Whitehouse Decl. ISO CCSF’s Motion for PI; 

Case # 17-00485

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DENNIS J. HERRERA, State Bar #139669

City Attorney 

JESSE C. SMITH, State Bar #122517 Chief Assistant City Attorney 

RONALD P. FLYNN, State Bar #184186 Chief Deputy City Attorney 

YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation 

CHRISTINE VAN AKEN, State Bar #241755 

TARA M. STEELEY, State Bar #231775

MOLLIE M. LEE, State Bar #251404 SARA J. EISENBERG, State Bar #269303

MATTHEW S. LEE, State Bar #295247 

NEHA GUPTA, State Bar #308864 

Deputy City Attorneys 

City Hall, Room 234 

1 Dr. Carlton B. Goodlett Place 

San Francisco, California 94102-4602 

Telephone: (415) 554-4748 

Facsimile: (415) 554-4715 

E-Mail: brittany.feitelberg@sfgov.org 

Attorneys for Plaintiff 

CITY AND COUNTY OF SAN FRANCISCO 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

CITY AND COUNTY OF SAN 

FRANCISCO, 

 Plaintiff, 

 vs. 

DONALD J. TRUMP, President of the United 

States, UNITED STATES OF AMERICA, 

JOHN F. KELLY, Secretary of United States 

Department of Homeland Security, 

JEFFERSON B. SESSIONS, Attorney General 

of the United States, DOES 1-100, 

 Defendants. 

Case No. 3:17-cv-00485-WHO 

DECLARATION OF MELISSA WHITEHOUSE 

IN SUPPORT OF CITY AND COUNTY OF 

SAN FRANCISCO’S MOTION FOR 

PRELIMINARY INJUNCTION

Date: April 12, 2017 

Time: 2:00 p.m. 

Judge: Honorable William H. Orrick 

Dept: Courtroom 2 

Date Filed: January 31, 2017 

Trial Date: Not set 

Case 3:17-cv-00485-WHO Document 23 Filed 03/08/17 Page 1 of 13
 

Whitehouse Decl. ISO CCSF’s Motion for PI; 

Case # 17-00485

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I, Melissa Whitehouse, declare as follows: 

1. I am a resident of the State of California. I have personal knowledge of the facts set 

forth in this declaration and, if called as a witness, could and would testify competently to the matters 

set forth below. 

2. I am the Mayor's Budget Director for the City and County of San Francisco. Among 

many policy and budgetary responsibilities, my main charge is developing and submitting the City’s 

balanced budget each June. Over the course of six years with the Mayor’s Office of Public Policy and 

Finance, I have worked on six adopted budgets and multiple long-term financial planning documents, 

including the City’s Five-Year Financial Plan and Ten Year Capital Plan. 

3. I am familiar with Executive Order 13768, dated January 25, 2017, and titled 

“Enhancing Public Safety in the Interior of the United States” (the “Executive Order”). 

4. The Executive Order threatens San Francisco with the loss of federal funds. The 

threatened cuts are unrelated to immigration enforcement and counter to the goals of public safety 

stated in the Executive Order, and they would have far reaching consequences. As the Mayor’s Budget 

Director, I must decide how to handle this possible loss of funds in the budget for the fiscal year 

beginning on July 1, 2017. 

5. San Francisco has already begun the seven-month process of adopting the annual 

budget for the fiscal year beginning on July 1, 2017. On December 13, 2016, the Mayor and the 

Controller (San Francisco’s chief financial officer) issued budget instructions to all San Francisco 

departments with detailed guidance on the preparation of departments’ budget requests. Most San 

Francisco departments held public hearings on their budget proposals in January and February and 

submitted their budget requests for the coming fiscal year to the Controller by February 21. 

San Francisco law requires the Controller to submit a consolidated budget proposal to the Mayor by 

March 1, the Mayor to submit a balanced budget to the Board of Supervisors by June 1, and the Board 

of Supervisors to approve a balanced budget by August 1. 

6. To meet the June 1 deadline, the Mayor must make fundamental budget decisions by 

May 15, and input these decisions into San Francisco’s budget software by May 24. During the last 

week of May, the Controller’s Office reconciles and confirms all financial calculations in the Mayor’s 

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Whitehouse Decl. ISO CCSF’s Motion for PI; 

Case # 17-00485

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proposed budget, while the Mayor’s Budget Office finalizes the narrative publication that accompanies 

the proposed budget. 

7. The budget for the fiscal year beginning July 1, 2017, will be approximately $10 

billion, approximately $5 billion of which is in San Francisco’s General Fund. Money in San 

Francisco’s General Fund is used to support public services such as public health, human services, 

police and fire services, and public works. Approximately $2 billion of General Fund money is legally 

dedicated for specific purposes, leaving approximately $3 billion in discretionary funds. The 

remainder of the budget is comprised of self-supporting activities at San Francisco’s enterprise 

departments, which focus on city-related business operations and include the Port, the Municipal 

Transportation Agency, the Airport, the Public Utilities Commission, and others. The use of funds in 

these operations is legally restricted and cannot be redirected to backfill a shortfall in the General 

Fund. 

8. One of the fundamental budget decisions the Mayor must make by May 15, 2017, is 

whether to create a budget reserve to account for the possible loss of federal and state funds in the 

coming fiscal year. This presents a Hobson’s choice. San Francisco, facing possible reductions, could 

place funds into reserve at the beginning of the fiscal year, harming the public by reducing the amount 

of money in San Francisco’s General Fund. Or San Francisco could budget based on the continued 

receipt of federal and state funds, knowing that cuts could come suddenly, outside of the budget 

process. 

9. If unanticipated cuts come mid-year, the General Fund will take an even bigger hit at 

that time, as there will be less time to absorb the loss of funds. For example, a $1 billion cut that must 

be absorbed over six months would feel like a $2 billion cut spread out over 12 months. Additionally, 

sudden and unanticipated cuts create additional harm because there is no time to plan how to manage 

the loss of funds. Depending on the nature of the cuts, they could lead to immediate service cuts, 

layoffs, or cancellation of contracts and associated penalties. 

10. If current levels of uncertainty remain by May 15, 2017, the Mayor will be forced to 

propose a federal and state budget reserve. The final amount of the reserve will depend on the Mayor’s 

assessment of the amount of funding at risk and the likelihood that federal or state funds will be cut. 

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Money used to fund the reserve is money that will not be available for General Fund programs and 

services. 

11. A portion of the federal and state budget reserve will reflect the possible loss of federal 

funds that could result from the Executive Order. Assuming the Executive Order is still in place by 

May 15, 2017, and there is no further clarity about the funds at risk, the Mayor must account for the 

possibility that some or all applications of the Executive Order might be upheld, and set the reserve 

accordingly. 

12. The reserve amount will be affected by direction from Defendants or the Court about 

the intended or permissible scope of the Executive Order. A preliminary injunction enjoining 

Defendants from enforcing Section 1373 or Section 9(a) of the Executive Order would lead to a lower 

reserve and allow the City to have more money in its General Fund to fund critical programs and 

services. 

13. A May 15, 2017, decision to set the reserve at a specified amount will have a real world 

impact when the new fiscal year begins on July 1, 2017. Beginning on this date, funds allocated for the 

reserve will sit in the reserve instead of being available for General Fund services and programs. Once 

funds are placed in a federal and state budget reserve, they will remain there for the entire fiscal year 

unless they are needed to backfill federal or state funding cuts. 

14. The Mayor must make a trade-off between putting money into a reserve and using it for 

other San Francisco priorities, some of which are currently unfunded. For instance, the Department of 

Homelessness and Supportive Housing needs an additional $19.5 million in the next two fiscal years 

to make an impact in reducing homelessness in San Francisco. This money would fund a family 

shelter expansion, youth housing subsidies, a resource center, and shelter maintenance and security. A 

reserve would set money aside instead of using it for purposes like this. 

15. While the exact amount has not yet been determined, the reserve will be in the millions, 

not billions. It will reflect just a small portion of the federal funds received by San Francisco. The 

reserve will help San Francisco maintain budgeted operations if it loses a relatively small amount of 

federal funding. It will not, however, be adequate to compensate for the loss of significant federal 

funds. 

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Whitehouse Decl. ISO CCSF’s Motion for PI; 

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16. It would decimate San Francisco to lose all federal funds. Thousands of San 

Francisco’s most vulnerable residents would lose access to meals, medical care and other lifesaving 

social safety net services. Required reductions in police, fire, and emergency medical response 

functions would impair core public safety services for those that work, visit, or live in the City. The 

City would have to lay off thousands of employees and cancel contracts that create thousands of 

additional jobs. Roads, public transportation, and other infrastructure necessary to support the City and 

region’s economy would fall into disrepair, causing longer-term damage beyond San Francisco’s 

borders. Seismic upgrades would be postponed, rendering San Francisco vulnerable during the next 

earthquake. 

17. Even a mid-year loss of, for illustrative purposes, 10% of annual federal funds would 

have a significant negative impact on the safety of our City and residents. A cut of $120 million would 

require the Mayor to make significant reductions to critical government services and spending. 

Specifically, mid-year cuts of this magnitude would require reductions in the number of first 

responders, including police officers, firefighters, paramedics, and 911 operators. Our Muni bus and 

train system would experience significant crowding and delays due to reductions in service and 

deferral of vehicle maintenance. The Bay Area’s regional economy depends on a functioning Muni 

system, and service cuts would significantly hamper our economic growth. Furthermore, infrastructure 

safety would be compromised, as the City would be forced to consider cuts to road repaving, building 

inspection services, and fire safety programs. The Mayor has significantly increased the City’s 

investment in homeless services with a goal of reducing San Francisco’s street homeless population, 

including ending chronic veterans’ homelessness by 2018. San Francisco’s progress in housing the 

homeless – and especially housing homeless veterans – would be imperiled by unexpected mid-year 

reductions of this magnitude. Furthermore, San Francisco would likely be forced to cut social service 

safety net programs such as senior meal programs, services for low-income children, violence 

prevention services and programs for domestic violence survivors. 

18. One of the federal grants San Francisco currently receives is from the Edward Byrne 

Memorial Justice Assistance Grant Program (“JAG”), administered by the Attorney General’s Office 

Case 3:17-cv-00485-WHO Document 23 Filed 03/08/17 Page 5 of 13
Case 3:17-cv-00485-WHO Document 23 Filed 03/08/17 Page 6 of 13
 

EXHIBIT A

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OFFICE OF JUSTICE PROGRAMS GUIDANCE REGARDING 

COMPLIANCE WITH 8 U.S.C. § 1373

1. Q. What does 8 U.S.C. § 1373 require?

A. Title 8, United States Code, Section 1373 (Section 1373) addresses the exchange of 

information regarding citizenship and immigration status among federal, state, and local 

government entities and officials. Subsection (a) prevents federal, state and local 

government entities and officials from “prohibit[ing] or in any way restrict[ing]” government 

officials or entities from sending to, or receiving from, federal immigration officers 

information concerning an individual’s citizenship or immigration status. Subsection (b) 

provides that no person or agency may “prohibit, or in any way restrict,” a federal, state, or 

local government entity from (1) sending to, or requesting or receiving from, federal 

immigration officers information regarding an individual’s immigration status, (2) 

maintaining such information, or (3) exchanging such information with any other federal, 

state, or local government entity. Section 1373 does not impose on states and localities the 

affirmative obligation to collect information from private individuals regarding their 

immigration status, nor does it require that states and localities take specific actions upon

obtaining such information. Rather, the statute prohibits government entities and officials 

from taking action to prohibit or in any way restrict the maintenance or intergovernmental 

exchange of such information, including through written or unwritten policies or practices. 

Your personnel must be informed that notwithstanding any state or local policies to the 

contrary, federal law does not allow any government entity or official to prohibit the sending 

or receiving of information about an individual’s citizenship or immigration status with any 

federal, state or local government entity and officials.

2. Q. May a state make a subgrant to a city that the state knows to be violating an applicable 

law or regulation (e.g. Section 1373), or a programmatic requirement?

A. No. A JAG grantee is required to assure and certify compliance with all applicable 

federal statues, including Section 1373, as well as all applicable federal regulations, policies, 

guidelines and requirements. This requirement passes through to any subgrants that may be 

made and to any subgranteees that receive funds under the grant. 

3. Q. Is there a specific report or source BJA is using to determine whether a jurisdiction

has violated an applicable Federal law (e.g. Section 1373)?

A. The Office of Justice Programs (OJP) will take seriously credible evidence of a violation 

of applicable Federal law, including a violation of Section 1373, from any source. In the 

ordinary course, OJP will refer such evidence to the Department of Justice’s Office of the 

Inspector General for appropriate action.

Case 3:17-cv-00485-WHO Document 23 Filed 03/08/17 Page 8 of 13
4. Q. How would a determination that a subgrantee is in violation of federal law affect the 

state’s designation and ability to receive future awards? 

A. A grantee is responsible to the federal government for the duration of the award. As the 

primary recipient of the award, the grantee is responsible for ensuring that subgrantees assure 

and certify compliance with federal program and grant requirements, laws, or regulations 

(e.g. Section 1373). If a grantee or subgrantee has policies or practices in effect that violate 

Section 1373, the grantee or subgrantee will be given a reasonable amount of time to remedy 

or clarify such policies to ensure compliance with applicable law. Failure to remedy any 

violations could result in the withholding of grant funds or ineligibility for future OJP grants 

or subgrants, or other administrative, civil, or criminal penalties, as appropriate. Our goal is 

to ensure that JAG grantees and subgrantees are in compliance with all applicable laws and 

regulations, including Section 1373, not to withhold vitally important criminal justice 

funding from states and localities. 

5. Q. Does the “JAG Sanctuary Policy Guidance” notice apply to all active grants?

A. The Policy Guidance applies to all JAG grantees and subgrantees.

6. Q. What should a state be doing to ensure that subgrantees are complying with the legal

requirements for receiving JAG funds?

A. The state must comply with all of the requirements of 2 C.F.R. § 200.331. See also 

Section 3.14 (Subrecipient Monitoring) of the Department of Justice Financial Guide. 

7. Q. The “JAG Sanctuary Policy Guidance” cited Section 1373. Are there other

components of Title 8 of the United States Code that are required for compliance?

A. All grantees are required to assure and certify compliance with all applicable federal 

statutes, regulations, policies, guidelines, and requirements. States may wish to consult with 

their legal counsel if they have any questions or concerns as to the scope of this requirement. 

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EXHIBIT B

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OFFICE OF JUSTICE PROGRAMS 

ADDITIONAL GUIDANCE REGARDING COMPLIANCE WITH 8 U.S.C. § 1373

1. Why is OJP using Byrne/JAG grant funds to enforce 8 U.S.C. § 1373?

Authorizing legislation for the Byrne/JAG grant program requires that all grant applicants certify 

compliance both with the provisions of that authorizing legislation and all other applicable 

federal laws. The Office of Justice Programs has determined that 8 U.S.C. § 1373 (Section 

1373) is an applicable federal law under the Byrne/JAG authorizing legislation. Therefore, all 

Byrne/JAG grant applicants must certify compliance with all applicable federal laws, including 

Section 1373, as part of the Byrne/JAG grant application process. 

2. Does OJP’s guidance on 8 U.S.C. § 1373 impact FY 2016 funding?

No FY 2016 or prior year Byrne/JAG or SCAAP funding will be impacted. However, OJP 

expects that JAG and SCAAP recipients will use this time to examine their policies and 

procedures to ensure they will be able to submit the required assurances when applying for JAG 

and SCAAP funding in FY 2017. As previously stated, our goal is to ensure that our JAG and 

SCAAP recipients are in compliance with all applicable laws and regulations, including Section 

1373, not to withhold vitally important criminal justice funding from states and localities like 

yours.

3. What is the process of determining if a recipient of JAG or SCAAP funds is not in 

compliance with 8 U.S.C. § 1373?

As OJP has previously stated, our goal is to ensure that JAG and SCAAP recipients are in 

compliance with all applicable laws and regulations, including Section 1373. If OJP becomes 

aware of credible evidence of a violation of Section 1373, the recipient must agree to undertake a 

review to validate its compliance with 8 U.S.C. § 1373. If the recipient determines that it is in 

compliance with Section 1373 at the time of review, then it must submit documentation that 

contains a validation to that effect and includes an official legal opinion from counsel (including 

related legal analysis) adequately supporting the validation. If the recipient determines that it is 

not in compliance with Section 1373 at the time of review, then it must take sufficient and 

effective steps to bring it into compliance and submit documentation that details the steps taken, 

contains a validation that the recipient has come into compliance, and includes an official legal 

opinion from counsel (including related legal analysis) adequately supporting the validation. 

Failure to remedy any violations could result in a referral to the Department of Justice Office of 

the Inspector General, the withholding of grant funds or ineligibility for future OJP grants or 

subgrants, or other administrative, civil, or criminal penalties, as appropriate. 

4. What will happen if a recipient of JAG or SCAAP funds is found to be out of 

compliance with 8 U.S.C. § 1373?

If a recipient is found out of compliance with Section 1373, the recipient must take sufficient and 

effective steps to bring it into compliance and submit documentation that details the steps taken, 

contains a validation that the recipient has come into compliance, and includes an official legal 

opinion from counsel (including related legal analysis) adequately supporting the validation. 

Failure to remedy any violations could result in a referral to the Department of Justice Inspector 

Case 3:17-cv-00485-WHO Document 23 Filed 03/08/17 Page 11 of 13
General, the withholding of grant funds or ineligibility for future OJP grants or subgrants, 

suspension or termination of the grant, or other administrative, civil, or criminal penalties, as 

appropriate. 

As previously stated, our goal is to ensure that our JAG and SCAAP recipients are in compliance 

with all applicable laws and regulations, including Section 1373, not to withhold vitally 

important criminal justice funding from states and localities like yours.

5. Does OJP expect State Administering Agencies or their subgrantees to submit 

additional certifications specific to 8 U.S.C. § 1373?

No, OJP does not expect grantees to submit additional assurances in FY 2016, nor does OJP

expect grantees to require additional assurances from subgrantees, unless the grantees choose to 

do so. However, OJP expects that JAG grantees and subgrantees will use this time to examine 

their policies and procedures to ensure they will be able to submit the required assurances when 

applying for JAG funding in FY 2017. 

6. Will a locality risk its entire Byrne/JAG funding if it refuses to certify compliance with 

federal law, including 8 U.S.C. § 1373?

Yes, a JAG grantee is required to assure and certify compliance with all applicable federal 

statutes, including Section 1373, as well as all applicable federal regulations, policies, guidelines 

and requirements, as a prerequisite to obtaining funding. OJP expects that JAG recipients will 

use this time to examine their policies and procedures to ensure they will be able to submit the 

required assurances when applying for JAG funding in FY 2017. By providing this additional 

guidance and the prior guidance on 8 U.S.C. § 1373, the Department has made clear that its goal 

is to ensure that our JAG and SCAAP recipients are in compliance with all applicable laws and 

regulations, including Section 1373, not to withhold vitally important criminal justice funding 

from states and localities like yours.

7. Will a State risk its entire Byrne/JAG funding if a subgrantee is found to be out of 

compliance?

No, only the jurisdiction that fails to comply with Section 1373 is at risk for not being funded

after being provided an opportunity to correct its policies or practices. It is the State’s legal 

responsibility as the prime grantee to monitor its subgrantees adequately and take appropriate 

action if 1) a subgrantee does not certify compliance with Section 1373, or 2) the State becomes 

aware (after making the subaward) of credible evidence of a violation of Section 1373 by a 

subgrantee. In general, however, a subgrantee’s continuing violation would not ordinarily result 

in imposition of penalties against the State, or put the State’s entire Byrne/JAG funding at risk. 

If the State disburses funds to an ineligible subgrantee, however, such that the State itself could 

be said to have participated in the violation (e.g. by having made the subaward knowing that the 

subgrantee was ineligible) or failed to take appropriate action to remedy a violation, then that 

State would be responsible for repayment of the dispersed funding. 

In addition, if OJP becomes aware of credible evidence that a subgrantee may be in violation of 

Section 1373, OJP will forward that evidence to the State, and the State will need to take steps to 

determine if the subgrantee is in violation, and (if it is) to require the subgrantees to take 

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sufficient and effective steps to bring it into compliance and submit documentation that details 

the steps taken, contains a validation that the subgrantee has come into compliance, and includes 

an official legal opinion from counsel (including related legal analysis) adequately supporting the 

validation. 

Additional guidance regarding compliance with Section 1373 can be found at:

Question and Answer document provided to all JAG grantees and SCAAP recipients on July 7, 

2016: https://www.bja.gov/ProgramDetails.aspx?Program_ID=59. 

DOJ Office of the Inspector General Memorandum posted on July 28, 2016 at:

https://oig.justice.gov/reports/2016/1607.pdf. 

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