State v. U.S. Dep't of Justice, No. 19-267-cv(L)

Decision Date13 July 2020
Docket Number No. 19-275-cv(con),No. 19-267-cv(L)
Citation964 F.3d 150 (Mem)
Parties STATE of New York, State of Connecticut, State of New Jersey, State of Washington, Commonwealth of Massachusetts, Commonwealth of Virginia, State of Rhode Island, City of New York, Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF JUSTICE, William P. Barr, in His Official Capacity as Attorney General of the United States, Defendants-Appellants.
CourtU.S. Court of Appeals — Second Circuit

For Plaintiffs-Appellees State of New York, Connecticut, New Jersey, Rhode Island, and Washington, and Commonwealths of Massachusetts and Virginia: Barbara D. Underwood, Solicitor General, Anisha S. Dasgupta, Deputy Solicitor General, Linda Fang and Ari Savitzky, Assistant Solicitors General, for Letitia James, Attorney General of the State of New York, New York, NY.

For Plaintiff-Appellee City of New York: Richard Dearing, Devin Slack, Jamison Davies, for James E. Johnson, Corporation Counsel of the City of New York, New York, NY.

Present: ROBERT A. KATZMANN, Chief Judge, JOSÉ A. CABRANES, ROSEMARY S. POOLER, PETER W. HALL, DEBRA ANN LIVINGSTON, DENNY CHIN, RAYMOND J. LOHIER, JR., SUSAN L. CARNEY, RICHARD J. SULLIVAN, JOSEPH F. BIANCO, WILLIAM J. NARDINI, STEVEN J. MENASHI, Circuit Judges.

José A. Cabranes, Circuit Judge, joined by Debra Ann Livingston, Richard J. Sullivan, Joseph F. Bianco, William J. Nardini, and Steven J. Menashi, Circuit Judges, concurring in the order denying rehearing en banc.

Richard J. Sullivan, Circuit Judge, joined by José A. Cabranes, Debra Ann Livingston, and Joseph F. Bianco, Circuit Judges, concurs by opinion in the denial of rehearing en banc.

Robert A. Katzmann, Chief Judge, dissents by opinion from the denial of rehearing en banc.

Rosemary S. Pooler, Circuit Judge, joined by Denny Chin and Susan L. Carney, Circuit Judges, dissents by opinion from the denial of rehearing en banc.

Michael H. Park, Circuit Judge, took no part in the consideration or decision of the petitions.

José A. Cabranes, I, joined by Debra Ann Livingston, Richard J. Sullivan, Joseph F. Bianco, William J. Nardini, and Steven J. Menashi, Circuit Judges, concurring in the order denying rehearing en banc:

I concur in the order denying rehearing of this case en banc .

As a member of the unanimous panel in this case, I begin by observing that the panel opinion expressly underscored the importance of the issues involved in this appeal.1 And yet, despite the controversy that this subject matter naturally engenders, the fact remains that the core questions on appeal are basic "questions of statutory construction."2

In her dissent from the Court's order denying rehearing en banc , Judge Pooler characterizes the outcome of this petition for rehearing en banc as "[a]stonishing[ ]"; asserts that she is "frankly, astounded," that the Court did not grant rehearing, particularly in light of the circuit split that now exists; and remarks that the contrary opinions of our sister circuits "call[ ] into serious question the correctness of our Court's rationale and conclusions."3 Regardless of the differing opinions of those circuits, our Court's decision to deny rehearing—one made by an en banc court consisting of twelve of our Court's thirteen active Circuit Judges—evinces an unmistakable truth: that, in the circumstances presented, reasonable judicial minds can differ as to whether the relevant statutory text permits the Department of Justice to impose the challenged conditions on grants of money to state and municipal law enforcement. There is nothing "astonishing" here about a disagreement among sister circuits, much less anything deserving the castigation by another colleague who asserts that our panel's decision is "wrong, wrong, and wrong again."4

Despite the vigor and intensity of Judge Pooler's dissent, she sheds little new substantive light on the debate.5 Instead, Judge Pooler primarily marshals the arguments of the various opinions of the First, Third, Seventh, and Ninth Circuits upholding injunctions that preclude enforcement of the conditions.6 All of these opinions, save that of the First Circuit, were available to the panel prior to its issuing its decision. The panel opinion thoroughly addressed all of the reasons relied on by our sister circuits in their decisions rejecting the Department of Justice's position, and explained why, with due respect, it found each of those reasons unpersuasive with respect to the Certification, Notice, and Access Conditions, as well as the claim of unconstitutional commandeering under the Tenth Amendment to the Constitution.7

In concurring in the denial of rehearing, I need not restate the host of reasons already explained by Judge Raggi in her comprehensive and careful opinion (in which Judge Winter and I joined in full) as to why, in our view, our sister circuits were in error.8 It does happen from time to time that our perspective differs from that of other Circuits. (The opinion of the First Circuit that was issued after our own and offered disparaging assessments of our panel's efforts deserves a personal "sidebar" comment, which I offer at the margin in note 9).9

In the final analysis, the resolution of this dispute will be determined not by arithmetic, but rather, by the strength and persuasiveness of the several decisions. There can be little doubt that, in the fullness of time, the conflict among the Circuits will be resolved by our highest tribunal.

LOHIER, Circuit Judge, joined by HALL, Circuit Judge, concurring:

Until today, every single circuit judge to have considered the questions presented by this appeal has resolved them the same way. That's twelve judges—including one former Supreme Court Justice—appointed by six different presidents, sitting in four separate circuits, representing a remarkable array of views and backgrounds, responsible for roughly forty percent of the United States population, who, when asked whether the Attorney General may impose the challenged conditions, have all said the same thing: No.

Undeterred, the panel breaks course in an opinion as novel as it is misguided. As my colleagues explain in their dissent from the denial of rehearing in banc, and as Justice Souter and Judges Selya, Barron, Rendell, Ambro, Scirica, Rovner, Bauer, Manion, Wardlaw, Ikuta, and Bybee have collectively demonstrated, the panel opinion misreads statutory text, misconstrues constitutional doctrine, and mistakes the conclusion that it prefers for the one that the law requires.1 The task of remedying these very serious errors will now fall to the Supreme Court. I vote against rehearing in banc so that it may do so sooner rather than later. Indeed, if there is a single panel decision that the Supreme Court ought to review from this Circuit next Term, it is this one.2

Just last year, a number of my colleagues who vote now to deny rehearing in banc reminded us all that "[t]he legitimacy of Congress’ power to legislate [via a federal grant program] ... rests on whether the State voluntarily and knowingly accepts the terms of [that grant program]." N.Y. State Citizens’ Coal. for Children v. Poole, 935 F.3d 56, 59 (2d Cir. 2019) (Livingston, J., dissenting from the denial of rehearing in banc) (quotation marks omitted). This limit on the Spending Clause power that they so enthusiastically embraced comes from Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), in which the Supreme Court required Congress to "speak unambiguously in imposing conditions on federal grant money." New York v. U.S. Dep't of Justice, 951 F.3d 84, 109 (2d Cir. 2020) (emphasis added) (citing Pennhurst ). After Pennhurst, the requirement for clarity from Congress in this context is basic and fundamental. And so here the Department urged, the panel concluded, and the principal concurrence in the denial of rehearing in banc now insists that 34 U.S.C. § 10153(a)(5)(D) unambiguously informs States that they must abide by the certification condition. See Brief for Defendants-Appellants at 26–30; New York, 951 F.3d at 110–11 ; Cabranes, J., Concurring Op. at 150–51.

The problem with this "thrice-asserted view," however, is that it "is wrong, wrong, and wrong again." Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 80, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013) (Kagan, J., dissenting). To start, the panel itself acknowledges that Section 10153(a)(5)(D) "fails to specify precisely [by] which laws" States must abide. New York, 951 F.3d at 110. No surprise, then, that States, cities, and municipalities across the country—the very entities whose knowing acceptance is paramount—have agreed with the First Circuit that the panel's interpretation of Section 10153(a)(5)(D) is "extravagant." Brief for Chicago et al. as Amici Curiae Supporting Plaintiffs-Appellees at 14 (quoting City of Providence v. Barr, 954 F.3d 23, 37 (1st Cir. 2020) ). Sheriffs, police chiefs, and district attorneys have likewise criticized the panel's interpretation as "striking." Brief for Local Law Enforcement Leaders as Amici Curiae Supporting Plaintiffs-Appellees at 3. And again, every judge to have considered the certification condition has determined that Section 10153(a)(5)(D) does not permit it. But these federal judges, States, cities, municipalities, sheriffs, police chiefs, and district attorneys are not just wrong, says the panel, they are unambiguously wrong: there is no room for debate about what Section 10153(a)(5)(D) means.

How does the panel reach such a self-assured conclusion? It first claims that Section 10153(a)(5)(D) is unambiguous by observing that while it "fails to specify precisely which laws are applicable, that uncertainty can pertain as much for laws applicable to requested grants as for those applicable to grant applicants." New York, 951 F.3d at 110 (quotation marks omitted). In other words, multiple ambiguities translate into clarity, two "maybes" mean yes. But as several of my colleagues in this case and a chorus...

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