Case: 4:18-cv-2068 As of: 06/03/2020 08:03 AM PDT 1 of 6
ADRMOP,CLOSED
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:18−cv−02068−JST

City and County of San Francisco v. Whitaker et al Assigned to: Judge Jon S. Tigar Cause: 05:551 Administrative Procedure Act
Plaintiff

Date Filed: 04/05/2018 Date Terminated: 02/20/2019 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

City and County of San Francisco

represented by Sara Jennifer Eisenberg San Francisco City Attorney's Office Chief of Strategic Advocacy City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102 (415) 554−4633 Fax: (415) 554−4715 Email: sara.eisenberg@sfcityatty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth Michael Walczak City and County of San Francisco Deputy City Attorney 1390 Market Street, Fifth Floor San Francisco, CA 94102 415−554−4206 Email: kenneth.walczak@sfgov.org ATTORNEY TO BE NOTICED

Mollie M Lee American Civil Liberties Union of Northern California 39 Drumm Street San Francisco, CA 94111 4156212493 Email: mlee@aclunc.org TERMINATED: 08/27/2018

Ronald P. Flynn San Francisco City Attorney's Office Chief Deputy City Attorney City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, CA 94102−5408 (415) 554−4708 Fax: (415) 255−0733 Email: ronald.flynn@sfcityatty.org ATTORNEY TO BE NOTICED

Yvonne Rosil Mere Ofc City Attorney 1390 Market St, 7FL San Francisco, CA 94102 415−554−3874 Email: yvonne.mere@sfcityatty.org ATTORNEY TO BE NOTICED

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Dennis J. Herrera City Attorney for the City and County of San Francisco 1 Dr. Carlton B. Goodlett Place City Hall, Room 234 San Francisco, CA 94102 (415) 554−4748 Fax: (415) 554−4715 Email: cityattorney@sfcityatty.org ATTORNEY TO BE NOTICED

V. Defendant Jefferson B. Sessions, III Attorney General of the United States TERMINATED: 12/06/2018
Defendant United States Department of Justice
Defendant Mathew Whitaker

represented by Cesar A. Lopez−Morales United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street Avenue, NW, Room 12302. Washington, DC 20005 202−305−8550 Email: cesar.a.lopez−morales@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cesar A. Lopez−Morales United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street Avenue, NW, Room 12302 Washington, DC 20005 202−305−8550 Email: cesar.a.lopez−morales@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Cesar A. Lopez−Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/05/2018
04/05/2018 04/05/2018

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against All Defendants ( Filing fee $ 400, receipt number 0971−12248551.). Filed byCity and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Civil Cover Sheet)(Herrera, Dennis) (Filed on 4/5/2018) (Entered: 04/05/2018)
2 Proposed Summons. (Herrera, Dennis) (Filed on 4/5/2018) (Entered: 04/05/2018)
3 Case assigned to Magistrate Judge Donna M. Ryu.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of

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04/05/2018 04/05/2018 04/05/2018 04/05/2018 04/06/2018 04/06/2018 04/19/2018 04/20/2018 05/24/2018 06/12/2018 06/12/2018 06/13/2018 06/13/2018
06/14/2018

Electronic Filing (NEF) within two business days. Consent/Declination due by 4/19/2018. (srnS, COURT STAFF) (Filed on 4/5/2018) (Entered: 04/05/2018)
4 NOTICE of Appearance by Ronald P. Flynn Notice of Appearance of Counsel (Flynn, Ronald) (Filed on 4/5/2018) (Entered: 04/05/2018)
5 NOTICE of Appearance by Yvonne Rosil Mere Notice of Appearance of Counsel (Mere, Yvonne) (Filed on 4/5/2018) (Entered: 04/05/2018)
6 NOTICE of Appearance by Sara Jennifer Eisenberg Notice of Appearance of Counsel (Eisenberg, Sara) (Filed on 4/5/2018) (Entered: 04/05/2018)
7 NOTICE of Appearance by Mollie M Lee Notice of Appearance of Counsel (Lee, Mollie) (Filed on 4/5/2018) (Entered: 04/05/2018)
8 Summons Issued as to Jefferson B. Sessions, III, United States Department of Justice, and U.S. Attorney General. (jjbS, COURT STAFF) (Filed on 4/6/2018) Modified on 4/9/2018 (cjlS, COURT STAFF). (Entered: 04/06/2018)
9 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 7/11/2018. Initial Case Management Conference set for 7/18/2018 01:30 PM in Oakland, Courtroom 4, 3rd Floor. (jjbS, COURT STAFF) (Filed on 4/6/2018) (Entered: 04/06/2018)
10 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by City and County of San Francisco.. (Eisenberg, Sara) (Filed on 4/19/2018) (Entered: 04/19/2018)
11 Proof of Service by City and County of San Francisco (Eisenberg, Sara) (Filed on 4/20/2018) Modified on 4/23/2018 (jjbS, COURT STAFF). (Entered: 04/20/2018)
12 Updated Proof of Service by City and County of San Francisco (Eisenberg, Sara) (Filed on 5/24/2018) Modified on 5/25/2018 (jjbS, COURT STAFF). (Entered: 05/24/2018)
13 NOTICE of Appearance by Cesar A. Lopez−Morales on behalf of Defendants (Lopez−Morales, Cesar) (Filed on 6/12/2018) (Entered: 06/12/2018)
14 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Jefferson B. Sessions, III, United States Department of Justice.. (Lopez−Morales, Cesar) (Filed on 6/12/2018) (Entered: 06/12/2018)
Electronic filing error. Re: 13 Notice of Appearance filed by United States Department of Justice, Jefferson B. Sessions, III. REMINDER TO COUNSEL: Counsel is instruct ed that all future filings shall bear the initials DMR immediately after the case number. (jjbS, COURT STAFF) (Filed on 6/13/2018) (Entered: 06/13/2018)
15 CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because either (1) a party has not consented to the jurisdiction of a Magistrate Judge, or (2) time is of the essence in deciding a pending judicial action for which the necessary consents to Magistrate Judge jurisdiction have not been secured. You will be informed by separate notice of the district judge to whom this case is reassigned.
ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE−NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED.
This is a text only docket entry; there is no document associated with this notice. (ig, COURT STAFF) (Filed on 6/13/2018) (Entered: 06/13/2018)
16 ORDER REASSIGNING CASE. Case reassigned to Judge Jon S. Tigar for all further proceedings. Judge Donna M. Ryu no longer assigned to the case. This case is assigned to a judge who participates in the Cameras in the Courtroom Pilot Project. See General Order 65 and http://cand.uscourts.gov/cameras. Signed by Executive Committee on 6/14/2018. (Attachments: # 1 Notice of Eligibility for Video Recording)(jmlS, COURT STAFF) (Filed on 6/14/2018) (Entered:

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06/15/2018
06/18/2018
06/19/2018
06/27/2018 06/27/2018 06/27/2018 06/27/2018 06/27/2018 06/28/2018 07/09/2018 07/10/2018 07/13/2018
07/20/2018
07/30/2018

06/14/2018)
17 CLERK'S NOTICE SETTING CASE MANAGEMENT CONFERENCE. Case Management Statement due by 7/16/2018. Initial Case Management Conference set for 7/25/2018 at 2:00 PM in San Francisco, Courtroom 9, 19th Floor. (Attachments: # 1 Standing Order, # 2 Standing Order for All Judges of the Northern District) (wsn, COURT STAFF) (Filed on 6/15/2018) (Entered: 06/15/2018)
18 NOTICE OF MOTION AND MOTION to Dismiss for Lack of Jurisdiction filed by Jefferson B. Sessions, III, United States Department of Justice. Motion Hearing set for 7/26/2018 02:00 PM in San Francisco, Courtroom 09, 19th Floor before Judge Jon S. Tigar. Responses due by 7/2/2018. Replies due by 7/9/2018. (Attachments: # 1 Exhibit A− AG Memo, # 2 Exhibit B− Rescission Press Release, # 3 Exhibit C− Zendejas Letter, # 4 Exhibit D− Baudry Letter, # 5 Exhibit E− Prior Joint Statement)(Lopez−Morales, Cesar) (Filed on 6/18/2018) (Entered: 06/18/2018)
19 CLERK'S NOTICE Continuing Motion Hearing as to 18 MOTION to Dismiss for Lack of Jurisdiction. Due to a change in the Court's availability, the Motion Hearing set for 7/26/2018 is continued to 8/16/2018 at 2:00 PM in San Francisco, Courtroom 9, 19th Floor before Judge Jon S. Tigar. The briefing schedule is unchanged. (This is a text−only entry generated by the court. There is no document associated with this entry.) (wsn, COURT STAFF) (Filed on 6/19/2018) (Entered: 06/19/2018)
20 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Lopez−Morales, Cesar) (Filed on 6/27/2018) (Entered: 06/27/2018)
21 STIPULATION WITH PROPOSED ORDER filed by City and County of San Francisco. (Eisenberg, Sara) (Filed on 6/27/2018) (Entered: 06/27/2018)
22 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Eisenberg, Sara) (Filed on 6/27/2018) (Entered: 06/27/2018)
23 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Eisenberg, Sara) (Filed on 6/27/2018) (Entered: 06/27/2018)
24 ADR Clerk's Notice Setting ADR Phone Conference on July 19, 2018 at 10:00 AM Pacific time. Please note that you must be logged into an ECF account of counsel of record in order to view this document. (cmf, COURT STAFF) (Filed on 6/27/2018) (Entered: 06/27/2018)
25 STIPULATION AND ORDER re 21 STIPULATION AND [PROPOSED] ORDER filed by City and County of San Francisco. Signed by Judge Jon S. Tigar on June 28, 2018. (wsn, COURT STAFF) (Filed on 6/28/2018) (Entered: 06/28/2018)
26 Stipulation and [Proposed] Order filed by City and County of San Francisco. (Eisenberg, Sara) (Filed on 7/9/2018) (Entered: 07/09/2018)
27 STIPULATION AND ORDER re 26 Stipulation and [Proposed] Order filed by City and County of San Francisco. Signed by Judge Jon S. Tigar on July 10, 2018. (wsn, COURT STAFF) (Filed on 7/10/2018) (Entered: 07/10/2018)
28 CLERK'S NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. The Initial Case Management Conference previously set for 7/25/2018 is continued to 12/19/2018 at 2:00 PM in San Francisco, Courtroom 9, 19th Floor. A Joint Case Management Statement is due 12/10/2018 by 5:00 PM. (This is a text−only entry generated by the court. There is no document associated with this entry.) (wsn, COURT STAFF) (Filed on 7/13/2018) (Entered: 07/13/2018)
29 ADR Remark: ADR Phone Conference held on 7/19/2018 by Howard Herman. A further ADR Phone Conference is scheduled for 9/18/2018, at 10:00 AM Pacific time. The call−in information remains the same. (af, COURT STAFF) (Filed on 7/20/2018) (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 07/20/2018)
30 First Amended Complaint for Declaratory and Injunctive Relief against Jefferson B. Sessions, III, United States Department of Justice. Filed by City and County of San Francisco. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, #

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08/01/2018 08/27/2018 09/19/2018 09/20/2018 09/24/2018
09/27/2018
10/02/2018 10/25/2018 11/13/2018 12/06/2018
12/06/2018 12/10/2018 01/04/2019

5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Herrera, Dennis) (Filed on 7/30/2018) (Entered: 07/30/2018)
31 CLERK'S NOTICE TERMINATING MOTION AS MOOT re 18 MOTION to Dismiss for Lack of Jurisdiction. The Plaintiff has filed an 30 AMENDED COMPLAINT. The pending motion to dismiss is terminated as moot. (This is a text−only entry generated by the court. There is no document associated with this entry.) (wsn, COURT STAFF) (Filed on 8/1/2018) (Entered: 08/01/2018)
32 NOTICE filed by City and County of San Francisco of Notice of Disassociation of Counsel (Eisenberg, Sara) (Filed on 8/27/2018) (Entered: 08/27/2018)
33 ADR Remark: ADR Phone Conference held on 9/18/2018 by Howard Herman. (cmf, COURT STAFF) (Filed on 9/19/2018) (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 09/19/2018)
34 STIPULATION AND [PROPOSED] ORDER filed by Jefferson B. Sessions, III, United States Department of Justice. (Lopez−Morales, Cesar) (Filed on 9/20/2018) (Entered: 09/20/2018)
35 STIPULATION AND ORDER re 34 STIPULATION AND [PROPOSED] ORDER filed by United States Department of Justice, Jefferson B. Sessions, III. Responses due by 10/25/2018. Replies due by 11/13/2018. Motion Hearing set for 12/6/2018 at 2:00 PM in San Francisco, Courtroom 9, 19th Floor before Judge Jon S. Tigar. Signed by Judge Jon S. Tigar on September 24, 2018. (wsn, COURT STAFF) (Filed on 9/24/2018) (Entered: 09/24/2018)
36 MOTION to Dismiss for Lack of Jurisdiction filed by Jefferson B. Sessions, III, United States Department of Justice. Motion Hearing set for 12/6/2018 02:00 PM in San Francisco, Courtroom 09, 19th Floor before Judge Jon S. Tigar. Responses due by 10/25/2018. Replies due by 11/13/2018. (Attachments: # 1 Exhibit A− AG Memo, # 2 Exhibit B− July Press Release, # 3 Exhibit C− December Press Release, # 4 Exhibit D− Baudry Letter, # 5 Exhibit E− Refugee Employment Flyer, # 6 Exhibit F− New Joint Guidance on I−9 Audits, # 7 Exhibit G− New Employers' Flyer, # 8 Exhibit H− New Refugees' Flyer, # 9 Exhibit I− Prior Joint Statement, # 10 Exhibit J− New Joint Statement)(Lopez−Morales, Cesar) (Filed on 9/27/2018) (Entered: 09/27/2018)
37 NOTICE of Change of Address by Cesar A. Lopez−Morales (Lopez−Morales, Cesar) (Filed on 10/2/2018) (Entered: 10/02/2018)
38 OPPOSITION/RESPONSE to (re 36 MOTION to Dismiss for Lack of Jurisdiction) − Opposition to Defendants' Motion to Dismiss filed by City and County of San Francisco. (Walczak, Kenneth) (Filed on 10/25/2018) (Entered: 10/25/2018)
39 REPLY (re 36 MOTION to Dismiss for Lack of Jurisdiction ) filed byJefferson B. Sessions, III, United States Department of Justice. (Lopez−Morales, Cesar) (Filed on 11/13/2018) (Entered: 11/13/2018)
40 Minute Entry for proceedings held before Judge Jon S. Tigar: Motion Hearing held on 12/6/2018 re 36 MOTION to Dismiss for Lack of Jurisdiction filed by United States Department of Justice, Jefferson B. Sessions, III. Case Management Statement due by 2/20/2019. Initial Case Management Conference set for 2/27/2019 at 2:00 PM in San Francisco, Courtroom 9, 19th Floor. Total Time in Court: 52 minutes. Court Reporter: Jo Ann Bryce. (wsn, COURT STAFF) (Date Filed: 12/6/2018) (Entered: 12/06/2018)
41 TRANSCRIPT ORDER for proceedings held on 12/06/2018 before Judge Jon S. Tigar by City and County of San Francisco, for Court Reporter Jo Ann Bryce. (Walczak, Kenneth) (Filed on 12/6/2018) (Entered: 12/06/2018)
42 ORDER GRANTING MOTION TO DISMISS by Judge Jon S. Tigar; granting 36 Motion to Dismiss for Lack of Jurisdiction. Amended Pleadings due by 1/9/2019. (wsn, COURT STAFF) (Filed on 12/10/2018) (Entered: 12/10/2018)
43 Transcript of Proceedings held on 12/6/18, before Judge Jon S. Tigar. Court Reporter Jo Ann Bryce, telephone number 510−910−5888, joann_bryce@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the

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02/20/2019 02/20/2019

Court Reporter until the deadline for the Release of Transcript Restriction after 90 days. After that date, it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 41 Transcript Order ) Release of Transcript Restriction set for 4/4/2019. (Related documents(s) 41 ) (jabS, COURTSTAFF) (Filed on 1/4/2019) (Entered: 01/04/2019)
44 ORDER DISMISSING CASE WITH PREJUDICE. Signed by Judge Jon S. Tigar on February 20, 2019. (wsn, COURT STAFF) (Filed on 2/20/2019) (Entered: 02/20/2019)
45 CLERK'S JUDGMENT. (wsn, COURT STAFF) (Filed on 2/20/2019) (Entered: 02/20/2019)

 
 Case 3:18-cv-02068-DMR Document 1 Filed 04/05/18 Page 1 of 20

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation

5 MOLLIE M. LEE, State Bar #251404

SARA J. EISENBERG, State Bar #269303

6 Deputy City Attorneys

City Hall, Room 234

7 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

8 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

9 E-Mail:

brittany.feitelberg@sfcityatty.org

10 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
11

12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15 CITY AND COUNTY OF SAN FRANCISCO,
16 Plaintiff,
17 vs.
18 JEFFERSON B. SESSIONS III, Attorney
19 General of the United States, UNITED STATES DEPARTMENT OF JUSTICE,
20 DOES 1-100,

Case No.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

21

Defendants.

22

23

24

25

26

27

28
Complaint; CCSF v. Jefferson B. Sessions III, et al; Case No.

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Case 3:18-cv-02068-DMR Document 1 Filed 04/05/18 Page 2 of 20

1

INTRODUCTION

2

1. This lawsuit challenges Defendants’ bulk rescission of a wide swath of Department of

3 Justice (“DOJ” or “Department”) guidance documents setting forth DOJ’s interpretation of laws that

4 protect immigrants, the poor, people of color, and people with disabilities. The documents—which

5 provided guidance to regulated entities and helped to protect the civil rights of marginalized

6 individuals across the country—were withdrawn without any meaningful explanation, as required by

7 the Administrative Procedure Act (“APA”). Such an unexplained bulk repeal was unprecedented

8 prior to this administration. The rescission was arbitrary and capricious, and should be vacated.

9

2. The stated mission of DOJ is “to ensure fair and impartial administration of justice for

10 all Americans.” Yet, over the past year and a half, the Department—under the leadership of Attorney

11 General Jefferson B. Sessions—has shown a shocking disregard for protecting the rights of

12 vulnerable communities, rolling back civil rights initiatives in a wide variety of areas. Barely a

13 month into the Trump administration, for example, the Department dropped the federal government’s

14 longstanding position that a Texas voter ID law under legal challenge was intentionally racially

15 discriminatory. Shortly thereafter, DOJ attempted—unsuccessfully—to block a court from approving

16 a consent decree negotiated by the Department following an extensive multi-year investigation that

17 aimed to reform discriminatory police practices in the Baltimore Police Department. The DOJ also

18 effectively shut down the Office for Access to Justice (“ATJ”), which was dedicated to improving

19 legal resources for indigent litigants in civil, criminal, and tribal courts. ATJ’s offices now sit dark in

20 the Justice Department building.

21

3. And, in December 2017, Attorney General Sessions rescinded twenty-five DOJ

22 guidance documents—most of which were aimed at protecting marginalized communities.

23

4. In a press release announcing the repeal, Attorney General Sessions declared—in broad

24 conclusory terms—that the documents were being withdrawn because they were “unnecessary,

25 inconsistent with existing law, or otherwise improper.” See Press Release No. 17-1469, DOJ Office

26 of Public Affairs, Attorney General Jeff Sessions Rescinds 25 Guidance Documents (Dec. 21, 2017)

27 (attached hereto as Exhibit A). He also stated generally that “any guidance that is outdated, used to

28 circumvent the regulatory process, or that improperly goes beyond what is provided for in statutes or

Complaint;

1

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1 regulation should not be given effect.” Id. He did not explain which rationale allegedly applied to

2 which document or offer any other particularized justification.

3

5. Elsewhere, components of DOJ have offered additional explanation for the repeal of

4 some of the guidance documents. For example, the Civil Rights Division explains on its website that

5 the guidance on bailing-out procedures under Section 4(b) and Section 5 of the Voting Rights Act

6 was withdrawn because the “Supreme Court’s decision in Shelby County v. Holder, 570 U.S. ___

7 (2013) held that the coverage formula set forth in Section 4(b) of the Act was unconstitutional, and as

8 a consequence, no jurisdictions are now subject to the coverage formula in Section 4(b) or to Sections

9 4(f)(4) and 5 of Act. Accordingly, guidance regarding bailout under Section 4(a) is no longer

10 necessary.” See Section 4 of the Voting Rights Act, DOJ Civil Rights Division, https://www.justice.

11 gov/crt/section-4-voting-rights-act (last updated Dec. 21, 2017).

12

6. But slipped into the mix of the twenty-five repealed documents were six significant

13 civil rights documents that Defendants provided no meaningful explanation for withdrawing. All six

14 provided critical guidance to state and local governments about compliance with federal laws.

15 Among them were procedures to help state and local governments eliminate unlawful fees against

16 juvenile offenders, standards outlining discrimination protections for disabled individuals in

17 government employment service systems, and guidance for employers about compliance with the

18 anti-discrimination provisions of the Immigration and Nationality Act.

19

7. The rescission of these documents has been decried by disability rights groups and civil

20 rights activists.1 Indeed, the United States Commission on Civil Rights—an independent, bipartisan

21 federal agency charged with advising the President and Congress on civil rights matters—issued a

22 statement “strongly criticiz[ing]” the withdrawal of the “recent, narrowly crafted, urgently applicable

23

24

1 See, e.g., Lawyers’ Committee for Civil Rights Under Law Condemns DOJ’s Decision to

25

Revoke Critical Legal Guidance Documents, Lawyers’ Committee for Civil Rights (Dec. 22, 2017), https://www.commondreams.org/newswire/2017/12/22/lawyers-committee-civil-rights-under-law-

26 condemns-dojs-decision-revoke-critical (“We condemn Attorney General Sessions’s latest attempt to turn back the clock on civil rights progress . . . .”); DOJ Withdraws Olmstead Employment Guidance,

27 Letter to DOJ in Response to Olmstead Guidance Withdrawal from Over 200 Disability

Organizations, Center for Public Representation (Jan. 5, 2018), https://centerforpublicrep.org/ 28 initiative/doj-withdraws-olmstead-employment-guidance/.

Complaint;

2

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CCSF v. Jefferson B. Sessions III, et al; Case No.

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1 guidance documents.” U.S. Commission on Civil Rights Strongly Criticizes Attorney General Jeff

2 Sessions’ Withdrawal of Critical Civil Rights Guidance, U.S. Commission on Civil Rights (Jan. 19,

3 2018), http://usccr.gov/press/2018/01-19-PR-Sessions.pdf. The Commission “call[ed] for Attorney

4 General Sessions immediately to correct the civil rights harm his guidance withdrawal works on our

5 nation’s social fabric by reinstating the guidance, signaling the necessary ongoing leadership of the

6 nation’s Department of Justice in actually securing justice for the people.” Id.

7

8. Defendants’ failure to provide any meaningful explanation for the repeal of these

8 documents is galling—and unlawful. The APA requires agencies to disclose the basis of their

9 decisions, including policy changes made through repeals. They must demonstrate that they engaged

10 in reasoned decision-making. And the explanation for their decision cannot be conclusory; it must be

11 clear enough that the agency’s “path may reasonably be discerned.” Bowman Transp., Inc. v.

12 Arkansas–Best Freight Sys., Inc., 419 U.S. 281, 286 (1974).

13

9. The APA imposes these requirements for an important reason. A fundamental tenet of

14 our administrative system is that agency decision-making should not happen in the shadows. The

15 APA’s procedural requirements exist to allow members of the public—and the courts—to understand

16 and evaluate the legitimacy and consequences of the agency’s action. In the absence of such an

17 explanation, the public is left to guess whether Defendants believe the repealed documents are

18 outdated—and, if so, whether a different document controls—or improperly imposed binding

19 obligations that should have been issued through notice-and-comment rulemaking. Regulated entities

20 like San Francisco and the individuals impacted by the rescission of the documents cannot evaluate

21 the validity of the repeal, challenge it if necessary, or tailor their conduct appropriately when agency

22 action is opaque.

23

10. The public is entitled to—and the APA demands—more from our federal government.

24

JURISDICTION AND VENUE

25

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

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

27 seq. There exists an actual and justiciable controversy between Plaintiff and Defendants requiring

28 resolution by this Court. Plaintiff has no adequate remedy at law.

Complaint;

3

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1

12. Venue properly lies within the Northern District of California because this is a civil

2 action in which Defendants are an agency, or officers of an agency, of the United States, because a

3 substantial part of the events or omissions giving rise to this action occurred in the District, and,

4 further, because Plaintiff resides in this District and no real property is involved in the action. 28

5 U.S.C. § 1391(e).

6

INTRADISTRICT ASSIGNMENT

7

13. Pursuant to Civil Local Rule 3-2(c), this case should be assigned to the San Francisco

8 Division or the Oakland Division of this Court because the action arises in San Francisco County.

9

PARTIES

10

14. Plaintiff City and County of San Francisco is a municipal corporation organized and

11 existing under and by virtue of the laws of the State of California, and is a charter city and county.

12

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

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

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

15

16. Defendant DOJ is an executive department of the United States of America and an

16 agency within the meaning of 5 U.S.C. § 551(1). DOJ has responsibility for, among other things,

17 administering and enforcing the Civil Rights Acts of 1957, 1960, 1964, and 1968, as amended; the

18 Voting Rights Act of 1965, as amended; the Fair Housing Act of 1968; and the Fair Housing

19 Amendments Act of 1988. In addition, DOJ is charged with all departmental responsibilities under

20 the Americans with Disabilities Act of 1990.

21

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

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

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

24

FACTUAL ALLEGATIONS

25

18. In February 2017, President Trump issued Executive Order 13777, “Enforcing the

26 Regulatory Reform Agenda,” in which he ordered each executive agency to create a “Regulatory

27 Reform Task Force” to identify regulatory actions for elimination. Exec. Order No. 13,777, 82 Fed.

28 Reg. 12,285 (Feb. 24, 2017).

Complaint;

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1

19. DOJ established the required task force and installed former Associate Attorney

2 General Rachel Brand as the chair2—but has refused to provide information to the public about other

3 task force members.3

4

20. On June 28, 2017, the DOJ Task Force published a Request for Public Comment in the

5 Federal Register seeking input on regulatory actions that should be considered for repeal,

6 replacement, or modification. Enforcing the Regulatory Reform Agenda; Department of Justice Task

7 Force on Regulatory Reform Under E.O. 13777, 82 Fed. Reg. 29,248 (proposed June 28, 2017). This

8 cursory notice requested public comment in broad terms without reference to any specific regulation

9 or document.

10

21. Among the comments submitted was a request by the Leadership Conference on Civil

11 and Human Rights for DOJ to identify individual regulations and policies it was considering for

12 repeal. Letter from Kristine Lucius, Executive Vice President, the Leadership Conference on Civil

13 and Human Rights, to Robert Hinchman, Senior Counsel of the Office of Legal Policy, DOJ (Aug.

14 14, 2017), https://www.regulations.gov/document?D=DOJ-OLP-2017-0007-0013. The Leadership

15 Conference explained that in order to provide meaningful comments, it “would need the Department

16 to give proper notice of which specific regulations or policies it is considering repealing, replacing, or

17 modifying.” Id.

18

22. Other agencies did this—publishing notice in the Federal Register of the specific rules

19 and regulations considered for repeal or modification. For example, the U.S. Patent and Trademark

20 2 Rachel Brand left DOJ in February 2018. DOJ has not disclosed who—if anyone—replaced
21 her as chair of the task force.

22

3 See Robert Faturechi, Secrecy and Suspicion Surround Trump’s Deregulation Teams, ProPublica (Aug. 7, 2017), https://www.propublica.org/article/secrecy-and-suspicion-surround-

23

trumps-deregulation-teams (“In an email exchange, a spokesman, Ian Prior, said he could not provide additional names because ‘the Task Force is made up of components, not particular employees.’ ‘A

24

component may have multiple employees assisting with the work,’ he added. Asked if he could name any of those employees, he responded, ‘Decline.’”).

25

Indeed, ignoring multiple requests by members of Congress to disclose Regulatory Reform

Task Force members leading regulatory rollback efforts, DOJ and other agencies “are actively hiding

26 their members and their meetings from public view.” Letter from Rep. Elijah Cummings et al. to

Mick Mulvaney & Neomi Rao (Aug. 7, 2017). As a result, senior members of the House of

27 Representatives Committee of Oversight and Government Reform have requested subpoenas to

compel DOJ to provide the names of their task force members. See Letter from Rep. Elijah E.

28 Cummings to Rep. Trey Gowdy (Mar. 13, 2018).

Complaint;

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1 Office published a proposal to remove regulations governing reservation clauses, petitions from a

2 primary examiner’s refusal to admit an amendment, and other specific rules pursuant to Executive

3 Order 13777. See Changes To Eliminate Unnecessary Regulations, 83 Fed. Reg. 2759-60 (proposed

4 Jan. 19, 2018).4 DOJ, however, provided no further information on the specific documents being

5 considered for repeal.

6

23. Instead, on November 17, 2017, Attorney General Sessions stated at the Federalist

7 Society 2017 National Lawyers Convention that “[w]e have prohibited all Department of Justice

8 components from issuing any guidance that purports to impose new obligations on any party outside

9 the Executive Branch. We will review and repeal existing guidance documents that violate this

10 common sense principle.” See Attorney General Sessions Delivers Remarks at the Federalist Society

11 2017 National Lawyers Convention, DOJ Office of Public Affairs (Nov. 17, 2017), https://www.

12 justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-federalist-society-2017-national-

13 lawyers.

14

24. He also issued a memorandum prohibiting all divisions of the Department of Justice

15 from issuing guidance documents that have the effect of adopting new regulatory requirements or

16 amending the law. See Memorandum from the Attorney General to “All Components” Regarding

17 Prohibition on Improper Guidance Documents (Nov. 16, 2017), https://www.justice.gov/opa/press-

18 release/file/1012271/download (“November Memorandum”).

19

25. Specifically, in the November Memorandum, Attorney General Sessions declared:

20

[G]uidance may not be used as a substitute for rulemaking and may not be used to impose new requirements on entities outside the Executive Branch. Nor

21

22 4 See also, e.g., Eliminating Unnecessary Tax Regulations, 83 Fed. Reg. 6806 (proposed Feb.
23 15, 2018) (IRS proposing to remove 298 tax regulations); Pesticides; Agricultural Worker Protection Standard; Reconsideration of Several Requirements and Notice About Compliance Dates, 82 Fed.
24 Reg. 60,576 (proposed Dec. 21, 2017) (EPA notifying public it seeks to revise certain Agricultural Worker Protection Standard requirements); Claims Procedure for Plans Providing Disability Benefits;
25 Extension of Applicability Date, 82 Fed. Reg. 47,409 (proposed Oct. 12, 2017) (Department of Labor proposing to delay applicability of the Final Rule amending claims procedure requirements for
26 ERISA-covered employee benefit plans providing disability benefits); National Performance Management Measures, 82 Fed. Reg. 46,427 (proposed Oct. 5, 2017) (Federal Highway
27 Administration notice of proposed rulemaking seeking to repeal the 2017 Greenhouse Gas performance measures for state departments of transportation and metropolitan planning
28 organizations).

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should guidance create binding standards by which the Department will

1

determine compliance with existing regulatory or statutory requirements.

2

It has come to my attention that the Department has in the past published

guidance documents—or similar instruments of future effect by other names,

3

such as letters to regulated entities—that effectively bind private parties without

undergoing the rulemaking process.

4

5 Id. at 1.

6

26.

The press release announcing the issuance of the November Memorandum further

7 elaborated that the “Attorney General’s Regulatory Reform Task Force . . . will conduct a review of

8 existing Department documents and will recommend candidates for repeal or modification in the light

9 of this memo’s principles.” Press Release No. 17-1309, DOJ Office of Public Affairs, Attorney

10 General Jeff Sessions Ends the Departments Practice of Regulation by Guidance (Nov. 17, 2017),

11 https://www.justice.gov/opa/pr/attorney-general-jeff-sessions-ends-department-s-practice-regulation-

12 guidance.

13

27. And then-chair of the task force, Rachel Brand, stated: “Guidance documents . . .

14 should not be used to change the law or to impose new standards to determine compliance with the

15 law. The notice-and-comment process that is ordinarily required for rulemaking can be cumbersome

16 and slow, but it has the benefit of availing agencies of more complete information about a proposed

17 rule’s effects than the agency could ascertain on its own. This Department of Justice will not use

18 guidance documents to circumvent the rulemaking process, and we will proactively work to rescind

19 existing guidance documents that go too far.” Id. (emphasis added).

20

28. The following month, on December 21, 2017, Attorney General Sessions announced

21 that, pursuant to Executive Order 13777 and his November Memorandum, he was rescinding twenty-

22 five DOJ guidance documents that were “unnecessary, inconsistent with existing law, or otherwise

23 improper.” See Ex. A.

24

29. The vast majority of the documents—which dated back decades and covered topics as

25 diverse as Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) procedures and the

26 Americans with Disabilities Act—were aimed at protecting marginalized communities, including

27 immigrants, people of color, the poor, and individuals with disabilities.

28

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1

30. At the time he announced the repeal, Attorney General Sessions offered six short

2 sentences in explanation:

3

Last month, I ended the longstanding abuse of issuing rules by simply publishing a letter or posting a web page. Congress has provided for a

4

regulatory process in statute, and we are going to follow it. This is good government and prevents confusing the public with improper and wrong advice.

5

Therefore, any guidance that is outdated, used to circumvent the regulatory

process, or that improperly goes beyond what is provided for in statutes or

6

regulation should not be given effect. That is why today, we are ending 25

examples of improper or unnecessary guidance documents identified by our

7

Regulatory Reform Task Force led by our Associate Attorney General Rachel

Brand. We will continue to look for other examples to rescind, and we will

8

uphold the rule of law.

9 Id.

10

31. Attorney General Sessions did not state why any of the twenty-five was specifically

11 selected to be withdrawn. He provided no details on which documents had been deemed outdated,

12 which were “unnecessary,” or which were in some way improper because they imposed new binding

13 rights or obligations on persons or entities outside the executive branch.

14

32. Components of DOJ provided additional explanation with respect to the rescission of

15 certain documents in other places, noting that specific documents were outdated and explaining why.

16 The ATF, for example, issued a ruling explaining that the ATF documents being withdrawn were

17 “unnecessary . . . to the appropriate application of current law and regulation.” ATF Ruling 2017-1,

18 Revoking Certain Guidance Documents, DOJ Bureau of Alcohol, Tobacco, Firearms and Explosives,

19 (Dec. 20, 2017), https://www.atf.gov/resource-center/docs/ruling/2017-1-revoking-certain-guidance-

20 documents/download. It then listed the documents and explained exactly why each one had been

21 deemed unnecessary—for example, ATF Procedure 75-4 was no longer necessary because the

22 procedure it described had been “incorporated into the Application for Explosives License or Permit,

23 ATF Form 5400,” and ATF Ruling 85-3 was “made obsolete by amendments to 18 U.S.C. 24 922(b)(3).” Id.5

25

5 See also, e.g., Section 4 of the Voting Rights Act, DOJ Civil Rights Division,

26 https://www.justice.gov/crt/section-4-voting-rights-act (last updated Dec. 21, 2017) (Civil Rights Division website explaining that guidance on bailing-out procedures under Section 4(b) and Section 5

27 of the Voting Rights Act was withdrawn because the Supreme Court’s holding in Shelby County v.

Holder, 570 U.S. __ (2013), that the coverage formula set forth in Section 4(b) of the Act was 28 unconstitutional rendered guidance regarding bailout under Section 4(a) unnecessary); Commonly

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1

33. But among the large swath of rescinded documents were six significant ones about

2 which Defendants have provided no meaningful explanation.

3

A. Statement Concerning Application Of The ADA’s Integration Mandate To State

And Local Governments.

4

5

34. One of the documents rescinded without adequate explanation was a “Statement of the

6 Department of Justice on Application of the Integration Mandate of Title II of the Americans with

7 Disabilities Act and Olmstead v. L.C. to State and Local Governments’ Employment Service Systems

8 for Individuals with Disabilities.” See Ex. B (the “Statement”).

9

35. In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court ruled that pursuant to the

10 integration mandate in Title II of the ADA, state and local governments must create pathways for

11 people with disabilities to live in their own homes or group homes located within their communities,

12 rather than isolating them in segregated institutions.

13

36. The repealed Statement, which was issued in 2016, explained to state and local

14 governments how this ruling applied to their employment service systems.

15

37. Specifically, it provided answers to questions such as:

16

 “What is the ADA’s Title II integration mandate, and how does it apply to state and

17

local governments’ employment service systems?” Ex. B at 3.

18

 “What is the most integrated setting under the ADA and Olmstead in the context of a

19

state and local government’s employment service system?” Id. at 4.

20

 “How can state and local governments’ employment service systems ensure that people

21

with disabilities have access to competitive integrated employment?” Id. at 5.

22

38. In answering these questions, DOJ affirmed that the integration mandate applied not

23 only to where individuals with disabilities live, but also to where they spend their days—including at

24 Asked Questions About Service Animals in Places of Business, DOJ Civil Rights Division Disability
25 Rights Section (July 1996), https://www.ada.gov/archive/qasrvc.htm (“[Commonly Asked Questions
About Service Animals in Places of Business (July 1996)] has been withdrawn because it is outdated 26 and was superseded by the current ADA title II and title III regulations . . . . For more information
27 about the Department's withdrawn technical assistance and guidance documents, please go to: www.ada.gov/ta_withdrawn. html. For the current version of this document, please go to Frequently
28 Asked Questions about Service Animals and the ADA.”).

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1 work. It explained that government work programs for people with disabilities were required to

2 integrate employees with disabilities with their non-disabled peers. And it provided criteria to

3 determine “the most integrated setting” for employment services for an individual with a disability,

4 and a process to ensure that individuals with disabilities have access to competitive, integrated

5 employment. See generally Ex. B.

6

39. According to disability advocates, the Statement was integral to helping people with

7 disabilities across the country move away from isolated “sheltered workshops,” where they are often 8 paid much less than minimum wage and are vulnerable to exploitation and abuse.6

9

40. Attorney General Sessions withdrew the Statement without any meaningful

10 explanation.

11

41. On ADA.gov, DOJ provided the following explanation for the withdrawal of this

12 critical document: “This action was taken to afford further discussion with relevant stakeholders,

13 including public entities and the disability community, as to how best to provide technical assistance

14 in this area.” Withdrawal of the Statement of the Department of Justice on Application of the

15 Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. to State

16 and Local Governments’ Employment Service Systems for Individuals with Disabilities, DOJ Civil

17 Rights Division (Dec. 21, 2017), https://www.ada.gov/withdrawn_olmstead.html. This explanation,

18 however, is entirely different from those given by Attorney General Sessions. It does not indicate

19 that DOJ determined the Statement was outdated, or unnecessary, or improper. Rather, it introduces

20 an entirely new rationale—that it was withdrawn to allow for further discussion and consideration of

21 the principles addressed in the guidance.

22

23

24

6 For this reason, its repeal has been met with widespread outrage from disability rights

organizations. Indeed, over 200 disability organizations sent a letter to the Acting Assistant Attorney

25 General for Civil Rights expressing concern over the effect the withdrawal will have on people with

disabilities across the country. See Letter from Consortium for Citizens with Disabilities to AAG John

26 Gore (Jan. 8, 2018), https://centerforpublicrep.org/wp-content/uploads/2017/12/letter-to-DOJ-re-

withdrawal-of-guidance-1-5-18.pdf. The U.S. Commission on Civil Rights has also urged Attorney

27 General Sessions to reconsider the withdrawal. U.S. Commission on Civil Rights Strongly Criticizes

Attorney General Jeff Sessions’ Withdrawal of Critical Civil Rights Guidance, U.S. Commission on

28 Civil Rights (Jan. 19, 2018), http://usccr.gov/press/2018/01-19-PR-Sessions.pdf.

Complaint;

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1

42. And elsewhere on ADA.gov, DOJ indicates that it withdrew the Statement because it

2 was “out-of-date, duplicative, or otherwise ineffective” and its withdrawal would “make it easier for

3 individuals with disabilities, covered entities, and the public to understand their rights and

4 responsibilities under the ADA.” ADA.gov website, DOJ Civil Rights Division, https://www.ada.

5 gov/ta_withdrawn.html (emphasis added).

6

43. In fact, there is reason to believe that the withdrawal of this guidance reflects a sub rosa

7 substantive shift in federal interpretation and enforcement of Title II’s integration mandate. Sheltered

8 workshops are profitable enterprises, and a national trade association for sheltered workshops began

9 lobbying DOJ’s new political leadership to repeal the Olmstead Statement in August 2017. See

10 David M. Perry, Companies That Exploit Disabled People Have a Friend in Jeff Sessions, Pacific

11 Standard (Jan. 3, 2018), https://psmag.com/economics/jeff-sessions-roll-back-disability-rights. In

12 light of this background as well as the fact that eighteen of the comments submitted in response to the

13 request for input on the Department’s regulatory reform agenda urged a withdrawal of the Olmstead

14 guidance and/or a change in the underlying substance, the repeal appears to indicate a meaningful

15 shift in policy.

16

44. Given the vague and contradictory explanations proffered by Defendants, state and

17 local governments, as well as the public, are left without any clear indication of why Defendants

18 actually decided to withdraw this document.

19

B. Statement On Ability Of Local Government To Exercise Control Over Group

Living Arrangements For People With Disabilities.

20

21

45. Another one of the repealed documents was a joint statement by DOJ and the

22 Department of Housing and Urban Development concerning the Fair Housing Act’s effect on the

23 ability of local governments to exercise control over group living arrangements, particularly for

24 persons with disabilities (“Joint Statement”). See Ex. C.

25

46. This Joint Statement provided critical directions to local governments about what they

26 may and may not do in compliance with federal law. For instance, it explained that local

27 governments may generally restrict the ability of unrelated groups of people to live together (subject

28

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1 to reasonable accommodations), but cannot treat groups of unrelated persons with disabilities less

2 favorably than similar groups of unrelated persons without disabilities.

3

47. Defendants did not provide any particularized explanation for withdrawing this

4 document.

5

48. Through its own search, San Francisco was able to locate a later 2016 document that

6 “updates and expands” upon the Joint Statement. See Joint Statement of the Department of Housing

7 and Urban Development and the Department of Justice: State and Local Land Use Laws and

8 Practices and the Application of the Fair Housing Act (Nov. 10, 2016), https://www.justice.gov/opa/

9 file/912366/download. But there is material covered in the Joint Statement that does not appear to be

10 included in the 2016 document, such as a discussion of the applicability of the anti-discrimination

11 provisions of the Fair Housing Act to those claiming disability on the basis of having been

12 adjudicated as a juvenile delinquent or for having a criminal record, or those who suffer from an

13 addiction to illegal drugs. See Ex. C at 1.

14

49. In the absence of an explanation from Defendants for their decision to withdraw this

15 document—e.g., that they believe it has been completely supplanted by the 2016 document or that the

16 Joint Statement was somehow incorrect or improper—there is no way for local governments to

17 evaluate the validity of the justification or tailor their conduct accordingly.

18

C. Letters Concerning Standards For Assessing Citizenship Status Discrimination.

19

50. The Immigration and Nationality Act (“INA”) generally prohibits employers—

20 including local governments—from discriminating against individuals on the basis of national origin

21 or, in the case of “protected individual[s],” on the basis of citizenship status. 8 U.S.C. § 1324b(1).

22

51. Two of the documents Defendants repealed without any explanation were letters from

23 the DOJ Civil Rights Division providing guidance about compliance with these anti-discrimination

24 provisions of the INA.

25

52. In one letter, DOJ explained that individuals who fail to apply for naturalization within

26 six months of becoming eligible to do so were not “protected individuals” within the meaning of

27 Section 1324b, but were nonetheless protected against other forms of discrimination, including

28 document abuse (which it defined as “the request for more or different documents, or the rejection of

Complaint;

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1 reasonably genuine looking documents in the employment eligibility verification process based on

2 national original or citizenship status”). See Ex. D.

3

53. In the other letter, the Department provided its view on what employers were required

4 to do to conduct citizenship documentation audits in compliance with the law. For example, DOJ

5 explained that employers must complete internal audits of I-9 forms in the same manner for every

6 employee and “may not scrutinize more closely the I-9 forms and documentation of select employees

7 on the basis of national origin or citizenship status.” Ex. E at 2. The letter also stated that employers

8 cannot accept documentation that does not reasonably appear to be genuine or relate to that employee.

9 Id.

10

54. Defendants have not provided any explanation as to why these two letters in particular

11 were selected for rescission.

12

55. Particularly given the recent increase in Immigration and Customs Enforcement

13 (“ICE”) I-9 audits,7 and acting ICE Director Thomas Homan’s recent directive to ICE agents to

14 increase such worksite investigations by “four to five times,”8 it is critically important for

15 employers—including government employers like San Francisco—to know how to conduct internal

16 audits legally and to understand DOJ’s position on what is required of them. Without knowing why

17 Defendants rescinded these letters, employers are left to guess where DOJ stands on these timely and

18 sensitive issues.

19

D. Guidance Regarding Lawful And Equitable Imposition Of Fines and Fees.

20

56. When people are convicted of a crime, they are often charged thousands of dollars in

21 fines, fees, or financial penalties related to their conviction, sentence, or incarceration. But an

22 unintended consequence of this practice is that it can push people into (or deeper into) poverty.

23 These fines, fees, and penalties can trap people in a cycle of debt, and low-income individuals and

24

25

26

7 See, e.g., Andrew Khouri, Visits by federal immigration authorities are spooking California businesses and workers, L.A. Times (Feb. 26, 2018), http://www.latimes.com/business/la-fi-

27 immigration-workplace-20180226-story.html. 8 See Tal Kopan, ICE chief pledges quadrupling or more of workplace crackdowns, CNN.com
28 (Oct. 17, 2017), https://www.cnn.com/2017/10/17/politics/ice-crackdown-workplaces/index.html.

Complaint;

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1 people of color are often hit the hardest. Government thus becomes a driver of inequality, creating

2 additional layers of punishment for those moving through the criminal justice system.

3

57. Two of the documents Defendants withdrew without any explanation were resources to

4 help state and local governments address this problem by reforming their fines and fees practices to

5 comply with the Constitution and federal law, to avoid perpetuating poverty, and to avert unnecessary

6 deprivations of liberty and equal protection.

7

58. One was a “Dear Colleague” letter issued as part of a package “meant to support the

8 ongoing work of state judges, court administrators, policymakers and advocates in ensuring equal

9 justice for all people, regardless of financial circumstance.” Press Release No. 16-285, DOJ Office of

10 Public Affairs, Justice Department Announces Resources to Assist State and Local Reform of Fine

11 and Fee Practices (March 14, 2016). The letter provided guidance to state and local courts regarding

12 their legal obligations with respect to the enforcement of court fines and fees. Specifically, it set forth

13 seven requirements that had to be followed to be considered in compliance with the United States

14 Constitution and/or other federal laws. See Ex. F.

15

59. The other was an advisory for recipients of financial assistance from DOJ on levying

16 fines and fees on juveniles (“Juvenile Fines and Fees Advisory”). The stated intent of the advisory

17 was to assist state and local juvenile probation departments, juvenile courts, and other juvenile justice

18 agencies in ensuring that their imposition and enforcement of fines and fees did not violate the

19 Constitution or the nondiscrimination provisions associated with the acceptance of federal financial

20 assistance. To that end, it set forth DOJ’s understanding of the constitutional and statutory

21 obligations related to collecting fines and fees from juveniles, summarized the enforcement actions

22 available to DOJ in the event it discovered evidence of a violation, and offered recommendations to

23 improve the administration of juvenile fines and fees. See Ex. G.

24

60. These guidance documents have formed the basis for widespread reform to stem

25 unconstitutional practices. They prompted numerous states to review their policies on fines and fees.

26 The chair of Arkansas’s Joint Committee, which was tasked with this review, noted, “The DOJ letter

27 had a profound impact on every judge that read it. For those judges that perceived these issues prior

28 to the letter but were unable to generate enthusiasm for change, the letter provided a perfect platform

Complaint;

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1 for review and modification of policies and procedures.” U.S. Commission on Civil Rights, Targeted

2 Fines and Fees Against Low-Income Communities of Color: Civil Rights and Constitutional

3 Implications 51-52 (Sept. 2017). In Texas, the court system’s administrative director remarked that

4 the Dear Colleague Letter “was very helpful and very well received by the judges across the state.”

5 Chiraag Bains, Sessions Says to Courts: Go Ahead, Jail People Because They’re Poor, N.Y. Times

6 (Dec. 28, 2017), https://www.nytimes.com/2017/12/28/opinion/sessions-says-to-courts-go-ahead-jail-

7 people-because-theyre-poor.html. In addition, the American Bar Association has explicitly endorsed

8 the seven principles emphasized in these documents, while the Conference on State Court

9 Administrators refers to the Dear Colleague Letter in its policy paper on ending debtors’ prisons.

10

61. More specifically, the “Dear Colleague” letter and the Juvenile Fines and Fees

11 Advisory provided important guidance to San Francisco—and other local and state governments—

12 about criminal justice fines and fees.

13

62. San Francisco’s Adult Probation Department and Juvenile Probation Department are

14 authorized to impose and collect fees governed by these guidance documents:

15

 San Francisco’s Adult Probation Department is led by a Chief Probation Officer who is

16

appointed by and acts as an arm of the San Francisco Superior Court. Pursuant to state

17

law, the Adult Probation Department collects $50 a month from adult probationers.

18

These individuals are typically charged $1,800 upfront when they start their probation,

19

as probation typically lasts for three years.

20

 State and local laws also authorize the Adult Probation Department to collect fees from

21

clients for a variety of other services, including a booking fee, a criminal justice

22

administration fee, a home detention fee, and an electronic monitoring fee.

23

 San Francisco’s Juvenile Probation Department receives federal funding, including, in

24

recent years, funding from the United States Department of Justice Office of Justice

25

Programs.

26

 State and local laws authorize the Juvenile Probation Department to collect various

27

fees.

28

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1

63. The DOJ and private plaintiffs have relied on these documents in evaluating the

2 conduct of local governments. For example, the Department of Justice used this guidance in

3 reviewing whether Sacramento County’s collection of juvenile justice fines and fees complied with

4 applicable federal civil rights laws. In another example, in a legal challenge to automatic license

5 suspensions for failures to pay traffic fines and fees in Solano County, California, plaintiffs cited the

6 letter’s discussion of the unnecessary harms resulting from unfair fines and fees. See Complaint at 8,

7 Rubicon Programs v. Superior Court of Cal. Cty. of Solano, No. FCS047212 (Solano Super. Ct.

8 June 15, 2016).

9

64. Defendants have offered no particularized explanation for the withdrawal of these

10 documents. Were they withdrawn because DOJ believed they improperly imposed new binding

11 obligations on entities outside the executive branch? Or because DOJ concluded they were

12 outdated? We do not know, but the difference is important, as each possible rationale for the repeal

13 represents a different potential policy shift that is relevant for the activities of both the regulated

14 community and for DOJ employees reviewing state and local governments’ compliance with the law.

15

* * *

16

65. All of these Documents were practically and legally significant.

17

66. Practically, they helped to protect the civil rights of marginalized individuals across the

18 country. They reduced financial burdens on the poor and helped ensure equal access to justice. They

19 protected immigrants from discriminatory employment practices. And they advanced the rights of

20 disabled people to live and work in the most appropriate settings.

21

67. Legally, they provided guidance to regulated entities. Guidance letters describing the

22 Department’s interpretation of the Constitution and/or federal laws carry an implicit threat that parties

23 that do not follow their recommendations might face federal lawsuits or a loss of federal aid—and an

24 implicit assurance that parties who do follow them will be safe from prosecution or administrative

25 action. The withdrawal of these documents eliminated those safe harbors.

26

68. Moreover, based on Attorney General Sessions’ statements (see ¶¶ 23–30, supra), it is

27 apparent that at least some of the Documents were rescinded because Defendants believed they

28 improperly imposed binding obligations on individuals and/or entities outside the executive branch.

Complaint;

16

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1 In other words, according to DOJ, some of the Documents contained obligations that have now been

2 removed. Accordingly, legal consequences flow from this rescission.

3

69. Without an explanation from Defendants about the rationale for the repeal of each of

4 these documents, however, we are left to “guess at what theory underl[ies] the agency’s action.” Sec.

5 & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196–97 (1947) (“It will not do for a court to be

6 compelled to guess at the theory underlying the agency’s action; nor can a court be expected to chisel

7 that which must be precise from what the agency has left vague and indecisive.”).

8

70. When the court “is left to guess as to the agency’s findings or reasons,” the agency’s

9 action “simply cannot be upheld.” Time, Inc. v. U.S. Postal Serv., 685 F.2d 760, 773 (2d Cir. 1982)

10 (quoting Greater Boston Television Corp. v. F.C.C., 444 F.2d 841, 851 (D.C. Cir. 1970)).

11

COUNT ONE:

AGENCY ACTION THAT IS ARBITRARY AND CAPRICIOUS

12

IN VIOLATION OF 5 U.S.C. § 706(2)(A)

13

71. The above paragraphs are incorporated herein by reference.

14

72. DOJ is an agency subject to the requirements of the APA. 5 U.S.C. § 701(b)(1).

15

73. Under 5 U.S.C. § 706(2)(A), courts shall hold unlawful and set aside agency action that

16 is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

17

74. The rescission of the Documents constitutes final agency action that is reviewable by

18 this Court.

19

75. The rescission of the Documents and actions taken by Defendants to rescind the six

20 guidance documents are arbitrary and capricious, an abuse of discretion, and not in accordance with

21 law because, among other things, Defendants failed to articulate a meaningful explanation for their

22 actions.

23

76. Under the APA, agencies must demonstrate that they engaged in reasoned decision-

24 making when reaching a determination, and this includes policy changes made through repeals. See

25 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2120 (2016). The agency’s explanation for its

26 decision must be clear enough that the agency’s “path may reasonably be discerned.” Bowman

27 Transp., Inc. v. Arkansas–Best Freight Sys., Inc., 419 U.S. 281, 286 (1974). In the absence of any

28 specific reasoning, “[i]t is not the role of the courts to speculate on reasons that might have supported

Complaint;

17

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1 an agency’s decision,” and the action must be deemed arbitrary and capricious. Encino Motorcars,

2 136 S. Ct. at 2127.

3

77. This is particularly true where, as here, the rescinded policies engendered reliance

4 interests. See Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1209 (2015) (“[T]he APA requires an

5 agency to provide more substantial justification when ‘its new policy rests upon factual findings that

6 contradict those which underlay its prior policy; or when its prior policy has engendered serious

7 reliance interests that must be taken into account. It would be arbitrary and capricious to ignore such

8 matters.’” Id. (quoting F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)).

9

78. San Francisco and its residents were harmed and continue to be harmed by these

10 unlawful acts.

11

PRAYER FOR RELIEF

12

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

13

1. Vacate and set aside the rescission of the Documents and any action taken by

14 Defendants to implement rescission of the Documents;

15

2. Declare that the rescission of the Documents and actions taken by Defendants to

16 rescind the Documents are void and without legal force or effect;

17

3. Declare that the rescission of the Documents and actions taken by Defendants to

18 rescind the Documents are arbitrary, capricious, an abuse of discretion, and otherwise not in

19 accordance with law in violation of 5 U.S.C. § 706;

20

4. Enjoin and restrain Defendants, their agents, servants, employees, attorneys, and all

21 persons in active concert or participation with any of them, from implementing or enforcing the

22 rescission of the Documents and from taking any other action to rescind the Documents that is not in

23 compliance with applicable law;

24

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

25 //

26 //

27 //

28 //

Complaint;

18

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1

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

2

3 Dated: April 5, 2018 4 5 6 7 8

DENNIS J. HERRERA City Attorney JESSE C. SMITH RONALD P. FLYNN YVONNE R. MERÉ MOLLIE M. LEE SARA J. EISENBERG
Deputy City Attorneys

9

10 By: /s/ Dennis J. Herrera

11

DENNIS J. HERRERA

City Attorney 12

Attorneys for Plaintiff

13

CITY AND COUNTY OF SAN FRANCISCO

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Complaint;

19

CCSF v. Jefferson B. Sessions III, et al; Case No.

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 Case 3:18-cv-02068-JST Document 30 Filed 07/30/18 Page 1 of 28

1 DENNIS J. HERRERA, State Bar #139669

City Attorney

2 JESSE C. SMITH, State Bar #122517

Chief Assistant City Attorney

3 RONALD P. FLYNN, State Bar #184186

Chief Deputy City Attorney

4 YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation

5 MOLLIE M. LEE, State Bar #251404

SARA J. EISENBERG, State Bar #269303

6 Deputy City Attorneys

City Hall, Room 234

7 1 Dr. Carlton B. Goodlett Place

San Francisco, California 94102-4602

8 Telephone: (415) 554-4748

Facsimile: (415) 554-4715

9 E-Mail:

brittany.feitelberg@sfcityatty.org

10 Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO
11

12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15 CITY AND COUNTY OF SAN FRANCISCO,
16 Plaintiff,
17 vs.
18 JEFFERSON B. SESSIONS III, Attorney
19 General of the United States, UNITED STATES DEPARTMENT OF JUSTICE,
20 DOES 1-100,

Case No. 18-cv-2068-JST
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

21

Defendants.

22

23

24

25

26

27

28
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1

INTRODUCTION

2

1. This lawsuit challenges Defendants’ bulk rescission of a wide swath of Department of

3 Justice (“DOJ” or “Department”) guidance documents setting forth DOJ’s interpretation of laws that

4 protect immigrants, the poor, people of color, and people with disabilities. The documents—which

5 provided guidance to regulated entities and helped to protect the civil rights of marginalized

6 individuals across the country—were withdrawn without any meaningful explanation, as required by

7 the Administrative Procedure Act (“APA”). Such an unexplained bulk repeal was unprecedented prior

8 to this administration. The rescission was arbitrary and capricious, and should be vacated.

9

2. The stated mission of DOJ is “to ensure fair and impartial administration of justice for

10 all Americans.” Yet, over the past year and a half, the Department—under the leadership of Attorney

11 General Jefferson B. Sessions—has shown a shocking disregard for protecting the rights of vulnerable

12 communities, rolling back civil rights initiatives in a wide variety of areas. Barely a month into the

13 Trump administration, for example, the Department dropped the federal government’s longstanding

14 position that a Texas voter ID law under legal challenge was intentionally racially discriminatory.

15 Shortly thereafter, DOJ attempted—unsuccessfully—to block a court from approving a consent decree

16 negotiated by the Department following an extensive multi-year investigation that aimed to reform

17 discriminatory police practices in the Baltimore Police Department. The DOJ also effectively shut

18 down the Office for Access to Justice (“ATJ”), which was dedicated to improving legal resources for

19 indigent litigants in civil, criminal, and tribal courts. ATJ’s offices now sit dark in the Justice

20 Department building.

21

3. And, in December 2017, Attorney General Sessions rescinded twenty-five DOJ

22 guidance documents—most of which were aimed at protecting marginalized communities.

23

4. In a press release announcing the repeal, Attorney General Sessions declared—in broad

24 conclusory terms—that the documents were being withdrawn because they were “unnecessary,

25 inconsistent with existing law, or otherwise improper.” See Press Release No. 17-1469, DOJ Office of

26 Public Affairs, Attorney General Jeff Sessions Rescinds 25 Guidance Documents (Dec. 21, 2017)

27 (attached hereto as Exhibit A). He also stated generally that “any guidance that is outdated, used to

28 circumvent the regulatory process, or that improperly goes beyond what is provided for in statutes or

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1 regulation should not be given effect.” Id. He did not explain which rationale allegedly applied to

2 which document or offer any other particularized justification.

3

5. Elsewhere, components of DOJ have offered additional explanation for the repeal of

4 some of the guidance documents. For example, the Civil Rights Division explains on its website that

5 the guidance on bailing-out procedures under Section 4(b) and Section 5 of the Voting Rights Act was

6 withdrawn because the “Supreme Court’s decision in Shelby County v. Holder, 570 U.S. ___ (2013)

7 held that the coverage formula set forth in Section 4(b) of the Act was unconstitutional, and as a

8 consequence, no jurisdictions are now subject to the coverage formula in Section 4(b) or to Sections

9 4(f)(4) and 5 of Act. Accordingly, guidance regarding bailout under Section 4(a) is no longer

10 necessary.” See Section 4 of the Voting Rights Act, DOJ Civil Rights Division, https://www.justice.

11 gov/crt/section-4-voting-rights-act (last updated Dec. 21, 2017).

12

6. But slipped into the mix of the twenty-five repealed documents were six significant

13 civil rights documents that Defendants provided no meaningful explanation for withdrawing. All six

14 provided critical guidance to state and local governments about compliance with federal laws. Among

15 them were procedures to help state and local governments eliminate unlawful fees against juvenile

16 offenders, standards outlining discrimination protections for disabled individuals in government

17 employment service systems, and guidance for employers about compliance with the anti-

18 discrimination provisions of the Immigration and Nationality Act.

19

7. The rescission of these documents has been decried by disability rights groups and civil

20 rights activists.1 Indeed, the United States Commission on Civil Rights—an independent, bipartisan

21 federal agency charged with advising the President and Congress on civil rights matters—issued a

22 statement “strongly criticiz[ing]” the withdrawal of the “recent, narrowly crafted, urgently applicable

23

24

1 See, e.g., Lawyers’ Committee for Civil Rights Under Law Condemns DOJ’s Decision to

25

Revoke Critical Legal Guidance Documents, Lawyers’ Committee for Civil Rights (Dec. 22, 2017), https://www.commondreams.org/newswire/2017/12/22/lawyers-committee-civil-rights-under-law-

26 condemns-dojs-decision-revoke-critical (“We condemn Attorney General Sessions’s latest attempt to turn back the clock on civil rights progress . . . .”); DOJ Withdraws Olmstead Employment Guidance,

27 Letter to DOJ in Response to Olmstead Guidance Withdrawal from Over 200 Disability

Organizations, Center for Public Representation (Jan. 5, 2018), https://centerforpublicrep.org/ 28 initiative/doj-withdraws-olmstead-employment-guidance/.

First Amended Complaint

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1 guidance documents.” U.S. Commission on Civil Rights Strongly Criticizes Attorney General Jeff

2 Sessions’ Withdrawal of Critical Civil Rights Guidance, U.S. Commission on Civil Rights (Jan. 19,

3 2018), http://usccr.gov/press/2018/01-19-PR-Sessions.pdf. The Commission “call[ed] for Attorney

4 General Sessions immediately to correct the civil rights harm his guidance withdrawal works on our

5 nation’s social fabric by reinstating the guidance, signaling the necessary ongoing leadership of the

6 nation’s Department of Justice in actually securing justice for the people.” Id.

7

8. Despite the outcry and outrage that followed this initial bulk rescission, Attorney

8 General Sessions rescinded twenty-four additional DOJ guidance documents in July 2018. Once

9 again, most of the documents were aimed at protecting marginalized communities—including a

10 technical assistance manual to help state and local juvenile justice agencies address the widespread

11 and serious problem of disproportionate minority contact with the juvenile justice system. In a press

12 release announcing the second bulk repeal, Attorney General Sessions declared that DOJ was

13 rescinding the twenty-four additional documents as part of the continuing effort “to put an end to

14 unnecessary or improper rulemaking.” See Press Release No. 18-883, DOJ Office of Public Affairs,

15 Attorney General Jeff Sessions Rescinds 24 Guidance Documents (July 3, 2018) (attached hereto as

16 Exhibit H). But neither Attorney General Sessions nor anyone else in DOJ has explained whether the

17 technical assistance manual was determined to be unnecessary, or improper, or outdated. Nor has

18 anyone provided any other particularized and substantive justification for repealing this important

19 document.

20

9. Defendants’ failure to provide any meaningful explanation for the repeal of these

21 documents is galling—and unlawful. The APA requires agencies to disclose the basis of their

22 decisions, including policy changes made through repeals. They must demonstrate that they engaged

23 in reasoned decision-making. And the explanation for their decision cannot be conclusory; it must be

24 clear enough that the agency’s “path may reasonably be discerned.” Bowman Transp., Inc. v.

25 Arkansas–Best Freight Sys., Inc., 419 U.S. 281, 286 (1974).

26

10. The APA imposes these requirements for an important reason. A fundamental tenet of

27 our administrative system is that agency decision-making should not happen in the shadows. The

28 APA’s procedural requirements exist to allow members of the public—and the courts—to understand

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1 and evaluate the legitimacy and consequences of the agency’s action. In the absence of such an

2 explanation, the public is left to guess whether Defendants believe the repealed documents are

3 outdated—and, if so, whether a different document controls—or improperly imposed binding

4 obligations that should have been issued through notice-and-comment rulemaking. Regulated entities

5 like San Francisco and the individuals impacted by the rescission of the documents cannot evaluate the

6 validity of the repeal, challenge it if necessary, or tailor their conduct appropriately when agency

7 action is opaque.

8

11. The public is entitled to—and the APA demands—more from our federal government.

9

JURISDICTION AND VENUE

10

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

11 further remedial authority under the Declaratory Judgment Act, 28 U.S.C. Sections 2201 and 2202 et

12 seq. There exists an actual and justiciable controversy between Plaintiff and Defendants requiring

13 resolution by this Court. Plaintiff has no adequate remedy at law.

14

13. Venue properly lies within the Northern District of California because this is a civil

15 action in which Defendants are an agency, or officers of an agency, of the United States, because a

16 substantial part of the events or omissions giving rise to this action occurred in the District, and,

17 further, because Plaintiff resides in this District and no real property is involved in the action. 28

18 U.S.C. § 1391(e).

19

INTRADISTRICT ASSIGNMENT

20

14. Pursuant to Civil Local Rule 3-2(c), it is appropriate to assign this case to the San

21 Francisco Division or Oakland Division of this Court because the action arises in San Francisco

22 County.

23

PARTIES

24

15. Plaintiff City and County of San Francisco (“San Francisco” or “City”) is a municipal

25 corporation organized and existing under and by virtue of the laws of the State of California, and is a

26 charter city and county.

27 //

28 //
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1

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

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

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

4

17. Defendant DOJ is an executive department of the United States of America and an

5 agency within the meaning of 5 U.S.C. § 551(1). DOJ has responsibility for, among other things,

6 administering and enforcing the Civil Rights Acts of 1957, 1960, 1964, and 1968, as amended; the

7 Voting Rights Act of 1965, as amended; the Juvenile Justice and Delinquency Prevention Act of 2002;

8 the Fair Housing Act of 1968; and the Fair Housing Amendments Act of 1988. In addition, DOJ is

9 charged with all departmental responsibilities under the Americans with Disabilities Act of 1990.

10

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

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

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

13

FACTUAL ALLEGATIONS

14

19. In February 2017, President Trump issued Executive Order 13777, “Enforcing the

15 Regulatory Reform Agenda,” in which he ordered each executive agency to create a “Regulatory

16 Reform Task Force” to identify regulatory actions for elimination. Exec. Order No. 13,777, 82 Fed.

17 Reg. 12,285 (Feb. 24, 2017).

18

20. DOJ established the required task force and installed former Associate Attorney

19 General Rachel Brand as the chair2—but has refused to provide information to the public about other 20 task force members.3

21

22

2 Rachel Brand left DOJ in February 2018. DOJ has not disclosed who—if anyone—replaced her as chair of the task force.

23

3 See Robert Faturechi, Secrecy and Suspicion Surround Trump’s Deregulation Teams,

ProPublica (Aug. 7, 2017), https://www.propublica.org/article/secrecy-and-suspicion-surround-

24 trumps-deregulation-teams (“In an email exchange, a spokesman, Ian Prior, said he could not provide

additional names because ‘the Task Force is made up of components, not particular employees.’ ‘A

25 component may have multiple employees assisting with the work,’ he added. Asked if he could name any of those employees, he responded, ‘Decline.’”).

26

Indeed, ignoring multiple requests by members of Congress to disclose Regulatory Reform

27

Task Force members leading regulatory rollback efforts, DOJ and other agencies “are actively hiding their members and their meetings from public view.” Letter from Rep. Elijah Cummings et al. to

28

Mick Mulvaney & Neomi Rao (Aug. 7, 2017). As a result, senior members of the House of Representatives Committee of Oversight and Government Reform have requested subpoenas to

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1

21. On June 28, 2017, the DOJ Task Force published a Request for Public Comment in the

2 Federal Register seeking input on regulatory actions that should be considered for repeal, replacement,

3 or modification. Enforcing the Regulatory Reform Agenda; Department of Justice Task Force on

4 Regulatory Reform Under E.O. 13777, 82 Fed. Reg. 29,248 (proposed June 28, 2017). This cursory

5 notice requested public comment in broad terms without reference to any specific regulation or

6 document.

7

22. Among the comments submitted was a request by the Leadership Conference on Civil

8 and Human Rights for DOJ to identify individual regulations and policies it was considering for

9 repeal. Letter from Kristine Lucius, Executive Vice President, the Leadership Conference on Civil

10 and Human Rights, to Robert Hinchman, Senior Counsel of the Office of Legal Policy, DOJ (Aug. 14,

11 2017), https://www.regulations.gov/document?D=DOJ-OLP-2017-0007-0013. The Leadership

12 Conference explained that in order to provide meaningful comments, it “would need the Department to

13 give proper notice of which specific regulations or policies it is considering repealing, replacing, or

14 modifying.” Id.

15

23. Other agencies did this—publishing notice in the Federal Register of the specific rules

16 and regulations considered for repeal or modification. For example, the U.S. Patent and Trademark

17 Office published a proposal to remove regulations governing reservation clauses, petitions from a

18 primary examiner’s refusal to admit an amendment, and other specific rules pursuant to Executive

19 Order 13777. See Changes To Eliminate Unnecessary Regulations, 83 Fed. Reg. 2759-60 (proposed 20 Jan. 19, 2018).4 DOJ, however, provided no further information on the specific documents being

21 considered for repeal.

22 compel DOJ to provide the names of their task force members. See Letter from Rep. Elijah E.
23 Cummings to Rep. Trey Gowdy (Mar. 13, 2018).

24

4 See also, e.g., Eliminating Unnecessary Tax Regulations, 83 Fed. Reg. 6806 (proposed Feb. 15, 2018) (IRS proposing to remove 298 tax regulations); Pesticides; Agricultural Worker Protection

25

Standard; Reconsideration of Several Requirements and Notice About Compliance Dates, 82 Fed. Reg. 60,576 (proposed Dec. 21, 2017) (EPA notifying public it seeks to revise certain Agricultural

26

Worker Protection Standard requirements); Claims Procedure for Plans Providing Disability Benefits; Extension of Applicability Date, 82 Fed. Reg. 47,409 (proposed Oct. 12, 2017) (Department of Labor

27

proposing to delay applicability of the Final Rule amending claims procedure requirements for ERISA-covered employee benefit plans providing disability benefits); National Performance

28

Management Measures, 82 Fed. Reg. 46,427 (proposed Oct. 5, 2017) (Federal Highway Administration notice of proposed rulemaking seeking to repeal the 2017 Greenhouse Gas

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1

24. Instead, on November 17, 2017, Attorney General Sessions stated at the Federalist

2 Society 2017 National Lawyers Convention that “[w]e have prohibited all Department of Justice

3 components from issuing any guidance that purports to impose new obligations on any party outside

4 the Executive Branch. We will review and repeal existing guidance documents that violate this

5 common sense principle.” See Attorney General Sessions Delivers Remarks at the Federalist Society

6 2017 National Lawyers Convention, DOJ Office of Public Affairs (Nov. 17, 2017), https://www.

7 justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-federalist-society-2017-national-

8 lawyers.

9

25. He also issued a memorandum prohibiting all divisions of the Department of Justice

10 from issuing guidance documents that have the effect of adopting new regulatory requirements or

11 amending the law. See Memorandum from the Attorney General to “All Components” Regarding

12 Prohibition on Improper Guidance Documents (Nov. 16, 2017), https://www.justice.gov/opa/press-

13 release/file/1012271/download (“November Memorandum”).

14

26. Specifically, in the November Memorandum, Attorney General Sessions declared:

15

[G]uidance may not be used as a substitute for rulemaking and may not be used to impose new requirements on entities outside the Executive Branch. Nor

16

should guidance create binding standards by which the Department will determine compliance with existing regulatory or statutory requirements.

17

It has come to my attention that the Department has in the past published

18

guidance documents—or similar instruments of future effect by other names, such as letters to regulated entities—that effectively bind private parties without

19

undergoing the rulemaking process.

20 Id. at 1.

21

27. The press release announcing the issuance of the November Memorandum further

22 elaborated that the “Attorney General’s Regulatory Reform Task Force . . . will conduct a review of

23 existing Department documents and will recommend candidates for repeal or modification in the light

24 of this memo’s principles.” Press Release No. 17-1309, DOJ Office of Public Affairs, Attorney

25 General Jeff Sessions Ends the Departments Practice of Regulation by Guidance (Nov. 17, 2017),

26

27 performance measures for state departments of transportation and metropolitan planning
28 organizations).

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1 https://www.justice.gov/opa/pr/attorney-general-jeff-sessions-ends-department-s-practice-regulation-

2 guidance.

3

28. And then-chair of the task force, Rachel Brand, stated: “Guidance documents . . .

4 should not be used to change the law or to impose new standards to determine compliance with the

5 law. The notice-and-comment process that is ordinarily required for rulemaking can be cumbersome

6 and slow, but it has the benefit of availing agencies of more complete information about a proposed

7 rule’s effects than the agency could ascertain on its own. This Department of Justice will not use

8 guidance documents to circumvent the rulemaking process, and we will proactively work to rescind

9 existing guidance documents that go too far.” Id. (emphasis added).

10

29. The following month, on December 21, 2017, Attorney General Sessions announced

11 that, pursuant to Executive Order 13777 and his November Memorandum, he was rescinding twenty-

12 five DOJ guidance documents that were “unnecessary, inconsistent with existing law, or otherwise

13 improper.” See Ex. A.

14

30. The vast majority of the documents—which dated back decades and covered topics as

15 diverse as Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) procedures and the

16 Americans with Disabilities Act—were aimed at protecting marginalized communities, including

17 immigrants, people of color, the poor, and individuals with disabilities.

18

31. At the time he announced the repeal, Attorney General Sessions offered six short

19 sentences in explanation:

20

Last month, I ended the longstanding abuse of issuing rules by simply publishing a letter or posting a web page. Congress has provided for a

21

regulatory process in statute, and we are going to follow it. This is good government and prevents confusing the public with improper and wrong advice.

22

Therefore, any guidance that is outdated, used to circumvent the regulatory

process, or that improperly goes beyond what is provided for in statutes or

23

regulation should not be given effect. That is why today, we are ending 25

examples of improper or unnecessary guidance documents identified by our

24

Regulatory Reform Task Force led by our Associate Attorney General Rachel

Brand. We will continue to look for other examples to rescind, and we will

25

uphold the rule of law.

26 Id.

27

32. Attorney General Sessions did not state why any of the twenty-five was specifically

28 selected to be withdrawn. He provided no details on which documents had been deemed outdated,

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1 which were “unnecessary,” or which were in some way improper because they imposed new binding

2 rights or obligations on persons or entities outside the executive branch.

3

33. On July 3, 2018, Attorney General Sessions announced that DOJ had rescinded twenty-

4 four additional DOJ guidance documents that purportedly “were unnecessary, outdated, inconsistent

5 with existing law, or otherwise improper.” See Ex. H.

6

34. Once again, most of the documents DOJ selected for repeal were aimed at protecting

7 marginalized communities. Once again, several of them provided critical guidance to state and local

8 governments about compliance with federal laws. And once again, Attorney General Sessions did not

9 state why any of the twenty-four was specifically selected to be withdrawn—he provided no details on

10 which documents had been deemed outdated, which were “unnecessary,” or which were in allegedly

11 “inconsistent with existing law” or in some other way “improper.”

12

35. Components of DOJ provided additional explanation with respect to the rescission of

13 certain documents in other places, noting that specific documents were outdated and explaining why.5

14 The ATF, for example, issued a ruling explaining that the ATF documents being withdrawn were

15 “unnecessary . . . to the appropriate application of current law and regulation.” ATF Ruling 2017-1,

16 Revoking Certain Guidance Documents, DOJ Bureau of Alcohol, Tobacco, Firearms and Explosives,

17 (Dec. 20, 2017), https://www.atf.gov/resource-center/docs/ruling/2017-1-revoking-certain-guidance-

18 documents/download. It then listed the documents and explained exactly why each one had been

19 deemed unnecessary—for example, ATF Procedure 75-4 was no longer necessary because the

20 procedure it described had been “incorporated into the Application for Explosives License or Permit,

21 ATF Form 5400,” and ATF Ruling 85-3 was “made obsolete by amendments to 18 U.S.C. 922(b)(3).” 22 Id.6

23

5 The City reserves the right to challenge the sufficiency or validity of these explanations. The

24 City’s current claims, however, focus on Defendants’ decision to rescind documents without providing

any meaningful and particularized explanation whatsoever.

25

6 See also, e.g., Section 4 of the Voting Rights Act, DOJ Civil Rights Division,

26 https://www.justice.gov/crt/section-4-voting-rights-act (last updated Dec. 21, 2017) (Civil Rights Division website explaining that guidance on bailing-out procedures under Section 4(b) and Section 5

27 of the Voting Rights Act was withdrawn because the Supreme Court’s holding in Shelby County v.

Holder, 570 U.S. 529 (2013), that the coverage formula set forth in Section 4(b) of the Act was 28 unconstitutional rendered guidance regarding bailout under Section 4(a) unnecessary); Commonly

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1

36. But among the large swath of rescinded documents were eight significant ones about

2 which Defendants have provided no meaningful explanation (referred to collectively as “Documents”).

3

A. Statement Concerning Application Of The ADA’s Integration Mandate To State

And Local Governments.

4

5

37. One of the documents rescinded without adequate explanation was a “Statement of the

6 Department of Justice on Application of the Integration Mandate of Title II of the Americans with

7 Disabilities Act and Olmstead v. L.C. to State and Local Governments’ Employment Service Systems

8 for Individuals with Disabilities.” See Ex. B (the “Olmstead Guidance”).

9

38. In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court ruled that pursuant to the

10 integration mandate in Title II of the ADA, state and local governments must create pathways for

11 people with disabilities to live in their own homes or group homes located within their communities,

12 rather than isolating them in segregated institutions.

13

39. The repealed Olmstead Guidance, which was issued in 2016, explained to state and

14 local governments how this ruling applied to their employment service systems.

15

40. Specifically, it provided answers to questions such as:

16

 “What is the ADA’s Title II integration mandate, and how does it apply to state and

17

local governments’ employment service systems?” Ex. B at 3.

18

 “What is the most integrated setting under the ADA and Olmstead in the context of a

19

state and local government’s employment service system?” Id. at 4.

20

21

22 Asked Questions About Service Animals in Places of Business, DOJ Civil Rights Division Disability

23

Rights Section (July 1996), https://www.ada.gov/archive/qasrvc.htm (“[Commonly Asked Questions About Service Animals in Places of Business (July 1996)] has been withdrawn because it is outdated

24 and was superseded by the current ADA title II and title III regulations . . . . For more information about the Department's withdrawn technical assistance and guidance documents, please go to:

25 www.ada.gov/ta_withdrawn. html. For the current version of this document, please go to Frequently

Asked Questions about Service Animals and the ADA.”); Dear Colleague Letter, U.S. Dept. of Educ. 26 (July 3, 2018), available at https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-vi-

27 201807.pdf (“The Departments have reviewed the documents and have concluded that they advocate policy preferences and positions beyond the requirements of the Constitution, Title IV, and Title VI. . .

28 . [T]he documents are [also] inconsistent with governing principles for agency guidance documents.”).

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1

 “How can state and local governments’ employment service systems ensure that people

2

with disabilities have access to competitive integrated employment?” Id. at 5.

3

41. In answering these questions, DOJ affirmed that the integration mandate applied not

4 only to where individuals with disabilities live, but also to where they spend their days—including at

5 work. It explained that any work programs for people with disabilities that a government planned,

6 funded, administered, operated, or implemented were required to integrate employees with disabilities

7 with their non-disabled peers in order to comply with the ADA. And it provided criteria to determine

8 “the most integrated setting” for employment services for an individual with a disability, and a process

9 to ensure that individuals with disabilities have access to competitive, integrated employment. See

10 generally Ex. B.

11

42. According to disability advocates, the Olmstead Guidance was integral to helping

12 people with disabilities across the country move away from isolated “sheltered workshops,” where 13 they are often paid much less than minimum wage and are vulnerable to exploitation and abuse.7

14

43. The Olmstead Guidance has also been integral to San Francisco’s ongoing efforts to

15 comply with the ADA.

16

44. San Francisco operates, funds, and/or oversees several employment programs for its

17 residents, including those with disabilities. The Olmstead Guidance was critical to San Francisco’s

18 efforts to implement these public programs, evaluate their compliance with federal law, and help them

19 improve.

20

45. For example, San Francisco’s Access to City Employment (“ACE”) Program provides

21 employment opportunities to individuals with disabilities by allowing them to qualify for certain city

22 jobs without needing to go through the competitive civil service application process. The Olmstead

23

24

7 For this reason, its repeal has been met with widespread outrage from disability rights

organizations. Indeed, over 200 disability organizations sent a letter to the Acting Assistant Attorney

25 General for Civil Rights expressing concern over the effect the withdrawal will have on people with

disabilities across the country. See Letter from Consortium for Citizens with Disabilities to AAG John

26 Gore (Jan. 8, 2018), https://centerforpublicrep.org/wp-content/uploads/2017/12/letter-to-DOJ-re-

withdrawal-of-guidance-1-5-18.pdf. The U.S. Commission on Civil Rights has also urged Attorney

27 General Sessions to reconsider the withdrawal. U.S. Commission on Civil Rights Strongly Criticizes

Attorney General Jeff Sessions’ Withdrawal of Critical Civil Rights Guidance, U.S. Commission on

28 Civil Rights (Jan. 19, 2018), http://usccr.gov/press/2018/01-19-PR-Sessions.pdf.

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1 Guidance helped the Mayor’s Office on Disability (“MOD”) assess the ACE program’s compliance

2 with the ADA and achieve its goals.

3

46. It also helped MOD—which is responsible for overseeing the implementation and local

4 enforcement of San Francisco’s obligations under the ADA—provide advice to City departments and

5 contractors about how to ensure compliance with the integration mandate of Title II.

6

47. One such department, which provides employment services to people with disabilities

7 through contractors, is the San Francisco Office of Economic and Workforce Development

8 (“OEWD”).

9

48. OEWD receives federal funds under the Workforce Innovation and Opportunity Act

10 (“WIOA”) as well as Community Development Block Grants (“CDBG”) from the Department of

11 Housing and Urban Development. It uses those funds to, among other things, fund contracts with non-

12 profit organizations to provide services to San Francisco residents with disabilities. Specifically,

13 OEWD provides funding to Toolworks, The Arc, and Positive Resource Center (“PRC”).

14

49. Toolworks provides a variety of employment related services to people with

15 disabilities. They provide job coaching and placement, which can result in placement in a fully

16 integrated job or a job in a more supportive setting, depending on the needs of the individual client.

17 They operate a 10-week janitorial training program in which individuals with disabilities work in

18 teams to provide janitorial services to local employers (including San Francisco’s Department of

19 Aging and Adult Services). And they operate Bakeworks Café as a non-profit “social enterprise”

20 where individuals with disabilities can receive short term training or long term jobs.

21

50. Similarly, The Arc provides job training and placement plus ongoing coaching and

22 career development to individuals with intellectual and developmental disabilities. See The Arc,

23 Programs: Careers & Advancement, http://www.thearcsf.org/what-we-do/programs/careers-

24 advancement.html (last visited July 27, 2018). And PRC provides employment services to people

25 affected by HIV/AIDS, substance use, or mental health issues. See PRC, Employment Services,

26 http://prcsf.org/employment-services/ (last visited July 27, 2018).

27 //

28 //
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1

51. The rescission of the Olmstead Guidance removes a valuable tool that San Francisco

2 could—and previously has—used to ensure that these funding recipients continue to promote inclusion

3 to the greatest extent possible.

4

52. In short, the rescission of the Olmstead Guidance undercuts the efforts of MOD,

5 OEWD, and San Francisco more broadly to ensure that its departments, programs, and contracting

6 organizations are providing employment services that are fully integrated.

7

53. Despite the importance of the Olmstead Guidance to state and local governments like

8 San Francisco, Attorney General Sessions withdrew it without any meaningful explanation.

9

54. On ADA.gov, DOJ provided the following explanation for the withdrawal of this

10 critical document: “This action was taken to afford further discussion with relevant stakeholders,

11 including public entities and the disability community, as to how best to provide technical assistance

12 in this area.” Withdrawal of the Statement of the Department of Justice on Application of the

13 Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. to State

14 and Local Governments’ Employment Service Systems for Individuals with Disabilities, DOJ Civil

15 Rights Division (Dec. 21, 2017), https://www.ada.gov/withdrawn_olmstead.html. This explanation,

16 however, is entirely different from those given by Attorney General Sessions. It does not indicate that

17 DOJ determined the Statement was outdated, or unnecessary, or improper. Rather, it introduces an

18 entirely new rationale—that it was withdrawn to allow for further discussion and consideration of the

19 principles addressed in the guidance.

20

55. And elsewhere on ADA.gov, DOJ indicates that it withdrew the Olmstead Guidance

21 because it was “out-of-date, duplicative, or otherwise ineffective” and its withdrawal would “make it

22 easier for individuals with disabilities, covered entities, and the public to understand their rights and

23 responsibilities under the ADA.” ADA.gov website, DOJ Civil Rights Division, https://www.ada.

24 gov/ta_withdrawn.html (emphasis added).

25

56. In fact, there is reason to believe that the withdrawal of this guidance reflects a sub rosa

26 substantive shift in federal interpretation and enforcement of Title II’s integration mandate. Sheltered

27 workshops are profitable enterprises, and a national trade association for sheltered workshops began

28 lobbying DOJ’s new political leadership to repeal the Olmstead Guidance in August 2017. See David

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1 M. Perry, Companies That Exploit Disabled People Have a Friend in Jeff Sessions, Pacific Standard

2 (Jan. 3, 2018), https://psmag.com/economics/jeff-sessions-roll-back-disability-rights. In light of this

3 background as well as the fact that eighteen of the comments submitted in response to the request for

4 input on the Department’s regulatory reform agenda urged a withdrawal of the Olmstead Guidance

5 and/or a change in the underlying substance, the repeal appears to indicate a meaningful shift in

6 policy.

7

57. Given the vague and contradictory explanations proffered by Defendants, San

8 Francisco—along with other state and local governments and the public—is left without a clear

9 understanding of the current state of the law and, therefore, whether it is compliant with the ADA.

10 That not only makes it more difficult for San Francisco to continue to push its agencies and contractors

11 toward fully integrated workplaces, but also increases the risk that San Francisco will face

12 enforcement action by DOJ and lawsuits from the public.

13

58. If DOJ were to determine that San Francisco is out of compliance with the integration

14 mandate of the ADA, the City could be at risk of losing its WIOA and/or CDBG funds.

15

59. And San Francisco has particular reason to be concerned about enforcement action by

16 DOJ in this area given that DOJ has previously taken action against San Francisco over Olmstead-

17 related violations. In 2003, DOJ threatened a lawsuit against San Francisco over inadequate housing

18 integration for residents of San Francisco’s Laguna Honda Hospital (“LHH”). San Francisco and DOJ

19 eventually reached a settlement to ensure residents were placed into the most integrated setting

20 possible, which included DOJ monitoring of the facility until 2011. Settlement Agreement Between

21 The United States Department of Justice and the City and County of San Francisco Regarding the

22 Laguna Honda Hospital and Rehabilitation Center, DOJ Civil Rights Division (June 13, 2008),

23 https://www.ada.gov/olmstead/documents/laguna_settle.pdf.

24

60. In addition, following the repeal of the Olmstead Guidance San Francisco may face

25 increased resistance to fully integrated employment services and general accommodations for people

26 with disabilities. That resistance could harm San Francisco not only by leading to it becoming less

27 accessible for its residents, but also by increasing the risk that San Francisco will face lawsuits over

28
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1 whether it is providing sufficient accommodations for individuals with disabilities in its programs,

2 services, and facilities.

3

B. Statement On Ability Of Local Government To Exercise Control Over Group

Living Arrangements For People With Disabilities.

4

5

61. Another one of the repealed documents was a joint statement by DOJ and the

6 Department of Housing and Urban Development concerning the Fair Housing Act’s effect on the

7 ability of local governments to exercise control over group living arrangements, particularly for

8 persons with disabilities (“Joint Statement”). See Ex. C.

9

62. Local governments—including San Francisco—have long regulated in this area. See,

10 e.g., San Francisco Planning Code §§ 102, 209.1, 209.3, 209.4, 210.2-.210.4, 713-719, 722-726.

11

63. And as the Joint Statement itself indicates, there has been a “great deal of litigation”

12 concerning this issue, and DOJ has taken an active role in many of those cases. See Ex. C at 1.

13 Indeed, several cities in California have been sued over determinations and regulations concerning

14 group living arrangements for individuals with disabilities that were alleged to violate the Fair

15 Housing Act. See, e.g., Pacific Shores Properties, LLC v. City of Newport Beach, 730 F.3d 1142 (9th

16 Cir. 2013); Gamble v. City of Escondido, 104 F.3d 300 (9th Cir. 1997).

17

64. Accordingly, the Joint Statement was a critical resource in providing direction to local

18 governments about what they could and could not do in compliance with federal law. For instance, it

19 explained that local governments could generally restrict the ability of unrelated groups of people to

20 live together (subject to reasonable accommodations), but could not treat groups of unrelated persons

21 with disabilities less favorably than similar groups of unrelated persons without disabilities.

22

65. In addition to relying on this document to aid in determining their course of conduct,

23 jurisdictions like San Francisco could also rely on the Joint Statement if and when those actions were

24 challenged in court. Indeed, courts, too, relied on the Joint Statement in evaluating jurisdictions’

25 compliance with federal law. See, e.g., Overlook Mut. Homes, Inc. v. Spencer, 666 F. Supp. 2d 850,

26 856 (S.D. Ohio 2009); Jeffrey O. v. City of Boca Raton, 511 F. Supp. 2d 1339, 1354 n.10 & n.13 (S.D.

27 Fla. 2007).

28 //
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1

66. Defendants did not provide any particularized explanation for withdrawing this

2 document.

3

67. Through its own search, San Francisco was able to locate a later 2016 document that

4 “updates and expands” upon the Joint Statement. See Joint Statement of the Department of Housing

5 and Urban Development and the Department of Justice: State and Local Land Use Laws and Practices

6 and the Application of the Fair Housing Act (Nov. 10, 2016), https://www.justice.gov/opa/file/

7 912366/download. But there is material covered in the Joint Statement that does not appear to be

8 included in the 2016 document, such as a discussion of the applicability of the anti-discrimination

9 provisions of the Fair Housing Act to those claiming disability on the basis of having been adjudicated

10 as a juvenile delinquent or for having a criminal record, or those who suffer from a current active

11 addiction to illegal drugs. See Ex. C at 1.

12

68. In the absence of an explanation from Defendants for their decision to withdraw this

13 document—e.g., that they believe it has been completely supplanted by the 2016 document or that the

14 Joint Statement was somehow incorrect or improper—there is no way for local governments to

15 evaluate the validity of the justification or tailor their conduct accordingly.

16

C. Letters Concerning Standards For Assessing Citizenship Status Discrimination.

17

69. The Immigration and Nationality Act (“INA”) generally prohibits employers—

18 including local governments—from discriminating against individuals on the basis of national origin

19 or, in the case of “protected individual[s],” on the basis of citizenship status. 8 U.S.C. § 1324b(1).

20

70. San Francisco is an employer subject to Section 1324(b). This section applies to “a

21 person or other entity” (8 U.S.C. § 1324b(a)(1)), that employs more than three persons (id.

22 § 1324b(a)(2)(a)). San Francisco employs approximately 36,000 persons.

23

71. San Francisco processes over 4,600 Employment Eligibility Verification forms (Form

24 I-9) annually. San Francisco relies on federal guidance in ensuring that it complies with the INA.

25

72. The DOJ Immigrant and Employee Rights Section (“IER”), enforces the anti-

26 discrimination provision of the INA. 8 U.S.C. § 1324b. Before January 18, 2017, the IER was known

27 as the Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”).

28 //
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1

73. Two of the documents Defendants repealed without any explanation were OSC letters

2 providing guidance about compliance with the anti-discrimination provisions of the INA.

3

74. In one letter, DOJ explained that individuals who fail to apply for naturalization within

4 six months of becoming eligible to do so were not “protected individuals” within the meaning of

5 Section 1324b, but were nonetheless protected against other forms of discrimination, including

6 document abuse (which it defined as “the request for more or different documents, or the rejection of

7 reasonably genuine looking documents in the employment eligibility verification process based on

8 national original or citizenship status”). See Ex. D.

9

75. In the other letter, the Department provided its view on what employers were required

10 to do to conduct citizenship documentation audits in compliance with the law. For example, DOJ

11 explained that employers must complete internal audits of I-9 forms in the same manner for every

12 employee and “may not scrutinize more closely the I-9 forms and documentation of select employees

13 on the basis of national origin or citizenship status.” Ex. E at 2. The letter also stated that employers

14 cannot accept documentation that does not reasonably appear to be genuine or relate to that employee.

15 Id.

16

76. Defendants have not provided any explanation as to why these two letters in particular

17 were selected for rescission. Dozens of other technical assistance letters addressing similar topics

18 have not been rescinded.

19

77. On July 3, 2018, DOJ rescinded a May 2011 guidance document titled “Refugees and

20 Asylees Have the Right to Work.” See Ex. I. This document provided critical guidance to employers

21 such as San Francisco, including that “[r]efugees and asylees are authorized to work because of their

22 status,” and that refugees and asylees may experience a delay in receiving a social security number,

23 but must be allowed to work once they have satisfied the I-9 documentation requirements. Id.

24

78. Defendants have not provided any official explanation of why this document was

25 rescinded.

26

79. The rescinded documents assisted employers with INA compliance.

27

80. Without an explanation for the rescission, employers lack critical information about the

28 perceived deficiencies in the documents, and are more vulnerable to IER enforcement action and civil

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1 penalties. For instance, before the rescission an employer could have used reliance on the rescinded

2 documents to assert a “good faith” affirmative defense against an IER action alleging document abuse

3 and other discriminatory actions under 8 U.S.C. § 1324b. After the rescission of the guidance without

4 an explanation, employers are not only left more susceptible to a violation of DOJ’s current

5 interpretation of the INA, but would also be unable to assert a good faith defense based on reliance on

6 these documents.

7

81. Understanding why the guidance was rescinded is particularly important now for

8 employers—including government employers like San Francisco—given the recent increase in 9 Immigration and Customs Enforcement (“ICE”) I-9 audits and enforcement actions.8 The acting ICE

10 Director issued a directive to ICE agents in October 2017 to increase such worksite investigations by 11 “four to five times.”9 And ICE agents are following through on that directive, with more than twice as

12 many workplace investigations opened in the first seven months of the 2018 fiscal year as in the entire 13 previous one.10

14

82. It is critically important for employers to understand DOJ’s position on what is required

15 of them in the hiring process. Without knowing why Defendants rescinded these documents,

16 employers like San Francisco are left to guess where DOJ stands on these timely and sensitive issues

17 and face an increased risk of enforcement action.

18

D. Guidance Regarding Lawful And Equitable Imposition Of Fines and Fees.

19

83. When people are convicted of a crime, they are often charged thousands of dollars in

20 fines, fees, or financial penalties related to their conviction, sentence, or incarceration. But an

21 unintended consequence of this practice is that it can push people into (or deeper into) poverty. These

22 fines, fees, and penalties can trap people in a cycle of debt, and low-income individuals and people of

23

24

8 See, e.g., Andrew Khouri, Visits by federal immigration authorities are spooking California

businesses and workers, L.A. Times (Feb. 26, 2018), http://www.latimes.com/business/la-fi-

25 immigration-workplace-20180226-story.html.

26

9 See Tal Kopan, ICE chief pledges quadrupling or more of workplace crackdowns, CNN.com (Oct. 17, 2017), https://www.cnn.com/2017/10/17/politics/ice-crackdown-workplaces/index.html.

27

10 See ICE worksite enforcement investigations already double over last year, ICE.gov (May

14, 2018), https://www.ice.gov/news/releases/ice-worksite-enforcement-investigations-already-

28 double-over-last-year.

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1 color are often hit the hardest. Government thus becomes a driver of inequality, creating additional

2 layers of punishment for those moving through the justice system.

3

84. Two of the documents Defendants withdrew without any explanation were resources to

4 help state and local governments address this problem by reforming their fines and fees practices to

5 comply with the Constitution and federal law, to avoid perpetuating poverty, and to avert unnecessary

6 deprivations of liberty and equal protection.

7

85. One was a “Dear Colleague” letter issued as part of a package “meant to support the

8 ongoing work of state judges, court administrators, policymakers and advocates in ensuring equal

9 justice for all people, regardless of financial circumstance.” Press Release No. 16-285, DOJ Office of

10 Public Affairs, Justice Department Announces Resources to Assist State and Local Reform of Fine and

11 Fee Practices (March 14, 2016). The letter provided guidance to state and local courts regarding their

12 legal obligations with respect to the enforcement of fines and fees in court proceedings. Specifically,

13 it set forth seven requirements that had to be followed to be considered in compliance with the United

14 States Constitution and/or other federal laws. See Ex. F.

15

86. The other was an advisory for recipients of financial assistance from DOJ on levying

16 fines and fees on juveniles (“Juvenile Fines and Fees Advisory”). The stated intent of the advisory

17 was to assist state and local juvenile probation departments, juvenile courts, and other juvenile justice

18 agencies in ensuring that their imposition and enforcement of fines and fees did not violate the

19 Constitution or the nondiscrimination provisions associated with the acceptance of federal financial

20 assistance. To that end, it set forth DOJ’s understanding of the constitutional and statutory obligations

21 related to collecting fines and fees from juveniles, summarized the enforcement actions available to

22 DOJ in the event it discovered evidence of a violation, and offered recommendations to improve the

23 administration of juvenile fines and fees. See Ex. G.

24

87. These guidance documents have formed the basis for widespread reform to stem

25 unconstitutional practices. They prompted numerous states to review their policies on fines and fees.

26 The chair of Arkansas’s Joint Committee, which was tasked with this review, noted, “The DOJ letter

27 had a profound impact on every judge that read it. For those judges that perceived these issues prior to

28 the letter but were unable to generate enthusiasm for change, the letter provided a perfect platform for

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1 review and modification of policies and procedures.” U.S. Commission on Civil Rights, Targeted

2 Fines and Fees Against Low-Income Communities of Color: Civil Rights and Constitutional

3 Implications 51-52 (Sept. 2017). In Texas, the court system’s administrative director remarked that

4 the Dear Colleague Letter “was very helpful and very well received by the judges across the state.”

5 Chiraag Bains, Sessions Says to Courts: Go Ahead, Jail People Because They’re Poor, N.Y. Times

6 (Dec. 28, 2017), https://www.nytimes.com/2017/12/28/opinion/sessions-says-to-courts-go-ahead-jail-

7 people-because-theyre-poor.html. In addition, the American Bar Association has explicitly endorsed

8 the seven principles emphasized in these documents, while the Conference on State Court

9 Administrators refers to the Dear Colleague Letter in its policy paper on ending debtors’ prisons.

10

88. Rescission of the fines and fee guidance in the “Dear Colleague” letter and the Juvenile

11 Fines and Fees Advisory injures San Francisco in at least three ways.

12

89. First, the rescission interjects uncertainty into the legal landscape and hinders San

13 Francisco’s ability to determine whether its own fines and fees practices are lawful, and what San

14 Francisco must do to avoid DOJ enforcement activity. The “Dear Colleague” letter and the Juvenile

15 Fines and Fees Advisory provided important guidance to San Francisco—and other local and state

16 governments—about fines and fees. This guidance spurred increased review of San Francisco fines

17 and fees, both within the City and in collaboration with the San Francisco Superior Court.

18

90. In May 2016, San Francisco established a Municipal Fines and Fees Task Force to

19 advise the Board of Supervisors, the Mayor, and City departments to assess and reform fines and fees

20 that disproportionately burden low-income City residents. In November 2016, the San Francisco

21 Treasurer launched a Financial Justice Project to assess and reform how fees and fines impact our

22 city’s most vulnerable residents. The Task Force published initial findings and recommendations in

23 May 2017, and San Francisco enacted legislation to eliminate locally authorized criminal justice

24 administrative fees in June 2018. Both San Francisco and the San Francisco Superior Court have also

25 enacted a range of other fine and fee reforms.

26

91. Yet local and state law continues to authorize—and in some cases, require—San

27 Francisco to collect a variety of other fines and fees. For example, San Francisco’s Adult Probation

28 Department is led by a Chief Probation Officer who is appointed by and acts as an arm of the San

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1 Francisco Superior Court. The Adult Probation Department is authorized by state law to impose and

2 collect a number of fines and fees. San Francisco’s Juvenile Probation Department receives federal

3 funding, including, in recent years, funding from the United States Department of Justice Office of

4 Justice Programs. The Juvenile Probation Department is authorized by state law to impose and collect

5 various fines.

6

92. Before the rescission, DOJ and private plaintiffs relied on the fines and fees guidance

7 documents in evaluating the conduct of local governments. For example, DOJ used this guidance in

8 reviewing whether Sacramento County’s collection of juvenile justice fines and fees complied with

9 applicable federal civil rights laws. In another example, in a legal challenge to automatic license

10 suspensions for failures to pay traffic fines and fees in Solano County, California, plaintiffs cited the

11 letter’s discussion of the unnecessary harms resulting from unfair fines and fees. See Complaint at 8,

12 Rubicon Programs v. Superior Court of Cal. Cty. of Solano, No. FCS047212 (Solano Super. Ct.

13 June 15, 2016).

14

93. Post-rescission, local governments face possible enforcement action even if their

15 policies and practices comply with the rescinded guidance. Defendants have offered no particularized

16 explanation for the withdrawal of these documents. Were they withdrawn because DOJ believed they

17 were inconsistent with existing law? Because DOJ decided that they improperly imposed new binding

18 obligations on entities outside the executive branch? Or because DOJ concluded they were outdated?

19 We do not know, but the difference is important, as each possible rationale for the repeal represents a

20 different potential policy shift that is relevant for the activities of both the regulated community and

21 for DOJ employees reviewing state and local governments’ compliance with the law.

22

94. Second, San Francisco suffers when residents are entrapped in the cycle of fines and

23 fees. Research has shown that fines and fees levied on people with modest incomes are often “lose-

24 lose” for residents and for government. When a low-income person cannot pay a fine or fee, other

25 consequences follow. The fine can increase with interest and late fees, a person’s credit rating can be

26 downgraded, and they may lose their driver’s license and even their job. This increases reliance on

27 public benefits and public services, and these consequences follow people as they move from one

28 jurisdiction to another.
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1

95. Fines and fees can also increase the likelihood of recidivism and create major barriers

2 to reentry. A study of probation fees in Maryland found that charging these administrative fees

3 undercut reentry efforts, and that fee collection was at odds with the mission of their parole agency.

4 According to a report by the White House Council of Economic Advisers, high fine and fee payments

5 may force indigent formerly incarcerated individuals to make difficult trade-offs between paying court

6 debt and other necessary purchases. The debt may even spur formerly incarcerated individuals to

7 return to criminal activity to pay off their debts, according to the report. These fees often hinder

8 people’s reentry and can push individuals into underground economies and the underground banking

9 system. A series of reports on similar fees charged in the juvenile justice system have found that the

10 fees increase the likelihood of recidivism.

11

96. San Francisco is thus impacted not only by its own fines and fees practices, but also by

12 those of the courts, the State, and other jurisdictions.

13

97. Third, in recognition of the harm that fines and fees can cause to individuals and the

14 City, San Francisco provides funds to pay these fees in certain cases. For example, unpaid fines and

15 fees can be a significant barrier to employment. To address this barrier, San Francisco’s Human

16 Services Agency provides funds to cover court fees, traffic tickets, and similar fines and fees, on a

17 case by case basis. Similarly, San Francisco’s Adult Probation Department funds an employment

18 program for at-risk transitional age youth who reside in high crime areas, and provides funds to

19 mitigate traffic, DMV, and other fines for active participants who are demonstrating program

20 successes.

21

98. The rescission of the guidance documents makes it more likely that harmful, and

22 possibly unlawful, fines and fee practices will continue or resume.

23

E. Technical Assistance Manual Concerning Disproportionate Minority Contact.

24

99. One of the twenty-four documents that Attorney General Sessions repealed in July

25 2018 was a manual that provided state and local agencies with assistance addressing the pervasive and

26 challenging issue of over-representation of minority youth in the juvenile justice system (“Technical

27 Assistance Manual”). See Ex. J.

28 //
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1

100. A core requirement for states that receive funding under the Juvenile Justice and

2 Delinquency Prevention Act (“JJDPA”) is to take steps to reduce disproportionate minority contact

3 (“DMC”) in the juvenile justice system. States are required to determine the extent to which DMC

4 exists in their system, assess the reasons why, and develop and implement intervention strategies to

5 address these identified reasons for DMC. See Core Requirement of JJDP Act, DOJ Office of Juvenile

6 Justice and Delinquency Prevention, https://www.ojjdp.gov/dmc/about.html (last visited July 27,

7 2018). The Technical Assistance Manual was a 389-page resource for states and localities that

8 provided lessons, strategies, and best practices for reducing DMC in the juvenile justice system. The

9 Technical Assistance Manual noted “DMC reduction efforts need to occur at the local level and [the

10 manual] illustrates ways local communities can prepare to undertake a multidisciplinary and

11 collaborative approach in this area” (Ex. J at Intro-4), and focused specifically on strategies to take at

12 the local level (see, e.g., id. at Chapter 7).

13

101. Across the country, juvenile justice systems are marked by disparate racial outcomes at

14 every stage of the process, starting with more frequent arrests for youth of color and ending with more

15 frequent secure placement. Indeed, DOJ’s Office of Juvenile Justice and Delinquency Prevention

16 (“OJJDP”) reports that disproportionate minority contact “is evident at nearly all contact points on the

17 juvenile justice system continuum.” In Focus: Disproportionate Minority Contact, Washington, DC:

18 Office of Juvenile Justice and Delinquency Prevention (2012), http://www.ojjdp.gov/pubs/239457.pdf.

19

102. In the past decade, San Francisco has made great strides in this area. For example,

20 between 2008 and 2010, Black youth experienced nearly a 76% reduction in arrests, while Latino and

21 Asian youth experienced a 67% and 84% reduction, respectively. But the problem of disproportionate

22 minority contact remains acute. Although only 4-6% of the San Francisco community is Black, Black

23 youth still represent 58% of juveniles in the custody of San Francisco’s Juvenile Probation Department

24 (“JPD”).

25

103. The rescission of the Technical Assistance Manual—which sets forth strategies and

26 practices for addressing racial disparities—will make it harder for San Francisco to continue making

27 progress in this critical area. San Francisco intends to continue its efforts unabated, despite the repeal

28 of this document. But approximately 30% of the population served by JPD experience their first

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1 juvenile justice contact in another county, before ultimately winding up in San Francisco’s juvenile

2 justice system. Thus, other jurisdictions abandoning or scaling back their efforts to implement the

3 practices set forth in the Technical Assistance Manual could directly and significantly impact

4 disproportionate minority contact in San Francisco. The resulting racial and ethnic disparities weaken

5 the credibility of a justice system that is supposed to treat everyone equitably under the law.

6

104. The withdrawal of the Technical Assistance Manual has been met with surprise and

7 dismay from juvenile justice advocates. The Campaign for Youth Justice, for example, stated the

8 rescission of the Technical Assistance Manual without explanation left leaves agencies “directionless”,

9 and that “[s]tates need more and better guidance to refine and improve their strategies to reduce DMC 10 and comply with JJDPA, not less.”11 There is also some evidence that the rescission could reflect a

11 substantive shift in OJJDP’s interpretation of the JJDPA, given the new OJJDP Administrator has

12 made multiple comments suggesting that the juvenile justice system should place more emphasis on 13 “public safety and the victim.”12 However, without an explanation for the rescission, state and local

14 governments and advocates are unable to understand JJDPA’s current obligations and the legality of

15 any change in policy.

16

105. In short, Attorney General Sessions’ decision to repeal this document is surprising,

17 concerning and—in the absence of any specific explanation—unlawful.

18

* * *

19

106. All of these Documents were practically and legally significant.

20

107. Practically, they helped to protect the civil rights of marginalized individuals across the

21 country. They reduced financial burdens on the poor and helped ensure equal access to justice. They

22 protected immigrants from discriminatory employment practices. And they advanced the rights of

23 people with disabilities to live and work in the most appropriate settings.

24

11 See Matt Smith, Sessions’ Withdrawal of Justice Department Manuals on DMC Leaves

25

States ‘Directionless’, Juvenile Justice Information Exchange (July 11, 2018), https://jjie.org/2018/07/11/sessions-withdrawal-of-justice-department-manuals-on-dmc-leaves-states-

26

directionless/; Campaign for Youth Justice, Concerns Over Recent Actions by the Department of Justice and the Office of Juvenile Justice and Delinquency Prevention, National Juvenile Justice

27

Network (July 18, 2018), http://www.njjn.org/uploads/digitallibrary/CFYJ%20Backgrounder%20on%20Recent%20DOJ%20Actions%207.18.18.pdf.

28

12 Id.

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1

108. Legally, they provided guidance to regulated entities. Guidance letters describing

2 DOJ’s interpretation of the Constitution and/or federal laws carry an implicit threat that parties that do

3 not follow their recommendations might face federal lawsuits or a loss of federal aid—and an implicit

4 assurance that parties who do follow them will be safe from prosecution or administrative action. The

5 withdrawal of these documents eliminated those safe harbors.

6

109. Moreover, based on Attorney General Sessions’ statements (see ¶¶ 24–31, supra), it is

7 apparent that at least some of the Documents were rescinded because Defendants believed they

8 improperly imposed binding obligations on individuals and/or entities outside the executive branch. In

9 other words, according to DOJ, some of the Documents contained obligations that have now been

10 removed. Accordingly, legal consequences flow from this rescission.

11

110. Without an explanation from Defendants about the rationale for the repeal of each of

12 these documents, however, we are left to “guess at what theory underl[ies] the agency’s action.” Sec.

13 & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196–97 (1947) (“It will not do for a court to be

14 compelled to guess at the theory underlying the agency’s action; nor can a court be expected to chisel

15 that which must be precise from what the agency has left vague and indecisive.”).

16

111. When the court “is left to guess as to the agency’s findings or reasons,” the agency’s

17 action “simply cannot be upheld.” Time, Inc. v. U.S. Postal Serv., 685 F.2d 760, 773 (2d Cir. 1982)

18 (quoting Greater Boston Television Corp. v. F.C.C., 444 F.2d 841, 851 (D.C. Cir. 1970)).

19

COUNT ONE:

AGENCY ACTION THAT IS ARBITRARY AND CAPRICIOUS

20

IN VIOLATION OF 5 U.S.C. § 706(2)(A)

21

112. The above paragraphs are incorporated herein by reference.

22

113. DOJ is an agency subject to the requirements of the APA. 5 U.S.C. § 701(b)(1).

23

114. Under 5 U.S.C. § 706(2)(A), courts shall hold unlawful and set aside agency action that

24 is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

25

115. The rescission of the Documents constitutes final agency action that is reviewable by

26 this Court.

27

116. The rescission of the Documents and actions taken by Defendants to rescind the eight

28 guidance documents are arbitrary and capricious, an abuse of discretion, and not in accordance with

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1 law because, among other things, Defendants failed to articulate a meaningful explanation for their

2 actions.

3

117. Under the APA, agencies must demonstrate that they engaged in reasoned decision-

4 making when reaching a determination, and this includes policy changes made through repeals. See

5 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2120 (2016). The agency’s explanation for its

6 decision must be clear enough that the agency’s “path may reasonably be discerned.” Bowman

7 Transp., Inc. v. Arkansas–Best Freight Sys., Inc., 419 U.S. 281, 286 (1974). In the absence of any

8 specific reasoning, “[i]t is not the role of the courts to speculate on reasons that might have supported

9 an agency’s decision,” and the action must be deemed arbitrary and capricious. Encino Motorcars,

10 136 S. Ct. at 2127.

11

118. This is particularly true where, as here, the rescinded policies engendered reliance

12 interests. See Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1209 (2015) (“[T]he APA requires an

13 agency to provide more substantial justification when ‘its new policy rests upon factual findings that

14 contradict those which underlay its prior policy; or when its prior policy has engendered serious

15 reliance interests that must be taken into account. It would be arbitrary and capricious to ignore such

16 matters.’” Id. (quoting F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)).

17

119. San Francisco and its residents were harmed and continue to be harmed by these

18 unlawful acts.

19

PRAYER FOR RELIEF

20

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

21

1. Vacate and set aside the rescission of the Documents and any action taken by

22 Defendants to implement rescission of the Documents;

23

2. Declare that the rescission of the Documents and actions taken by Defendants to

24 rescind the Documents are void and without legal force or effect;

25

3. Declare that the rescission of the Documents and actions taken by Defendants to

26 rescind the Documents are arbitrary, capricious, an abuse of discretion, and otherwise not in

27 accordance with law in violation of 5 U.S.C. § 706;

28 //
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1

4. Enjoin and restrain Defendants, their agents, servants, employees, attorneys, and all

2 persons in active concert or participation with any of them, from implementing or enforcing the

3 rescission of the Documents and from taking any other action to rescind the Documents that is not in

4 compliance with applicable law;

5

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

6

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

7

8 Dated: July 30, 2018 9 10 11 12 13

DENNIS J. HERRERA City Attorney JESSE C. SMITH RONALD P. FLYNN YVONNE R. MERÉ MOLLIE M. LEE SARA J. EISENBERG
Deputy City Attorneys

14

By: /s/ Dennis J. Herrera

15

DENNIS J. HERRERA

City Attorney

16

Attorneys for Plaintiff

17

CITY AND COUNTY OF SAN FRANCISCO

18

19

20

21

22

23

24

25

26

27

28
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 Case 3:18-cv-02068-JST Document 42 Filed 12/10/18 Page 1 of 23

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 CITY AND COUNTY OF SAN FRANCISCO,

8

Plaintiff,

9

v.

10 MATTHEW G. WHITAKER, et al.,

11

Defendants.

12

Case No. 18-cv-02068-JST
ORDER GRANTING MOTION TO DISMISS Re: ECF No. 36

13

Before the Court is Defendants Department of Justice and Acting Attorney General

14 Matthew Whitaker’s (collectively, “DOJ”) motion to dismiss Plaintiff City and County of San

15 Francisco’s (the “City”) complaint. ECF No. 36. The Court will grant the motion.

16 I. BACKGROUND

17

A. Facts

18

In February 2017, President Donald Trump issued Executive Order 13777, “Enforcing the

19 Regulatory Reform Agenda,” which, among other things, instructed executive agencies to identify

20 regulatory actions that were “outdated, unnecessary, or ineffective” as candidates for repeal,

21 modification, or replacement. 82 Fed. Reg. 12,285, 12,286 (Feb. 24, 2017). In November 2017,

22 then-Attorney General Jefferson Sessions issued a memorandum addressed specifically at DOJ

23 guidance documents, in which he observed that DOJ had “in the past published guidance

24 documents – or similar instruments of future effect by other names, such as letters to regulated

25 entities – that effectively bind private parties without undergoing the rulemaking process.”

26 Attorney General Memorandum, Prohibition on Improper Guidance Documents, at 1 (Nov. 16,

27 2017), https://www.justice.gov/opa/press-release/file/1012271/download. The memorandum

28 instructed DOJ to refrain from this practice in the future, stating that the agency would no longer

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United States District Court Northern District of California

1 “issue guidance documents that purport to create rights or obligations binding on persons or

2 entities outside the Executive Branch (including state, local, and tribal governments),” and setting

3 forth several principles for future guidance documents. Id. at 1-2. In addition, the memorandum

4 instructed the agency “to identify existing guidance documents that should be repealed, replaced,

5 or modified in light of these principles.” Id. at 2.

6

Pursuant to EO 13777 and the November 2017 Attorney General Memorandum, DOJ

7 announced in December 2017 that it was rescinding twenty-five guidance documents that it had

8 identified as “unnecessary, inconsistent with existing law, or otherwise improper.” ECF No. 30-1

9 at 2. In July 2018, DOJ rescinded an additional twenty-four guidance documents that it had

10 determined “were unnecessary, outdated, inconsistent with existing law, or otherwise improper.”

11 ECF No. 30-8 at 2.

12

This dispute arises from the rescission of eight of these guidance documents. First, the

13 “Olmstead Guidance”1 provided guidance to state and local governments on implementing Title II

14 of the Americans with Disabilities Act’s (“ADA”) mandate to provide integrated workplace

15 settings to employees with disabilities. See FAC ¶¶ 37-60; ECF No. 30-2. Second, DOJ and the

16 Department of Housing and Urban Development’s “1999 Joint Statement” explained the agencies’

17 view on how the Fair Housing Act (“FHA”) impacted local government control over group living

18 arrangements. See FAC ¶¶ 61-68; ECF No. 30-3.

19

The next set of guidance documents concerned provisions of the Immigration and

20 Nationality Act (“INA”) that prohibit employment discrimination on the basis of national origin,

21 or in the case of certain “protected individuals,” citizenship status (collectively, the “INA

22 Guidance”). See FAC ¶ 69. The third challenged document, the “Zendejas Letter,” set forth

23 DOJ’s interpretation of when individuals are “protected individuals” and various protections that

24 apply. See id. ¶ 74; ECF No. 30-4. Fourth, the “Baudry Letter” provided guidelines for

25 employers to conduct citizenship documentation audits in compliance with the INA’s non-

26 discrimination provisions. See FAC ¶ 75; ECF No. 30-5. Fifth, a DOJ guidance document,

27

28

1 This guidance relates to the application of the Supreme Court’s decision in Olmstead v. L.C. ex rel. Zimring, 522 U.S. 581 (1999).

2

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1 “Refugees and Asylees Have the Right to Work” (the “Refugee Employment Flyer”), provided

2 additional guidance regarding employing those individuals. See FAC ¶ 77; ECF No. 30-9.

3

Two more guidance documents concerned the imposition of fees and fines in the criminal

4 justice system. The sixth challenged document, the “Dear Colleague” letter, provided guidance to

5 state and local court entities on constitutional and federal statutory issues raised by various fee and

6 fine practices. See FAC ¶ 85; ECF No. 30-6. Seventh, the “Juvenile Fines and Fees Advisory” for

7 recipients of DOJ financial assistance addressed similar concerns as applied to the juvenile justice

8 system. See FAC ¶ 86; ECF No. 30-7.

9

Finally, the “Technical Assistance Manual” provided guidance to state and local agencies

10 on addressing the over-representation of minority youth in the juvenile justice system. See FAC

11 ¶ 99; ECF No. 30-10.

12

The City alleges, and DOJ does not dispute, that the agency provided no explanation for

13 withdrawing these guidance documents beyond the statements in DOJ’s general rescission

14 announcements. FAC ¶ 32-36.

15

B. Procedural History

16

On April 5, 2018, the City filed this lawsuit, alleging that DOJ had failed to provide a

17 meaningful and particularized explanation for the December 2017 decision to rescind six of the

18 guidance documents, making its action arbitrary and capricious, in violation of the Administrative

19 Procedure Act (“APA”), 5 U.S.C. § 706(2)(A). ECF No. 1. On June 18, 2018, DOJ filed a

20 motion under Federal Rule of Civil Procedure 12(b)(1) to dismiss for lack of jurisdiction, asserting

21 that the City lacked standing, the City’s claims were unripe, and the rescissions of certain of the

22 documents were not final agency actions subject to APA review. ECF No. 18.

23

On July 30, 2018, the City amended its complaint to include additional allegations related

24 to its standing, as well as to include within its APA challenge two more guidance documents

25 rescinded in early July 2018. See FAC. On September 27, 2018, DOJ filed an amended motion to

26 dismiss, raising the same jurisdictional attacks. ECF No. 36. This motion is now before the

27 Court.

28 3

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United States District Court Northern District of California

1 II. JURISDICTION

2

The Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 702. Though DOJ

3 challenges the City’s standing, the Court has jurisdiction to determine its own jurisdiction. See

4 Special Invs., Inc. v. Aero Air, Inc., 360 F.3d 989, 992 (9th Cir. 2004).

5 III. LEGAL STANDARD

6

If a plaintiff lacks Article III standing to bring a suit, the federal court lacks subject matter

7 jurisdiction and the suit must be dismissed under Rule 12(b)(1). Cetacean Cmty. v. Bush, 386

8 F.3d 1169, 1174 (9th Cir. 2004). “A Rule 12(b)(1) jurisdictional attack may be facial or factual.

9 In a facial attack, the challenger asserts that the allegations contained in a complaint are

10 insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the

11 challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal

12 jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citation

13 omitted). Where, as here, the defendant makes a facial attack, the court assumes that the

14 complaint’s allegations are true and draws all reasonable inferences in the plaintiff's favor. Wolfe 15 v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).2

16 IV. DISCUSSION

17

A. Article III Standing

18

1. Legal Standard

19

Article III standing requires that a “plaintiff must have (1) suffered an injury in fact,

20 (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be

21 redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547, 194

22 L.Ed.2d 635 (2016). “To establish injury in fact, a plaintiff must show that he or she suffered ‘an

23 invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or

24 imminent, not conjectural or hypothetical.’” Id. at 1548 (quoting Lujan v. Defs. of Wildlife, 504

25

26

2 The parties also rely on copies of the rescinded guidance documents attached to the City’s FAC, see, e.g., ECF No. 30-1, as well as copies of current guidance documents attached to DOJ’s

27

motion to dismiss, see ECF Nos. 36-6, 36-7, 36-8, 36-10. Because the parties dispute neither the factual content of these publicly available government records nor their authenticity, the Court

28

concludes that DOJ’s attack is nonetheless facial. Moreover, the Court may properly consider such materials here. See Hyatt v. Yee, 871 F.3d 1067, 1071 n.15 (9th Cir. 2017).

4

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United States District Court Northern District of California

1 U.S. 555, 560 (1992)).

2

Because “[t]he party invoking federal jurisdiction bears the burden of establishing these

3 elements,” they are “an indispensable part of the plaintiff's case.” Lujan, 504 U.S. at 561.

4 Accordingly, “each element must be supported in the same way as any other matter on which the

5 plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the

6 successive stages of the litigation.” Id. at 561.

7

“[A] plaintiff must demonstrate standing for each claim he seeks to press and for each form

8 of relief that is sought.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017)

9 (citation omitted).

10

2. Common Standing Issues

11

The Court first addresses issues common to the standing analysis for all of the guidance

12 documents, then turns to the City’s specific theories for each one.

13

a. Procedural Standing

14

As an initial matter, the City contends that it is subject to the less rigorous standing inquiry

15 that applies when a plaintiff alleges a procedural violation. ECF No. 38 at 11-12.

16

“In order to establish an injury in fact in the context of a claimed procedural error in an

17 agency’s decisionmaking process, a plaintiff must show that ‘(1) the [agency] violated certain

18 procedural rules; (2) these rules protect [a plaintiff’s] concrete interests; and (3) it is reasonably

19 probable that the challenged action will threaten their concrete interests.’” Friends of Santa Clara

20 River v. U.S. Army Corps of Eng’rs, 887 F.3d 906, 918 (9th Cir. 2018) (quoting San Luis & Delta-

21 Mendota Water Auth. v. Haugrud, 848 F.3d 1216, 1232 (9th Cir. 2017) (alterations in original)).

22

The Court first considers whether the City alleges a violation of procedural rules. As set

23 forth in its operative complaint, the City alleges that DOJ’s rescission of the guidance documents

24 violated the APA because it was “arbitrary, capricious, an abuse of discretion, or otherwise not in

25 accordance with law.” 5 U.S.C. § 706(2)(A); see also FAC ¶¶ 113-116. Specifically, the City

26 contends that DOJ failed to provide “a reasoned explanation” for its decision. Encino Motorcars,

27 LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016); see also FAC ¶¶ 117-118.

28

DOJ argues that § 706(2)(A) does not create a procedural right. ECF No. 39 at 8. DOJ

5

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United States District Court Northern District of California

1 observes that the City’s challenge is not based on a claimed violation of the APA’s notice-and-

2 comment procedures, see 5 U.S.C. § 553, or procedural requirements set forth in a separate statute,

3 see, e.g., Friends of Santa Clara River, 887 F.3d at 918-19 (allegedly inadequate environmental

4 analysis under the National Environmental Policy Act and Endangered Species Act). Nor, as DOJ

5 points out, has the City identified any case holding that a § 706(2)(A) challenge falls within the

6 procedural standing framework.

7

Two cases do indirectly support the City’s position. First, in Massachusetts v. EPA, the

8 Supreme Court explained that Massachusetts was asserting its “procedural right to challenge the

9 rejection of its rulemaking petition [under the Clean Air Act] as arbitrary and capricious.” 549

10 U.S. 497, 520 (2007). Notably, the Clean Air Act provision in question empowered a reviewing

11 court to reverse agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise

12 not in accordance with law” – the exact language found in the APA. Compare 42 U.S.C.

13 § 7607(d)(9)(A), with 5 U.S.C. § 706(2)(A). The Supreme Court went on to conclude that the

14 agency’s decision was arbitrary and capricious because it “offered no reasoned explanation for its

15 refusal to decide” the key question presented by the rulemaking petition. Massachusetts, 549 U.S.

16 at 520. Second, in Encino Motorcars, the Supreme Court reiterated that “[o]ne of the basic

17 procedural requirements of administrative rulemaking is that an agency must give adequate

18 reasons for its decisions.” 136 S. Ct. at 2125 (emphasis added). Citing 5 U.S.C. § 706(2)(A), the

19 Supreme Court explained that “where the agency has failed to provide even that minimal level of

20 analysis, its action is arbitrary and capricious and so cannot carry the force of law.” Id.

21

In sum, Massachusetts holds that a statutory provision providing for judicial review under

22 the exact standard contained in § 706(2)(A) can create a procedural right. And Encino Motorcars

23 reaffirms, albeit in a different context, the procedural nature of the Supreme Court’s longstanding

24 interpretation of § 706(2)(A) as imposing a requirement that agencies give a reasoned basis for

25 their decisions. These cases suggest that, at least where plaintiffs allege that an agency’s action is

26 arbitrary and capricious under § 706(2)(A) because of the agency’s failure to follow the “basic

27 procedural requirement[]” of providing any reasoned explanation whatsoever, Encino Motorcars,

28 136 S. Ct. at 2125, a procedural standing analysis is appropriate. 6

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1

DOJ’s arguments to the contrary are unpersuasive. DOJ’s concerns that this conclusion

2 would transfer the APA into “an omnipresent ‘citizen-suit’ statute,” ECF No. 39 at 8, ignore that a

3 plaintiff must still establish a concrete interest threatened by the agency action, Friends of Santa

4 Clara River, 887 F.3d at 918; see also Summers v. Earth Island Institute, 555 U.S. 488, 496

5 (2009) (“[D]eprivation of a procedural right without some concrete interest that is affected by the

6 deprivation – a procedural right in vacuo – is insufficient to create Article III standing.”); Lujan,

7 504 U.S. at 571-73 (concluding that plaintiffs could not rely on a procedural right without

8 identifying a concrete interest at stake). And contrary to DOJ’s suggestion, ECF No. 39 at 8,

9 procedural rights are not limited to notice-and-comment procedures, but have been regularly found

10 to include an agency’s statutory obligations to conduct certain analyses and provide the results to

11 the public to explain its decision. See, e.g., W. Watersheds Project v. Kraayenbrink, 632 F.3d 472,

12 485, 494-95 (9th Cir. 2011) (applying procedural standing analysis to claims that agency failed to

13 take “hard look” at action’s impacts or supply “reasoned explanation”). DOJ’s argument that

14 procedural requirements are “[g]enerally contained in a separate statute,” ECF No. 39 at 7, does

15 not provide a principled distinction, given that the APA also contains notice-and-comment

16 requirements that are considered procedural rights for the standing inquiry, see Sugar Cane

17 Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 95 (D.C. Cir. 2002) (discussing procedural

18 standing based on 5 U.S.C. § 553). Perhaps the better distinction might be that § 553 explicitly

19 imposes a procedural requirement, while § 706(2)(A) contains only an implicit requirement of a

20 reasoned explanation. But this distinction also cannot stand in light of the Massachusetts Court’s

21 holding that a judicial review provision coupled with the same language creates a procedural right.

22

Nonetheless, the Court need not decide the issue because, as explained below, the City

23 lacks standing under even the more lenient procedural standing approach. For the same reason,

24 the Court likewise assumes without deciding that any procedural component of § 706(2)(A)

25 protects the City’s concrete interests. See Friends of Santa Clara River, 887 F.3d at 918.

26

The Court reserves consideration of the third requirement of injury under procedural

27 standing – whether it is “reasonably probable that the challenged action will threaten [the City’s]

28 concrete interests,” id. (citation omitted) – for its analysis of the City’s standing theories for each 7

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1 guidance document. Under the “reasonably probable” standard, the “the imminence inquiry is

2 ‘less demanding.’” Navajo Nation v. Dep’t of Interior, 876 F.3d 1144, 1161 (9th Cir. 2017)

3 (quoting Hall v. Norton, 266 F.3d 969, 976 (9th Cir. 2001)). Accordingly, “[t]he challenged

4 action need not immediately or directly cause the harm as a first-order effect.” Id. (citation

5 omitted). Nonetheless, while “a contingent ‘chain of events’ can create a ‘reasonably probable’

6 threat to a plaintiff's interests, a purely speculative sequence of occurrences will not meet this

7 standard.” Id. (quoting Bell v. Bonneville Power Admin., 340 F.3d 945, 951 (9th Cir. 2003)).

8

Finally, if the City establishes an “an injury in fact in the context of a claimed procedural

9 error,” it need not satisfy the normal standards for causation and redressability, but need show

10 only that “the relief requested – that the agency follow the correct procedures – may influence the

11 agency’s ultimate decision.” Friends of Santa Clara River, 887 F.3d at 918 (citation omitted).

12

b. Special Solicitude

13

The City next asserts as a threshold matter that, as a municipality, it is entitled to “special

14 solicitude” in the standing analysis. ECF No. 38 at 11-12.

15

In Massachusetts, the Supreme Court explained that “States are not normal litigants for the

16 purposes of invoking federal jurisdiction.” 549 U.S. at 519. In considering whether

17 Massachusetts had suffered an Article III injury from the EPA’s alleged failure to regulate

18 greenhouse gases, the Supreme Court stressed that Massachusetts had “surrender[ed] certain

19 sovereign prerogatives” that would have provided other means of addressing the problem, such as

20 forcefully compelling reductions in neighboring states, negotiating treaties with other sovereign

21 nations, or enacting its own regulations (that might run afoul of preemption). Id. This special

22 solicitude was thus based on the state’s quasi-sovereign interests. See id. (first citing Georgia v.

23 Tenn. Copper Co., 206 U.S. 230, 237 (1907) (involving a “suit by a state for an injury to it in its

24 capacity of quasi-sovereign”); then citing Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S.

25 592, 607 (1982) (discussing the requirement of a “quasi-sovereign interest” in order to bring a

26 parens patriae action)).

27

The Ninth Circuit has explained, however, that municipalities’ “power is derivative and

28 not sovereign,” and therefore they cannot claim the same treatment as states, such as the ability to 8

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1 sue as parens patriae on behalf of their citizens. City of Sausalito v. O’Neill, 386 F.3d 1186, 1197

2 (9th Cir. 2004) (quoting Colo. River Indian Tribes v. Town of Parker, 776 F.2d 846, 848 (9th Cir.

3 1985)). Rather than asserting a quasi-sovereign interest, a municipality may “sue to protect its

4 own ‘proprietary interests’ that might be ‘congruent’ with those of its citizens.” Id. (quoting Colo.

5 River Indian Tribes, 776 F.2d at 848); see also Alfred L. Snapp, 458 U.S. at 600-02 (distinguishing

6 between quasi-sovereign and proprietary interests). Nonetheless, the range of a municipality’s

7 cognizable proprietary interests is “not confined to protection of its real and personal property,”

8 but extends broadly to interests “as varied as a municipality’s responsibilities, powers, and assets.”

9 City of Sausalito, 386 F.3d at 1197.

10

The City provides no authority suggesting that “special solicitude” applies to

11 municipalities in the standing inquiry. The Eighth Circuit case that the City cites, Iowa League of

12 Cities v. EPA, found that the plaintiff cities had standing as “regulated entities,” without any

13 discussion of special treatment for municipalities. 711 F.3d 844, 871 (8th Cir. 2013). The City’s

14 remaining cases are inapposite because they involve states as plaintiffs. See ECF No. 38 at 12.

15

The Court therefore concludes that no special solicitude applies to the City.

16

c. Organizational Standing

17

The City also raises an independent theory of organizational standing for some of the

18 guidance documents, relying on Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). ECF No.

19 38 at 19-20. As explained by the Ninth Circuit, an organization may establish injury under

20 Havens where “a challenged statute or policy frustrates the organization’s goals and requires the

21 organization to expend resources in representing clients they otherwise would spend in other

22 ways.” Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 943

23 (9th Cir. 2011) (en banc) (citation omitted). As the City’s opposition makes clear, the diversion of

24 resources that it alleges is the same as the economic harms it asserts as an independent theory of

25 standing. ECF No. 38 at 19. Given this overlap, the Court sees no need to address the City’s

26 organizational standing separately. Put differently, a municipality’s ability to claim proprietary

27 interests to the full extent of its “responsibilities, powers, and assets” appears to amply cover the

28 goals that could properly constitute the City’s organizational mission. City of Sausalito, 386 F.3d 9

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1 at 1197. And if the alleged diversion of resources is also argued as an economic injury, an

2 independent analysis of organizational standing would be duplicative.3

3

Accordingly, the Court concludes that the City’s organizational standing theory will rise or

4 fall with its other arguments.

5

d. Regulatory Uncertainty

6

Finally, the Court notes that all of the City’s theories of standing are premised to some

7 extent on the regulatory uncertainty alleged to result from DOJ’s rescission of the guidance

8 documents. To the extent the City seeks to rely on regulatory uncertainty alone as a threat to its

9 concrete interest, the Court finds that theory unavailing.

10

The Ninth Circuit has rejected the “broad” proposition that “the object of a regulation is

11 presumed to have standing.” Cal. Sea Urchin Comm’n v. Bean, 883 F.3d 1173, 1181 (9th Cir.

12 2018). Rather, a regulated entity suffers cognizable injury when the agency’s action “imposes

13 concrete and particular burdensome requirements on a party,” such as requiring a “particular

14 change in the . . . industry’s practices” or a “specific cost that [plaintiffs] must bear because of the

15 increased risk of liability.” Id. As multiple courts have recognized, regulatory uncertainty alone

16 does not meet this standard. See Nat’l Family Planning & Reprod. Health Ass’n, Inc. v. Gonzales,

17 468 F.3d 826, 831 (D.C. Cir. 2006) (emphasizing that regulated association had not suffered

18 cognizable injury where it had “within its grasp an easy means for alleviating the alleged

19 uncertainty” by petitioning the agency to adopt a clarifying rule); cf. Nat’l Park Hosp. Ass’n v.

20 Dep’t of Interior, 538 U.S. 803, 811 (2003) (rejecting argument that “mere uncertainty as to the

21 validity of a legal rule constitutes a hardship for purposes of the ripeness analysis”); Nat. Res. Def.

22 Council v. Abraham, 388 F.3d 701, 706 (9th Cir. 2004) (same). The Eighth Circuit’s Iowa League

23 of Cities decision, which involved the adoption of binding policies that dictated the regulated

24

25

3 Government entities and private organizations are not necessarily interchangeable for standing purposes, and therefore it is unclear that a Havens analysis is even appropriate here. For instance,

26

an organization “has standing to bring suit on behalf of its members” under certain conditions. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). By

27

contrast, a municipality such as the City “may not simply assert the particularized injuries to the ‘concrete interests’ of its citizens on their behalf,” but rather “may sue to protect its own

28

‘proprietary interests’ that might be ‘congruent’ with those of its citizens.” City of Sausalito, 386 F.3d at 1197.

10

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1 cities’ conduct, is not to the contrary. 711 F.3d at 864-65, 871.

2

Accordingly, the City must adequately plead some additional harm to satisfy Article III.

3

3. Specific Guidance Standing Issues

4

The Court next turns to the City’s standing theories for the rescission of each of the eight

5 guidance documents.

6

a. Olmstead Guidance

7

The City contends that the rescission of the Olmstead Guidance on the ADA threatens to

8 impair its concrete interests by (1) interfering with the City’s enforcement of the law, (2)

9 increasing the risk of enforcement actions against the City, and (3) threatening a loss of funding.

10 ECF No. 38 at 32.

11

i. Enforcement of Laws

12

First, the City argues that it has suffered an injury to its interests in enacting laws and

13 administering programs. ECF No. 38 at 13-14. The City reasons that the rescission of the

14 Olmstead Guidance “undercuts the City’s ability to comply with the ADA” and to ensure that its

15 contractors do so as well. Id. at 14 (citing FAC ¶ 52).

16

A municipality may sue to redress “injury to its ability to function as a municipality in

17 regulating persons and property within its jurisdictional control.” Colo. River Indian Tribes v.

18 Town of Parker, 776 F.2d at 848; cf. Scotts Valley Band of Pomo Indians of Sugar Bowl

19 Rancheria v. United States, 921 F.2d 924, 927 (9th Cir. 1990) (recognizing a protectable 20 “municipal interest in taxing and regulatory powers” for intervention as of right).4 But in order to

21 show that such an injury actually exists, the municipality or state must identify some “actual

22 conflict” between the federal action and its ability to regulate. Sturgeon v. Masica, 768 F.3d 1066,

23 1074 (9th Cir. 2014) (“Because Alaska did not identify any actual conflict between [the federal

24 agency’s] regulations and its own statutes and regulations, we are left with only a vague idea of

25

26 4 As noted above, there is little to suggest that municipalities possess any “quasi-sovereign”

27

interests, even in enforcing their laws. See City of Sausalito, 386 F.3d at 1197; but see County of Santa Clara v. Trump, 250 F. Supp. 3d 497, 525 (N.D. Cal. 2017). The Court need not decide the

28

issue because a municipality possesses a similarly cognizable “proprietary” interest. See City of Sausalito, 386 F.3d at 1197-98.

11

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1 how exactly [the agency’s] permitting requirement infringes on the state’s sovereign and

2 proprietary interests in its lands and waters, or how the requirement interferes with the state’s

3 control over and management of those lands and waters. In the absence of such a conflict,

4 Alaska’s purported injuries are too ‘conjectural or hypothetical’ to constitute injuries-in-fact.”),

5 vacated on other grounds and remanded sub nom. Sturgeon v. Frost, 136 S. Ct. 1061 (2016); see

6 also Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011) (noting that the state

7 had “not identified any plausible, much less imminent, enforcement of the [state law] that might

8 conflict with the [federal requirement]”). In the absence of an actual conflict, courts have also

9 found a cognizable interference where the federal action creates an “intrusion . . . analogous to

10 pressure to change state [or local] law.” Texas v. United States, 809 F.3d 134, 153 (5th Cir. 2015);

11 see also County of Santa Clara, 250 F. Supp. 3d at 526 (finding injury where executive orders

12 “attempt[ed] to compel [Counties] to change their policies and enforce the Federal government’s

13 immigration laws in violation of the Tenth Amendment”).

14

Here, the City does not identify any of its own laws or regulations that are at risk of

15 conflicting with the ADA in the absence of the Olmstead Guidance. Rather, the City relies solely

16 on its need to comply with the ADA. ECF No. 38 at 14. The City’s efforts to comply with the

17 ADA are not an exercise of its proprietary interest in regulating its citizens, but rather a fulfillment

18 of its obligations as a regulated entity. See 42 U.S.C. § 12131(1)(A). The City provides no

19 authority to the contrary, and its citation to Iowa League of Cities, merely confirms that the City

20 operates as a “regulated entit[y]” in this context. 711 F.3d at 869.

21

Because the City does not allege an interference with its proprietary interest in regulating

22 within its jurisdiction, the Court rejects this theory of injury.

23

ii. Threat of Enforcement

24

Next, the City argues that it has alleged a threat to its concrete interests based on the risk

25 that the City will violate the ADA in absence of the withdrawn guidance and that DOJ will bring

26 an enforcement action based on that violation. ECF No. 38 at 17-19.

27

“[T]o show a concrete and particularized harm a plaintiff must do more than allege a

28 potential risk of prosecution.” Cal. Sea Urchin Comm’n, 883 F.3d at 1180. To evaluate whether 12

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1 there exists a “genuine” risk of prosecution sufficient to establish an imminent injury, “courts

2 considers three factors: (1) whether the plaintiffs have articulated a concrete plan to violate the law

3 in question, (2) whether the prosecuting authorities have communicated a specific warning or

4 threat to initiate proceedings, and (3) the history of past prosecution or enforcement under the

5 challenged statute.” Id. (internal quotation marks and citation omitted); see also Thomas v.

6 Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc) (same).5

7

The City argues that this test has been abrogated by the Supreme Court’s statement that “a

8 plaintiff satisfies the injury-in-fact requirement where he alleges ‘an intention to engage in a

9 course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and

10 there exists a credible threat of prosecution thereunder.’” Susan B. Anthony List v. Driehaus

11 (“SBA”), 134 S. Ct. 2334, 2342 (2014) (quoting Babbitt v. United Farm Workers Nat’l Union, 442

12 U.S. 289, 298 (1979)). The Court disagrees. The Ninth Circuit has continued to apply the three

13 Thomas factors after SBA. See, e.g., Clark v. City of Seattle, 899 F.3d 802, 813 (9th Cir. 2018);

14 Cal. Sea Urchin Comm’n, 883 F.3d at 1180. Because the City cites no “intervening higher

15 authority” since those more recent Ninth Circuit cases, there is no basis for the Court to depart

16 from that binding precedent. Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).

17 Further, the Court is doubtful that the minimal differences between those formulations are the type

18 that render a case “clearly irreconcilable with the reasoning or theory” of a subsequent case. Id.

19

Turning to the Thomas factors, the City’s theory falters at the first step. In finding pre-

20 enforcement challenges justiciable, courts have required plaintiffs to identify particular conduct

21 that may spur such enforcement. In SBA, for instance, the plaintiffs “pleaded specific statements

22 they intend[ed] to make in future election cycles,” and the history of prior prosecution of similar

23 statements as false meant that the plaintiffs’ future actions were likely to come into conflict with

24 the challenged law. 134 S. Ct. at 2343. And in Thomas, even though the plaintiffs alleged that

25 they had previously violated the challenged law by refusing to rent housing to unmarried couples

26

27

5 As the Ninth Circuit has explained, the likelihood of future prosecution may be characterized as a question of Article III standing or constitutional ripeness. Thomas, 220 F.3d at 1138; see also

28

City & County of San Francisco v. Trump, 897 F.3d 1225, 1236 (9th Cir. 2018) (applying Thomas factors to ripeness inquiry).

13

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1 and “pledge[d] their intent to do so in the future,” the Ninth Circuit found these allegations

2 inadequate because the plaintiffs did not “specify when, to whom, where, or under what

3 circumstances.” 220 F.3d at 1139. The Ninth Circuit explained that “[a] general intent to violate a

4 statute at some unknown date in the future does not rise to the level of an articulated, concrete

5 plan.” Id. Finally, in County of Santa Clara, on which the City also relies, the Counties had in

6 place policies that were arguably proscribed by the challenged executive order. 250 F. Supp. 3d at

7 521.

8

Here, the City has no “plan” to violate the ADA – quite the opposite. The City alleges that

9 it fully intends to comply with the law, and it counts such compliance among its core missions.

10 See ECF No. 38 at 19. Nor does the City cite specific conduct that it believes is lawful but is at

11 least “arguably . . . proscribed by [the] statute[s]” in question. SBA, 134 S. Ct. at 2344 (first and

12 second alterations in original) (citation omitted). Rather, the City’s theory is that reduced clarity

13 regarding the law increases the likelihood that the City will make a hypothetical future misstep

14 that violates the ADA without the benefit of “safe harbors” provided by the guidance documents.

15 ECF No. 38 at 18. The City cites no case suggesting that this kind of generalized risk can form

16 the foundation of a pre-enforcement challenge, and such a theory is not meaningfully different

17 from relying on regulatory uncertainty alone.

18

The Ninth Circuit’s decision in California Sea Urchin Commission is on point. There,

19 plaintiff fishermen alleged that they “face[d] an increased risk of liability because of the

20 elimination of exemptions for incidental takes” that harmed a protected species in a fishing area.

21 883 F.3d at 1180. The Ninth Circuit reasoned that the risk of liability absent the exemption

22 created no more than “a potential risk of prosecution,” and that the plaintiffs’ declarations did “not

23 point to any concrete degree of risk, or show that liability is likely.” Id. at 1180-81.

24

Considering the second Thomas factor only reinforces the Court’s conclusion that the

25 City’s theory is fatally flawed. Because the City has no plans to violate the ADA, it is

26 unsurprising that there has been “no specific warning or threat to initiate proceedings.” Thomas,

27 220 F.3d at 1139; see also id. at 1140 (“The threat of enforcement based on a future violation –

28 which may never occur – is beyond speculation.”). Finally, without such concrete details, the 14

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1 third Thomas factor carries little weight. The Court cannot assign probative value to a single prior

2 enforcement action against the City for not complying with Olmstead requirements without any 3 indication that the City intends to engage in similar conduct.6 Even under the “less demanding”

4 reasonably probable standard for imminence, the City’s theory fails. Navajo Nation, 876 F.3d at

5 1161 (citation omitted).

6

The Court therefore concludes that the City has not adequately alleged injury based on the

7 risk of prosecution.

8

iii. Economic Harm

9

The City’s final theory is that it will suffer economic harm because if it violates

10 Olmstead’s integration mandate, it could be at risk of losing federal grants that help support the

11 City’s programs related to the employment of disabled individuals. ECF No. 38 at 15 (citing FAC

12 ¶¶ 48, 58). Because the City has not adequately alleged a likelihood of enforcement based on

13 hypothetical ADA violations, any loss of funds premised on such violations is also too

14 speculative. Cf. County of Santa Clara, 250 F. Supp. 3d at 524-26 (loss of funds sufficiently

15 imminent where plaintiffs demonstrated credible threat of enforcement).

16

In sum, the Court holds that the City has not shown that it reasonably probable that the

17 rescission of the Olmstead Guidance threatens its concrete interests.

18

b. Joint Statement

19

The City alleges that rescission of the 1999 Joint Statement on FHA requirements impairs

20 its concrete interests by (1) interfering with its municipal interest in regulation and (2) increasing

21 the risk of enforcement actions. ECF No. 38 at 32.

22

The Court addresses as a threshold matter DOJ’s argument that the City cannot show any

23 concrete harm because a substantively identical 2016 Joint Statement is still in effect. ECF No. 36

24 at 28. The 1999 Joint Statement and the 2016 Joint Statement do appear to contain similar

25 information. Compare, e.g., ECF No. 30-3 at 4-5 (“What is a reasonable accommodation under

26

27 6 The City also does not contest DOJ’s argument that this enforcement action was based on

28

Olmstead requirements regarding the integration of hospital residents rather than the employment settings addressed in the rescinded Olmstead Guidance. ECF No. 36 at 18; FAC ¶ 59.

15

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1 the Fair Housing Act?”), with ECF No. 36-10 at 9-10 (“What is a reasonable accommodation

2 under the Fair Housing Act?”). Moreover, the City’s opposition does not argue that there are

3 material differences between the two documents that would contribute to the City’s alleged

4 injuries.7

5

The premise underlying the City’s theories of injury is that the rescission of the 1999 Joint

6 Statement created a vacuum in agency guidance that made it more difficult for the City to

7 determine the FHA’s restrictions on local land use regulation. See ECF No. 38 at 14, 32. If there

8 is no such vacuum, then there is no reason to think that the rescission made it any more difficult

9 for the City to comply with the FHA.

10

Though not directly on point, the Ninth Circuit’s decision in Nuclear Information &

11 Resource Service v. Nuclear Regulatory Commission, 457 F.3d 941 (9th Cir. 2006), is instructive.

12 There, the court found that redressability was lacking because a different agency had promulgated

13 “identical . . . standards” that were not part of plaintiffs’ challenge, and therefore plaintiffs’

14 requested relief would have no impact on the status quo. Id. at 955. In other words, where two

15 agency actions caused the same alleged harm, reversing only one would not redress plaintiffs’

16 injuries. Here, the converse is true. If two agency guidance documents set forth the same

17 direction, then the rescission of only one document does not cause any injury. Because the City

18 has not explained how the two documents are meaningfully different, it has not identified a

19 cognizable injury. See Oregonians for Floodplain Prot. v. U.S. Dep’t of Commerce, No. 17-CV-

20 1179 (RJL), 2018 WL 4539680, at *4 (D.D.C. Sept. 21, 2018) (holding that property owners

21 failed to allege concrete harm because they did not provide “examples of any specific limitations

22 on development or indeed any changes to [the agency’s] policy on development whatsoever”). In

23 short, the City cannot carry its burden to establish injury simply by pointing to an alleged

24 procedural violation without identifying any concrete effect. See Spokeo, 136 S. Ct. at 1549.

25

Because the City’s theories of liability fail at the outset, the Court need go no further on

26

27 7 The FAC notes one potential difference between the information provided in the two documents,

28

see FAC ¶ 67, but the City does not argue that this difference is material, let alone explain how it contributes to its theories of injury.

16

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1 this question. Nonetheless, the Court also concludes that the City’s theories fail for largely the

2 same reasons as the Olmstead Guidance. First, although the City does cite its proprietary interest

3 in land use regulation, see City of Sausalito, 386 F.3d at 1197, it does not identify any actual

4 conflict or particular coercive effect of the FHA or DOJ’s rescission, see Sturgeon, 768 F.3d at

5 1074. Without such detail, the Court cannot find a reasonable probability that rescission threatens

6 the City’s regulatory interests. Second, the City fails to allege that it is reasonably probable that it

7 will be prosecuted for FHA violations because the City has no plans to violate or even arguably

8 violate the statute.

9

Therefore, the Court holds that the City lacks standing to challenge the rescission of the

10 1999 Joint Statement.

11

c. INA Guidance (Zendejas Letter, Baudry Letter, and Refugee

Employment Flyer) 12

The City alleges that the rescission of the Zendejas Letter, Baudry Letter, and Refugee

13

Employment Flyer threaten its concrete interests by making “it more difficult – and therefore

14

expensive – for the City to process more than 4,600 Employment Eligibility Verification (“I-9”)

15

forms annually.” ECF No. 38 at 15. Because of this alleged increase in difficulty, the City

16

contends, it is also subject to a greater risk of violations and consequently, enforcement actions.

17

Id. at 15, 18-19.

18

As a threshold matter, the City’s standing to challenge the Baudry Letter and the Refugee

19

Employment Flyer suffers from the same defect as its challenge to the 1999 Joint Statement. DOJ

20

contends, and the City does not dispute, that DOJ has issued other documents that contain the

21

same information. Compare ECF No. 30-5 (Baudry Letter), with ECF No. 36-6 (“Guidance for

22

Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits”); and

23

compare ECF No. 30-9 (Refugee Employment Flyer), with ECF Nos. 36-7, 36-8 (“Refugees and

24

Asylees Have The Right to Work”). The City offers no explanation of how the challenged

25

rescissions make it any more difficult or expensive to process I-9 forms, given these other

26

guidance documents. For this reason alone, the City lacks standing to challenge the Baudry Letter

27

and the Refugee Employment Flyer for this reason.

28

17

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1

Turning to the economic harm, the FAC nowhere alleges that the rescission of any of the

2 three INA Guidance documents makes processing I-9 forms more expensive, let alone explains

3 how it does so. And even if the FAC did contain the bare allegation contained in the City’s

4 opposition, it would not be sufficient. True, “[a]t the pleading stage, general factual allegations of

5 injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss [a court]

6 presume[s] that general allegations embrace those specific facts that are necessary to support the

7 claim.” Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011) (internal quotation marks

8 omitted) (quoting Lujan, 504 U.S. at 561). But plaintiffs cannot merely assert that the challenged

9 action will cause economic harm without articulating a theory of harm that is not overly

10 speculative. See Missouri ex rel. Koster v. Harris, 847 F.3d 646, 653 (9th Cir. 2017) (“At the

11 outset, the unavoidable uncertainty of the alleged future changes in price makes the alleged injury

12 insufficient for Article III standing.”); cf. Barnum Timber Co. v. EPA, 633 F.3d 894, 898 (9th Cir.

13 2011) (“A specific, concrete, and particularized allegation of a reduction in the value of property

14 owned by the plaintiff is sufficient to demonstrate injury-in-fact at the pleading stage.”). Here, the

15 impact of the rescinded guidance on the cost of processing I-9 forms is not obvious on the face of

16 the pleadings and cannot be reasonably inferred without more information.

17

Finally, as explained above, the City does not adequately allege a reasonable probability of

18 harm to its concrete interests based on the risk of an enforcement action. Similarly, without any

19 information as to how the City’s practices arguably violate the INA, the Court cannot assess the

20 materiality of a general increase in federal audits and enforcement actions against employers based

21 on the INA’s citizenship provisions. See ECF No. 38 at 18-19.8

22

Therefore, the Court concludes that the City lacks standing to challenge the rescission of

23 the INA Guidance.

24

d. Fees and Fines Guidance (Dear Colleague Letter and Juvenile

Fees and Fines Advisory) 25

Next, the City alleges that rescission of the Dear Colleague Letter and the Juvenile Fees

26

27

28

8 The Court also notes that the City fails to address DOJ’s argument that these audits are unrelated to the substance of the INA Guidance documents. ECF No. 36 at 24-25; cf. ECF No. 38 at 18-19.

18

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1 and Fines Advisory impairs its concrete interests by (1) increasing the risk of enforcement actions

2 and (2) causing economic harm. ECF No. 38 at 32.

3

First, the City alleges that the rescission eliminates a safe harbor and that “local

4 governments face possible enforcement action even if their policies and practices comply with the

5 rescinded guidance.” FAC ¶ 93; ECF No. 38 at 18. As discussed above, the removal of a safe

6 harbor alone is insufficient to cause injury without a satisfactory showing that enforcement action

7 is likely. See Cal. Sea Urchin Comm’n, 883 F.3d at 1180. The City makes no such showing.

8

Second, the City alleges that it will suffer economic harm because it currently has

9 programs that “cover court fees, traffic tickets, and similar fees and fines, on a case by case basis,”

10 and those programs will require greater resources if covered fees and fines increase. ECF No. 38

11 at 15 (quoting FAC ¶ 97). But the City provides no explanation as to why those penalties will

12 necessarily increase in the absence of the rescinded guidance. Nor does the City indicate an intent

13 to abandon its recent fee reform legislation or the “range of other fine and fee reforms” enacted by

14 the City and the San Francisco Superior Court system. FAC ¶ 90. Though the FAC briefly

15 alludes to state-law requirements, id. ¶ 91, the City does not explain which provisions of state law

16 it is worried about violating now that the guidance has been withdrawn. In other words, the City

17 supplies no reason why the rescission of the guidance documents would compel the City and the

18 collaborating judicial entities to abandon their reform efforts, nor any reason that they would do so

19 as a matter of policy discretion. Therefore, there is no basis to conclude that the challenged action

20 will increase the burdens on the City’s programs.

21

Alternatively, the City alleges that the rescission of the Fees and Fines Guidance will

22 increase reliance on public benefits and public services. ECF No. 38 at 15. Specifically, the City

23 alleges that, without those guidance documents, residents will be exposed to fees that they cannot

24 afford, which may impair a person’s credit rating or cost that person a driver’s license or job.

25 FAC ¶ 94. In turn, the City reasons, this will increase residents’ reliance on the City’s public

26 benefits and public services. Id. As noted, above, the City does not explain how the rescission

27 will force the City or its courts to impose such fines. Nonetheless, the City also asserts that it will

28 suffer from the practices of the California state courts and other jurisdictions whose residents may 19

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1 move into the City and seek its benefits and services. FAC ¶¶ 94-96.

2

This lengthy causal chain requires the Court to consider whether it is “reasonably

3 probable” that DOJ’s rescission of the two guidance documents will threaten the City’s concrete

4 interest in avoiding additional public service burdens. Navajo Nation, 876 F.3d at 1160 (citation

5 omitted). The crux of the City’s theory is that state and other local courts will impose excessive

6 fees and fines in the absence of the rescinded guidance documents. As a general matter, courts are

7 “reluctant to endorse standing theories that require guesswork as to how independent

8 decisionmakers will exercise their judgment.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 413

9 (2013); see also Lujan, 504 U.S. at 562 (“When . . . “a plaintiff’s asserted injury arises from the

10 government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is

11 needed.”). Such causal chains are inherently more speculative.

12

The City relies on City of Sausalito, where the Ninth Circuit held that Sausalito had

13 standing to challenge the National Park Service’s development plan for the neighboring Fort

14 Baker site, which would include a conference and retreat center with 350 hotel rooms and 455

15 parking spaces. 386 F.3d at 1196, 1198. The Ninth Circuit found it sufficient that the estimated

16 additional 2,700 daily visitors would increase traffic congestion in Sausalito and demand on public

17 services. Id. at 1198-99. The court agreed with Sausalito that it was reasonably probable that,

18 given this increase, the challenged action would threaten Sausalito’s concrete interests in

19 municipal management, public safety, tax revenue, and the aesthetic and natural resource qualities

20 of the municipality. Id. at 1199.

21

City of Sausalito does not aid the City here. In City of Sausalito, the agency’s own

22 analysis “acknowledge[d] that implementation of the Plan will result in an increase in local traffic”

23 and other harmful impacts, id., including “a detailed, fifteen-page analysis of traffic concerns . . .

24 and the Plan’s impact on parking and traffic,” id. at 1211. Therefore, the court reasoned, the Plan

25 would “result in known, predictable consequences that Sausalito identifies as concrete injury.” Id.

26 at 1199. The remaining cases cited by the City involve even shorter and more certain chains of

27 events. See City of Oakland v. Lynch, 798 F.3d 1159, 1164 (9th Cir. 2015) (finding standing for

28 municipality’s collateral challenge to forfeiture action against marijuana dispensary because it was 20

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1 not overly speculative that the forfeiture would be ordered and therefore deprive the municipality

2 of tax revenue from the business); City of Los Angeles v. Bank of Am. Corp., No. CV 13-9046 PA

3 AGRX, 2014 WL 2770083, at *2, 4-5 (C.D. Cal. June 12, 2014) (finding standing for challenge to

4 bank’s mortgage practices where municipality alleged that the increased foreclosures had already

5 reduced neighboring property values and resources would be required to remedy blight conditions

6 at existing vacancies).

7

By contrast, the City’s complaint and supporting materials contain no comparable

8 information supporting its predictions as to how third parties will respond to the agency action.

9 The FAC alleges only that “[t]hese guidance documents have formed the basis for widespread

10 reform to stem unconstitutional practices” and “prompted numerous states to review their policies

11 on fines and fees.” FAC ¶ 87. Based solely on these alleged facts, it is not reasonable to infer that

12 those other jurisdictions will revert to prior practices, and the Court would simply be guessing

13 how other jurisdictions would have responded had the guidance documents not been rescinded.

14 Even under the more generous standards applicable at the pleading stage, the Ninth Circuit has

15 held that future predictions about the actions of third parties are too speculative to support a

16 procedural injury where they “are supported by ‘no facts, figures, or data.’” Navajo Nation, 876

17 F.3d at 1163 (quoting Bell v. Bonneville Power Admin., 340 F.3d 945, 951 (9th Cir. 2003)); cf.

18 Desert Water Agency v. Dep’t of the Interior, 849 F.3d 1250, 1257 (9th Cir. 2017) (rejecting

19 theory of redressability based on “the hope that such relief will cause a group of third parties who

20 are not before the court . . . to modify their behavior in a way that [the plaintiff] thinks will

21 redound to its benefit”).

22

Moreover, even were the Court to accept the City’s premise that other jurisdictions will

23 impose excessive fines that they would not have assessed absent the rescission, the rest of the

24 City’s causal chain is too attenuated. In effect, the City asserts that it suffers a cognizable harm

25 from any action that leads to a worse financial situation for persons who may eventually move to

26 its jurisdiction and draw upon its services. The contrast with Texas v. United States, 809 F.3d 134

27 (5th Cir. 2015), is illuminating. There, the Fifth Circuit recognized the injury that Texas would

28 suffer if an identifiable group of at least 500,000 unauthorized aliens within the state was granted 21

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1 an immigration authorization that would render them eligible for driver’s licenses, at a cost of at

2 least $130.89 per driver – equating to a total loss to the state of at least “several million dollars.”

3 Id. at 155. Further, the court explained, it was not speculative to think that many beneficiaries

4 would apply for licenses “because driving is a practical necessity in most of the state.” Id.; see

5 also Pennsylvania v. Trump, 281 F. Supp. 3d 553, 567 (E.D. Pa. 2017) (reasoning that it was not

6 speculative that the removal of contraceptive services from insurance plans would cause more

7 residents to seek the same services from state-funded programs, particularly given supporting

8 affidavits to that effect).

9

By contrast, the City’s theory here is not limited to an identifiable group, and the link

10 between the challenged action and the public demand for services is both ill-defined and

11 speculative. At bottom, the City cannot simply claim a concrete interest in the financial well-

12 being of all potential future residents.

13

The Court therefore concludes that the City lacks standing to challenge the rescission of

14 the Fees and Fines Guidance.

15

e. Technical Assistance Manual

16

Finally, the City alleges that rescission of the Technical Assistance Manual impairs its

17 concrete interest in “redress[ing] disproportionate minority contact (‘DMC’) at every stage of the

18 juvenile justice system.” ECF No. 38 at 19 (citing FAC ¶¶ 101-103).

19

The Court first notes that, although the City frames this injury as a frustration of its

20 mission under the organizational standing framework, ECF No. 38 at 19, 32, it identifies no

21 corresponding diversion of resources or economic harm that will result, cf. id. at 15-16, 19; see

22 also City of Redondo Beach, 657 F.3d at 943. Nevertheless, the Court assumes for the sake of

23 argument that the City has a proprietary interest in redressing DMC within its own juvenile justice

24 system that does not require that additional component of injury.

25

The FAC states unequivocally that the City “intends to continue its efforts [in this area]

26 unabated, despite the repeal of this document.” FAC ¶ 103. But the FAC notes that 30 percent of

27 the juveniles that interact with the City’s Juvenile Probation Department “experience their first

28 juvenile justice contact in another county, before ultimately winding up in San Francisco’s 22

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1 juvenile justice system.” Id. Accordingly, the FAC reasons, the City’s interest in addressing these

2 racial disparities could be harmed by “other jurisdictions abandoning or scaling back their efforts

3 to implement the practices set forth in the Technical Assistance Manual.” Id.

4

As with the Fees and Fines Guidance, the City identifies no basis on which to predict how

5 other jurisdictions will react in the absence of the rescinded guidance. In fact, the only data point

6 the FAC provides is that the City’s own efforts will continue “unabated.” Id. ¶ 103. The City

7 therefore alleges no facts from which the Court could infer that it is reasonably probable that other

8 jurisdictions will act in ways that impair the City’s asserted concrete interest. See Navajo Nation,

9 876 F.3d at 1163.

10

Accordingly, the Court holds that the City lacks standing to challenge the rescission of the

11 Technical Assistance Manual.

12

CONCLUSION

13

In sum, the City lacks Article III standing to challenge any of the disputed rescissions. The

14 Court therefore does not reach DOJ’s remaining arguments.

15

For the foregoing reasons, the Court grants DOJ’s motion and dismisses the City’s

16 complaint. The Court concludes that amendment would not necessarily be futile, see Lacey v.

17 Maricopa County, 693 F.3d 896, 926 (9th Cir. 2012), and grants leave to amend. The City may

18 file an amended complaint within 30 days.

19

IT IS SO ORDERED.

20 Dated: December 10, 2018 21 22

______________________________________
JON S. TIGAR United States District Judge

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