FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CITY OF LOS ANGELES,

Plaintiff-Appellee,

v.

WILLIAM P. BARR, Attorney

General; ALAN R. HANSON, in his

official capacity as Acting Assistant

Attorney General of the Office of

Justice Programs; RUSSELL

WASHINGTON, in his official

capacity as Acting Director of the

Office of Community Oriented

Policing Services; UNITED STATES

DEPARTMENT OF JUSTICE,

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 Submitted April 10, 2019

Pasadena, California

Filed October 31, 2019
2 CITY OF LOS ANGELES V. BARR

Before: Kim McLane Wardlaw, Jay S. Bybee, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta;

Concurrence by Judge Wardlaw

SUMMARY*

Standing / Federal Grants

The panel affirmed the district court’s preliminary

injunction entered against the U.S. Department of Justice

(“DOJ”)’s use of the notice and access conditions imposed on

recipients of Edward Byrne Memorial Justice Assistance

Grant Program (“Byrne JAG”) formula grants.

Byrne JAG authorized the U.S. Attorney General to make

grants to state and local governments for criminal justice

programs. The authorizing statute allowed the Attorney

General to depart from the statutory formula award in certain

circumstances. DOJ’s Office of Justice Programs imposed

two new conditions for Byrne JAG funding for fiscal year

2017: the “notice condition,” which required a recipient to

honor the Department of Homeland Security’s requests for

advance notice of release times of detained aliens in the

recipient’s correctional facilities; and the “access condition,”

which required a recipient to give federal agents access to

correctional facilities to meet with detained aliens, or

individuals believed to be aliens. The City of Los Angeles

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
CITY OF LOS ANGELES V. BARR 3

filed this suit against DOJ, seeking an injunction against

implementation of the notice and access conditions.

DOJ first argued that the notice and access conditions

were within the Assistant Attorney General’s authority under

a 2006 amendment to § 10102(a)(6) in the Violence Against

Women and Department of Justice Act of 2005. The panel

rejected Los Angeles’s threshold argument that Congress’s

amendment to § 10102(a)(6) did not give the DOJ any

independent authority or power; and held that § 10102(a)(6)

confirmed DOJ’s authority to place “special conditions on all

grants” and determine “priority purposes for formula grants.” 

The panel held that § 10102(a)(6) did not authorize DOJ to

require all recipients of Byrne JAG funding to comply with

the notice and access condition. Specifically, first, the panel

held that the notice and access conditions were not “special

conditions” because they were not conditions triggered by

specific characteristics not addressed by established

conditions. Second, the panel held that priority purposes

must be chosen from among the various possible purposes of

a Byrne JAG award as set forth in § 10152(a). The panel

concluded that because the notice and access conditions met

neither of these definitions, DOJ lacked statutory authority to

impose them under § 10102(a)(6). The panel agreed with

sister circuits that held that § 10102(a)(6) did not give the

Assistant Attorney General broad authority to impose any

condition it chose on a Byrne JAG award.

The panel next rejected DOJ’s argument that the propriety

of the notice and access conditions were further supported by

provisions in the Byrne JAG statute that authorize the

Attorney General to obtain certain information and require

coordination with agencies. See 34 U.S.C. § 10153(a)(4), (5). 

First, the panel held that because the Department of
4 CITY OF LOS ANGELES V. BARR

Homeland Security requests for notice of the release of a

detained alien did not relate to a program funded by Byrne

JAG, the notice condition did not require “programmatic”

information under § 10153(a)(4). Second, the panel held that

§ 10153(a)(5)(C), which required a grant recipient to certify

that “there has been appropriate coordination with affected

agencies,” did not give the Attorney General authority to

impose the access condition.

The panel held that because none of DOJ’s proffered

bases for statutory authority gave the Attorney General or the

Assistant Attorney General the power to impose the notice

and access conditions, the conditions were ultra vires.

Judge Wardlaw concurred with the majority to the extent

that it held that the challenged immigration conditions were

not authorized by Congress, and were unlawful. Judge

Wardlaw wrote that everything else that the majority wrote

about 34 U.S.C. § 10102(a)(6) was unnecessary to the

decision, and dicta.
CITY OF LOS ANGELES V. BARR 5

COUNSEL

Jesse Panuccio (argued), Associate Attorney General; Mark

B. Stern, Daniel Tenny, Katherin Twomey Allen, Laura E.

Myron, and Brad Hinshelwood, Appellate Staff; Hashim M.

Mooppan, Deputy Assistant Attorney General; Nicola T.

Hanna, United States Attorney; Joseph H. Hunt, Assistant

Attorney General; Civil Division, United States Department

of Justice, Washington, D.C.; for Defendants-Appellants.

Neema T. Sahni (argued), Mitchell A. Kamin, and Mónica

Ramirez Almadani, Covington & Burling LLP, Los Angeles,

California; David M. Zionts, Ivano M. Ventresca, and

Benjamin L. Cavataro, Covington & Burling LLP,

Washington, D.C.; Michael N. Feuer, City Attorney; James

P. Clark, Chief Deputy City Attorney; Leela A. Kapur,

Executive Assistant 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 Daniel R. Suvor, O’Melveny & Myers

LLP, Los Angeles, California, for Amici Curiae 20 Counties

and Cities, Metropolitan Area Planning Council, and

International Municipal Lawyers Association.
6 CITY OF LOS ANGELES V. BARR

OPINION

IKUTA, Circuit Judge:

This appeal raises the question whether the Department of

Justice (DOJ) can require recipients of a formula grant under

the Edward Byrne Memorial Justice Assistance Grant

Program(Byrne JAG), 34 U.S.C. §§ 10151–10158, to comply

with Department of Homeland Security (DHS) requests for

notice of a detained alien’s release date and time and to allow

DHS agents access to detained aliens upon request. We

conclude that DOJ lacks statutory authority to impose these

conditions on recipients of Byrne JAG formula grants.

I

Congress established Byrne JAG in 2006 as part of the

Violence Against Women and Department of Justice

Reauthorization Act of 2005, Pub. L. No. 109-162, § 1111,

119 Stat. 2960, 3094 (2006); see also 34 U.S.C.

§ 10151(b)(1). Byrne JAG authorized the Attorney General

to make grants to state and local governments for “additional

personnel, equipment, supplies, contractual support, training,

technical assistance, and information systems for criminal

justice, including for any one or more of” eight programs. 

34 U.S.C. § 10152(a)(1). Under this umbrella, eight different

types of “programs” can be funded, including, for example,

“[l]aw enforcement programs,” “[p]rosecution and court

programs,” and “[d]rug treatment and enforcement

programs.” Id.1 Congress also established that the Attorney

1 The eight different types of “programs” include (1) “[l]aw

enforcement programs,” (2) “[p]rosecution and court programs,”

(3) “[p]revention and education programs,” (4) “[c]orrections and
CITY OF LOS ANGELES V. BARR 7

General could make Byrne JAG awards for any purpose that

would have been authorized under Byrne JAG’s two

predecessor programs, the former Edward Byrne Memorial

State and Local Law Enforcement Assistance Programs

(LEAP) and the Local Government Law Enforcement Block

Grants Program, both of which provided funding to state and

local governments for various law-enforcement-related

purposes. Id. § 10152(a)(2); see also id. § 10151(b)(1).

Byrne JAG is administered by the Office of Justice

Programs (OJP), a DOJ department headed by an Assistant

Attorney General for OJP (referred to here as the “Assistant

AG”) that administers a variety of grant programs. See id.

§§ 10101, 10110(1).2 The Attorney General has “final

authority over all functions” of OJP, including making grants. 

Id. § 10110(2). Under the Attorney General’s final authority,

the Assistant AG has responsibility for several grant

programs, including Byrne JAG. See id. § 10102(a). The

Assistant AG must provide criminal-justice-related

information to the public and government entities, coordinate

efforts between various government organizations, and fulfill

a number of other specified responsibilities. Id.

community corrections programs,” (5) “[d]rug treatment and enforcement

programs,” (6) “[p]lanning, evaluation, and technology improvement

programs,” (7) “[c]rime victim and witness programs,” and (8) “[m]ental

health programs and related law enforcement and corrections programs.” 

34 U.S.C. § 10152(a)(1).

2 The actual administration of Byrne JAG is carried out by the Bureau

of Justice Assistance (BJA), a component organization of OJP. By statute,

a BJA director reports directly to the Assistant AG, see 34 U.S.C.

§ 10141(b), but the majority of the BJA director’s authority has been

transferred directly to the Assistant AG, see Consolidated Appropriations

Act, 2000, Pub. L. No. 106-113, app. A, tit. I, 113 Stat. 1501, 1501A–20

(1999).
8 CITY OF LOS ANGELES V. BARR

§ 10102(a)(1)–(5). Additionally, the Assistant AG must

“exercise such other powers and functions as may be vested

in the Assistant Attorney General pursuant to this chapter or

by delegation of the Attorney General, including placing

special conditions on all grants, and determining priority

purposes for formula grants.” Id. § 10102(a)(6).

Byrne JAG is structured and administered as a formula

grant program. In a formula grant program, Congress

appropriates a set amount of funding and specifies “how the

funds will be allocated among the eligible recipients, as well

as the method by which an applicant must demonstrate its

eligibility for that funding.” Office of Justice Programs,

Grant Process Overview, http://go.usa.gov/xPmkA (last

visited June 28, 2019). Byrne JAG’s statutory formula

awards fifty percent of allocated funds to states based on their

populations relative to the population of the United States,

34 U.S.C. § 10156(a)(1)(A), and the other fifty percent to

states based on their relative rates of violent crime, id.

§ 10156(a)(1)(B). Once funding has been allocated to a

particular state under the formula, forty percent of that

funding is allocated to local governments within the state,3

while the state itself keeps sixty percent. Id. § 10156(b).

The statute authorizes the Attorney General to depart

from this formula in certain circumstances. For example, the

Attorney General can reserve up to five percent of Congress’s

total allocation if deemed necessary to address a significant

increase in crime or to remedy “significant programmatic

harm resulting from operation of the formula.” Id.

§ 10157(b). The Attorney General can also retain up to

3 Like state applicants, local government applicants receive funding

based on their relative rates of violent crime. 34 U.S.C. § 10156(d)(2)(A).
CITY OF LOS ANGELES V. BARR 9

$20 million for use by the National Institute of Justice to

help local governments upgrade their technology, and

can withhold a separate $20 million to support local

governments’ antiterrorism training programs. Id.

§ 10157(a). Additionally, a number of federal statutes

enacted independently of Byrne JAG provide additional

grounds for withholding funds from an applicant. For

instance, the Attorney General has discretion to make up to

a ten percent reduction of a state’s Byrne JAG award if it fails

to comply with federal reporting requirements for deaths that

occurred in state custody, id. § 60105(c)(2), and must reduce

a state’s award by ten percent if it fails to “substantially

implement” the Sex Offender Registration and Notification

Act, id. § 20927(a).

State and local governments must submit an application

for Byrne JAG funding to the Attorney General, who has

discretion to dictate the application’s form. Id. § 10153(a). 

Some requirements for the application are set out by statute. 

The application must include specified certifications and

assurances, including assurances that the applicant will

maintain and report “data, records, and information

(programmatic and financial) as the Attorney General may

reasonably require,” id. § 10153(a)(4), and a certification

“made in a form acceptable to the Attorney General” that the

program to be funded meets Byrne JAG’s requirements, the

application’s information is correct, “there has been

appropriate coordination with affected agencies,” and the

applicant will comply with all applicable federal law, id.

§ 10153(a)(5). Additionally, applicants must submit a

“comprehensive Statewide plan” revealing how Byrne JAG

funds “will be used to improve the administration of the

criminal justice system.” Id. § 10153(a)(6).
10 CITY OF LOS ANGELES V. BARR

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 program development responsibilities, the Attorney

General has developed a grant award document that includes

a long list of requirements and conditions not spelled out in

the Byrne JAG statute itself. The grant award document

warns recipients that the funding is “subject to such

conditions or limitations as are set forth on the attached

page(s).” The conditions listed in the grant award document

vary from year to year and typically cover a wide variety of

subject matter. For example, grant award documents have

required recipients to meet specified information sharing and

information technology systems requirements,to complywith

specified policies relating to human research subjects, and to

participate in various training events, technical assistance

events, and conferences. Other conditions have related more

directly to the use of Byrne JAG funds. For instance, the

grant award document provides that recipients can purchase

only certain types of body armor with Byrne JAG funds. The

Attorney General must comply with general requirements for

managing grants, see 2 C.F.R. § 2800.101, including

“administrative requirements, cost principles and audit

requirements,” id. § 200.100(a)(1).

II

OJP imposed two new conditions for Byrne JAG funding

for fiscal year 2017, both of which were included in the grant

award documents. The first new condition, referred to as the

“notice condition,” required a recipient to honor DHS’s

requests for advance notice of the scheduled release date and

time of any detained alien held in the recipient’s correctional
CITY OF LOS ANGELES V. BARR 11

facilities.4 The second new condition, referred to as the

“access condition,” required a recipient to give federal agents

access to correctional facilities to meet with detained aliens,

or individuals believed to be aliens.5

4

 The notice condition provides:

With respect to the “program or activity” that is funded

(in whole or in part) by this award, as of the date the

recipient accepts this award, and throughout the

remainder of the period of performance for the award –

. . . A local ordinance, -rule, -regulation, -policy, or

-practice (or an applicable State statute, -rule,

-regulation, -policy, or -practice) must be in place that

is designed to ensure that, when a local-government (or

local-government-contracted) correctional facility

receives from DHS a formal written request authorized

by the Immigration and Nationality Act that seeks

advance notice of the scheduled release date and time

for a particular alien in such facility, then such facility

will honor such request and – as early as practicable . . .

– provide the requested notice to DHS.

5

 The access condition provides:

With respect to the “program or activity” that is funded

(in whole or in part) by this award, as of the date the

recipient accepts this award, and throughout the

remainder of the period of performance for the award –

A local ordinance, -rule, -regulation, -policy, or -(or an

applicable State statute, -rule, -regulation, -policy, or

-practice) must be in place that is designed to ensure

that agents of the United States acting under color of

federal law in fact are given access a local-government

(or local-government-contracted) correctional facility

for the purpose of permitting such agents to meet with

individuals who are (or are believed by such agents to

be) aliens and to inquire as to such individuals’ right to

be or remain in the United States.
12 CITY OF LOS ANGELES V. BARR

The grant award document stated that these conditions

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 The document defined

“program or activity” by reference to Title VI, a federal civil

rights law prohibiting discrimination on the basis of race,

color, or national origin in any federally assisted program or

activity. 42 U.S.C. § 2000d-4a. In this context, Congress

defined “program or activity” to mean, in relevant part, “all

of the operations of . . . a department, agency, special purpose

district, or other instrumentality of a State or of a local

government,” or of “the entity of such State or local

government that distributes such assistance and each such

department or agency . . . to which the assistance is

extended.” Id. § 2000d-4a(1)(A)–(B). Finally, the 2017

Byrne JAG award document stated that “[f]ailure to comply

with any one or more of these award requirements” 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 document states:

Compliance with these requirements is an authorized

and priority purpose of this award. To the extent that

such costs are not reimbursed under any other federal

program, award funds may be obligated (including for

authorized reimbursements) for the reasonable,

necessary, and allocable costs (if any) of –

(1) developing and putting into place statutes,

ordinances, rules, regulations, policies, and practices to

satisfy this condition, (2) permitting access as described

in [the access condition], and (3) honoring any request

from DHS that is encompassed [in the notice

condition].
CITY OF LOS ANGELES V. BARR 13

its deputy mayor stating that Los Angeles “is withholding any

commitment to, or confirmation of, its compliance with” the

notice and access conditions. On September 29, 2017, Los

Angeles filed suit against DOJ, seeking an injunction against

implementation of the notice and access conditions. In

connection with this lawsuit, Los Angeles stated it had a

policy against cooperating with federal immigration

enforcement on the ground that “being perceived as a

‘cooperating’ jurisdiction in the view of the current

Administration would harm public safety in Los Angeles”

because it would have a negative impact on police

relationships with immigrant communities.

Following a brief stay pending the Seventh Circuit’s

affirmance and subsequent en banc vacatur of a nationwide

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 vacated in part, No. 17-2991,

2018 WL 4268817 (7th Cir. June 4, 2018), vacated, No. 17-

2991, 2018 WL 4268814 (7th Cir. Aug. 10, 2018), the district

court entered a preliminary injunction against DOJ’s use of

the notice and access conditions on September 13, 2018. 

DOJ appealed, arguing that the district court erred in

determining that Los Angeles was likely to succeed on the

merits of its claim that DOJ lacked statutory authority to

impose the notice and access conditions.

III

We review the district court’s grant of a preliminary

injunction for an abuse of discretion, and we review its

determination of the underlying legal principles de novo. See

DISH Network Corp. v. FCC, 653 F.3d 771, 776 (9th Cir.
14 CITY OF LOS ANGELES V. BARR

2011).7 When an agency is charged with administering a

congressional statute, “both [its] power to act and how [it is]

to act [are] authoritatively prescribed by Congress.” City of

Arlington v. FCC, 569 U.S. 290, 297 (2013). An agency

“literally has no power to act . . . unless and until Congress

confers power upon it.” La. Pub. Serv. Comm’n v. FCC,

476 U.S. 355, 374 (1986).

DOJ advances 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 Assistant AG’s authority under a 2006 amendment

to § 10102(a)(6) enacted by Congress in the Violence Against

Women and Department of Justice Reauthorization Act of

2005, § 1152, 119 Stat. at 3113.8

7 Although DOJ has stated that it will not enforce the notice and

access conditions while this litigation is pending, see Office of Justice

Programs, FY 2017 and FY 2018 JAG Award Special Notices,

https://ojp.gov/funding/Explore/LegalNotices-AwardReqts.htm (last

visited June 26, 2019), such temporary restraint does not amount to a

voluntary cessation of DOJ’s enforcement of the challenged conditions. 

See Fikre v. FBI, 904 F.3d 1033, 1037 (9th Cir. 2018). Therefore, this

case is not moot.

8 Section 10102 is contained in subchapter I of chapter 101. This

subchapter creates OJP, which oversees the management of all grant

programs, both formula and discretionary, including Byrne JAG. (Byrne

JAG is contained in subchapter V of the same chapter.) Section 10102(a)

provides:

The Assistant Attorney General shall –
CITY OF LOS ANGELES V. BARR 15

From its enactment in 1984 and through 2005,

§ 10102(a)(6) provided that the Assistant AG shall “exercise

such other powers and functions as may be vested in the

Assistant Attorney General pursuant to this title or by

delegation of the Attorney General.” See Joint Resolution,

Pub. L. No. 98-473, § 102, 98 Stat. 1837, 2078 (1984). In

2006, Congress amended § 10102(a)(6) to add the phrase

(1) publish and disseminate information on the

conditions and progress of the criminal justice systems;

(2) maintain liaison with the executive and judicial

branches of the Federal and State governments in

matters relating to criminal justice;

(3) provide information to the President, the Congress,

the judiciary, State and local governments, and the

general public relating to criminal justice;

(4) maintain liaison with public and private educational

and research institutions, State and local governments,

and governments of other nations relating to criminal

justice;

(5) coordinate and provide staff support to coordinate

the activities of the Office and the Bureau of Justice

Assistance, the National Institute of Justice, the Bureau

of Justice Statistics, the Office for Victims of Crime,

and the Office of Juvenile Justice and Delinquency

Prevention; and

(6) exercise such other powers and functions as may be

vested in the Assistant Attorney General pursuant to

this chapter or by delegation of the Attorney General,

including placing special conditions on all grants, and

determining priority purposes for formula grants.

34 U.S.C. § 10102(a).
16 CITY OF LOS ANGELES V. BARR

“including placing special conditions on all grants, and

determining priority purposes for formula grants” at the end

of the section. See Violence Against Women and Department

of Justice Reauthorization Act of 2005, § 1152, 119 Stat. at

3113. Accordingly, § 10102(a)(6) now provides that the

Assistant AG must “exercise such other powers and functions

as may be vested in the Assistant Attorney General pursuant

to this chapter or by delegation of the Attorney General,

including placing special conditions on all grants, and

determining priority purposes for formula grants.” 34 U.S.C.

§ 10102(a)(6). DOJ argues that by amending the statute,

Congress gave the Assistant AG the authority to impose

notice and access conditions as “special conditions” on Byrne

JAG awards and to announce the Attorney General’s

determination that such conditions are “priority purposes” of

the awards.

Before considering DOJ’s claim, we first address Los

Angeles’s threshold argument that Congress’s amendment to

§ 10102(a)(6) does not give the DOJ any independent

authority or power. Rather, Los Angeles claims, the statute

merely describes the Assistant AG’s ability to exercise

authority specified elsewhere in the relevant chapter (Chapter

101 of title 34). We disagree. Los Angeles has not identified

(and we have not found) any language in the chapter giving

the Attorney General or the Assistant AG authority to place

“special conditions” or determine “priority purposes” for

grants.9 But by amending § 10102(a)(6), Congress

9 Neither of the sections cited by Los Angeles gives the Assistant AG

authority to place “special conditions” on or determine “priority purposes”

for any grants. Section 10142(2) provides that the BJA may allocate

grants “on terms and conditions determined by the [BJA] Director to be

consistent with part B of subchapter V [Discretionary Grants]”, 34 U.S.C.
CITY OF LOS ANGELES V. BARR 17

affirmatively indicated its understanding that the Assistant

AG’s powers and functions could include “placing special

conditions on all grants, and determining priority purposes for

formula grants.” 34 U.S.C. § 10102(a)(6). Therefore, Los

Angeles’s interpretation deprives the 2006 amendment to

§ 10102(a)(6) of any meaning; in effect, we would have to

conclude that Congress amended § 10102(a)(6) for the

purpose of expressly authorizing the Assistant AG to exercise

certain powers that do not exist. We decline to do so, because

we presume Congress makes amendments with purpose, see

Stone v. INS, 514 U.S. 386, 397 (1995), and it is generally

“our duty to give effect, if possible, to every clause and word

of a statute,” United States v. Menasche, 348 U.S. 528,

538–39 (1955) (internal quotation marks omitted). 

Accordingly, we reject Los Angeles’s construction of the

statute. Consistent with Congress’s amendment, we read

§ 10102(a)(6) as confirming the authority of DOJ to place

“special conditions on all grants” and determine “priority

purposes for formula grants.”

On the other hand, we also disagree with DOJ’s argument

that its notice and access conditions place “special

conditions” on Byrne JAG awards and announce the Attorney

General’s determination that such conditions are “priority

purposes” of the awards. To address this claim, we must first

interpret the terms “special conditions” and “priority

purposes” in § 10102(a)(6). “Canons of statutory

construction help give meaning to a statute’s words. We

§ 10142(2), and § 10446(e)(3) provides that “[i]n disbursing grants under

this subchapter [Grants to Combat Violent Crimes Against Women], the

Attorney General may impose reasonable conditions on grant awards to

ensure that the States meet statutory, regulatory, and other program

requirements,” id. § 10446(e)(3).
18 CITY OF LOS ANGELES V. BARR

begin with the language of the statute.” Wilderness Soc’y v.

U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir.

2003) (citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., Inc., 484 U.S. 49, 56 (1987)). Where the statute does

not define the relevant terms, we give them “their ordinary,

contemporary, common meaning,” and “may consult

dictionary definitions.” Transwestern Pipeline Co. v. 17.19

Acres of Prop. Located in Maricopa Cty., 627 F.3d 1268,

1270 (9th Cir. 2010) (internal quotation marks and citations

omitted). In construing specific words in a statute, we must

also look to the “language and design of the statute as a

whole,” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291

(1988), and read the specific words “with a view to their

place in the overall statutory scheme.” Wilderness Soc’y,

353 F.3d at 1060 (quoting FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 133 (2000)); see also United

States v. Lewis, 67 F.3d 225, 228–29 (9th Cir. 1995)

(“Particular phrases must be construed in light of the overall

purpose and structure of the whole statutory scheme.”). In

every case, “it is the intent of Congress that is the ultimate

touchstone.” Arizona v. United States, 567 U.S. 387, 453

(2012) (Alito, J., concurring in part and dissenting in part)

(internal quotation marks omitted).

The term “special conditions” is not defined in the statute. 

Under the dictionary definition, the term “special” means

“unusual” or “extraordinary,” Special, Black’s Law

Dictionary (9th ed. 2009), or “assigned or provided to meet

a particular need not covered under established procedures,”

Special, Webster’s New Int’l Dictionary (3d ed. 2002). As

this definition of “special” suggests, a “special condition”
CITY OF LOS ANGELES V. BARR 19

would be applied “to meet a particular need” for carrying out

a program that is not covered by established requirements.10

This interpretation of “special conditions” is consistent

with the regulatory backdrop against which Congress enacted

both § 10102(a)(6)’s “including” clause and the Byrne JAG

statutes. See Violence Against Women and Department of

Justice Reauthorization Act of 2005, § 1152, 119 Stat. at

3113. At the time, a regulation setting out “administrative

requirements for grants and cooperative agreements to State

and local governments” provided a definition of the term

“special conditions.” See 28 C.F.R. § 66.12 (2006). The

regulation, titled “[s]pecial grant or subgrant conditions for

‘high-risk’ grantees,” provided that if a grantee was “highrisk,” then “special conditions and/or restrictions shall

correspond to the high risk condition and shall be included in

the award.” Id. § 66.12(a)(5). A grantee could be deemed

high risk if it had a history of noncompliance with grant

requirements, financial stability issues, or other factors that

suggested a propensity toward violation of a grant’s terms. 

Id. § 66.12(a). According to the regulation, “[s]pecial

conditions or restrictions may include (1) [p]ayment on a

reimbursement basis; (2) [w]ithholding authority to proceed

to the next phase until receipt of evidence of acceptable

performance within a given funding period; (3) [r]equiring

additional, more detailed financial reports; (4) [a]dditional

project monitoring; (5) [r]equiring the grantee or sub-grantee

10 The distinction between “special conditions” and established

conditions arises in other contexts, as well. For example, the Federal

Aviation Administration is empowered to issue a special condition—“a

regulation that applies to a particular aircraft design”—when a design’s

novel features take it outside the scope of otherwise appropriate safety

regulations. 14 C.F.R. § 11.19.
20 CITY OF LOS ANGELES V. BARR

to obtain technical or management assistance; or

(6) [e]stablishing additional prior approvals.” Id. § 66.12(b). 

Additionally, the regulation required the awarding agency to

inform the grantee of the reasons for the special conditions

and identify corrective actions the grantee could take to have

the special conditions removed. Id. § 66.12(c).

This regulatory meaning of “special conditions” is

presumed to have informed Congress’s use of the term in

§ 10102(a)(6). See FAA v. Cooper, 566 U.S. 284, 292 (2012)

(“[W]hen Congress employs a term of art, it presumably

knows and adopts the cluster of ideas that were attached to

each borrowed word in the body of learning from which it

was taken.” (internal quotation marks omitted)). This

conclusion is supported by Congress’s use of this term in a

different provision, § 10109, in the subchapter of the statutes

establishing OJP and Byrne JAG, enacted at the same time

Congress establishedByrne JAGand amended § 10102(a)(6). 

In § 10109, Congress provided that an Office of Audit,

Assessment, and Management within the OJP would assess

and review OJP’s grant programs to ensure compliance with

program terms and requirements. See 34 U.S.C. § 10109(a),

(b). When conducting such an audit, the auditing office must

“take special conditions of the grant into account and consult

with the office that issued those conditions to ensure

appropriate compliance.” Id. § 10109(a)(2).11 This usage

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

The purpose of the Office shall be to carry out and

coordinate program assessments of, take actions to

ensure compliance with the terms of, and manage

information with respect to, grants under programs

covered by subsection (b). The Director shall take

special conditions of the grant into account and consult
CITY OF LOS ANGELES V. BARR 21

indicates that “special conditions” were understood to be

individualized requirements included in a specific grant, as

set forth in 28 C.F.R. § 66.12(a)(5) (2006). Otherwise, the

auditor would not need to identify the office that issued the

condition and engage in consultation on the compliance

requirements.

Under the “normal rule of statutory construction,” we

presume that “identical words used in different parts of the

same act are intended to have the same meaning.” Dep’t of

Revenue of Or. v. ACF Indus., 510 U.S. 332, 342 (1994)

(internal quotation marks omitted). Accordingly, we may

presume that Congress intended the use of “special

conditions” in § 10102(a)(6) to have the same meaning as it

has in § 10109(a)(2), namely to refer to individualized

requirements. Therefore, the inclusion of “placing special

conditions on all grants” in § 10102(a)(6) refers to the power

to impose tailored requirements when necessary, such as

when a grantee is “high-risk” pursuant to 28 C.F.R.

§ 66.12(a)(5) (2006).12

We 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,

equipment, supplies, contractual support, training, technical

with the office that issued those conditions to ensure

appropriate compliance.

34 U.S.C. § 10109(a)(2).

12 Congress contemplated that the Assistant AG could place such

conditions on both formula and discretionary grants (“all grants”), but may

determine priority purposes only “for formula grants.” 34 U.S.C.

§ 10102(a)(6).
22 CITY OF LOS ANGELES V. BARR

assistance, and information systems for criminal justice,”

within various programs proposed by applicants. Id.

§ 10152(a)(1). The purposes set forth in the predecessor

grant statutes, LEAP and the Local Government Law

Enforcement Block Grants Program, include funding

“additional personnel, equipment, training, technical

assistance, and information systems” for local government

criminal justice programs, Anti-Drug Abuse Act of 1988,

Pub. L. No. 100-690, § 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 government and federal law enforcement officials “to

prevent and control crime,” among others. H.R. 728, 104th

Cong. § 101(a)(2) (1995); see also Omnibus Consolidated

Rescissions and Appropriations Act of 1996, Pub. L. No. 104-

134, tit. 1, 110 Stat. 1321, 1321–12 (incorporating H.R. 728

by reference). None of the purposes set forth in

§ 10152(a)(1) or the predecessor grant statutes corresponds to

DOJ’s requirement that the recipient honor DHS’s requests

for advance notice of detained aliens’ release dates or allow

federal agents access to correctional facilities to meet with

detained aliens.

In light of our interpretation of “special conditions” and

“priority purposes,” it is clear that § 10102(a)(6) does not

authorize DOJ to require all recipients of Byrne JAG funding

to comply with the notice and access conditions.13 First, the

notice and access conditions are not “special conditions”

because they are not conditions triggered by specific

characteristics not addressed by established conditions, as

13 Therefore, contrary to the concurrence’s characterization of our

holding, we do not adopt DOJ’s interpretation of § 10102(a)(6). 

Concurrence at 40–41.
CITY OF LOS ANGELES V. BARR 23

was the case for high-risk grantees under 28 C.F.R.

§ 66.12(a)(5) (2006). Second, priority purposes must be

chosen from among the various possible purposes of a Byrne

JAG award as set out in § 10152(a). The notice and access

conditions are not included as purposes of the Byrne JAG

award, nor are they purposes of either of its predecessor grant

statutes. Because the notice and access conditions meet

neither of these definitions, DOJ lacked statutory authority to

impose them under § 10102(a)(6). Therefore, we reject

DOJ’s argument that § 10102(a)(6) gives it the authority to

impose the notice and access conditions.

Because we interpret the terms “special conditions” and

“priority purposes” narrowly, we agree with our sister circuits

that § 10102(a)(6) does not give the Assistant AG broad

authority to impose any condition it chooses on a Byrne JAG

award. City 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 any

special conditions on all grants—in a statute outlining

ministerial duties 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 formula grant, see City of

Chicago, 888 F.3d at 285 (noting that “the notion of the broad

grant of authority to impose any conditions on grant

recipients is at odds with the nature of the Byrne JAG grant,

which is a formula grant rather than a discretionary grant”),

and it would render superfluous Congress’s carefully

prescribed conditions under which the Attorney General can

normally 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 address

rapid crime increases or “significant programmatic harm”

caused by the normal operation of the funding formula); id.
24 CITY OF LOS ANGELES V. BARR

§ 30307(e)(2) (providing that a state will lose five percent of

any grant award made under title 34, including Byrne JAG,

if it fails to comply with the national standards set out under

the Prison Rape Elimination Act).14

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

concurrence constructs a strawman argument. It ignores our

actual interpretation of § 10102(a)(6), and instead accuses us

of adopting a “sweeping characterization” of DOJ’s authority,

Concurrence at 44, that allows the “essentially limitless”

imposition of any conditions desired, Concurrence at 44–45

(quoting City of Chicago, 888 F.3d at 287). Based on this

strawman argument, the concurrence then accuses us of

creating a split with our sister circuits, which have rejected

such a broad interpretation. Concurrence at 30, 34–36,

37–38, 42, 44.

While the concurrence has an easy time battering its

strawman, the concurrence fails to explain how our actual

ruling, that DOJ has the limited authority to impose special

conditions designed to meet needs for carrying out the Byrne

JAG program, could abrogate or “subvert” Byrne JAG’s

funding scheme. 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 of

a narrowing construction when considering challenges to

DOJ’s notice and access conditions. Rather, given the issues

14 Moreover, it is unlikely that Congress would recognize such a

broad power in § 10102(a)(6), given the ministerial duties described in the

rest of the section. See City of Philadelphia, 916 F.3d at 288; City of

Chicago, 888 F.3d at 285. By contrast, our more circumscribed

understanding of the power to impose special conditions and determine

priority purposes is in accord with the other administrative duties outlined

in § 10102.
CITY OF LOS ANGELES V. BARR 25

raised by the appeals before them, our sister circuits merely

rejected DOJ’s argument—and the concurrence’s

strawman—that § 10102(a)(6) gives broad authority to

impose any conditions DOJ may choose. The Seventh Circuit

expressly acknowledged that “special conditions” may be a

term of art that “cannot be read as an unbounded authority to

impose ‘any’ conditions generally,” as we have concluded,

but declined to address that potential interpretation of the

term. City of Chicago, 888 F.3d at 285 n.2. Rather, it merely

rejected DOJ’s argument “that the ‘including clause’ itself is

a stand-alone grant of authority to the Assistant Attorney

General to attach any conditions to any grants . . . ,” and it

concluded that § 10102(a)(6) did not give “sweeping power

to impose any conditions on any grants.” Id. at 285; see also

Concurrence at 37–38. Similarly, the Third Circuit

considered the argument that § 10102(a)(6) conferred “a

broad power—the power to place any special conditions on

all grants” on the Assistant AG, “a sweeping grant of

authority.” City of Philadelphia, 916 F.3d at 288; see also

Concurrence at 37–38. In rejecting this broad interpretation,

the court did not have occasion to consider whether the

Attorney General possessed, and therefore could delegate

through § 10102(a)(6), the more modest power to impose

special conditions and designate priority purposes as we

understand those terms. See id. at 287. Given our agreement

with our sister circuits that § 10102(a)(6) does not confer

broad authority on the Assistant AG sufficient to effectively

abrogate the formula grant programCongress has established,

the concurrence is wrong to suggest we are creating a circuit

split. Concurrence at 30.15

15 The concurrence’s disagreement with our interpretation of

§ 10102(a)(6) does not make it dicta. Concurrence at 30, 40–41, 45. 

“[W]here a panel confronts an issue germane to the eventual resolution of
26 CITY OF LOS ANGELES V. BARR

We conclude that the 2006 amendment to § 10102(a)(6)

confirms that the Attorney General and the Assistant AG

through delegation have the authority to impose special

conditions on all grants and determine priority purposes for

formula grants, as those terms are properly circumscribed. 

The notice and access conditions are not special conditions

placed on grants to grantees that exhibit certain risk factors or

have idiosyncratic issues that must be addressed individually. 

Nor are they among the statutorily recognized purposes of a

Byrne JAG award as set out in § 10152(a). Therefore, DOJ

lacked statutory authority to impose them under

§ 10102(a)(6).

B

We next consider DOJ’s argument that the propriety of

the notice and access conditions are further supported by

provisions in the Byrne JAG statute that authorize the

Attorney General to obtain certain information 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 becomes law of the circuit, regardless of whether

doing so is necessary in some strict logical sense.” Cetacean Cmty. v.

Bush, 386 F.3d 1169, 1173 (9th Cir. 2004) (quoting United States v.

Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc) (opinion of

Kozinski, J.)). Only “statements made in passing, without analysis, are

not binding precedent.” In re Magnacom Wireless, LLC, 503 F.3d 984,

993–94 (9th Cir. 2007). In order to resolve the issue on appeal here, we

must construe § 10102(a)(6) to determine whether it gave DOJ any

authority at all, and if so, whether it gave DOJ authority to impose the

notice and access conditions. Our construction of the statutory language,

which leads us to conclude that § 10102(a)(6) gives DOJ some

circumscribed authority, but not the authority to impose the notice and

access conditions, is not dicta under any definition of the term.
CITY OF LOS ANGELES V. BARR 27

(5).16 According to DOJ, the notice condition is authorized

by § 10153(a)(4), which requires a recipient to report certain

programmatic information, and the access condition is

authorized by § 10153(a)(5)(C), which requires a recipient to

coordinate with an “affected agenc[y].”

We disagree. First, § 10153(a)(4) requires the applicant

to maintain and report information that is financial and

“programmatic.” Although the term “programmatic” is not

defined in the statute, the dictionary defines it to mean “of,

resembling, or having a program.” Programmatic, Webster’s

New Int’l Dictionary (3d ed. 2002). Section 10152 sets out

types of “programs” that Byrne JAG may fund, including

“[l]aw enforcement programs,” “[p]revention and education

programs,” and “[d]rug treatment and enforcement

programs.” 34 U.S.C. § 10152(a)(1). Given the use of the

word “program” elsewhere in the same statutory scheme, the

16 Section 10153(a) provides that an application for Byrne JAG

funding must include:

(4) An assurance that, for each fiscal year covered by

an application, the applicant shall maintain and report

such data, records, and information (programmatic and

financial) as the Attorney General may reasonably

require.

(5) A certification, made in a form acceptable to the

Attorney General and executed by the chief executive

officer of the applicant . . . that –

. . .

(C) there has been appropriate coordination with

affected agencies.

34 U.S.C. § 10153(a)(4), (5).
28 CITY OF LOS ANGELES V. BARR

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

a program or programs supported by Byrne JAG funding as

outlined in § 10152(a)(1), such as a particular law

enforcement program or drug treatment program.

17

Accordingly, § 10153(a)(4) merely requires an applicant to

maintain and report information relating to the programs

funded by a Byrne JAG award. Because DHS requests for

notice of the release of a detained alien do not relate to a

program funded by Byrne JAG, the notice condition does not

require “programmatic” information under § 10153(a)(4).

Moreover, the statute speaks of the maintenance and

reporting of data, records, and information “for each fiscal

year covered by an application,” id. § 10153(a)(4), which

contemplates yearly reporting. The notice condition’s

requirement that a recipient have a policy in place requiring

the provision of information to DHS on an ad hoc basis—due

whenever DHS requests—is inconsistent with this statutory

language.

Second, § 10153(a)(5)(C), which requires a grant

recipient to certify that “there has been appropriate

coordination with affected agencies,” does not give the

Attorney General authority to impose the access condition. 

In context, this section requires the grant recipient to certify

that it has coordinated with the agencies affected by the

program to be funded by the Byrne JAG award. This

17 To the extent DOJ argues that “programmatic” should be read as

referring to the definition of “program” set out in 42 U.S.C. § 2000d4a(1)(A), we disagree. The definition of “program” from federal civil

rights law that was incorporated by reference in the 2017 Byrne JAG

award letter is not a reasonable interpretation of the word “program” or

“programmatic” as used in the statutes authorizing Byrne JAG awards.
CITY OF LOS ANGELES V. BARR 29

statutory language does not support DOJ’s interpretation that

a recipient must 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 has been

appropriate coordination”) impose an ongoing obligation on

the applicant to coordinate with DHS agents throughout the

life of the grant, as required under the access condition. Id.

§ 10153(a)(5)(C) (emphasis added). Therefore, the access

condition is not a proper exercise of 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

power to impose the notice and access conditions, the

conditions are ultra vires. See City of Arlington, 569 U.S.

at 297. We affirm the district court.18

AFFIRMED.

WARDLAW, Circuit Judge, concurring in the judgment:

We are faced once again with “the Trump

Administration’s efforts to press state and local police into

federal immigration enforcement,” City of Los Angeles v.

Barr, 929 F.3d 1163, 1183 (9th Cir. 2019) (Wardlaw, J.,

dissenting), this time via an ultra vires attempt to divert

18 Because we affirm the district court on the ground that DOJ lacked

statutory authority to impose the notice and access conditions, we need not

address Los Angeles’s alternative arguments raised on appeal.
30 CITY OF LOS ANGELES V. BARR

Edward Byrne Memorial Justice Assistance Grant Program

(Byrne JAG) funds from their congressionally authorized

purposes. I concur with the majority to the extent it holds

that the challenged immigration conditions were not

authorized by Congress, and are thus unlawful. But once the

majority concluded that the challenged notice and access

conditions are not lawful “special conditions” or “priority

purposes” and were thus beyond the powers granted by

Congress to the Department of Justice, it should have

stopped, as in full stop. Everything else the majority writes

about 34 U.S.C. § 10102(a)(6) is “unnecessary to the decision

in the case and [is] therefore not precedential.” Cetacean

Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir. 2004)

(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 majority are dicta. In dicta,

the majority finds vague, unidentified powers bestowed upon

the DOJ in an illustrative 2006 amendment to a “duties and

functions” statute in a different subchapter of the Act that

established the Byrne JAG program. See Violence Against

Women and Department of Justice Reauthorization Act of

2005, 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 Third and Seventh Circuits have held,

Congress did not grant the Assistant Attorney General for the

Office of Justice Programs any authority independent of that

already vested by a different statute or by delegation to the

Attorney General to impose special conditions and determine

priority purposes in 34 U.S.C. § 10102(a)(6). See City of

Philadelphia v. Attorney Gen., 916 F.3d 276, 287–88 (3d Cir.

2019); City of Chicago v. Sessions, 888 F.3d 272, 284–87
CITY OF LOS ANGELES V. BARR 31

(7th Cir.), vacated in part on other grounds, No. 17-2991,

2018 WL 4268817 (7th Cir. June 4, 2018). The majority at

best misperceives, and at worst, falsely characterizes, these

holdings, describing them as rejecting only a “broad

interpretation” of § 10102(a)(6) as authorizing the DOJ to

impose “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) provides any independent grant of

authority, broad or narrow—a conclusion that the majority

suggests is incorrect.

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

power to act . . . unless and until Congress confers power

upon it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374

(1986). The DOJ “does not claim to possess inherent

executive authority to impose the grant conditions, and

instead recognizes that the authority must originate from

Congress.” City of Chicago, 888 F.3d at 283. Both the Third

and the Seventh Circuits rejected outright the argument that

the DOJ makes here, that a residual clause of § 10102, which

describes the duties and functions of the Assistant Attorney

General for the Office of Justice Programs, 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 disseminate information on

the conditions and progress of the criminal

justice systems;
32 CITY OF LOS ANGELES V. BARR

(2) maintain liaison with the executive and

judicial branches of the Federal and State

governments in matters relating to criminal

justice;

(3) provide information to the President, the

Congress, the judiciary, State and local

governments, and the general public relating

to criminal justice;

(4) maintain liaison with public and private

educational and research institutions, State

and local governments, and governments of

other nations relating to criminal justice;

(5) coordinate and provide staff support to

coordinate the activities of the Office and the

Bureau of Justice Assistance, the National

Institute of Justice, the Bureau of Justice

Statistics, the Office for Victims of Crime,

and the Office of Juvenile Justice and

Delinquency Prevention; and

(6) exercise such other powers and functions

as may be vested in the Assistant Attorney

General pursuant to this chapter or by

delegation of the Attorney General, including

placing special conditions on all grants, and

determining priority purposes for formula

grants.
CITY OF LOS ANGELES V. BARR 33

34 U.S.C. § 10102(a) (emphasis added).1 The DOJ contends

that the bolded language independently authorizes the

Assistant Attorney General to impose any special conditions

he sees fit, as to any grant administered by the Office of

Justice Programs, so long as the condition is “germane” to the

grant program or to “law enforcement” more generally.2

Practically speaking, the DOJ argues that the Assistant

Attorney General for the Office of Justice Programs can

impose almost any “special condition” on any grant the

Office of Justice Programs administers, up to withholding all

grant funds due to a grantee’s failure to comply with the

DOJ’s desired policy.

The DOJ’s interpretation of § 10102(a)(6) conflicts with

the plain language of the statute. See Gonzales v. Oregon,

546 U.S. 243, 258 (2006) (stating that “[t]he starting point”

for the inquiry as to whether Congress delegated any

authority “is, of course, the language of the [alleged]

delegation provision itself”). Specifically, it “runs headlong

into an obstacle: the word ‘including.’” City of Philadelphia,

916 F.3d at 287. We have interpreted “including” as

“ordinarily defined as a term of illustration, signifying that

what follows is an example of the preceding principle.” Ariz.

State Bd. for Charter Schs. v. U.S. Dep’t of Educ., 464 F.3d

1003, 1007 (9th Cir. 2006); see Fed. Land Bank of St. Paul v.

Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (“[T]he term

1 This statute appears in Subchapter I, Chapter 101 of 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 See Recording of Oral Argument, City of Los Angeles v.

Barr, No. 18-56292 (9th Cir. Apr. 10, 2019), at 6:25–7:22,

http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000015483.
34 CITY OF LOS ANGELES V. BARR

‘including’ is not one of all-embracing definition, but

connotes simply an illustrative application of the general

principle.”).3 Analyzing Congress’s use of the word

“including” in § 10102(a)(6), the Third and Seventh Circuits

came to the same conclusion. See City of Philadelphia,

916 F.3d at 287 (reasoning that “including” “is used to denote

something that is within a larger whole”); City of Chicago,

888 F.3d at 284 (“The word ‘including’ by definition is used

to designate that a person or thing is part of a particular

group.”).

The Seventh Circuit reasoned that the plain meaning of

“including” in § 10102(a)(6)

is to set forth a subcategory of the types of

powers and functions that the Assistant

Attorney General may exercise when vested

in the Assistant Attorney General either by the

terms of this chapter or by delegation of the

Attorney General. . . . [Because the DOJ] does

not even claim that the power exercised here

[to impose 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 Assistant

Attorney General . . . the [DOJ’s] argument is

that the “including” clause itself is a standalone grant of authority to the Assistant

3 Dictionary definitions confirm this understanding of the word

“including.” See Include, Webster’s New Int’l Dictionary (3d ed. 2002)

(“to place, list, or rate as a part of component of a whole or of a larger

group, class, or aggregate”); Including, New Oxford Am. Dictionary (3d

ed. 2010) (“containing as part of the whole being considered”).
CITY OF LOS ANGELES V. BARR 35

Attorney General to attach any conditions to

any grants in that subchapter or other

subchapters even though that authority is not

otherwise provided in the chapter and is not

possessed by the Attorney General. Because

that interpretation is so obviously belied by

the plain meaning of the word “including,” the

Attorney General’s position is untenable.

City of Chicago, 888 F.3d at 285. The Third Circuit agreed

that

“including” signifies that the Special

Conditions Clause is part of “such other

powers and functions as may be vested in the

Assistant Attorney General pursuant to this

chapter or by delegation of the Attorney

General.” 34 U.S.C. § 10102(a)(6) (emphasis

added). Therefore, under the plain text of this

provision, the [Assistant Attorney General]

has the power to place special conditions on

grants only to the extent that such power has

been vested in him or her “pursuant to this

chapter or by delegation of the Attorney

General.” . . . [T]he broad authority [the DOJ]

urges has not been vested in the Attorney

General or the [Assistant Attorney General] in

the Byrne JAG statute or anywhere else in the

United States Code. Therefore, the Special

Conditions Clause cannot authorize this

power on its own.

City of Philadelphia, 916 F.3d at 287–88. Here, nothing in

the statute evinces a congressional intent to use the word
36 CITY OF LOS ANGELES V. BARR

“including” to mean anything other than its ordinary

definition.4 All other courts to consider § 10102(a)(6) have

similarly rejected the DOJ’s argument that the statute

independently authorizes the Assistant Attorney General to

impose conditions of any kind on grants.5

4 By contrast, in United States v. Flores, 901 F.3d 1150 (9th Cir.

2018), we considered a statute listing a number of aggravated felonies,

8 U.S.C. § 1101(a)(43), conviction of which rendered aliens deportable. 

8 U.S.C. § 1101(a)(43)(G) listed “a theft offense (including receipt of

stolen property).” Congress’s express inclusion of an independent crime

requiring separate elements of proof led us to conclude that it was at the

least ambiguous as to whether Congress intended “including” to mean “a

subset” or intended to add an independent theft-related crime to the

expanded list of deportable felonies. Flores, 901 F.3d at 1157–58. And,

as the Board of Immigration Appeals, to which we deferred under

Chevron, noted, § 1101(a)(43)(G) “is not the only entry within

1101(a)(43)’s list of aggravated felonies [in which Congress used] the

word ‘including’ ‘to cover a broader range of offenses than those

previously referenced.’” Flores, 901 F.3d at 1158 (quoting Matter of

Alday-Dominguez, 27 I. & N. Dec. 48, 51 n.7 (B.I.A. 2017)).

5

See Oregon v. Trump, __ F. Supp. 3d __, 2019 WL 3716932, at *11,

*13–15 (D. Or. Aug. 7, 2019), appeal docketed No. 19-35843 (9th Cir.

Oct. 4, 2019); City of Providence v. Barr, 385 F. Supp. 3d 160, 163–64

(D.R.I. June 10, 2019), appeal docketed sub nom. City of Providence v.

U.S. Dep’t of Justice, No. 19-1802 (1st Cir. Aug. 19, 2019); City &

County of San Francisco v. Sessions, 349 F. Supp. 3d 924, 947 (N.D. Cal.

2018) (“DOJ’s interpretation that Section 10102 establishes an

independent grant of authority to impose the challenged conditions

contradicts the plain meaning of the statute.”), appeal docketed sub nom.

City & County of San Francisco v. Whitaker, No. 18-17308 (9th Cir. Dec.

4, 2018); States of New York v. Dep’t of Justice, 343 F. Supp. 3d 213, 228

(S.D.N.Y. 2018) (holding that § 10102(a)(6) is not a “stand-alone grant of

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. Whitaker, No. 19-275 (2d Cir. Jan. 28, 2019);

City of Chicago v. Sessions, 321 F. Supp. 3d 855, 874 (N.D. Ill. 2018);

City of Chicago v. Sessions, 264 F. Supp. 3d 933, 941–43 (N.D. Ill. 2017)
CITY OF LOS ANGELES V. BARR 37

The DOJ’s interpretation of § 10102(a)(6) is at odds with

the very structure and purpose of § 10102. See Gonzales,

546 U.S. at 273 (“[S]tatutes should not be read as a series of

unrelated and isolated provisions.” (internal quotation marks

omitted)). Section 10102 delineates the “duties and

functions” of the Assistant Attorney General for the Office of

Justice Programs, much like other “duties and functions”

statutes concerning persons who manage agency programs. 

See, e.g., 34 U.S.C. § 10444 (duties and functions of Director

of Violence Against Women Office), § 11293 (duties and

functions of the Administrator of the Office of Juvenile

Justice and Delinquency Prevention). The first five

provisions of § 10102(a) describe the Assistant Attorney

General’s various administrative duties, from“coordinat[ing]

and provid[ing] staff support to coordinate the activities” of

other DOJ offices to “maintain[ing] liaison with public and

private educational and research institutions, State and local

governments, and governments of other nations relating to

criminal justice.” Id. § 10102(a)(1)–(5). The sixth provision,

§ 10102(a)(6), is a catch-all provision, simply recognizing

that the Assistant Attorney General can also exercise such

other powers and functions as may be delegated by other

authorities—either by Congress in Chapter 101 or by the

Attorney General. “The ‘including’ phrase is tacked on to

that.” City of Chicago, 888 F.3d at 285.

As all other courts have found, it is inconceivable that

Congress implicitly intended to delegate any independent

(subsequent history omitted); City of Philadelphia v. Sessions, 309 F.

Supp. 3d 289, 321 (E.D. Pa. 2018), aff’d in part, vacated in 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 omitted).
38 CITY OF LOS ANGELES V. BARR

powers in this residual clause. “A clause in a catch-all

provision at the end of a list of explicit powers would be an

odd place indeed to put a sweeping power to impose any

conditions on any grants—a power much more significant

than all of the duties and powers that precede it in the listing

. . . .” Id. (emphasis in original); see City of Philadelphia,

916 F.3d at 288 (“Given the ministerial nature of the powers

in the preceding five subsections, we would be hesitant to

find such a sweeping grant of authority in the sixth subsection

absent clear language to support that interpretation.”). 

Congress does not hide such broad powers in such ancillary

provisions. See Whitman v. Am. Trucking Ass’ns, 531 U.S.

457, 468 (2001) (“Congress . . . does not alter the

fundamental details of a regulatory scheme in vague terms or

ancillary provisions—it does not, one might say, hide

elephants in mouseholes.”).

The DOJ’s interpretation of § 10102(a)(6) also interferes

with the Byrne JAG program’s formula grant structure. 

Congress created specific, objective eligibility criteria and a

formula to allocate Byrne JAG funds among all jurisdictions

that meet that criteria. See 34 U.S.C. § 10156. Congress

further crafted narrow grounds on which the Attorney

General is authorized to withhold grant funds to jurisdictions

not supporting specific federal priorities, id. §§ 10157(b),

12113(e), 20927(a), 30307(e)(2), 40914(b), 60105(c)(2),

while ensuring that jurisdictions would receive a minimum

grant allocation, id. § 10156(a)(2). Against the backdrop of

Congress’s precise formula and express limits on the

Attorney General’s ability to deviate from that formula, “it is

inconceivable that Congress would have anticipated that the

Assistant Attorney General could abrogate the entire

distribution scheme and deny all funds to states and localities

that would qualify under the Byrne JAG statutory provisions,
CITY OF LOS ANGELES V. BARR 39

based on the Assistant Attorney General’s decision to impose

his or her own conditions—the putative authority for which

is provided in a different statute.” City of Chicago, 888 F.3d

at 286.6

“Congress knew how to grant such authority, and

explicitly did so in another statute within the same Act that

added the ‘including’ language” to § 10102(a)(6). Id. at

286–87 (citing the Violence Against Women and Department

of Justice Reauthorization Act of 2005, Pub. L. No. 109-162,

119 Stat. 2960 (2006));see United States v. Youssef, 547 F.3d

1090, 1094–95 (9th Cir. 2008) (noting that Congress’s

omission of a term from one section and inclusion of that

term in another “is evidence of Congress’s expressed intent

not to impose” that requirement on the first section). 

Congress gave the Attorney General the authority to “impose

reasonable conditions on” Violence Against Women Act

grants “to ensure that the States meet statutory, regulatory,

and other program requirements.” 34 U.S.C § 10446(e)(3). 

Additionally, Congress provided that the Assistant Attorney

General shall establish discretionary grant programs under the

Bureau of Justice Assistance, “on terms and conditions

determined by the [Assistant Attorney General] to be

consistent with part B of subchapter V.” 34 U.S.C

6

Indeed, the DOJ’s interpretation of § 10102(a)(6) gives no weight

to Congress’s choice to make Byrne JAG a formula grant program. “If

Congress sought to provide [the DOJ] the ability to exercise its judgment

in the selection of the grantees, it would have made sense for it to do so

by employing the discretionary grant model rather than the formula grant

structure used here.” City of Chicago, 888 F.3d at 286. Were

§ 10102(a)(6) to authorize the DOJ “to withhold all funds because a

jurisdiction does not certify compliance with [a policy] of the Attorney

General’s choosing,” it would effectively “turn[] the formula grant into a

discretionary one.” City of Philadelphia, 916 F.3d at 290.
40 CITY OF LOS ANGELES V. BARR

§ 10142(2).7 In contrast to these explicit grants of authority

to impose conditions on specific grants,

the Byrne JAG statute provides the Attorney

General authority over a carefully delineated

list of actions, with no such broad authority to

impose reasonable conditions. If Congress

had wanted to vest such authority in the

Attorney General regarding the Byrne JAG

grant, one would expect it to include explicit

language in the grant statute itself, as it did in

the Violence Against Women Act. The

Attorney General’s argument that such

sweeping authority over the major source of

funding for law enforcement agencies

nationwide was provided to the Assistant

Attorney General by merely adding a clause

to a sentence in a list of otherwise-ministerial

powers defies reason.

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

Yet, in dicta, unnecessary to its holding, the majority

seems to adopt the DOJ’s “independent power” construction

of § 10102(a)(6), writing in passing that “the Attorney

General and the Assistant [Attorney General for the Office of

Justice Programs] through delegation have the authority to

7 Congress transferred the functions of the Director of Bureau of

Justice Assistance to the Assistant Attorney General for the Office of

Justice Programs, with exceptions not relevant here. See Consolidated

Appropriations Act, 2000, Pub. L. No. 106-113, 113 Stat. 1501 (1999)

(note regarding 42 U.S.C. § 3741, which was transferred to 34 U.S.C.

§ 10141).
CITY OF LOS ANGELES V. BARR 41

impose special conditions on all grants and determine priority

purposes for formula grants, as those terms are properly

circumscribed.” Majority Op. at 26; see id. at 17, 21, 24 n.14,

26 (referring to the Assistant AG’s “power” to impose

special conditions under § 10102(a)(6)).8See In re

Magnacom Wireless, LLC, 503 F.3d 984, 993–94 (9th Cir.

2007) (“[S]tatements made in passing, without analysis, are

not binding precedent.”); see also United States v. Johnson,

256 F.3d 895, 914 (9th Cir. 2001) (en banc) (opinion of

Kozinski, J.) (“[W]here a panel confronts an issue germane

to the eventual resolution of the case, and resolves it after

reasoned consideration in a published opinion, that ruling

becomes the law of the circuit . . . .”). While the majority

characterizes its discussion as a response to a “threshold

argument,” it is nothing of the sort. Majority Op. at 16. All

that is necessary to decide this case is the conclusion, upon

which we all agree, that § 10102(a)(6) does not permit the

Assistant AG to impose the notice and access conditions at

issue here.

In its digression from the issue at hand, the majority

places great weight on its contention that the “including”

clause must have been intended as a grant of authority, or else

the 2006 amendment adding the clause would have no

meaning. Majority Op. at 16–17. The majority identifies no

other support for its suggestion of a grant of independent

powers. The majority’s concern that a contrary reading of

this residual clause would deprive it of meaning rings hollow,

8 The majority never identifies any language in § 10102(a)(6), or any

other statute, to support its untethered statement that § 10102(a)(6) grants

the Attorney General any authority. Majority Op. at 26. While the DOJ

argues that § 10102(a)(6) grants the Assistant Attorney General authority,

it never suggests that this authority extends to the Attorney General.
42 CITY OF LOS ANGELES V. BARR

given that the majority’s interpretative dictum would render

superfluous numerous statutes in which Congress expressly

authorized the Attorney General to withhold a set percentage

of Byrne JAG funds for a specified purpose. See 34 U.S.C.

§§ 10157(b), 12113(e), 20927(a), 30307(e)(2), 40914(b),

60105(c)(2). As the Third Circuit noted, “[i]f Congress had

already given the [Assistant] Attorney General this sweeping

authority to withhold all funds for any reason [by imposing

special conditions], it would have no need to delineate

numerous, specific circumstances under which the Attorney

General may withhold limited amounts of funds.” City of

Philadelphia, 916 F.3d at 286. We generally do not interpret

such ancillary ministerial provisions to render superfluous

Congress’s more specific delegations of power. See

Gonzales, 546 U.S. at 262 (“It would be anomalous for

Congress to have so painstakingly described the Attorney

General’s limited authority to deregister a single physician or

schedule a single drug, but to have given him, just by

implication, authority to declare an entire class of activity

outside ‘the course of professional practice,’ and therefore a

criminal violation of the CSA.”). The notion that through this

“including” clause Congress granted independent authority to

withhold all funds as to a specific grantee is absurd given that

elsewhere Congress explicitly gave the Attorney General

authority to withhold funds only in limited circumstances. 

See City of Chicago, 888 F.3d at 285 (recognizing that such

“a power granted to the Assistant Attorney General . . . was

not granted to the Attorney General”); United States v.

Wilson, 503 U.S. 329, 334 (1992) (noting that statutory

interpretation that leads to absurd results is to be avoided).

In contrast, interpreting the “including” clause to illustrate

powers already vested in the Assistant Attorney General or

the Attorney General is consistent with Congress’s precise
CITY OF LOS ANGELES V. BARR 43

grants of power over the Byrne JAG program to the Attorney

General. And, as the City identified, various statutes in

Chapter 101 of Title 34 authorize the Attorney General or the

AssistantAttorney General to impose terms and conditions on

other grants. See, e.g., 34 U.S.C. §§ 10142(2), 10446(e)(3). 

The authority to impose conditions clearly includes the

authority to impose special conditions.9 Thus, § 10102(a)(6)

makes clear that the Attorney General can delegate such

authority to the Assistant Attorney General, and that

exercising such authority is part of the Assistant Attorney

General’s “duties and functions.” This interpretation satisfies

“our duty ‘to give effect, if possible, to every clause and word

of a statute,’ rather than to emasculate an entire section.” 

United States v. Menasche, 348 U.S. 528, 538–39 (1955)

(citation omitted). That the “including” clause may simply

“remove doubt” that the Assistant Attorney General can,

under some circumstances, impose special conditions and

determine priority purposes does not render the clause

meaningless. 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 remove doubt that

defendants may recover costs” under the circumstances set

forth in the statute). Even if this interpretation makes

Congress’s addition of the “including” clause to

§ 10102(a)(6) somewhat redundant, the addition ofincidental

language with little meaning does not demonstrate intent to

grant the Assistant Attorney General sweeping authority to

impose special conditions on all Office of Justice Program9 Because other statutes in Chapter 101 provide the DOJ with

authority to impose special conditions, the majority is simply wrong to

contend that the City of Los Angeles’s reading of the “including” clause

would “authoriz[e] the Assistant AG to exercise certain powers that do not

exist.” Majority Op. at 16–17.
44 CITY OF LOS ANGELES V. BARR

administered grants. See Conn. Nat’l Bank v. Germain,

503 U.S. 249, 253 (1992) (“Redundancies across statutes are

not unusual events in drafting . . . .”). The majority fails to

confront the ancillary nature of the “including” clause.

The majority’s drift is pernicious because the distinction

it seemingly draws is between special conditions imposed on

individual Byrne JAG grantees, which it suggests are lawful,

as opposed to conditions imposed on all grantees, which are

not. See, e.g., Majority Op. at 22 (“[Section] 10102(a)(6)

does not authorize DOJ to require all recipients of Byrne JAG

funding to comply with the notice and access conditions.”). 

This sweeping characterization is far from a “narrowing

construction.” Majority Op. at 24. It would subvert

Congress’s carefully crafted statutory scheme for federal law

enforcement grants.

The majority protests that it is only recognizing the DOJ’s

“limited authority to impose special conditions designed to

meet the needs for carrying out the Byrne JAG program.” 

Majority Op. at 24. But what are the limits of that authority?

Beyond stating nebulously that “special conditions” refer to

“individualized requirements” created in response to “certain

risk factors” or “idiosyncratic issues,” the majority provides

no further guidance.10 Majority Op. at 21, 26. It therefore

opens the door for the Assistant Attorney General to lay down

any number of conditions not contemplated or authorized by

Congress, as long as they are imposed on an individual basis

10 While the majority suggests that Congress’s use of the term

“special conditions” was informed by a since-repealed regulation,

28 C.F.R. § 66.12(a)(5) (2006), Majority Op. at 19–21, it conspicuously

does not limit the Assistant Attorney General to imposing only the types

of conditions provided for by that regulation.
CITY OF LOS ANGELES V. BARR 45

and can somehow be said to be “designed to meet the needs

for carrying out the Byrne JAG program.” This essentially

limitless authority “is a tremendous power of widespread

impact,” and, again, “is not the type of authority that would

be hidden in a clause without . . . explanation, [or] without

any reference or acknowledgment 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 primary provider of

federal criminal justice funding to state and local

governments.11 Congress’s articulated goal for Byrne JAG

grants was to provide States and localities with flexibility to

address their local criminal justice needs, specifically through

funds for “additional personnel, equipment, supplies,

contractual support, training, technical assistance, and

information systems for criminal justice.” 34 U.S.C.

§ 10152(a)(1); see also H.R. Rep. No. 109-233, at 89 (2005)

(stating that the new Byrne JAG program was meant to “give

State and local governments more flexibility to spend money

for programs that work for them”). The majority’s dicta, if it

were to become law, would allow any Assistant Attorney

General for the Office of Justice Programs to set special

conditions or funding priorities on specific grantees, thus

thwarting Congress’s mandate and furthering its own desired

policy goals. This supposed power could be wielded over all

congressionally enacted grants administered by the Office of

11 See Edward Byrne Memorial Justice Assistance Grant Program FY

2017 Local Solicitation, U.S. Dep’t of Justice (Aug. 3, 2017).
46 CITY OF LOS ANGELES V. BARR

Justice Programs, worth upwards of $1.2 billion in fiscal year

2018.12

The enormous impact of such potential authority left our

sister circuits firmly convinced that the plain language of

§ 10102(a)(6) could not support the DOJ’s claimed authority. 

I would join them, and respectfully disagree with the portions

of the majority opinion that seemingly find more capacious

powers bestowed by the “including” clause within

§ 10102(a)(6)’s residual clause.

12 See FY 2020 Performance Budget, Office of Justice Programs

(U.S. Dep’t of Justice), March 2019, at 40, 44,

https://www.justice.gov/file/1144566/download (last visited July 29,

2019).