City of S.F. v. Sessions, Case No. 18-cv-05146-WHO

Citation372 F.Supp.3d 928
Decision Date04 March 2019
Docket Number Case No. 18-cv-05169-WHO,Case No. 18-cv-05146-WHO
Parties CITY AND COUNTY OF SAN FRANCISCO, Plaintiff, v. Jefferson B. SESSIONS, et al., Defendants. State of California, Plaintiff, v. Jefferson B. Sessions, et al., Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California

Dennis J. Herrera, Yvonne Rosil Mere, Sara Jennifer Eisenberg, Aileen Marie McGrath, Tara M. Steeley, Ronald P. Flynn, City Attorney for the City and County of San Francisco, San Francisco, CA, Cherokee Dawn-Marie Melton, California Department of Justice Office of the Attorney General, Garrett Murlan Lindsey, California Department of Justice Civil Rights Enforcement Section, Lee Isaac Sherman, California Department of Justice, Los Angeles, CA, Sarah Elizabeth Belton, Oakland, CA, for Plaintiffs.

W. Scott Simpson, U.S. Department of Justice, Springfield, IL, for Defendants.


William H. Orrick, United States District Judge


Edward Byrne Memorial Justice Assistance Grant ("Byrne JAG") program funds have been the focal point of an ongoing dispute between the federal, state, and local governments for the past two years. After President Trump assumed office, he issued an Executive Order announcing a policy of withholding federal grants from "sanctuary jurisdictions," which was challenged by the City and County of San Francisco and the County of Santa Clara. I granted summary judgment to prevent the Executive Order from being enforced; the Ninth Circuit affirmed. City and Cty. of San Francisco v. Trump , 275 F.Supp.3d 1196 (N.D. Cal. 2017), aff'd in part, vacated in part, remanded sub nom. City and Cty. of San Francisco v. Trump , 897 F.3d 1225 (9th Cir. 2018).

Shortly thereafter, former Attorney General Jefferson Beauregard Sessions III imposed three new conditions on the receipt of Byrne JAG funding for fiscal year 2017: the access, notice, and Section 1373 certification conditions. These conditions required Byrne JAG applicants to provide Immigration and Customs Enforcement ("ICE") with "access" to correctional facilities for immigration enforcement purposes, "notice" of detainee release dates, and to certify compliance with 8 U.S.C. § 1373. California and San Francisco sued the DOJ for withholding their fiscal year 2017 grant funds after they asserted compliance with the new conditions. I found that the challenged conditions were unlawful on multiple grounds and held that Section 1373 was unconstitutional. City & Cty. of San Francisco v. Sessions , 349 F.Supp.3d 924, 934 (N.D. Cal. 2018), judgment entered sub nom. California ex rel. Becerra v. Sessions , No. 3:17-CV-04701-WHO, 2018 WL 6069940 (N.D. Cal. Nov. 20, 2018).

For fiscal year 2018, defendants Acting Attorney General Matthew G. Whitaker and the Department of Justice (collectively, the "DOJ") continued to include essentially the same fiscal year 2017 challenged conditions as well as two other new conditions.

The additional 2018 conditions require Byrne JAG recipients: (i) not to publicly disclose sensitive federal law enforcement information in an attempt to harbor or shield "fugitives from justice" or "aliens" in violation of federal immigration law (the "nondisclosure condition"); and (ii) to provide information about the applicant's laws and policies for purposes of assessing compliance with Section 1373 (the "information condition").

California and San Francisco have sued the DOJ challenging five conditions in the fiscal year 2018 Byrne JAG Program. The DOJ filed a partial motion to dismiss or a partial motion for summary judgment, seeking dismissal or judgment on California's and San Francisco's claims regarding the nondisclosure and information conditions. The DOJ has preserved its arguments on the access, notice, and certification conditions from the prior case on fiscal year 2017 funds, which apply to some of the fiscal year 2018 Byrne JAG funding.

California and San Francisco responded with their own motions for summary judgment. They seek declaratory relief that the challenged conditions are unconstitutional violations of the separation of powers and the Spending Clause of the United States Constitution and to enjoin the DOJ from enforcing the challenged conditions or withholding Byrne JAG funds based on those requirements. California also brings an Administrative Procedure Act claim and seeks mandamus relief compelling the DOJ to issue California its fiscal year 2018 Byrne JAG awards without the challenged conditions.

Only the nondisclosure condition raises a substantive concern that I have not addressed, and it fails for somewhat different reasons than the other conditions. Left to its core—that local jurisdictions should not publicize confidential federal law enforcement actions that are disclosed to local authorities to insure deconfliction and protect local law enforcement and residents—seems self-evident and reasonable. But DOJ did not leave it to its core, and instead larded it with broad-ranging, ambiguous language that would allow DOJ the discretion to coerce local jurisdictions to comply with its interpretation of the statutes in dispute in these cases. The exercise of such discretion is all the more suspect in light of the active litigation over immigration issues between California jurisdictions and the federal government, and the threat made by Administration officials to commence criminal prosecution of California officials who follow that sovereign's interpretation of the law. See, e.g. , CA Request for Judicial Notice ("RJN"), Ex. F (DHS Secretary Nielsen confirming to the Senate Judiciary Committee that DOJ was "reviewing what avenues might be available" to bring criminal charges against elected officials abiding by sanctuary policies.).

Accordingly, for the reasons discussed more fully below, I find that (i) the challenged conditions are ultra vires and violate the separation of powers, (ii) Section 1373 is unconstitutional, (iii) the Attorney General exceeds the Spending Clause in violation of the United States Constitution by imposing ambiguous challenged conditions in the fiscal year 2018 Byrne JAG Program, (iv) the conditions are arbitrary and capricious, (v) California is entitled to the mandamus relief it seeks, and (vi) a nationwide injunction is warranted but stayed. California's and San Francisco's motions for summary judgment are granted, and the DOJ's motions are denied.

A. The Immigration and Nationality Act

Congress reinforced the Executive Branch's inherent authority "over the subject of immigration and the status of aliens" when it passed the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. Arizona v. United States , 567 U.S. 387, 394, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). The INA authorizes the Department of Homeland Security ("DHS") as well as the DOJ and other federal agencies to enforce the immigration laws. See, e.g. , 8 U.S.C. § 1227(a)(2) (allowing the Attorney General or Secretary of Homeland Security to order removal of certain classes of immigrants). It also contemplates coordination between federal officials and state or local jurisdictions. See Arizona , 567 U.S. at 411, 132 S.Ct. 2492 ("Consultation between federal and state officials is an important feature of the immigration system."). Various provisions seek to accomplish such coordination and information sharing when possible. See 8 U.S.C. § 1252c (authorizing state and local officers to make arrests for unlawful reentry); 8 U.S.C. § 1324(c) (authorizing state and local officers to make arrests for INA violations); 8 U.S.C. § 1357(g) (authorizing state and local officers to perform functions of a federal immigration officer).

B. The Byrne JAG Program

The Byrne JAG program is a formula grant program that is administered by the Bureau of Justice Assistance, a department within the Office of Justice Programs ("OJP"). See 34 U.S.C. § 10156(d)(2)(A) (stating that "the Attorney General shall allocate to each unit of local government" funds determined by the established formula). Grant funding is awarded as a function of population and violent crime rate. See 34 U.S.C. § 10156(a). Eligible grantees are entitled to their awards so long as their Byrne JAG funds go toward programs in one of eight program areas: (1) law enforcement, (2) prosecution and court, (3) prevention and education, (4) corrections and community corrections, (5) drug treatment and enforcement, (6) planning, evaluation, and technology improvement, (7) crime victim and witness programs, and (8) mental health programs. See 34 U.S.C. § 10152(a)(1)(A)(H).

Under the formula, California is expected to receive $ 28.9 million Byrne JAG funds in fiscal year 2018, including $ 18 million going to the Board of State and Community Corrections ("BSCC"). Jolls Decl. ¶ 5. The BSCC plans to continue using the funds for education and crime prevention, law enforcement, and court programs, as it has in previous years. Id. ¶¶ 9–10 (detailing the types of sub-grants that BSCC has provided in previous years, and the focus on education and crime prevention programs for the next three-year grant cycle).

San Francisco is expected to receive $ 489,966 in direct Byrne JAG funding and approximately $ 1 million in state sub-grant funding under the formula. Chyi Decl. ¶ 8, Ex. C. San Francisco uses the funding to support law enforcement programs aimed at reducing the drug trade and recidivism among repeat offenders, and for programs connecting those with substance and mental health problems to appropriate services. Id. ¶¶ 10–11, 17. As in fiscal year 2017, San Francisco faces the prospect of eliminating approximately ten full-time positions spanning six departments without Byrne JAG funding. Id. ¶¶ 10–19; see also City & Cty. of San Francisco , 349 F.Supp.3d at 936 (discussing San Francisco's intended...

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    ...identical to Section 1373(b). Compare 8 U.S.C. § 1644 with 8 U.S.C. § 1373(b); see also City & Cty. of San Francisco v. Sessions, 372 F. Supp. 3d 928, 938 (N.D. Cal. 2019) (noting that "Section 1644 contains nearly identical language as Section 1373"). Defendant recognizes that analysis reg......
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    • University of Pennsylvania Law Review Vol. 169 No. 2, January 2021
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