City & Cnty. of S.F. v. Garland

• Decision Date: 29 July 2022
• Docket Number: 19-15947, No. 19-15950, No. 19-35843
• Citation: 42 F.4th 1078
• Parties: CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Appellee, v. Merrick B. GARLAND, Attorney General; Amy L. Solomon, Principal Deputy Assistant Attorney General; United States Department of Justice, Defendants-Appellants. State of California, ex rel, Xavier Becerra, in his official capacity as Attorney General of the State of California, Plaintiff-Appellee, v. Merrick B. Garland, Attorney General; Amy L. Solomon, in her official capacity as Principal Deputy Assistant Attorney General; United States Department of Justice, Defendants-Appellants. State of Oregon; Kate Brown, Governor; Ellen Rosenblum, Attorney General; City of Portland, Plaintiffs-Appellees, v. Joseph R. Biden, President of the United States, in his official capacity; Merrick B. Garland, Attorney General, Attorney General of the United States, in his official capacity; United States of America, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

42 F.4th 1078

CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Appellee,

v.Merrick B. GARLAND, Attorney General; Amy L. Solomon, Principal Deputy Assistant Attorney General; United States Department of Justice, Defendants-Appellants.

State of California, ex rel, Xavier Becerra, in his official capacity as Attorney General of the State of California, Plaintiff-Appellee,

v.Merrick B. Garland, Attorney General; Amy L. Solomon, in her official capacity as Principal Deputy Assistant Attorney General; United States Department of Justice, Defendants-Appellants.

State of Oregon; Kate Brown, Governor; Ellen Rosenblum, Attorney General; City of Portland, Plaintiffs-Appellees,

v.Joseph R. Biden, President of the United States, in his official capacity; Merrick B. Garland, Attorney General, Attorney General of the United States, in his official capacity; United States of America, Defendants-Appellants.

No. 19-15947

No. 19-15950

No. 19-35843

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 16, 2022 San Francisco, California

Filed July 29, 2022

Daniel Tenny (argued), Mark B. Stern, and Laura E. Myron, Appellate Staff; Brian M. Boynton, Principal Deputy Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

Sara J. Eisenberg (argued), Jesse C. Smith, Yvonne R. Mere, and Tara M. Steeley, Deputy City Attorneys; David Chiu, City Attorney; Office of the City Attorney, San Francisco, California; for Plaintiff-Appellee City and County of San Francisco.

Samuel P. Siegel (argued), Deputy Solicitor General; Michael J. Mongan, Solicitor General; Lisa C. Ehrlich, Deputy Attorney General; James F. Zahradka II, Supervising Deputy Attorney General; Michael L. Newman, Senior Assistant Attorney General; Rob Bonta, Attorney General; Attorney General's Office, California Department of Justice, San Francisco, California; for Plaintiff-Appellee State of California.

Ellen F. Rosenblum, Attorney General; Benjamin Gutman, Solicitor General; Peenesh Shah, Assistant Attorney General; Office of the Attorney General, Salem, Oregon; Denis M. Vannier, Senior Deputy City Attorney; Office of the City Attorney, Portland, Oregon; for Plaintiffs-Appellees State of Oregon, Kate Brown, Ellen Rosenblum, and City of Portland.

Before: Sidney R. Thomas, Ronald M. Gould, and Carlos T. Bea, Circuit Judges.

Opinion by Judge S.R. Thomas ;

Partial Concurrence and Partial Dissent by Judge Bea

S.R. THOMAS, Circuit Judge:

In this appeal, we again consider immigration enforcement-related conditions ("Conditions") imposed by Department of Justice ("DOJ") on grants made pursuant to the Edward Byrne Memorial Justice Assistance Grant Program ("Byrne JAG program") for Fiscal Years 2017 and 2018. Consistent with our prior precedent and the government decision not to appeal the district courts' judgments on this issue, we affirm the judgments of the district courts enjoining DOJ from withholding Byrne JAG program grant funds based on the Conditions.

The district courts also held that 8 U.S.C. §§ 1373 and 1644 violated the Tenth Amendment. We conclude that these facial challenges are either not ripe, or are mooted by our Court's construction of the statutes and enjoinment of the Conditions. We therefore vacate the judgments of the district court insofar as they hold that 8 U.S.C. §§ 1373 and 1644 are unconstitutional, without deciding the merits of those claims. We remand with directions to dismiss the facial challenges to 8 U.S.C. §§ 1373 and 1644.¹

I

A

The Byrne JAG program is a federal formula grant that supports state and local criminal justice efforts. See 34 U.S.C. § 10152. Since the mid-2000s, DOJ's Office of Justice Programs has administered the Byrne JAG program, according to a statutory formula that considers grant recipients' populations and violent crime rates. See 34 U.S.C. § 10156(a)(1). To receive funds, grant recipients must demonstrate that they will use the money to further one of eight law enforcement programs enumerated in the Byrne JAG statute. See 34 U.S.C. § 10152(a)(1)(A)–(H). Congress has repeatedly rejected legislative proposals to link the Byrne JAG program to immigration policy or enforcement. See, e.g. , Securing America's Future Act of 2018, H.R. 4760, 115th Cong. (2018); Ending Sanctuary Cities Act of 2016, H.R. 6252, 114th Cong. (2016) (predicating federal grant eligibility, generally, on compliance with Section 1373 ); Sanctuary City All Funding Elimination Act of 2015, H.R. 3073, 114th Cong. (2015) (same); see also City and County of San Francisco v. Trump , 897 F.3d 1225, 1234 & n. 4 (9th Cir. 2018) (noting the same).

Effective Fiscal Years 2017 and 2018, DOJ imposed the new Conditions on Byrne JAG funds. In order to draw upon their Byrne JAG funds, grant recipients had to let Department of Homeland Security officials question suspected noncitizens in their custody, as well as provide advance notice of those persons' release. Another condition prohibited grant recipients from disclosing federal law enforcement information for certain purposes. A final condition, which the Northern District of California termed the "Certification Condition," required recipients to certify that their laws complied with independent provisions of the Federal Code. In its ultimate, 2018 form, the Certification Condition mandated attestations of compliance with 8 U.S.C. § 1373, a provision of the Illegal Immigration Reform and Immigrant Responsibility Act enacted in 1996, see Pub. L. 104-208, § 642, 110 Stat. 3009, 3009-707, and 8 U.S.C. § 1644, a provision of the Personal Responsibility and Work Opportunity Reconciliation Act, also enacted in 1996, see Pub. L. 104-193, § 434, 110 Stat. 2260, 2275 (discussing Act's purposes).

Section 1373 states in relevant part:

(a) In general. Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

8 U.S.C. § 1373.

Almost identically, Section 1644 states "no state or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States." 8 U.S.C. § 1644. Because the parties agree that Sections 1373 and 1644 are interchangeable for the purposes of this litigation, we focus the remainder of our discussion on Section 1373, with the understanding that our analysis applies to both Sections 1373 and 1644.

Having conditioned Byrne JAG funds on compliance with Section 1373, DOJ interpreted the provision's language broadly. According to Plaintiffs, DOJ stated that Section 1373 encompassed any "information" that could assist federal immigration authorities in detaining or removing noncitizens. Based on its expansive interpretation, DOJ determined or suggested in late 2017 that specific laws of Plaintiffs conflicted with the federal provision. Then, because Plaintiffs could not certify compliance with DOJ's interpretation of Section 1373, DOJ withheld their Byrne JAG funds, even as it distributed funds to hundreds of other jurisdictions.

B

In 2018, Plaintiffs sued the Attorney General, Assistant Attorney General of the Office of Justice Programs, then-President Donald Trump, and DOJ; California and San Francisco (collectively, "San Francisco"), sued for a second time. See City and County of San Francisco v. Barr ("Barr II") , 965 F.3d 753, 757 (9th Cir. 2020), cert. dismissed sub nom. Wilkinson v. City and County of San Francisco , ––– U.S. ––––, 141 S. Ct. 1292, 209 L.Ed.2d 188 (2021) (challenging only the Fiscal Year 2017 conditions). As relevant here, Plaintiffs alleged that the Conditions exceeded DOJ's statutory authority and, therefore, violated the constitutional separation of powers principle. Plaintiffs also alluded to or alleged facial challenges to Section 1373's constitutionality under the Tenth Amendment. The State of Oregon and the City of Portland, Oregon (collectively, "Oregon Plaintiffs") and the City of San Francisco requested declaratory judgments that Section 1373 is facially unconstitutional, but California did not.

In separate opinions at summary judgment, the District Court for the Northern District of California and the District Court for the District of Oregon determined that the Conditions exceeded DOJ's statutory authority and permanently enjoined their enforcement. The district courts also held that Section 1373 is facially unconstitutional under the Tenth Amendment,² and permanently enjoined its enforcement. But while the District of Oregon enjoined enforcement of Section 1373 only "in relation to the Byrne JAG program," the Northern District of California enjoined any enforcement of Section 1373 against California or its subdivisions, including beyond the Byrne JAG program's context. These cases were consolidated on appeal.

Since the district court decisions, DOJ has disbursed Plaintiffs' withheld funds and announced that it will not enforce the Conditions, as long as its authority to do so remains the subject of pending litigation.³ However, the United States did not appeal the portion of the district courts' judgments enjoining enforcement of the Conditions, and affirmed at oral argument that it considered the injunctions binding.

C

To the extent that we have jurisdiction, it arises under 28 U.S.C. § 1291. We have an independent obligation to consider ripeness and mootness sua sponte, see Ray Charles Found. v. Robinson , 795 F.3d 1109, 1116 (9th Cir. 2015) (ripeness); Burrell v. Burrell (In re Burrell) , 415 F.3d 994, 997 (9th Cir. 2005) (mootness), and we review questions of Article III justiciability de novo, see Fikre v. FBI , 904 F.3d 1033,...