FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

C I TY O F L O S A

N GE L E S , Plaintiff-Appellee
,

v

.

W I L L I AM P. B AR

R , Attorney General; A LA

N R. H A N S ON , in his official capacity as Acting Assistant Attorney General of the Office of Justice Program s; R

U S S E L L WA S H I N G T ON , in his official capacity as Acting Director of the Office of Com

m unity Oriented Policing Services; U NI T E D S TA T E S D E P A R T ME NT O F JU S T I C E , Defendants-Appellants. No. 18-56292

D.C. No. 2:17-cv-07215- R-JC

OPINION

Appeal from

the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding

Argued and Subm itted April 10, 2019 Pasadena, California

Filed October 31, 2019C I TY O F L O S A N GE L E S V

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Before: Kim

McLane W ardlaw, Jay S. Bybee, and Sandra S. Ikuta, Circuit Judges.

O pinion by Judge Ikuta; C oncurrence by Judge W ardlaw

SUMMARY *

Standing / Federal Grants

The panel affirm ed the district court’s prelim inary injunction entered against the U.S. De p artment o f Justice (“DOJ”)’s use of the notice and access conditions im posed on recipients of E dward Byrne M e mo rial Justice Assistance Grant Program(“Byrne JAG”) formula grants.

Byrne JAG authorized the U.S. Attorney G eneral to m ake grants to state and local governm ents for crim i n al justice
program s. The authoriz i n g statute allowed the Attorney General to depart from the statutory form ula award in certain circum stances. DOJ ’ s Office of Justice Program s im p osed
two new conditions for Byrn e J AG funding for fiscal year 2017: the “notice condition,” which required a recipient to honor the Departm ent of Hom eland Secur ity’s requests for advance n otice of release tim es of detained aliens in the recipient’s correctional facilities; and the “access condition,” which required a recipient to give federal agents acc e s s to

corre c t i o nal facilities to m eet w ith detained aliens, o r individuals believed to be aliens. T h e Ci ty o f Los Angeles

* This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.C I TY O F L O S A N GE L E S V

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fi l e d this suit against DOJ, seeking an injunction agai n s t im plem entation of the notice and access conditions.

DOJ first argued that the notice and access c onditions

were within the Assistant Attorney General’s authority under

a 2006 am endm ent to § 10102(a)(6) in the Violence Against W om en and Departm e n t o f Justice Act of 2005. The panel rejected Los Angeles’s threshold argum ent that C ongress’s

am endm ent to § 10102(a)(6) did not give th e DOJ any independent authority or power; and h eld that § 10102(a)(6) confirm ed DOJ’s authority to p lace “special conditions on all grants” and determ ine “priority purposes for form ula grants.” The panel held that § 10102(a)( 6 ) did n ot authorize DOJ to require all recipients of Byrn e JAG funding to com ply with the notice and access condition. Specifically, f irst, the panel held that the n otice and access conditions were not “sp e c i al conditions” be c ause they w ere not conditions triggered by specific characteristics not address e d by established conditions. Second
, th e panel h eld that priority purposes

m ust be chosen from am ong the various possible purposes o f

a Byrne JAG award as set forth in § 1 0 1 5 2 ( a). The panel concluded that because the notice and access conditions m et neither of these d efinitions, DOJ lacked statutory authority to im pose them under § 101 0 2 ( a )(6). The panel agreed with sister circuits that he l d th a t § 10102(a)(6) did not give the Assista n t At torney General broad authority to im pose any condition it chose on a Byrne JAG award.

The panel next rejected DOJ’s argum ent th at th e p ro p riety of the notice and access conditions were f urther supported by provisions in the Byrne JAG statute that auth o r i z e the Attorney General to obtain certain inform ation and require coordination w ith agencies. See 34 U .S.C. § 10153(a)(4), (5). First, the panel held that because the De p artm ent o fC I TY O F L O S A N GE L E S V

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Hom eland Security requests f or notice o f the release of a d etained alien did not relate to a program funded by Byrn e JAG, the n otice condition did not requ ire “programm atic” inform ation under § 10153(a)(4). Second, the panel held that § 10153(a)(5)(C), which required a grant recipient to certify that “there h as been appropriate coordinati o n with affected agencies,” did not g ive the Attorney General author i ty to im pose the access condition.

The panel held that because none of DOJ’s proffered bases for statutory authority gave the Attorney General or the Assi stant Attorney General the p ower to im pose the notice and access conditions, the conditions were ultra vires.

Judge W ardlaw concurred with the m ajority to the extent that it held that the challenged imm igration conditions were not authorized by Congress, an d we re unlawful. Judge W ardlaw wrote that ev e ry th ing else that the m ajority wrote about 34 U.S.C. § 101 0 2 (a )(6) was unnecessary to the decision, and dicta.C I TY O F L O S A N GE L E S V

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C OUNSEL

Jesse Panuccio (argued), Associate Attorney Ge neral; Mark B. Stern, Daniel T enny, K atherin T w om ey All en, Laura E. Myron, and Brad Hinshelwood, Appellate Staff; H ashim M. Mooppan, D eputy Assistant Attorn e y General; Nicola T. Hanna
, United States Attorney; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Departm ent of Justice, W ashington, D.C.; for Defendants-Appellants.

Neem a T. Sahni (argued), Mitchell A. Ka min, and Mónica Ram irez Alm adani, Covington & B urling LLP, Los Angeles, California; David M. Zionts, Ivano M. Ventres c a , and Benjam in L. Cavataro, Covington & Burling LLP, W ashington, D.C.; Michael N. Feuer, City Attorney; Ja m es P. Clark, Chief Deputy City Attorney; Leela A. Kapur, Executive A ssistan t City Attorney; Valerie L. Flores, Managing Senior Assistant City Attorney; Michael Dundas, Deputy City Attorney; Office of the City Attorney, Los Angeles, California; for Plaintiff-Appellee.

Margaret L

. Carter and D an iel R

. Suvor, O’Melveny & Myers LLP, Los Angeles, C alifornia, for Am ici Curiae 20 Counties and C ities, Metropolit an Area Planning Council, and International Municipal Lawyers Association.C I TY O F L O S A N GE L E S V

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OPINION

IKUTA, Circuit Judge:

This appeal raises the question whether the Departm ent o f Justice (DOJ) can require recipients of a form ula grant under the Edward Byrn e Mem o rial Justice Assistance Grant Program (Byrn e JA G ), 3 4 U.S.C. §§ 10151–10158, to com ply with Departm ent of Hom eland Security ( DHS) requests for notice o f a detained alien’s release date and tim e and to allow DHS agents access to detained alien s upon request. W e conclud e that D OJ lacks statutory authority to im pose these conditions on recipients of Byrne JAG formula grants.

I

Congress establish e d Byrne JAG in 2006 as part of the Violenc e Against W om en and D epartm ent of Justice Reauthorization Ac t o f 2 005, Pub. L. No. 109-162, § 1111, 119 Stat. 2960, 3094 (2006); see al s o 34 U.S.C. § 10151(b)(1). Byrne JAG authorized the Attorney General
to m ake grants to state and local governm ents for “additional personnel, equipm ent, supplies, contractual support, training, technical assistance, and inform ation system s for crim inal justice
, i n c l u d ing for any one or m o re of” eight program s. 34 U.S.C. § 10152(a)(1). Under this um brella, eight different typ e s o f “program s” can be f unded, including, for exam ple, “[l]aw enforcem ent program s,” “[p]rosecution and court program s,” and “[d]rug treatm ent and enforcem ent program s.” Id. 1 Congress also established that the Attorney

1 The eight different types of “program s” inclu d e ( 1 ) “[l]aw enforcem ent program s,” (2) “[p]rosecution and court program s,” (3) “[p]revention and edu ca t ion p rogram s,” (4) “[c]orrections andC I TY O F L O S A N GE L E S V

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General could m ake Byrne JAG awards for any purpose that would have been authori z ed under Byrne JAG’s two predecessor program s, the form e r E dward Byrne Mem orial State and Lo c al Law Enforcem ent Assistance P rogram s (LEAP) and the Local G overnm ent Law Enforcem ent Block Grants Program
, both of which provided funding to state and local governm ents for various law-enforcem ent-rela t ed
purposes. Id. § 10152(a)(2); see also id. § 10151(b)(1).

Byrne JAG is adm inistered b y the Office o f Justice Pro g r a ms (OJP), a D OJ departm ent headed by an Assistant Attorney General for OJP (referred to here as the “Assistant AG” ) th a t adm inisters a variety of g rant program s. See id. §§ 1 0101, 10110(1). 2 The Attorn ey General has “final authority over all functions” of OJP, including m aking g rants. Id. § 10110(2). Under the Attorney General’s final authority, the Assistant AG has responsibility for several grant program s, inclu d i n g Byrne JAG. See id. § 10102(a). The A s s i s t an t A G mu s t p r o v i d e c r i m i n a l

- j u s t i c e

- r e l a t e d inform ation to the public and g overnm ent entities, coordinate efforts between various governm ent organizations, and fulfill

a num ber of o ther specified responsibilities. Id.

comm unity corrections program s,” (5) “[d]rug treatm ent and enforcem ent pro g ra m s,” (6) “[p]lanning, evaluation, and t echnology im provem ent program s,” (7) “[c]rim e victim and witness program s,” and (8) “[m ]ental health program s and related law enforcem ent and corrections program s.” 34 U.S.C. § 10152(a)(1).

2 The actual adm i nistration of Byrne JAG is carried out by the Bureau of Justice Assistance (BJA), a com ponent organization of O JP. By statute,

a BJA director reports direct l y to the Assistant AG, see 34 U.S.C. § 10141(b), but t

he m ajority of the BJA director’s authority has been transferred d irectly to the Assistant AG, see Consolidated Appropriations Act, 2000, Pub. L. No. 106-113, app. A, tit. I, 113 Stat. 1 501, 1501A–20 (1999).C I TY O F L O S A N GE L E S V

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§ 10102(a)(1)

– ( 5 ). A dditionally, the Assistant A G m ust “exercise such other powers and functions as m ay be vested in the Assistant Attorney General pursuant to this chapter o r by delegation of the Attorney G eneral, incl u ding p lacing special conditions on all grants, and determ ining priority purposes for form

ula grants.” Id. § 10102(a)(6).

Byrne JAG is structured and adm inistered as a form ula grant pro gram

. In a form ula grant program , Congress appropriates a set am ount of funding and specifies “how the funds will be allocated am o ng the eligible recipients, as well

as the m ethod by which an applicant mu s t d em onstrate its

e l i g i b ility for that funding.” Office of Justice Program s, Grant Process Ove rview
, http://go.usa.gov/xPm k A (last visited June 28, 2019). Byrne JAG’s s t a tutory form ula awards f ifty percent of allocated funds to states based on their populations relative to the population of the United States, 34 U

. S .C. § 1 0156(a)( 1 )(A), and the other fifty percent to states based on the i r r e lative rates o f violent crim e, id. § 10156(a)(1)(B). Once funding has be en allocated to a particular state under the f orm ula, forty p ercent of that funding i s allocated to local governm ents within the state, 3 while the state itself keeps sixty percent. Id. § 10156(b).

The s t atute authorizes the Attorney General to depart from this form

ula in certain circum stances. For exam ple, the Attorney General can reserve u p to five percent of C ongress’s total allocation if deem ed necessary to ad dr e s s a significant increase in crim e o r to r em edy “significant programm atic harm resulting from o pera tion of the form ula.” Id. § 1 0 157(b). The Attorney G eneral can a l s o retain u p to

3 Like state applicants, local governm ent applicants r eceive funding based on t heir relative rates o f violent crim e. 34 U.S.C. § 10156(d)(2)(A).C I TY O F L O S A N GE L E S V

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$20 m illion fo r use by the N ational Institute of Justice to help local g o v ernm ents upgrade their technology, and

can withhold a separate $ 20 m illi o n t o support local
governm ents’ antiterror i sm tr a i n in g p r o g r am s. Id. § 10157(a). Additionally, a num ber of f ederal statut es enacted independently of Byrne JAG provide additional
g ro un ds for withholding funds from an applicant. Fo r instance, the Attorney G eneral h a s discretion to m ake up to

a ten percent reduction of a state’s Byrne JAG award if it fails
to com ply with federal reporting requirem ents for deaths that occurred in state custody, id. § 60105(c)(2), and m ust reduce

a state’s award by ten percent if it fails t o “ s ubstantially im plem ent” the S ex Offender Registration and Notification Act, id. § 20927(a).

State and local governm ents m u st subm it an applicat i o n for B yrne J AG fun ding to the Attorney General, who has discretion to dicta t e th e application’s form

. Id. § 10153(a). Som e requirem ents for the application are set out b y statute. The application m

ust i n clude specified certifications and
assurances, including assurances that the applicant will

m aintain and report “ d ata, records, and inform ation (programm atic and f

inancial) as the Attorney Ge n e r al m ay reasonably require,” id. § 10153(a)(4), and a certifi ca t i on “m ade in a form acceptable to the Attorney General” that the
program to be funded m eets Byrne JAG’s requirem ents, the application’s inform ation is correct, “ there has been appropriate coordination with affect ed agencies,” and the applicant w ill com

ply with all applicable federal law, id. § 10153(a)(5). Additionally, ap p l i cants m ust subm it a “com p rehensive S tatewide plan” revealing how Byrne JAG funds “will be used to im prove the adm inist r a ti o n of the crim inal justice system .” Id. § 10153(a)(6).C I TY O F L O S A N GE L E S V

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The Attorney General develops and issues rules to carry
out the grant program , id. § 10155, and is also responsible for receiving and reviewing applications, id. § 10154. Pursuant to these programdevelopm ent responsibilities, the Attorney General has d eveloped a grant award docum ent that includes

a long list of requirem ents and conditions no t sp e ll ed o ut in the Byrne JAG statu t e itself. The grant award docum ent

warns recipient s that the funding is “subject to such conditions or lim itations as are set fo rth on the attached page(s).” T he conditions listed in the grant award docum ent vary from year to year and typically cover a wide var i ety o f subject m atter. For exam ple, grant award docum ents have required recipients to m eet specified inform ation sharing and in f o rm atio n tech

n o lo g y sy stem s req

u irem ents, to co m

p ly w ith specified p o licies relating to hum an research subjects, and to part i cipate in various training events, technical assistance events, and conferences. Other conditions h ave related m ore directly to the use o f Byrne JAG funds. For instance, the grant award docum ent provides that recipients can purchase only certain types of body arm or with B yrne JAG funds. The Attorney General m

ust com ply with general requirem ents for

m anaging grants, see 2 C.F.R. § 2800.101, including “adm inistrati ve requirem ents, cost p rinciples and audit requirem ents,” id. § 200.100(a)(1).

II

OJP im p osed two n ew conditions for Byrne JAG funding for fiscal year 2017, both of which were included in the grant award docum ents. T h e first new condition, referred to as the “notice condition,” required a recipie n t to honor DHS’s requests for advance notice of the scheduled release d ate and tim e of any detained alien held in the recipient’s correctionalC I TY O F L O S A N GE L E S V

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facilities. 4 The second new co n d it i o n, referred to as the “access condition,” required a recipient to give federal agents

access to correctional facilities to m eet with detained aliens, or individuals believed to be aliens. 5

4 The notice condition provides:

W i th respect to the “program or activity” that is funded (in whole o r in part) by this award, as of the date the recipient accepts this award, and th roughout the

rem ainder of the period of perform ance for the award

–

. . . A local ordinance,

- r ule,

- regulation, -policy, or -practic e (or an applicable S t ate statute, -rule, -regulation, -policy, or -practice) must be in place that is designed to ensure t

hat, when a local-governm ent ( o r local-governm en t -c on tra c t e d ) c o rre c t i o n a l facility receives from DHS a form al written request authorized by the Im

m igration and Nationali ty Act that seeks advance notice of the scheduled release date a n d tim e for a particular alien in such facility, then such facility will honor such request and

– as early as practicable

. . . – provide the requested notice to DHS.

5 The access condition provides:

W i th respect to the “program or activity” that is funded (in w h ole or in part) by this award, as of the date the recipient accepts this a w a rd, and throughout the

rem ainder of the period of perform ance for the award

– A local ordinance, -rule, -regulation, -policy, o r

- (or an app l i c able State statute, -rule, -regulation, -policy, o r -practice) m

ust be in place that i s d esigned t o ensure that ag e n t s of the United States acting under color o f federal law in fact are given access a local-governm ent (or local-g o vernm ent-contracted) correctional facility for the purpose of perm itting such agents to m eet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals’ right to be or rem ain in the United States.C I TY O F L O S A N GE L E S V

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The grant award docum ent stated that these condi tions

were “an authorized and priority purpose of” the Byrne JAG award and applied “[w]ith respect to the ‘program or activity’ that is funded” by the award. 6 T he docum en t d e fined “program or activity” b y reference to Title VI, a federal civil rights law prohibiting discrim ination on th e basis of race, color, o r national origin in any f ederally assisted program o r activity. 42 U.S.C. § 2000d-4a

. In this context, Congress defi n e d “program or activity” to m ean, in relevant part, “all of the operations of

. . . a departm ent, agency, special purpose district, or o ther instrum entality of a State o r of a local
governm ent,” or of “the entity of s uch State or local
govern me nt that distributes such assistance and each such departm ent or agency

. . . to which the assistance is extended.” Id. § 2000d-4a(1)(A)–(B). Finally, the 2 017 Byrne JAG award docum ent stated that “[f]ailure to comply with any one o r m ore o f these award requirem ents” can result in loss of funding.

The City of Los Angeles applied for a Byrne JAG award for the 2017 fiscal year. Its application included a letter from

6 The grant award docum ent states:

Com pli a n c e with these r equirem ents is an authorized

a n d p ri o rity purpose of this award. To the extent that such costs are not reim

b ursed under a n y o ther federal
program , award funds m ay be obligated (including for authorized reim

bursem ents) for the reasonabl e , necessary, and allocable co sts (if any) of

– (1) developing and putting i nto pl a c e statutes, ordinances, rules, regulations, policies, and practices to satisfy this condition, (2) perm itting access as described in [the access condition], and (3) h onoring any request from D HS that is encom passed [in the no t i c e condition].C I TY O F L O S A N GE L E S V

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its deputy m ayor stating that L os Angeles “is w ithholding any

comm itm ent to, o r confirm ation of, its com pliance with” the notice and access conditions. On Septem ber 2 9
, 2017, Los Angeles filed suit against DOJ, seeking an injunction against i mp l e m entation of the notice and access conditions. I n connection with this lawsuit, Los Angeles stated i t had a policy against cooperating with federal imm igration enforcem ent on the ground that “being p e r c e i ved as a ‘cooperating’ jurisdiction in the v iew of the current Adm inistration would harm public safety in Los Angeles” because it would have a n egat i v e i m p act on police relationships with im m igrant comm unities.

Following a bri e f s t ay pending the Seventh Circuit’s affirm ance an d subsequent en b anc vacatur of a n ationwide injunction against the notice and access conditions, see City of Chicago v. Sessions
, 888 F.3d 272 (7th Cir. 2018), reh’g en banc granted in part, opinion v a cated in part , No. 17-2991, 2018 W L 4268817 (7th Cir. June 4, 2018), vacated , No. 17- 2991, 2018 W L 4268814 (7th C ir. Aug. 10, 2018), the district
court entere d a prelim inary injunction against DOJ’s use o f the notice and access conditions on S eptem ber 13, 2018. DOJ appealed, arguing that the district court erred in determ ining that Los Angeles wa s likely to succeed on the

m erits o f i t s claim that DOJ lacked statutory authority to im pose the notice and access conditions.

III

W e review the district court’s grant of a p r e lim inary injunction for an abuse of discretion
, an d we review its determ ination of the underlying legal p rinciples de novo. See DISH Network Corp. v

. FCC
, 653 F.3d 771, 776 (9th Cir.C I TY O F L O S A N GE L E S V

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2011). 7 When an agency is charged wi th adm inistering a congressional statute, “both [its] power to act and h ow [it is] to act [are] authoritatively prescribed by Congress.” C ity of Arlington v. FCC
, 569 U.S. 290, 297 (2013). An agency “lite r al ly has no power to act

. . . unless and until Congress confers p ower upon i t .” La. Pub. Serv. C omm’n v. FC C
, 476 U.S. 355, 374 (1986).

DOJ advanc e s two possible bases for its statutory authority to introduce the notice and access conditions.

A

DOJ first argues that the notice and access conditions are within the A ssistant AG’s authority under a 2006 am endm ent to § 10102(a)(6) enacted b y Congress in the Violence Against W om en and Departm ent of Justice Reauthorization Act o f 2005, § 1152, 119 Stat. at 3113. 8

7 Although DOJ h as stated that it will not enforce th e n o t ice and

access conditions while t his litigat i o n i s pending, see Office of Justice Program s, FY 2017 and F Y 2 018 JAG Award Special Notices, h t tp s : // o j p

. g o v / fu n d i n g / E xp l o re / L e g a l N o t i c e s

- A w a r d R e q t s

. h t m ( l a s t visited June 26, 2019), such tem porary r estraint do e s n o t am ount to a voluntary cessation of DOJ’s enforcem ent of the challenged conditions. See Fikre v. FBI

, 904 F .3d 1033, 1 037 (9th Cir. 2018). T h e re fore, t h is case is not m oot.

8 Section 10102 is contained in subchap t e r I of chapter 101. This subchapter creates OJP, which overse e s th e m anagem ent of all grant program s, both f

orm ula and discretionary, including Byrne JAG. (Byrne JAG is contained in subchapter V of the sam e chapter.) Section 10102(a) provides:

The Assistant Attorney General shall –C I TY O F L O S A N GE L E S V

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From its enac tme nt in 1 984 and through 2005, § 10102(a)(6) provided that the Assistant AG shall “exercise such o ther powers and functions a s may b e vested in the Assistant Attorney General pursuant to this t i t le or by delegation of the Attorney General.” S ee Joint Re s olution, Pub. L. No. 98-473, § 102, 98 Stat. 1837, 207 8 ( 19 8 4 )

. In 2006, C o ngress am ended § 10102(a) ( 6 ) t o add the phrase

(1) publish and dissem i nat e inform ation on the conditions and progress of the crim inal j ustice system s;
(2) m aintain liaison with t he executive and judicia l branches of the Federal and S tate gove rn m ents in

m atters relating to crim inal justice;

(3) provide inform ation to the President, the Congress, the judiciary, State a n d local governm ents, and the general public relating to crim inal justice;

(4) m aintain liaison w ith public and private educational and research institutions, State and l ocal governm ents, and governm ents of other nations relating to crim i nal justice;

(5) coordinate and provide staff support to coordinate the activities of the Office and the Bureau of Ju s t i c e Assistance, the National Institute of Justice, the Bureau

o f J u stice Statistics, the Office f or Victim s of Crim e, and the Office o f Juvenile Justice and Delinqu e n cy Prevention; and

(6) exercise such other p owers and functions as m ay be vested in the Assistant Attorney Ge n eral pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determ ining priority purposes for form ula grants.

34 U.S.C. § 10102(a).C I TY O F L O S A N GE L E S V

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“including p lacing special conditions on all grants, and determ ining priority purposes for formula grants” at the end of the section. See Violence Against W om en and Departm ent of Ju s t i ce R eauthorization Act of 2005, § 1152, 119 Stat. at 3 11 3. Accordingly, § 10102(a)(6) now provides that th e Assistant AG m

ust “exercise such other powers and functions

as m ay be vested in the A ssistant Attorney General p ursuant t o this chapter or b y delegation of the Attorney Gene r a l
, including placing special conditions o n a l l grants, and determ ining priority purposes for form ula grants.” 3 4 U.S.C. § 10102(a)(6). DOJ argues th at by am ending the statute, Congress g ave the Assistant AG the authority to i mp ose notice and access conditions as “special conditions” on Byrne JAG awards and to announce the Att orney General’s determ ination that such conditions are “priority purposes” o f the awards.

Be fo r e considering D OJ’s claim
, w e first address Lo s Angeles’s threshold argum ent that Congress’s am endm ent to § 10102(a)(6) does not give the DOJ any independent authority or power. Rather, Los Angeles claim s, the statute

m er e l y describes the Assistant AG’s ability to exercise authority specified elsewhere in the relevant chapter (Chapter 101 of title 3 4). W e disagree. Los Angeles has n ot identified (and we h a v e n o t found) any language in the chapter giving the Attorney General or the Assistant AG au thority to place “special conditions” or determ ine “ p r iority purposes” for grants. 9 But by am ending § 10102(a)(6), Congress

9 N either of the sections cited by Los Angeles gives the Assistant A G authority to place “special conditions” o n or determ ine “priority p ur p o ses” for any grants. Section 10142(2) provides that the BJA m ay a l l o c a t e grants “ on term s and conditions de t erm ined by the [BJA] Director to be consistent with part B of subchapter V [Discretionary Grants]”, 34 U.S.C.C I TY O F L O S A N GE L E S V

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affirm atively indicated its under standing that the Assistant AG’s p owers and functions could include “placing special

co n d itio n s o n all grants, and determ ining priority purposes f o r form ula grants.” 34 U.S.C. § 10102(a)(6). There fo r e , Los Angeles’s interpretation deprives the 2006 am endm ent t o § 10102(a)(6) of any m eaning; in effect, we would h a v e to conclude that Con g re s s am ended § 10102(a)(6) f o r the
purpose of expressly authorizing the Assistant AG to exercise certain powers that do not exist. W e decline to do so, because

we presum e Congress m akes am endm ents with purpose, see Stone v. INS
, 5 14 U.S. 386, 397 (1995), and it is g enerally “our duty to give effect, if possible, to every clause and word of a statute,” United Sta t es v. Menasche
, 348 U.S. 528, 538–39 (1955) (internal quotation marks o mi t ted). Accordingly, we reject Los Angeles’s construction of the
statute. Consistent w ith Congress’s am endm ent, we re ad § 10102(a)(6) a s c onfirm ing the authority of DOJ to place “special conditions o n a l l g rants” and determ ine “priority purposes for form

ula grants.”

On the other h and, we also d isagree with DOJ’s argum ent that its n otice and access conditio ns place “special conditions” on Byrne JAG awards and announce the Attorney General’s determ ination that such conditions are “priority purposes” of the awards. To address this claim
, we m ust first interpret the term s “special c o nd itions” and “priority purposes” in § 10102(a)(6). “Cano n s of statutory construction help give m eaning to a statute’s words. W e

§ 10142(2), and § 10446(e)(3) provides that “[i]n disbursing grants under this subchapter [Grants to Com bat Violent Crim es Against W om en], the Attorney General m ay im pose reasonable conditions on grant a w a rd s to

ensure that the States m eet statutory, regulat o ry , and other program requirem ents,” id. § 10446(e)(3).C I TY O F L O S A N GE L E S V

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begin with the language of the statute.” Wilderness Soc’y v. U.S. F ish & Wildlife Serv.
, 3 53 F.3d 1051
, 1060 (9th Cir. 2003) (citing Gwaltney ofSmithfield, Ltd. v. Chesapeake Bay Found., Inc.
, 484 U.S. 49, 56 (1987)). Where the statute does
not define the relevant term s, w e give them “their or dinary,
contem porary, comm on m eaning,” and “m ay consult dictionary definitions.” Transwes t e rn Pipeline Co. v. 17.19 Acres of Prop. Located in Ma ricopa Cty
., 627 F.3d 1268, 1270 (9th Cir

. 2010) (internal quotation m arks and citations

om itted). In construing specific w ords in a statute, w e m ust al s o look to the “language and design of the statute as a whole,” K Mart C

orp. v. Cartier, In c

. , 4 8 6 U.S. 281, 291 (1988)
, an d read the specific words “with a v iew to their place in the o verall statutory schem e.” Wilderness Soc’y
, 353 F.3d at 1060 (quoting FDA v. Brown & Wi ll iamson Tobacco C

o rp

. , 5 2 9 U.S. 120, 133 (2000)); see also United States v. Lewis
, 67 F.3d 225, 2 2 8

–29 (9th C ir. 1 995) (“Particular phrases m

ust be construed in light of the overall
purpose and structure of the whole statutory schem e.”). In
every case, “it is the intent of Congress tha t i s the ultim ate touchstone.” Arizona v

. United States
, 567 U.S. 387, 453 (201 2) (Alito, J., concurring in part and dissenting in part) (internal quotation m arks om itted).

The term “special conditions” is not defined in the statute. Under the d ictionary definition, th e term “special” m eans “unusual” or “ extraordinary,” Special
, Black’s Law Dictionary (9th ed. 2009), or “assigned or provided to m eet

a particular need not covered under established procedures,” Special
, W ebster’s N ew Int’l D ictionary (3d ed. 2002). A s this d efinition of “special” sugg e sts, a “special condition”C I TY O F L O S A N GE L E S V

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would be applied “to m eet a particular n eed” for carrying out

a programthat is not covered by established requirem ents. 1 0

This interpretation o f “special conditions” i s consistent with the regulatory backdrop against which Congress enacted both § 10102(a)(6)’s “including” clause and the Byrne JAG
statutes. See Vio l e n c e A gainst W om en and Departm ent o f Justice Reauthorization Act of 2005, § 1152, 119 Stat

. at 3113. At the t i me, a regulation setting out “adm inistrative requirem ents for grants and cooperative agreem ents to State and local governm ents” p rovid e d a definition of the term “special conditions.” S

ee 28 C .F.R. § 66.12 (2006). The regulation, titled “[s]pecial g rant or subgrant c onditions for ‘high-risk’ grantees,” p rovided that if a grantee was “highrisk,” the n “special conditions and/or restrictions shall correspond to the high risk condition and shall be included in the award.” Id. § 66.1 2 (a )(5). A grantee could be deem ed high risk if it h a d a h istory of noncom pliance w ith grant requirem ents, financi a l stability issues, or other factors that suggested a propen s i ty toward violation of a grant’s term s. Id. § 66.12(a). According to the regulation, “[s]pecial conditions or restrictio n s may include (1) [ p]aym ent on a reim bursem ent basis; (2) [w]ithholding authority to proceed
to the n ext phase until rece i p t of evidence of acceptable performanc e within a given f unding period; (3) [r]equiring additiona l, m ore detailed financial reports; (4) [a]dditional project m onitoring; (5) [r]equiring the grantee o r sub-grantee

10 The distinction between “special conditi o n s” and established conditions arises in other co n texts, as well. For exam ple, the Federal Avia t i on Adm inistration is em powered to issue a special condition—“a regulation that applies to a particular aircraft design”—when a d e sign’s novel features take it outside the sco p e o f otherwise appropriate safety regulations. 14 C.F.R. § 11.19.C I TY O F L O S A N GE L E S V

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to obtain technical or m anagem ent a s s i s tance; o r (6) [e]stablishing additional prior approvals.” Id. § 66.12(b). Additionally, the regulation required the awarding agency to inform the g rantee of the reasons for the special conditions and identify corrective actions the grantee could take to have the special conditions rem oved. Id. § 66.12(c).

This regulatory m eaning of “special conditions” is
presum ed to have inform ed Congress’s u se of the term in § 10102(a)(6). See FAA v. Cooper
, 566 U.S. 284, 292 (2012) (“[W ]hen Congress em

ploys a term of art , it presum ably knows and adopts the cluster of ideas that were attached to each borrowed word in the b ody o f learnin g from wh ich it

was taken.” (internal quotation m arks o m itted)). This conclusion is supported b y Congress’s use of thi s t erm in a different provision, § 10109, in the subchapter of the statutes establish i n g OJ P and B yrne JAG, enacted at the sam e tim e Congress establish ed B yrn e JA G an d am ended § 10102(a)(6). In § 10109, Congress p rovided that an Offi c e of Audit, Assessm ent, and Managem ent within the OJP would asses s and review OJP’s grant p rogram s to ensure com pliance with
program term s and requirem ents. S ee 3 4 U.S.C. § 10109(a), (b). When conducting such an audit, the auditing office m ust “take special conditions of the grant into account and consult with the office that issued those conditions to ensure appropriate com

pliance. ” Id. § 10109(a)(2). 1 1 This usage

11 Section 10109(a)(2) provides, in full:

The purpose of t

he Office shal l be to carry out and

c o o rd i nate program assessm ents of, take actions to

ensure com

pliance with the term s of, and m anage inform ation with respect to, g ran t s under program s covered by subsec tion (b). The Director shall take special conditions of the grant into account and consultC I TY O F L O S A N GE L E S V

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indicates that “special conditions” wer e understood to be individualized requirements included in a specific grant, as set forth in 2 8 C. F .R. § 6 6 .12(a)(5) (2006). Otherwise, the auditor woul d not n eed to identify the office that issued the condi ti o n and engage in consultation on the com pliance requirem ents.

Under the “norma l rule of statutory construction,” we presum e that “identical w ords used in different parts of the

sam e act are intended to have the same me an i n g .” D ep’t of Revenue of Or. v. ACF Indus.
, 5 10 U. S. 332, 3 4 2 (1994) (internal quotation m arks om itted). Accordingly, we m ay presum e that C ongress intended the use of “ s p e c i al conditions” in § 10102(a)(6) to have the sam e m eaning as it has in § 10109(a)(2), nam ely to refer to in d i v i dualized requirem ents. Therefore, the inclusion of “placing special conditions o n all grants” in § 10102(a)(6) refers to the power to im p ose tailored r e quirem ents when necessary, such as when a grantee is “high-risk” pursuant to 28 C. F. R. § 66.12(a)(5) (2006). 1 2

W e next consider the term “priority purposes.” 34 U.S.C. § 10102(a)( 6 )

. The Byrne JAG statute establishes that the “purpose” of an award is to “provide additional personnel, equipm ent, supplies, co n tr actual support, training, technical

with the office that issued those conditions to e n s ure appropriate com

pliance.

34 U.S.C. § 10109(a)(2).

12 Congress contem

plated that the A s s i stant AG could p lace such conditions on b oth form

ula and d i scr et ionary g rants (“all grants”), b ut m ay determ ine priority p urposes o nly “for form ula grants.” 34 U.S.C. § 10102(a)(6).C I TY O F L O S A N GE L E S V

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assistance, and inform ation system s for crim inal justic e ,” within vari ou s program s proposed by applicants. Id. § 10152(a)(1). The purposes set forth in the predecessor grant statutes, L EAP and the Local Go v ernm ent Law Enforcem ent Block Grants P rogram , include funding “additional personnel, equipm ent, training, technical assistance, and inform ation system s” for local gove rnm ent crim inal justice program s, Anti-Drug Abuse A ct of 1988, Pub. L. No. 100-6 90, § 501(b), 102 Stat. 4181, 4329, and funding for purposes including hiring additional officers, establishing drug courts, and setting up task forces consisting of local governm ent and federal law enforcem ent officials “to prevent and control crim e,” am o n g o thers. H .R. 728, 104th Cong. § 101(a)(2) (1995); see als o O mnibus Consolidated Rescissions an d Ap p ropriations Act of 1996, Pub. L. N o. 104- 134, tit. 1, 110 Stat. 1321, 1 321–12 (incorporating H.R. 728 by reference). None of the purposes set forth in § 10152(a)(1) o r the predecessor grant statutes corresponds to DOJ’s requirem ent that the recipient h onor DHS’s requests for advance notice of detained a liens’ release dates o r allow federal agents acc e s s to correctional facilities to m eet with detained aliens.

In light o f our interpretation of “special conditions” and “priority purposes,” it is clear that § 10102(a)(6) does not authorize DOJ to require all recipients o f Byrne JAG funding
to com ply with the notice and access conditions. 1 3 First, the notice and access conditions are not “special conditions” because they are not conditions triggered by specific characteristics n ot addressed by established conditions, as

13 T herefore, contrary to the concurrence’s characte ri zation of o ur holding, we do not adopt DOJ’s interpretation of § 10102(a)(6). Concurrence at 40–41.C I TY O F L O S A N GE L E S V

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was the case for high-risk g rantees un der 28 C.F.R. § 6 6 .12(a)(5) (2006). Second, p r i o ri ty purposes m ust be chosen from am o ng the various possible purposes of a Byrne JAG award as set out in § 10152(a). The notice and a c c e ss

c onditions are not included as purposes of the Byrn e J AG award, nor are they purposes of either o f its predecessor grant statu t es. Because the notice and access conditions m eet neither of these definitions, DOJ lacked statutory authority to im pose the m under § 10102(a)(6). Therefore, we reject DOJ’s argum ent that § 10102(a)(6) gives it the authority to im pose the notice and access conditions.

Because we interpret th e term s “special conditions” and “prio rity p urp o ses” narrowly, we agree with our sister circuits that § 10102(a)(6) does not give the A ssist ant AG broad authority to im

pose any condition it chooses on a B yrne JAG award. Cit

y of Philadelphia v. Attorney Gen. of U.S.
, 916 F.3d 276, 288 (3d Cir. 2019) (concluding that Congress would not hide “such a broad power—the power to place a ny special conditions on all grants—in a s t a tute outlining

m inisterial d

uties for an Assistant Attorney General”); City of Chicago
, 888 F.3d at 286. Such a broad interpretation would be antithetical to the concept of a form ula grant, se e Ci t

y of Chicago
, 888 F.3d at 285 (noting that “the notion of the broad
g rant of authority to im pose any conditions on gr an t recipients is at odds with the nature of the Byrne JAG grant, which is a form

ula grant rather than a discretionary grant”), and it w oul d r e nder superfluous Congress’s carefully prescribed conditions under which the Attorney General can

norm ally withhold Byrne JAG funding, see, e.g. , 34 U.S.C. § 10157(b) (allowing the Attorney General to withhold up to five percent of total allocated Byrne JAG funds to a ddress rapid crim e increases o r “significant programm ati c harm ” caused by the norm al operation of the funding form ul a ) ; i d

.C I TY O F L O S A N GE L E S V

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§ 30307(e)(2) (providing that a state will lose five percent o f
any grant award m ade under title 34, incl u ding Byrne JAG, if it fails to com

ply with the national standards set out under the Prison Rape Elim ination Act). 1 4

In opposition to our interpretation of § 10102(a) (6), the

concurrence constructs a strawm an argum ent. It ignores our actual interpretation of § 10102(a)(6), and instead accuses us of a d o p tin g a “sw eep in g ch aracterization” of DOJ’s authority, Concurrence at 44, that allows the “essentially lim itless” im position of any conditions desired, C oncurrence at 44–45 (quoting City of Chicago
, 888 F.3 d a t 2 8 7). Based on this
strawm an argum ent, the concurrence then accuses us o f creating a split with our sis t e r ci rcuits, which have rejected such a b road interpretation. Concurrence a t 3 0
, 34–36, 37–38, 42, 44.

Wh il e the concurrence has an easy tim e battering it s strawm an, the concurrence fails to explain how our actual ruling, that DOJ has th e l i m i ted authority to im pose special conditions designed to m eet needs for carrying out the Byrne JAG program , could abrogate or “subvert” B yrne JAG’s funding schem e. Concurrence at 44. Nor does the

concurrence explain how our actual ruling is contrary to our sister circuits, which did not need to consider the viability o f

a narrowing construction when considering c h a ll enges to DOJ’s notice and access conditions. R ather, given the issues

14 Moreover, it i s unlikely that Congress w o u l d recognize such a broad power in § 1 0102(a)(6), given t he m inisterial duties described in the
rest of the section. S

ee City of Philade l

phia
, 916 F.3d at 2 88; City of Chicago
, 888 F.3d at 285. By contrast, our m o re circum scribed understanding of the power to im pose special condition s a n d determ ine priority purposes is in accord with the o ther adm inistrative duties outlined in § 10102.C I TY O F L O S A N GE L E S V

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raised by the appeals before them
, our sister circuits m erely

r e j e c t e d D O J ’ s a r g u m e n t

— a n d t h e c o n c u r r e n c e ’ s strawm an—that § 10102(a)(6) gives b r oad authority to im pose any conditions DOJ m ay choose. The Seventh Circuit expressly acknowledged that “special conditions ” m ay be a term of art that “cannot be read as an unbounded authority to im pose ‘any’ conditions generally,” as we have conc l u ded, but declined to address tha t p otential interpretation of the
term

. City of Chicago
, 8 88 F.3d at 285 n.2. Rather, it m erely rejected DOJ’s argum ent “that the ‘including clause’ itself is

a stand-alone grant of authority to th e Assistant Attorney Gen e ral to attach any conditions to any grants

. . . ,” and it conclu ded that § 1 0102(a)(6) did not g ive “sweeping power to im pose a ny conditions on any grants.” Id

. at 285; see also Concurrence at 37–38. Sim ilarly, the Third Ci rcuit

c o n s idered the argum ent that § 10102(a)(6) conferred “ a broad powe r

—th e p ower to p lace any special conditions on all grants” on the Assistant AG, “a s we e p i ng grant o f authority.” City of Philadelphia
, 9 16 F .3d at 288; see also Concurrence at 37–38. In rejecting this broad interpretation,
the court d id not have o ccasion to consider wheth e r th e Attorney General possessed, and therefo r e could delegate through § 10102(a)(6), the m o re m odest po we r to im pose special conditions and designate priority purposes a s we understand those term s. See id. at 2 87. Given o ur agreem ent with our sister circuits that § 10102(a)( 6 ) does n ot confer broad authority on the Assistant AG sufficient to effectively abro g ate th e f

o rm u l a g rant program Congress has established, the concurrence is wrong to suggest we are creating a circuit split. Concurrence at 30. 1 5

15 The concurrence’s disagreem ent with our inte rpretation o f § 10102(a)(6) does not m ake it d icta. Concurre n c e a t 30, 40–41, 45. “[W ]here a panel confronts an issue germ ane to the eventual resolution o fC I TY O F L O S A N GE L E S V

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W e conclude that the 2006 am endm ent to § 1 0 102(a)(6) confirm s that the Attorney G eneral and the Assistant A G through delegation have the autho ri ty to im pose special

con d i t i o ns on all grants and determ ine priority purposes for form ula grants, as those term s are properly cir c um scribed. The n otice and access conditions are n ot sp e c i al conditions placed on grants to grantees that exhibit certain risk f actors o r have idiosyncratic issues that m ust be addressed individually. Nor are they am ong the statutorily recognized p urposes of a By rn e JAG award as set out in § 10152(a). Therefore, DOJ l a c k e d s t a tu t o ry au th o r ity to i mp o s e t h e m u n d e r § 10102(a)(6).

B

We n e x t consider DOJ’s argum ent that the propriety o f the notice and access conditions are further supported by provisions in the Byrne J AG s tatute that authorize the Attorney General to obtain certain inform ation and require coordination with agencies. See 34 U.S.C. § 10153(a)(4),

the case, and resolves it after reasoned consideration in a published opinion, that ruling becom es law of the circuit, regardless of whether doing so is necessary in som e strict logi c a l sense.” Cetacean Cmty. v. Bush
, 386 F.3d 1 1 6 9
, 1 1 73 (9th Cir. 2004) (quoting United States v. Johnson
, 256 F.3d 895, 914 ( 9th Cir. 2001) (en banc) (opinion of K o z i n ski, J.)). Only “statem ents m ade in passing, without analysis, a re not binding p recedent.” In re Magnacom Wireless, LLC
, 5 0 3 F. 3 d 984, 993–94 (9th Cir. 2007). In order to resolve t he issue on appeal here, we

m ust construe § 10102(a)(6) to determ ine whether it gave D O J any authority at all, and if so, whether it g a v e D O J au thority t o im pose the notice and access conditions. Our construction of the statutory language, whi c h le ads us to conclude that § 10102(a)(6) g ives DOJ som e circum scribed authority, but not th e au th ority to im pose the n o tice and access conditions, is not dicta under any definition of the term

.C I TY O F L O S A N GE L E S V

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(5). 1 6 Accor d ing to DOJ, the n o tice condition is authorized by § 10153(a)(4), which requires a recipient to report certain
programm atic inform ation, and th e access condition is authorized b y § 10153(a)(5)(C), which requires a recipient to coordinate with an “affected agenc[y].”

W e disagree. First, § 1 0153(a)(4) requires the applicant
to m aintain an d r eport inform ation that is financial and “programm atic.” Al though the term “programm atic” is not defined in the statute, the dictionary d e fines it to m ean “of,

resem bling, o r having a p rogram .” Programmatic
, W ebster’s New Int ’ l Di c t i onary (3d ed. 2002). Section 10152 sets out types of “ p r o g ram s” that B yrne JAG m ay fund, including “[l]aw enforcem ent program s,” “[p]revention and education
program s,” and “[d]rug treatm ent and enforcem ent program s.” 34 U.S.C. § 1 0152(a)(1). G iven the use of the word “program ” elsewhere in the sam e statutory schem e, the

16 Se c t i o n 1 0153(a) p rovides that an application for Byrne JAG funding m

ust include:

(4) An ass uran c e that, f

or each fiscal y ear covered b y

an application, the applicant shall m aintain and report such data, records, and i nform ation (program m atic and financial) as the Attorney General m ay reason ab l y require.

(5) A certification
, m a d e in a form acceptable to the Attorney General and executed by the chief executive officer of the applicant . . . that –

. . . (C) there has been appropriate coordinat i on with affected agencies.

34 U.S.C. § 10153(a)(4), (5).C I TY O F L O S A N GE L E S V

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term “programm atic” in § 10153(a)(4) is best read to refer to

a program or program s s u pported by Byrne JAG f

unding as outlined in § 10152(a)(1), such as a part ic ular law enforcem ent program or drug treatm ent program

. 1 7 Accordingly, § 10153(a)(4) m erely requires an ap p l i cant to

ma intain and report inform ation relating to the programs funded b y a Byrne JAG award. Bec au s e DHS requests for notice of the release o f a d e tained alien do not relate to a program funded by Byrne JAG, the notice condition does not require “program m atic” inform ation under § 10153(a)(4).

Moreover, the st a tute speaks of the m aintenance and reporting of data, records, and i n fo rmation “for each fiscal
year covered by an application,” id. § 10153(a)(4), which
contem plates yearly reporting. T h e n o t i c e condition’s requirem ent that a recipient have a policy in place requiring the provision of inform ation to DHS on an ad h oc b asis—due whenever DHS requ ests—is inconsistent with this statutory language.

Second, § 10153(a)(5)(C), wh i ch requires a grant

re c i p i e nt to certify that “there has been appropriate coordination wi th affected agencies,” does not give the Attorney Ge n e r al authority to im pose the access condition. In context, this section requires the grant recipient to certify that it h as coordinated with the agencies affected by the
program to be fun d e d b y the Byrne JAG award. This

17 To t he extent D OJ argues th a t “program m atic” should be read as referring to the defi n i t i o n of “program ” set out in 42 U.S.C. § 2000d4a (1 )(A), we disagree. The definition o f “program ” from federal civil ri g h ts l aw that was incorporated by reference in the 2017 Byrne JAG award l etter is not a r easonable interp re t a t ion of the word “program ” o r “program m atic” as used in the statutes authorizing Byrne JAG awards.C I TY O F L O S A N GE L E S V

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statutory language does not support DOJ’s interpretation that

a recipient m

ust coordinate with DHS agents who are not part of a funded program

. Nor does the statutory language (which requires an applicant to certify that “there h as been appropriate coordination”) im pose an ongoing obligation on the applicant to coordinate with D HS agents th r oughout the life of the grant, as required un d e r the access condition. Id. § 10153(a)(5)(C) (em

phasis added). Therefore, the ac c e s s condition is n o t a proper exercise o f the Attorney General’s authority under § 10153(a)(5)(C).

* * *

Because none of DOJ ’s proffered bases for statutory authority gives the Attorney General or the Assistant AG the
p owe r to im

pose the notice and access conditions, the conditions are ultra vires. See City of Arlington
, 5 69 U.S. at 297. W e affirm

the district court. 1 8

AFFIRMED.

WARDLAW , Circuit Judge, concurring in the judgm ent:

W e are faced once again with “the Trum p Adm inistration’s efforts to press state and local police into federal imm igration enforcem ent,” City of Los Ange les v. Barr
, 929 F.3d 1163, 1 183 (9th Cir. 2 019) (W ardlaw, J., dissenting), this tim e via an ultra vires attemp t t o d ivert

18 Because we affirm the district court on the ground that DOJ lacked statutory authority to im

pose t he notice and access conditions, we need not address Los Angeles’s alternative argum ents raised on appeal.C I TY O F L O S A N GE L E S V

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Edwa r d Byrne Mem orial Justice Assistance Grant Program (Byrne JAG) funds from the ir congressionally authorized
purposes. I c o n c ur with the m ajority to the extent it holds that the challenged imm igration conditions were not authorized by Congress, and are thus unlawful. But o nce the

ma j o r ity concluded that the challenged notice and acces s conditions are not lawful “special conditions” or “priority purposes” and were thus beyond the powe r s g r anted by Congress to the Departm ent of Jus t i c e, it should have stopped, as in full stop. Everything e ls e th e m ajority writes about 34 U.S.C. § 10102(a)(6) is “unnecessary to the decision in the c a s e and [is] therefore not precedential.” Cetacean Cmty. v. Bush
, 386 F.3d 1169, 1173 (9th Cir

. 2 0 04 ) (alteration in original) (quoting Best Life Assur. Co. v. Comm’r
, 281 F.3d 828, 834 (9th Cir. 2002)). In other words, the rest of the asides cast by the m ajority are dicta. In d icta, the m ajority finds vague, unidentified powers bestowed upon the DOJ in an illustr a tive 2 006 am endm ent to a “duties and functions” statute in a different subchapter o f the Act that established the Byrne JAG p r o gram

. See Violence Against W om en and Departm ent of Justice Reauthorization Act o f 200 5, Pub. L. No. 109-162, 119 Stat. 2960 (2006). This putative power grab not only unnecessarily portends a circuit split, its analysis also stands contrary to every other court to have addressed the issue in a reasoned opinion.

As both the T hird and Seventh Circ u its have held, Congress did not g rant the Assistant Attorney General f or the Office of Justice Program s any authority independent of that already vested b y a different statute or by delegation to the Attorney General to im

pose special conditions and determ ine priority purposes in 34 U.S.C. § 10102(a)(6). S ee Ci t y o f Philadelphia v. Attorney Gen.
, 916 F.3d 276, 287–88 (3d Cir. 2019); City of Chicago v. S essions
, 888 F.3d 272, 284–87C I TY O F L O S A N GE L E S V

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( 7 th Cir.), vacated in part on other grounds
, No. 17-29 9 1
, 2018 W L 4268817 (7th Cir. June 4
, 2018). The m ajority at best m isperceives, and at wo rst, f alsely characterizes, these hol dings, describing them as rejecting only a “broad interpretation” of § 10102(a)(6) as authorizing the DOJ to im pose “any condition it chooses on a Byrne JAG award.” Majority Op. at 23. But our sister circuits plainly rejected the notion that § 10102(a)(6) p rovides any independent grant o f authority, broad or narrow—a conclusion that the m ajority suggests is incorrect.

As even the DOJ recognizes, “an agency literally has no
power to act

. . . unless and un t il Co n gress confers power upon it.” La. Pub. Serv. Comm’n v. FCC
, 476 U.S. 355, 374 (1986). The DOJ “does n ot claim to p o s s e s s inherent executive authority to im pose the grant conditions, an d instead recogn izes that the authority m ust originate from Congress.” City of C

hicago
, 888 F.3d at 283. Both the Third and the Seventh Circuits rejected ou tr i ght the argum ent that the DOJ m akes here, that a residual clause of § 10102, which describes the du t i es and functions o f the Assistant Attorney Ge n e r a l f

or the Office of Justice P rogram s, is such a congressional delegation of power. That section provides in full:

(a) Specific, general and delegated powers

The Assistant Attorney General shall—

(1) publish and dissem inate info rm ation on the conditions and progress o f the crim inal justice system s;C I TY O F L O S A N GE L E S V

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(2) m aintain liaison w ith th e executive and judicial branches of the Fede r al and State
governm ent s in m atters relating to crim inal justice;

(3) provide inform ation to th e President, the Congress, the judiciary, State and local
governm ents, and the ge n e ral public relating to crim inal justice;

(4) m aintain liaison with public and private educational and research institutions, State and local governm ents, and g overnm ents o f other nations relating to crim inal justice;

(5) coordinate and provide staff supp o rt to coordinate the activities of the Office and the Bureau of Jus t i ce Assistance, the National Institute of Justice, the Bureau of Justice Statistics, the Office for Victim s of Crim e, and the Office of Juvenile Justic e an d Delinquency Prevention; and

(6) exercise such o ther powers and functions

as m ay be v ested in the Ass i stant Attorney Gener al pursuant to this chapter or by delegation of the Attorney General, including placing special co nditions on all grants, and determining p riority purposes for formula grants.C I TY O F L O S A N GE L E S V

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34 U.S.C. § 10102(a) (em p hasis added). 1 The DOJ contends that the bold e d language independently authorizes the Assistant Attorney General to im pose any special conditions he sees fit, as to any grant adm inistered by the Office o f Justice Program s, so long as the condition is “germ ane” to the
g ra nt p rogram or to “law enforcem ent” m ore generally. 2 Practically speaki n g , the DOJ argues that the Assistant Attorney General for the Offi c e o f Justice Program s can im pose a l m ost any “special condition” on any grant the Office of Justice Program s adm inisters, up to withholding all
gr an t funds due to a grantee’s failure to com ply with the DOJ’s desired policy.

The DOJ’s interpretation of § 10102(a)(6) conflicts with the plain language of the statute. See G onzales v

. Oregon
, 546 U.S. 243, 258 (2006) (s ta ting that “[t]he starting point” for the inquiry as to whether Co ngress delegated any authority “is, of c o ur s e, the language o f the [alleged] delegation provision itself”). Specifically, it “runs headlong into an obstacle: the word ‘including.’” City of Philadelphia
, 916 F.3d at 2 8 7. W e have interpreted “including” as “ordinari l y defined as a term of illustration, signifying that what f ollows is an exam

ple of the preceding principle.” Ariz. State B d. for Charter Schs. v. U.S. D ep’t o f Educ.
, 464 F.3d 1003, 1 007 (9th Cir. 2006); see Fed. Land Bank of St. Paul v. Bismarck Lumber Co.
, 314 U .S. 9 5, 100 (1941) (“[T]he term

1 This statute appears in Subchapter I, Chapter 101 o f Title 34 of the United States Code. The Byrne JAG statute is in Subchapter V, Chapter 101 of Title 34. See 34 U.S.C. §§ 10151–10158.

2 S ee Recording of Oral Argum ent, Cit y o f Los Angeles v. Barr
, No. 18-56292 (9th Cir. Apr. 10, 2019), at 6:25–7:2 2, h t t p : / / w w w

. c a 9

. u s c o u

r t s

. g o v / me di a / v i e w

_ v i d e o

. p h p ?p k

_ v i d = 0 0 0 0 0 1 5 4 8 3

.C I TY O F L O S A N GE L E S V

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‘including’ i s n o t o ne o f all-embracing definition, but
connotes sim

ply an illustrative application of the ge n eral principle.”). 3 Analyzing Con g re s s ’s use of the word “including” in § 10102(a)(6), the Third and Seventh Circuits

c a me to the sam e conclusion. See City of Philadelphi a , 916 F.3d at 287 (reasoning that “including” “is used to denote

som ething that is within a larger who l e ”); City of Chicago
, 888 F.3d at 2 84 (“The word ‘including’ by definition is used
to designate that a perso n or thing is part o f a particular group.”).

The Seventh Circuit reasoned that the plain m eani n g o f “including” in § 10102(a)(6)

is to set forth a subcategory of the types o f
powers an d functions that the Assistant Attorney General m ay exercise wh en vested in the Assistant Attorney General either by the
term s of this chap ter or by delegation of the Attorney General.

. . . [Because the DOJ] does
not even claim that th e power exercised here [to im p ose the notice and access conditions] is authorized anywhere in the chapter, nor that the Attorney General possesses that authority and therefore can delegate it to the Assist ant Attorney General

. . . the [DOJ’s] argum ent is that the “including” clause itself is a standalone grant of auth ority to the Assistant

3 Dictionary definitions confirm t his un d e rstanding o f t

he word “including.” S

ee Include , W ebster’s New Int’l Dictionary (3d ed. 2002) (“to p lace, lis t , or rate as a part o f com ponent of a whole o r of a larger
group, class, or aggregate”); Including
, New Oxford Am

. Dictionary ( 3 d ed. 2010) (“containing as part of the whole being considered”).C I TY O F L O S A N GE L E S V

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Attorney General to attach any conditions t o any grants in that subchapter or oth e r subchapters even though that authority is not otherwise provided in the c h ap t er and is not possessed by the Attorney General. Because that interpretation is so obviously belied by the plain m eaning of the word “including,” the Attorney General’s position is untenable.

City of C h icago
, 88 8 F. 3 d at 285. The Third Circuit agreed that

“including” signifies tha t the S pecial Conditions Clause is part of “such other
powers and f

unctions as may be vested in the Assistant Attorney General pursua n t to this chapter or b

y delegation of the Attorney General .” 34 U.S.C. § 10102(a)(6) (em phasis added). Therefore, under the plain text of this provisi o n , the [Assistant Attorney General] has the power to plac e s pecial conditions on grants only to the extent that su c h power has been vest e d in him o r her “pursuant to this chapter or by delegation of the Attorney General.”

. . . [T]he broad authority [the DOJ]
urges has n ot been vested in the Attorney General or the [Assistant Attorney General] in the Byrne JAG statute or anywhere else in the United States Co d e. Therefore, the S pecial Conditions Clause cannot author i ze this power on its own.

City of Philadelphia
, 916 F.3d at 287–88. Here, nothing i n the statute evinces a congressional intent to u se the wordC I TY O F L O S A N GE L E S V

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“including” to m ean anything other than i t s o rdinary definition. 4 Al l o ther courts to consider § 10102(a)(6) have sim ilarly rejected the DOJ’s ar g ument that the statute independently authorizes the Assistant Attorney Ge n e r al to im pose conditions of any kind on grants. 5

4 By contrast, in United States v

. Fl ores , 901 F.3d 1150 (9th Cir. 2018), we considered a statute listing a num ber of aggravated f

elonies, 8 U.S.C. § 1 101(a)(43), c o n v i c tion of which r endered aliens deportable. 8 U.S.C. § 1101(a)(43)(G) listed “ a theft offense (including receipt o f stolen property).” Congress’s express i nclusion of an independent crim e requiring separate elem ents of proof led us to conclude that it was at the least am biguous as to whether Congress intended “including” to m ean “ a subset” o r intended to add an independent theft-related crim e to the expanded list of deportable felonies. Flores
, 901 F.3d at 1157–58. And,

as the Board of Im

m igration Ap p eals, t o which we deferred under Ch e vron , noted, § 1101(a)(43)(G) “is not the only entry within 1101(a)(43)’s l i st of aggravated felonies [in which Con g re s s used] the word ‘including’ ‘to cover a broader range of offenses than those previously referenced.’” Flores
, 9 01 F.3 d a t 1 158 (quoting Matter of Alday-Dominguez , 27 I. & N. Dec. 48, 51 n.7 (B.I.A. 2017)).

5 See Oregon v. Trump
,

_

_ F. S upp. 3d __, 2019 W L 3716932, at *11, *13–15 (D. Or. Aug. 7
, 2 0 19), appeal docketed No. 19-35843 (9th Cir. O c t. 4
, 2019); City of Providence v. Barr
, 385 F. Supp. 3d 160, 163–64 (D.R.I. June 10, 2019), appeal docketed sub n om. Cit y o f Providence v. U.S. Dep’t of Justice
, No. 19-1802 (1st Cir. Aug. 19, 2019); City & County ofSan F

rancisco v. Sessions
, 349 F

. Supp. 3d 924, 947 (N.D. Cal. 2018) ( “D O J’s interpretation that S ection 10102 establishes an independent grant of authority to im pose the challenged conditions contradicts the plain m eaning of the statute.”), appeal docketed sub nom. City & County ofS

an Francisco v. Whitaker
, No. 18-17308 (9th Cir. Dec. 4, 2018); States of

New York v. Dep’t of

Justice
, 343 F. Supp. 3 d 213, 2 2 8 (S.D.N.Y. 2018) (holding that § 10102(a)(6) i s not a “stand-alone grant o f authority to the Assistant Attorney General to attach any conditions to any grants” (quoting City of Chicago
, 888 F.3d at 285)), appeal docketed sub

nom. City of New York v. W hitaker
, No. 19-275 (2d Cir. J a n

. 28, 2019); City of Chicago v. Sessions
, 321 F. Sup p

. 3 d 8 55, 874 (N.D. Ill. 2018); City of Chicago v. Sessions
, 264 F. Supp. 3d 933, 941–43 (N.D. Ill. 2017)C I TY O F L O S A N GE L E S V

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The DOJ’s interpretation of § 10102(a)(6) is at o dds with the very structure and purpose o f § 1 0102

. See Gonzales
, 546 U.S. at 273 (“[S]tatutes should not be read as a series o f unrelated and isolated provisions.” (internal quotation m arks

om itted)). Section 10102 d e l i neates the “duties and functions” of the Assistant Attorney General for the Office o f Justi ce Program s, m

uch like other “duties and functions”
statutes concerning persons wh o m anage agency program s. See, e.g. , 3 4 U.S.C. § 10444 (duties and functions of Director of Violence Against Wo me n Office), § 11293 (duties and functions o f the Adm inistrato r o f the Office of Juvenile Justice and Delinquency Pr evention). The first five provisions of § 10102(a) describe the Assistant Attorney G en eral’s various adm inistrative duties, f rom “coordinat[ in g ] and provid[ing] staff support to coordinate the activities” o f other DOJ o ffices to “m aintain[ing] liaison with public and private educational and research institutions, State and local
governm ents, and g overnm ents of other nations relating to crim inal justice.” Id

. § 10102(a)(1)–(5). The sixth provision, § 10102(a)(6), is a ca t ch-all provision, sim ply recognizing that the Assist an t Attorney General can also exercise such oth e r powers and functions as m ay be delegated by other authorities—e ither by C ongress in C h apter 101 o r by the Attorney General. “The ‘including’ phrase is tacked on to that.” C ity of Chicago , 888 F.3d at 285.

As all other courts have found, it is inconceivable that Congress im

plicitly intended to delegate any independent

(subsequent history om i tted); City of Philadelphia v. S essions
, 3 0 9 F. Supp. 3d 289, 3 21 (E.D. Pa. 2018), aff’d in part, vacated i n part sub nom. City of Philadelphia v. Attorney Gen. , 916 F.3d 276 (3d Cir. 2019); City of Philadelphia v. Sessions
, 280 F. Supp. 3d 579, 616–17 (E.D. Pa. 2017) (subsequent history om itted).C I TY O F L O S A N GE L E S V

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powers in this residual clause. “A clause in a catch-all provision at the end of a list of explicit po we rs would be an odd p lace indeed to p ut a sweeping p o we r to im pose a ny conditions on any grants—a power m uch m ore signifi cant than all of the duties and powers that precede it in the listing

. . . .” Id. (em

phasis in original); see City of Philadelph i a , 916 F.3d at 288 (“Given the m inisterial nature of the powers in the preceding five subsections, we would be h esitant to find such a sweeping g rant of authority in the sixth subsection absent clear language to support that interpretation.”). Congress does not hide such broad p owers in such ancillary provision s. See Whitman v. Am. Trucking A ss’ns
, 531 U.S. 457, 468 (2001) (“Congress

. . . does not alter the fundam ental details of a regulatory schem e in vague term s o r ancillary provisions—it does not, one m ight say, hide elephants in m ouseholes.”).

The DOJ’s interpretation of § 10102(a)(6) also interferes with th e Byrne JAG program ’s form ula grant structure. Congress created specific, objective eligibility criteria and a form ula to allocate Byrne JAG funds am ong all jurisdictions that m eet that cri t e r ia

. S ee 3 4 U.S.C. § 10156. Congress further cr afted narrow grounds on which the Attorney General is authorized to withhold grant funds to jurisdictions
not supporting specific federal priori t ie s, id

. §§ 10157(b), 12113(e), 20927(a), 30307(e)(2), 40914(b), 60105(c)(2), while ensuring that jurisdictions would r eceive a m inimum grant allocation, id

. § 10156(a)(2). Against the backdrop o f Congress’s precise form ula and express lim its on the Attorney G eneral’s ability to d eviate from that form ula, “it is inconceivable that Congress w ould have anticipated that the Assistant Attorney G eneral could abrogate the entire distribution schem e and deny all funds to states and localities that would qualify under the Byrne JAG statutory provisions,C I TY O F L O S A N GE L E S V

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based o n the Assistant Attorney G eneral’s decision to im pose h is or h er own conditions—the putative authority for which is provided in a different statute.” City of Chicago
, 888 F.3d at 286. 6

“Congress knew h o w to grant such authority, and explicitly did so in another statute within the sam e Act that

a d ded the ‘including’ language” to § 10102(a)(6). Id. at 286–87 (citing the Violence A gainst W om en and Departm ent of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006)); see United States v. Y oussef
, 547 F.3d 1090, 1094–95 (9th Cir. 2008) (noting that C ongress’s

om ission of a term from o ne section and inclusion of that
t e rm i n another “is evidence of Congress’s expressed intent
not to im

pose” that requirem ent on the fir st section). Congress gave the Attorney G eneral the authority to “im pose reasonable conditions on” Violence Against W om en A ct gran ts “ t o ensure that the States m eet statutory, regulatory, and other program requi re m ents.” 34 U.S.C § 10446(e)(3). Additionally, Congress p rovided that the Assistant Attorney G en eral s h a ll establish discretio n a ry g rant p ro g r am s un d er th e Bureau of Justice Assistance, “o n t erm s and conditions determ ined by the [ Assistant Attorney General] to be consistent with part B of sub c h apter V .” 34 U.S.C

6 Indeed, the DOJ’s i nterp retation o f § 10102(a)(6) gives n o weight
t o Congress’s choice to m ake Byrne JAG a form ula grant program

. “If Congress sought to provide [the DOJ] the ability to exercise its judgm ent i n the selection o f the grantees, it would have m ade sense f or it t o d o s o by em ploying the discretionary g rant m odel rather than the form ula grant structure used here.” City o f Chicago
, 8 8 8 F.3d at 286. W ere § 10102(a)(6 ) t o authorize the DOJ “to withhold all funds because a jurisdiction does not certify com pliance with [a policy] of the A ttorney General’s choosing,” it would effectively “turn[] the form ula g r ant into a discretionary one.” City of Philadelphia , 916 F.3d at 290.C I TY O F L O S A N GE L E S V

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§ 10142(2). 7 In contrast to these explicit grants o f authority to im pose conditions on specific grants,

the Byrne JAG statute provides th e Attorney General authority over a carefully delineat ed list of actions, with no such broad authority to im pose r e a sonable conditions. If Congress had want e d t o vest such authority in the Attorney General regarding the Byrne J A G
gr ant, one would expect it to include explicit language in the grant statute itself, as it did in the Violence Against W ome n Act. The Attorney General’s argum en t that such sweeping au thority o ver the m ajor source o f funding for law enforcem ent ag e n cies nationwi de was provided to the Assistant At torney General b y m erely adding a clau s e to a sentence in a list of otherwise-m inisterial powers defies reason.

City of Chicago
, 888 F.3d at 287.

Yet, in d icta, unn e c e s s ary to its h olding, the m ajority

seem s to adopt the DOJ’s “independent power” construction of § 10102(a)(6), writing in passing th a t “the Attorney General and the Assistant [Attorney G eneral for the Office o f Justice Pr o g r am s] through delegation have the authority to

7 Congress transferred t

he functions of the Director of Bureau o f Justice A ssistance to th e A s s istant Attorney General for the Office o f Ju s t i c e Program s, with exceptions not r elevant here. See Consolidated Appropriations A ct, 2 000, Pub. L. No. 106-113, 113 Stat. 15 01 (1999) (note regarding 42 U.S.C. § 3 741, which was tra n s fe rred to 3 4 U.S.C. § 10141).C I TY O F L O S A N GE L E S V

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im pose special conditions on all grants and determ ine priority
purposes f

or form ula grants, as thos e t e rm s are properly circum scribed.” Majority Op. at 26; see id

. at 17, 21, 24 n.14, 2 6 (referring to the Assistant AG’s “power” to imp os e special co n ditions under § 10102(a)(6)). 8 S ee In re Magnacom Wireless, LLC
, 5 03 F.3d 9 84, 993–94 (9th Cir. 2007) (“[S]tatem ents m ade in passing, with o u t analysis, are not b inding precedent.”); se e a lso United States v. Johnson
, 256 F.3d 895, 914 (9th C ir. 2001) (en banc) ( o pi n ion o f Kozinski, J.) (“[W ]here a panel confronts an i ss ue germ ane to the eventual resolution of the case, an d r e s olves it after reasoned consideration in a published o p inion, that ruling becom es the l aw o f the circuit

. . . .”). While the m ajority characterizes its discussion as a r e sponse to a “threshold
argum ent,” it is nothing of the sort. Majority Op. at 16. All that is necessary to decide this c as e is the conclusion, upon which we all agree, that § 1 01 0 2 (a)(6) does not perm it the Assistant AG to im

p ose the no t ice and access conditions at issue here.

In its digression fr o m the issue at hand, the m ajority places great weigh t o n its contention that the “including” clause m ust h ave been intended as a grant of authority, o r else the 2006 am endm ent adding th e c l au se would have no

m eaning. Majority Op. at 16–17. The m ajority identifies no other supp o rt for its suggestion of a grant of independent
powers. The m ajority’s concern that a contrary reading o f this residual clause would deprive it of m eaning rings hollow,

8 The m ajority never identifies any language in § 10102(a)(6), or any other statute, t o support i ts untethered statem ent that § 10102(a)(6) grants the Attorney General any authority. Majority O p. at 26. W hile the DOJ
argues that § 10102(a)(6) grants the Assistant Attorney General authority, it never suggests that this authority extends to the Attorney General.C I TY O F L O S A N GE L E S V

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given that the m ajority’s interpretative dictum would render superfluous num erous statutes in which Congres s e xp ressly authorized the Attorney General to withhold a set p ercentage

o f Byrne JAG funds f

or a specified purpose. See 34 U

. S. C. §§ 1 0 1 57(b), 12113(e), 20927(a), 30307(e)(2), 40914(b), 60105(c)(2). As the Third Circuit n oted, “[i]f Congress had already given the [ Assistant] Attorney General this sweeping authority to withhold all f unds for any reason [by im posing special conditions], it would have no need to delineate

num erous, specific circum stances under which the Attorney General m ay withhold lim ited am oun t s o f funds.” City of Philadelphia
, 916 F.3d at 286. W e generally do not interpret such an c i l lary m inisterial provisions to render superfluous Congress’s m ore specifi c d elegations of power. See Gonzales
, 546 U.S. at 262 (“It would be anom alous for Congress t o have so painstakingly described the Attorney General’s lim ited authority to deregister a single physician o r schedule a single drug, but to h a ve g i ven him
, just by im plication, authority to d eclare an entire class o f a c t i vity outside ‘the course of professional practice,’ and therefore a crim inal violation of the CSA.”). The notion that through this “includin g ” clau se C o n gress g ranted independent authority to withhold all funds as to a specific grantee is absurd given that elsewhere Congress explicitl y g a ve the Attorney General authority to wi thhold funds only in lim ited circum stances. See City of Chicago
, 888 F.3d at 285 (recogniz i n g that such “a power granted t o the Assistant Attorney General

. . . was not granted t o the Attorney General”); U nited States v. Wilson
, 503 U.S. 329, 3 3 4 (1992) (noting that statutory interpretation that leads to absurd results is to be avoided).

In contrast, interpretin g th e “ in clu d in g ” clau se to illu strate p owers already vested in the Assistant Attorney Genera l o r the Attorney General is consistent w ith Congress’s p r e c iseC I TY O F L O S A N GE L E S V

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grants of power over the Byrne JAG program to the Attorney Ge n e r a l. And, as the City identified, various statutes in Chapter 1 01 of Title 34 authorize the Attorney General or the Assistant Atto rn e y G en eral to im p ose term s and conditions on other grants. See, e.g. , 34 U.S.C. §§ 10142(2), 10446(e)(3). The authority t o im

pose conditions clearly includes the authority to im

pose special conditions. 9 Thus, § 10102(a)(6)

m akes clear that the Attorney Gen e r al c an delegate such authority to the Assistant Attorney Ge n eral, and that exercising such authorit y i s part of the Assistant Attorney Gen eral’s “d

uties and f unctions.” This interpretation satisfies “our duty ‘to give effect, if possible, to every clause and word of a statute,’ rather than to em asculate an entire section.” United States v. Menasche
, 34 8 U.S. 528, 5 38–39 (1955) (citation o m itted). That the “including” clause m ay s i mply “re mo v e doubt” that the A ssistant Attorney General can, under som e ci rcum stances, im pose special conditions and determ ine p riority purposes does n ot render the clause

m eaningless. See Marx v. Gen. Revenue Corp.
, 568 U .S. 371, 385 (2013) (concluding that “the phrase ‘and costs’ would not be superfluous if Congress included it to rem ove doubt that defendants m ay recover costs” under the circum stances set forth in the statute). Even if this interpretation m akes C o n g re s s’ s a d d i t i o n o f th e “ i n c l u d i n g ” c l au s e t o § 10102(a)(6) som ewhat redundant, the addition o f incidental language with little m eaning does not dem onstr a te intent to grant th e As s istant Attorney General sweeping authority to im pose special conditions on all Offi c e of Justice Program

9 Because other statutes in Chapter 1 0 1 provide the DOJ with authori ty t o i m

pose special conditions, the m ajority is sim p ly wrong to contend that the City of Los Angeles’s reading of the “including” clause would “authoriz[e] the Assistant AG t o exercise certain powers that do not exist.” Majority Op. at 16–17.C I TY O F L O S A N GE L E S V

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adm inist er e d grants. See Conn. Nat’l Bank v. Germain
, 503 U.S. 2 49, 253 (1992) (“Redundancies across statutes are not unusual events i n dr a f ting

. . . .”). The m ajority fails to confront the ancillary nature of the “including” clause.

The m ajority’s drift is pernicious because the distinction it seem ingly draws is between special conditions im posed on individual Byrne JAG grantees, which it suggests are lawful, as opposed to conditions im posed on all grantees, which are
not. See, e.g. , Majorit y O p. at 22 (“[Section] 10102(a)(6) does not authorize DOJ to require all recipients of Byrne JAG funding to com

ply with the notice and access conditions.”). This sweeping characterizati o n i s far from a “narrowing construction.” Majori ty Op. at 24. It would subvert Congress’s carefully crafted statutory schem e for federal law enforcem ent grants.

The m ajority protests that it is only recognizing the DOJ’s “lim ited authority to im

pose special conditions designed to

m eet the needs for carrying out the Byrne J AG p ro g ram

. ” Majority O p. at 24. But what are the lim its of that authority? Beyond s t ating nebulously that “special conditions” refer to “individualized requirem ents” created in response to “certain risk factors” or “idiosyncratic issues,” the m ajority p rovides

no further guidance. 1 0 Majority Op. at 21, 26. It therefore
opens the door for the A ssistant Attorney General to lay down
any num ber of conditions not contem plated or authorized by Congress, as long as they are im posed on an individual basis

10 W hile t

h e m ajority suggests that Congress’s use of th e term “special conditions” w as inform ed by a s i nce-repealed regulation, 28 C.F.R. § 66.12(a)(5) (2006), Majority O p. at 19–21, it conspicuously does not lim it the Assistant Attorney General to im p osing only the types of conditions provided for by that regulation.C I TY O F L O S A N GE L E S V

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and can som ehow be said to be “designed to me e t the needs for carrying out the Byrne JAG program .” This essentially lim itless authority “is a trem endous power of widespread im pact,” and, aga i n , “is not the type of authority that would be h idden in a clause without

. . . explanation, [or] without
any reference or acknowledgm ent of that authority in the
statute that actually contains the grant itself. ” City of Chicago
, 888 F.3d at 287.

The Byrne JAG program is the prim ary provider o f federal crim inal justice funding to state and lo cal
governm ents. 1 1 Congress’s articulated goal for Byrne JAG grants was to provide S tates and localities with flexibility to ad dress their local crim inal justice needs, specifically t hro u g h funds for “additional personnel, equipm e n t, supplies,
contractu a l support, training, technical assistance, and inform ation system s f

o r cr i m inal justice.” 3 4 U.S.C. § 10152(a)(1); see also H.R. Rep. No. 109-233, at 89 (2005) (stating that the n ew Byrne JAG program was m eant to “give State and local governm ents m ore flexibility to spend m oney for program s that work for them ”). The m ajority’s dicta, if it

were to becom e law, would allow any Assistant Attorney General for the Office of Justi c e Pr o g ram s to set special

c onditions or funding priorities o n specific grantees, thu s thwarting Congress’s m andate and furthering its own desired policy goals. This supposed power could be wielded o ver all congressionally enacted g rants adm inistered by the Office o f

11 See Edward Byrne Mem orial Justice Assistance Grant Program FY 2017 Local Solicitation, U.S. Dep’t of Justice (Aug. 3, 2017).C I TY O F L O S A N GE L E S V

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Justice Program s, worth upwards of $1.2 billion in f iscal year 2018. 1 2

The enorm ous im

pact o f such potential authority left our sister circuits firm ly convinced that the plain langua g e o f § 10102(a)(6) could not support the DOJ’s claim ed authority. I would join them
, and respectfully disagree with the portions of the m ajority opinion that seem ingly find m o r e c apacious
powers be s towed by the “including” clause within § 10102(a)(6)’s residual clause.

12 See FY 2020 Performance Budget
, Office of Justice Program s ( U

. S

. D e p ’ t o f J u s t i c e )
, M a r c h 2 0 1 9
, a t 4 0
, 4 4
, https://www.justice.gov/file/1144566/download (l ast visited July 29, 2019).