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

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtIKUTA, Circuit Judge
Citation941 F.3d 931
Parties 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.
Docket NumberNo. 18-56292
Decision Date31 October 2019

941 F.3d 931

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, Ninth Circuit.

Argued and Submitted April 10, 2019 Pasadena, California
Filed October 31, 2019


OPINION

IKUTA, Circuit Judge:

941 F.3d 934

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 General

941 F.3d 935

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. § 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 $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

941 F.3d 936

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).

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 comply with 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 facilities.4 The

941 F.3d 937

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

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...

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16 practice notes
  • State v. U.S. Dep't of Justice, Nos. 19-267(L)
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 26, 2020
    ...of some or all of the challenged conditions as to other jurisdictions applying for Byrne grants. See City of Los Angeles v. Barr, 941 F.3d 931 (9th Cir. 2019) (ruling as to Notice and Access Conditions); City of Philadelphia v. Attorney Gen. , 916 F.3d 276 (3d Cir. 2019) (ruling as to all t......
  • City of Providence v. Barr, No. 19-1802
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 24, 2020
    ...before us, three courts of appeals had refused to enforce some or all of the challenged conditions. See City of Los Angeles v. Barr, 941 F.3d 931, 934 (9th Cir. 2019) ; City of Philadelphia, 916 F.3d at 279 ; City of Chicago v. Sessions, 888 F.3d 272, 287 (7th Cir.), reh'g en banc granted i......
  • State v. U.S. Dep't of Justice, No. 19-267-cv(L)
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 13, 2020
    ...enforcement of all or some of the conditions. See City of Providence v. Barr , 954 F.3d 23 (1st Cir. 2020) ; City of Los Angeles v. Barr , 941 F.3d 931 (9th Cir. 2019) ; City of Philadelphia v. Attorney Gen ., 916 F.3d 276 (3d Cir. 2019).The circuit split—which generated a host of persuasiv......
  • A DOCTRINE WITHOUT EXCEPTION: CRITIQUING AN IMMIGRATION EXCEPTION TO THE ANTICOMMANDEERING RULE.
    • United States
    • University of Pennsylvania Law Review Vol. 169 Nbr. 1, December 2020
    • December 1, 2020
    ...question of whether the Attorney General possessed the authority to impose the conditions at all"), and City of Los Angeles v. Barr, 941 F.3d 931, 934 (9th Cir. 2019) (resolving the sanctuary city litigation on statutory authority (6) See generally City of Chicago v. Sessions, 888 F.3d 272;......
  • Request a trial to view additional results
9 cases
  • State v. U.S. Dep't of Justice, Nos. 19-267(L)
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 26, 2020
    ...of some or all of the challenged conditions as to other jurisdictions applying for Byrne grants. See City of Los Angeles v. Barr, 941 F.3d 931 (9th Cir. 2019) (ruling as to Notice and Access Conditions); City of Philadelphia v. Attorney Gen. , 916 F.3d 276 (3d Cir. 2019) (ruling as to all t......
  • City of Providence v. Barr, No. 19-1802
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 24, 2020
    ...before us, three courts of appeals had refused to enforce some or all of the challenged conditions. See City of Los Angeles v. Barr, 941 F.3d 931, 934 (9th Cir. 2019) ; City of Philadelphia, 916 F.3d at 279 ; City of Chicago v. Sessions, 888 F.3d 272, 287 (7th Cir.), reh'g en banc granted i......
  • State v. U.S. Dep't of Justice, No. 19-267-cv(L)
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 13, 2020
    ...enforcement of all or some of the conditions. See City of Providence v. Barr , 954 F.3d 23 (1st Cir. 2020) ; City of Los Angeles v. Barr , 941 F.3d 931 (9th Cir. 2019) ; City of Philadelphia v. Attorney Gen ., 916 F.3d 276 (3d Cir. 2019).The circuit split—which generated a host of persuasiv......
  • Nat'l Ass'n of Mfrs. v. U.S. Dep't of Homeland Sec., Case No. 20-cv-04887-JSW
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • October 1, 2020
    ...is unlawful, Defendants lack lawful authority to implement the Proclamation's provisions. See, e.g., City of Los Angeles v. Barr , 941 F.3d 931, 938 (9th Cir. 2019) ("When an agency is charged with administering a congressional statute, ‘both its power to act and how it is to act are a......
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1 books & journal articles

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