City of L.A. v. Barr, No. 18-56292

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtOpinion by Judge Ikuta
PartiesCITY 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.
Decision Date31 October 2019
Docket NumberNo. 18-56292

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

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted: April 10, 2019
October 31, 2019


FOR PUBLICATION

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

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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

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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

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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.

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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.

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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

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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.

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§ 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 ...

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