is unconstitutional as its primary objective is to

2 direct the functioning of state and local governments. Section 1373 directly governs the actions of

J a "[s]tate, or local govemment entity or official" and prohibits them from enacting certain rules or

4 policies and from controlling their own work force. Such interference poses a direct affront to

5 state sovereignty under the Tenth Amendment. Thus, Section 1373 is unconstitutional.

6

126. Pursuant to 28 U.S.C. g 2201, Plaintiff is entitled to a declaration that Section 1373

7 violates the Tenth Amendment. Plaintiff is entitled to a permanent injunction preventing

8 Defendants from imposing the Section 1373 condition or otherwise enforcing Section 1373

9 against the City.

10

127. Pursuant to 28 U.S.C. $ 1361 and 5 U.S.C. $ 706(1), Plaintiff is further entitled to a

11 writ of mandamus to compel Defendants to disburse New York City's FY 2017 JAG award as the

l2 agency is unreasonably delaying its issuance and doing so for reasons that are contrary to law.l

13

SIXTH CAUSE OF ACTION

14

Declaratory Judgment that New York City Complies with 8 U.S.C. $ 1373

15

128. Plaintiff incorporates by reference the allegations in the preceding paragraphs.

l6

129. To the extent that Section 1373 can constitutionally be applied to New York City, if at

t7 all, New York City's laws and policies comply with and operate within the proper constitutional

18 boundsofSection 1373.

l9

130. The City's laws and policies broadly restrict the collection of sensitive, personal

20 information by City officers and employees and protect such information from unauthorized
2l disclosure. Protected information is defined broadly to include an individual's sexual orientation,

22

1 The Second Circuit rejected a prior Tenth Amendment challenge to Section 1373 involving 23 different policies of the City. See City of New York v. United States, 179 F.3d29,36 (2d Cir.

24

1999). That decision explicitly left open whether Section 1373 would be constitutional as applied to oogeneralized confidentiality policies that are necessary to the performance of legitimate

25 municipal functions," 179 F.3d at 37 , such as the New York City laws and policies at issue now. Moreover, the Supreme Court's intervening ruling in Murphy has undermined the core reasoning
26 of City of New Yorkby making clear that a federal law may run afoul of the anti-commandeering 27 principle even if it does not affirmatively compel state or local action.

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27 COMPLAINT FOR DECLARATORY, fNJUNCTIVE, AND MANDAMUS RELIEF

Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 28 of 30

1 status as a victim of domestic violence, status as a victim of sexual assault, status as a crime 2 witness, receipt of public assistance, and immigration status, to name only a few. These laws and J policies are designed to assure residents that their information will be protected, unless disclosure

4 is authorized, and are deeply embedded in the City's regular business practices and day-to-day

5 operations.

6

131. The City's generalized laws and policies not only are necessary to the performance of

7 its legitimate municipal functions, but also do not contravene Section 1373 as they are not

8 designed to bar disclosures to federal immigration authorities, but to third parties generally.

9

I32. Moreover, the City's laws and policies authorize local law enforcement to cooperate

10 with federal authorities in situations that the City determines legitimately implicate public safety,

11 such as exigent circumstances or where an individual has been convicted of a violent or serious

T2 crime or is identified as a possible match in a terrorist screening database.

13

133. The City's overarching posture of non-disclosure with respect to sensitive, personal

t4 information, especially where that information pertains to residents seeking City services to which

t5 they are entitled, is consistent with Section 1373, to the extent DOJ can apply Section 1373 to

l6 JAG funds-notwithstanding that it lacks a statutory basis, its imposition was arbitrary and

T7 capricious, and the condition violates the Separation of Powers, Spending Clause, and the Tenth

18 Amendment.

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134. Pursuant to 28 U.S.C.5 2201, Plaintiff is entitled to a declaration that Section 1373 is

20 unconstitutional, or, in the alternative, that the City complies with Section 1373.

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COMPLAINT FOR DECTM-T

Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 29 of 30

1

PRAYER FOR RELIEF

2 WHEREFORE, Plaintiff requests that this Court enter judgment as follows:

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a. Declare that all three conditions imposed, as applicable, upon the FY 2016 and FY

4

2017 JAG Program are unlawful;

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b. Declare that 8 U.S.C. $ 1373 is unconstitutional;

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c. Declare that New York City complies with 8 U.S.C. $ 1373, as that statute is properly

7

read in light of the Constitution;

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d. Permanently enjoin Defendants from imposing compliance with 8 U.S.C. $ 1373, as

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well as the advance notification and jail access conditions, upon recipients of JAG

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funds;

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e. Issue a writ of mandamus compelling Defendants to immediately disburse New York

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City's FY 2017 JAG award, without further delay; and

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f.

Award such other relief as this Court may deem just and proper.

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UL}MPLAIN I lOR D.b,ULAKAI UKY, INJ UNU I IVb, ANIJ MANIJAMUS I(bLIbI

Case 1:18-cv-06474-UA Document 1 Filed 07/18/18 Page 30 of 30

I Dated: July 18,2018
2 J 4 5 6 7 8
Of Counsel 9 Noah Kazis
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t6 Of Counsel
Dana Rehnquist
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Respectfully submitted,
ZACHARY W. CARTER Corporation Counsel of the City of New York 100 Church Street New York, NY 10007 Tel: (212) 356-2296
T
S

DEBEVOISE & PLIMPTON LLP 919 Third Avenue New York, NY 10022 Tel: (212) 909-6889

By:

ls/

Matthew E. Fishbein

Meryl Holt

Attorneys for Plaintiff The City of New York

30 UUMPLAIN I'T.OR DECLARA'I'ORY, INJUNCTIVE, AND MANDAMUS RELIEF