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City of Los Angeles v. Barr

United States Court of Appeals, Ninth Circuit

October 31, 2019

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.

          Argued and Submitted April 10, 2019 Pasadena, California

          Appeal from the United States District Court No. 2:17-cv-07215-R-JC for the Central District of California Manuel L. Real, District Judge, Presiding

          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.

          Before: Kim McLane Wardlaw, Jay S. Bybee, and Sandra S. Ikuta, Circuit Judges.

         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 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 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.

          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 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. § 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 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 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 or agency . . . to which the assistance is extended." Id. § 2000d-4a(1)(A)-(B). Finally, the 2017 Byrne JAG award document stated that "[f]ailure to comply with any one or more of these award requirements" can result in loss of funding.

         The City of Los Angeles applied for a Byrne JAG award for the 2017 fiscal year. Its application included a letter from its deputy mayor stating that Los Angeles "is withholding any commitment to, or confirmation of, its compliance with" the notice and access conditions. On September 29, 2017, Los Angeles filed suit against DOJ, seeking an injunction against implementation of the notice and access conditions. In connection with this lawsuit, Los Angeles stated it had a policy against cooperating with federal immigration enforcement on the ground that "being perceived as a 'cooperating' jurisdiction in the view of the current Administration would harm public safety in Los Angeles" because it would have a negative impact on police relationships with immigrant communities.

         Following a brief stay pending the Seventh Circuit's affirmance and subsequent en banc vacatur of a nationwide injunction against the notice and access conditions, see City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018), reh'g en banc granted in part, opinion vacated in part, No. 17-2991, 2018 WL 4268817 (7th Cir. June 4, 2018), vacated, No. 17-2991, 2018 WL 4268814 (7th Cir. Aug. 10, 2018), the district court entered a preliminary injunction against DOJ's use of the notice and access conditions on September 13, 2018. DOJ appealed, arguing that the district court erred in determining that Los Angeles was likely to succeed on the merits of its claim that DOJ lacked statutory authority to impose the notice and access conditions.

         III

         We review the district court's grant of a preliminary injunction for an abuse of discretion, and we review its determination of the underlying legal principles de novo. See DISH Network Corp. v. FCC, 653 F.3d 771, 776 (9th Cir. 2011).[7] When an agency is charged with administering a congressional statute, "both [its] power to act and how [it is] to act [are] authoritatively prescribed by Congress." City of Arlington v. FCC, 569 U.S. 290, 297 (2013). An agency "literally has no power to act . . . unless and until Congress confers power upon it." La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 374 (1986).

         DOJ advances two possible bases for its statutory authority to introduce the notice and access conditions.

         A

         DOJ first argues that the notice and access conditions are within the Assistant AG's authority under a 2006 amendment to § 10102(a)(6) enacted by Congress in the Violence Against Women and Department of Justice Reauthorization Act of 2005, § 1152, 119 Stat. at 3113.[8]

         From its enactment in 1984 and through 2005, § 10102(a)(6) provided that the Assistant AG shall "exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this title or by delegation of the Attorney General." See Joint Resolution, Pub. L. No. 98-473, § 102, 98 Stat. 1837, 2078 (1984). In 2006, Congress amended § 10102(a)(6) to add the phrase "including placing special conditions on all grants, and determining priority purposes for formula grants" at the end of the section. See Violence Against Women and Department of Justice Reauthorization Act of 2005, § 1152, 119 Stat. at 3113. Accordingly, § 10102(a)(6) now provides that 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." 34 U.S.C. § 10102(a)(6). DOJ argues that by amending the statute, Congress gave the Assistant AG the authority to impose notice and access conditions as "special conditions" on Byrne JAG awards and to announce the Attorney General's determination that such conditions are "priority purposes" of the awards.

         Before considering DOJ's claim, we first address Los Angeles's threshold argument that Congress's amendment to § 10102(a)(6) does not give the DOJ any independent authority or power. Rather, Los Angeles claims, the statute merely describes the Assistant AG's ability to exercise authority specified elsewhere in the relevant chapter (Chapter 101 of title 34). We disagree. Los Angeles has not identified (and we have not found) any language in the chapter giving the Attorney General or the Assistant AG authority to place "special conditions" or determine "priority purposes" for grants.[9] But by amending § 10102(a)(6), Congress affirmatively indicated its understanding that the Assistant AG's powers and functions could include "placing special conditions on all grants, and determining priority purposes for formula grants." 34 U.S.C. § 10102(a)(6). Therefore, Los Angeles's interpretation deprives the 2006 amendment to § 10102(a)(6) of any meaning; in effect, we would have to conclude that Congress amended § 10102(a)(6) for the purpose of expressly authorizing the Assistant AG to exercise certain powers that do not exist. We decline to do so, because we presume Congress makes amendments with purpose, see Stone v. INS, 514 U.S. 386, 397 (1995), and it is generally "our duty to give effect, if possible, to every clause and word of a statute," United States v. Menasche, 348 U.S. 528, 538-39 (1955) (internal quotation marks omitted). Accordingly, we reject Los Angeles's construction of the statute. Consistent with Congress's amendment, we read § 10102(a)(6) as confirming the authority of DOJ to place "special conditions on all grants" and determine "priority purposes for formula grants."

         On the other hand, we also disagree with DOJ's argument that its notice and access conditions place "special conditions" on Byrne JAG awards and announce the Attorney General's determination that such conditions are "priority purposes" of the awards. To address this claim, we must first interpret the terms "special conditions" and "priority purposes" in § 10102(a)(6). "Canons of statutory construction help give meaning to a statute's words. We begin with the language of the statute." Wilderness Soc'y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir. 2003) (citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 56 (1987)). Where the statute does not define the relevant terms, we give them "their ordinary, contemporary, common meaning," and "may consult dictionary definitions." Transwestern Pipeline Co. v. 17.19 Acres of Prop. Located in Maricopa Cty., 627 F.3d 1268, 1270 (9th Cir. 2010) (internal quotation marks and citations omitted). In construing specific words in a statute, we must also look to the "language and design of the statute as a whole," K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988), and read the specific words "with a view to their place in the overall statutory scheme." Wilderness Soc'y, 353 F.3d at 1060 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)); see also United States v. Lewis, 67 F.3d 225, 228-29 (9th Cir. 1995) ("Particular phrases must be construed in light of the overall purpose and structure of the whole statutory scheme."). In every case, "it is the intent of Congress that is the ultimate touchstone." Arizona v. United States, 567 U.S. 387, 453 (2012) (Alito, J., concurring in part and dissenting in part) (internal quotation marks omitted).

         The term "special conditions" is not defined in the statute. Under the dictionary definition, the term "special" means "unusual" or "extraordinary," Special, Black's Law Dictionary (9th ed. 2009), or "assigned or provided to meet a particular need not covered under established procedures," Special, Webster's New Int'l Dictionary (3d ed. 2002). As this definition of "special" suggests, a "special condition" would be applied "to meet a particular need" for carrying out a program that is not covered by established requirements.[10]

         This interpretation of "special conditions" is consistent with the regulatory backdrop against which Congress enacted both § 10102(a)(6)'s "including" clause and the Byrne JAG statutes. See Violence Against Women and Department of Justice Reauthorization Act of 2005, § 1152, 119 Stat. at 3113. At the time, a regulation setting out "administrative requirements for grants and cooperative agreements to State and local governments" provided a definition of the term "special conditions." See 28 C.F.R. § 66.12 (2006). The regulation, titled "[s]pecial grant or subgrant conditions for 'high-risk' grantees," provided that if a grantee was "high-risk," then "special conditions and/or restrictions shall correspond to the high risk condition and shall be included in the award." Id. § 66.12(a)(5). A grantee could be deemed high risk if it had a history of noncompliance with grant requirements, financial stability issues, or other factors that suggested a propensity toward violation of a grant's terms. Id. § 66.12(a). According to the regulation, "[s]pecial conditions or restrictions may include (1) [p]ayment on a reimbursement basis; (2) [w]ithholding authority to proceed to the next phase until receipt of evidence of acceptable performance within a given funding period; (3) [r]equiring additional, more detailed financial reports; (4) [a]dditional project monitoring; (5) [r]equiring the grantee or sub-grantee to obtain technical or management assistance; or (6) [e]stablishing additional prior approvals." Id. § 66.12(b). Additionally, the regulation required the awarding agency to inform the grantee of the reasons for the special conditions and identify corrective actions the grantee could take to have the special conditions removed. Id. § 66.12(c).

         This regulatory meaning of "special conditions" is presumed to have informed Congress's use of the term in § 10102(a)(6). See FAA v. Cooper, 566 U.S. 284, 292 (2012) ("[W]hen Congress employs a term of art, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken." (internal quotation marks omitted)). This conclusion is supported by Congress's use of this term in a different provision, § 10109, in the subchapter of the statutes establishing OJP and Byrne JAG, enacted at the same time Congress established Byrne JAG and amended § 10102(a)(6). In § 10109, Congress provided that an Office of Audit, Assessment, and Management within the OJP would assess and review OJP's grant programs to ensure compliance with program terms and requirements. See 34 U.S.C. § 10109(a), (b). When conducting such an audit, the auditing office must "take special conditions of the grant into account and consult with the office that issued those conditions to ensure appropriate compliance." Id. § 10109(a)(2).[11] This usage indicates that "special conditions" were understood to be individualized requirements included in a specific grant, as set forth in 28 C.F.R. § 66.12(a)(5) (2006). Otherwise, the auditor would not need to identify the office that issued the condition and engage in consultation on the compliance requirements.

         Under the "normal rule of statutory construction," we presume that "identical words used in different parts of the same act are intended to have the same meaning." Dep't of Revenue of Or. v. ACF Indus., 510 U.S. 332, 342 (1994) (internal quotation marks omitted). Accordingly, we may presume that Congress intended the use of "special conditions" in § 10102(a)(6) to have the same meaning as it has in § 10109(a)(2), namely to refer to individualized requirements. Therefore, the inclusion of "placing special conditions on all grants" in § 10102(a)(6) refers to the power to impose tailored ...


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