City of Phila. v. Sessions

• Decision Date: 13 March 2018
• Docket Number: CIVIL ACTION NO. 17–3894
• Citation: 309 F.Supp.3d 271
• Parties: The CITY OF PHILADELPHIA, Plaintiff, v. Jefferson Beauregard SESSIONS III, Attorney General of the United States, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

309 F.Supp.3d 271

The CITY OF PHILADELPHIA, Plaintiff,

v.Jefferson Beauregard SESSIONS III, Attorney General of the United States, Defendant.

CIVIL ACTION NO. 17–3894

United States District Court, E.D. Pennsylvania.

Filed March 13, 2018

Kirti Datla, Reedy C. Swanson, Daniel J.T. Schuker, Neal Katyal, Hogan Lovells US LLP, Washington, DC, Virginia A. Gibson, Alexander B. Bowerman, Jasmeet K. Ahuja, Sara A. Solow, Hogan Lovells US LLP, Judy Lee Leone, Robert C. Heim, Dechert LLP, Lewis Rosman, Sozi Pedro Tulante, City of Philadelphia Law Dept., Marcel S. Pratt, City of Philadelphia Law Department Chair, Litigation Group, Will W. Sachse, Dechert, Price & Rhoads, Philadelphia, PA, for Plaintiff.

Brad P. Rosenberg, Daniel Schwei, Rachael Lynn Westmoreland, Arjun Garg, James H. Percival, II, U.S Department of Justice, Washington, DC, Anthony St. Joseph, U.S. Attorney's Office, Philadelphia, PA, for Defendant.

MEMORANDUM RE: MOTION TO DISMISS

Baylson, District Judge

I. Introduction

In this action, Plaintiff City of Philadelphia, which has in place policies that "seek to foster trust" between immigrants and officers of the City, challenges the recent imposition by Defendant Jefferson Beauregard Sessions III, Attorney General of the United States, of three immigration-related funding conditions on receipt of federal law enforcement aid under the Byrne Justice Assistance Grant ("JAG") program. (Am. Compl. ¶ 2, ECF 84.)

The City alleges that the Attorney General cannot legally or constitutionally condition JAG Program funds on 1) requiring federal immigration agents access to City detention facilities (the "Access Condition"); 2) providing the Department of Homeland Security ("DHS") at least 48 hours' advance notice of the date and time of the release of any inmate about whom DHS has requested such information (the "Notice Condition"); and 3) certifying compliance with 8 U.S.C. § 1373 ("Certification Condition"; collectively, the "Challenged Conditions"). The City asserts the following six counts in its Amended Complaint:

Count I asserts that the Attorney General acted ultra vires and in violation of the Administrative Procedure Act by imposing the Challenged Conditions. (Am. Compl. ¶¶ 113–21, ECF 84).

Count II asserts that the imposition of the Challenged Conditions by the Attorney General violated the Administrative Procedure Act because the Challenge Conditions contravene the separation of powers. (Id. ¶¶ 122–31.)

Count III alleges that the Attorney General's imposition of the Challenged Conditions constituted arbitrary and capricious agency action in violation of the Administrative Procedure Act. (Id. ¶¶ 132–35.)

Count IV alleges that the Challenged Conditions are invalid under the Spending Clause of the U.S. Constitution. (Id. ¶¶ 136–43.)

Count V asserts that the Challenged Conditions unconstitutionally seek to commandeer City officials into the enforcement of federal immigration law in violation of the Tenth Amendment. (Id. ¶¶ 144–50.)

Count VI seeks a declaration by this Court that the City is in compliance with 8 U.S.C. § 1373, as constitutionally construed. (Id. ¶¶ 151–57.)

The City also seeks to enjoin the Challenged Conditions, asks this Court to declare that the Challenged Conditions are unconstitutional, and requests a writ of mandamus requiring the Attorney General to disburse the City's fiscal year 2017 Byrne JAG award.

For the reasons stated below, the Court DENIES the Attorney General's motion to dismiss the Amended Complaint.

II. Background

A. Byrne JAG Program

The following facts are taken as true from the City's Amended Complaint. (ECF 84.) The federal funding program at issue in this case is the Edward Byrne Memorial Justice Assistance Grant Program (the "JAG Program" or the "Byrne Program"), which was formed in 2005 from a merger of the Edward Byrne Memorial Formula Grant Program and the Local Law Enforcement Block Grant Program. (Id. ¶ 57.) The Byrne JAG Program is a formula grant, whose authorizing statute, 34 U.S.C. § 10151, et seq. , allows states and localities to use grant awards for a wide variety of purposes, such as personnel, equipment, training, and other criminal justice needs. (Id. ¶ 59 (citing 34 U.S.C. § 10152.) ) Since the Edward Byrne Memorial Justice Assistance Grant program was created in 2005, the City has applied for, and received, awards each year. (Id. ¶ 4.) The City plans to use its FY 2017 funds to provide use-of-force training to officers, support collaborations with inner-city youth, and provide doses of naloxone

to Philadelphia police officers to counteract opioid overdoses. (Id. ¶ 66.)

B. The Challenged Conditions

In 2016, the Office of Justice Programs added a condition on Byrne JAG funds, applicable to fiscal year 2017 and thereafter, requiring applicant jurisdictions to certify compliance with 8 U.S.C. § 1373 (the "Certification Condition"). (Id. ¶¶ 77–79.) 8 U.S.C. § 1373, entitled "Communication between government agencies and the Immigration and Naturalization Service," prohibits local government and law enforcement officials from restricting the sharing of information with federal immigration officials regarding the citizenship status of any individual as follows:

(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.

(b) Additional Authority of Government Entities

Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:

(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.

(2) Maintaining such information.

(3) Exchanging such information with any other Federal, State, or local government entity.

(c) Obligation to Respond to Inquiries

The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

Philadelphia certified its compliance with 8 U.S.C. § 1373 on June 22, 2017. (Am. Compl. ¶ 11.)

In late July 2017, the Attorney General announced two new conditions on every grant provided by the JAG Program. (Id. ¶ 5.) The two new conditions require, first, that local authorities provide federal agents advance notice of the scheduled release from state or local correctional facilities of certain individuals suspected of immigration violations (the "Notice Condition"), and, second, that local authorities provide immigration agents with access to City detention facilities and individuals detained therein (the "Access Condition"). (Id. )

The Office of Justice Programs described the three new conditions applicable to JAG recipients as follows:

The Notice Condition

A State statute, or a State rule, regulation, policy, or practice, must be in place that is designed to ensure that, when a State (or State-contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and—as early as practicable—provide the requested notice to DHS.

The Access ConditionA State statute, or a State rule, regulation, policy, or practice, must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given access to any State (or State-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals' right to be or remain in the United States.

The Certification Condition

The applicant local government must submit the required "Certification of Compliance with 8 U.S.C. § 1373" (executed by the chief legal officer of the local government).

(Award Letter to Greenville, SC at ¶¶ 52, 55, ECF 21–6.)

C. Philadelphia Policies

Philadelphia has a number of policies in place intended to "engender trust with the City's immigrant community" that are relevant to this case and the Challenged Conditions. (Am. Compl. ¶ 24.)

1. Police Department Memorandum 01–06

In 2001, the Philadelphia Police Department issued a memorandum prohibiting its officers from unnecessarily disclosing individuals' immigration status, subject to three exceptions: "(1) required by law, or (2) the immigrant requests, in writing, that the information be provided, to verify his or her immigration status, or (3) the immigrant is suspected of engaging in criminal activity, including attempts to obtain public assistance benefits through the use of fraudulent documents." (Mem. 01–06 at 1–2, ECF 1–3.) Memorandum 01–06 states also that "[t]he Philadelphia Police Department will continue to cooperate with federal authorities in investigating and apprehending immigrants suspected of criminal activities. However, immigrants who are victims of crimes will not have their status as an immigrant transmitted in any manner." (Id. at 2.)

2. "Confidentiality Order"

In 2008, then-mayor Michael Nutter signed the "Confidentiality Order," Executive Order 08–09, which prevents city officers outside of law enforcement from "inquir[ing] about a person's immigration status unless: (1) documentation of such person's immigration status is legally required for the determination of program,...