United States of America v. State of California et al

Filing 30

REPLY by Xavier Becerra, Edmund Gerald Brown, Jr, State of California re 18 Motion to Transfer Venue. (Attachments: # 1 Request for Judicial Notice & Exhibits A-D) (Sherman, Lee)

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XAVIER BECERRA
Attorney General of California
THOMAS PATTERSON
Senior Assistant Attorney General
MICHAEL NEWMAN
SATOSHI YANAI
Supervising Deputy Attorneys General
CHRISTINE CHUANG
ANTHONY HAKL
CHEROKEE DM MELTON
LEE I. SHERMAN
Deputy Attorneys General
State Bar No. 272271
300 S. Spring Street
Los Angeles, CA 90013
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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THE UNITED STATES OF AMERICA,

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Case No. 2:18-cv-00490-JAM-KJN

Plaintiff,
REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF DEFENDANTS’ REPLY
BRIEF ON THE MOTION TO
THE STATE OF CALIFORNIA; EDMUND TRANSFER VENUE
GERALD BROWN JR., Governor of
California, in his official capacity; and
Judge: Honorable John A. Mendez
XAVIER BECERRA, Attorney General of
Action Filed: March 6, 2018
California, in his official capacity,
v.

Defendants.

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Request for Judicial Notice in Support of Defendants’ Reply Brief on the Motion to Transfer Venue
(18-cv-00490-JAM-KJN)

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Defendants the State of California, Edmund Gerald Brown Jr., Governor of California, in

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his official capacity, and Xavier Becerra, Attorney General of California, in his official capacity

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(collectively, “Defendants”), hereby request, pursuant to Rule 201 of the Federal Rules of

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Evidence, that the Court take judicial notice of the following items in connection with the Reply

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in Support of Defendants’ Motion to Transfer Venue to the Northern District of California:

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1.

Exhibit A: Transcript of Proceedings (Motion for Preliminary Injunction), December

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13, 2017, California v. Sessions, et al., Case No. 17-cv-4701 (N.D. Cal.) (hereinafter

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“California v. Sessions”).

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2.

Injunction, California v. Sessions, Dkt. No. 42.

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3.

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Exhibit C: Defendants’ Notice of Motion and Motion to Dismiss, California v.
Sessions, Dkt. No. 77.

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Exhibit B: Defendants’ Opposition to Plaintiff’s Amended Motion for Preliminary

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Exhibit D: Defendants’ Reply Memorandum of Points and Authorities in Support of
their Motion to Dismiss, California v. Sessions, Dkt. No. 83

Facts subject to judicial notice include those that “can be accurately and readily determined

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from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2). The

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Court “must take judicial notice if a party requests it and the court is supplied with the necessary

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information.” Fed. R. Evid. 201(c)(2). Courts regularly take judicial notice of “undisputed

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matters of public record, including documents on file in federal or state courts.” Harris v. Cty. of

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Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012) (internal citations omitted); Lee v. City of Los

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Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001); Kurtz v. Intelius, Inc., No. 11-cv-1009, 2011 WL

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4048645, at *3-*4 (E.D.Cal. Sept. 9, 2011). Exhibits A through D are court records from

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California v. Sessions, a pending action in the Northern District of California.

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In sum, the above items meet the requirements of Rule 201(b)(2) of the Federal Rules of

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Evidence, and therefore, the Court must take judicial notice of them pursuant to Rule 201(c)(2) of

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the Federal Rules of Evidence.

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1
Request for Judicial Notice in Support of Defendants’ Motion to Transfer Venue
to the Northern District of California (18-cv-00490-JAM-KJN)

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Dated: March 23, 2018

Respectfully Submitted,

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XAVIER BECERRA
Attorney General of California

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/s/Lee I. Sherman
Lee I. Sherman
Deputy Attorney General
Attorneys for Defendants

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Request for Judicial Notice in Support of Defendants’ Motion to Transfer Venue
to the Northern District of California (18-cv-00490-JAM-KJN)

EXHIBIT A

Pages 1 - 49
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE WILLIAM H. ORRICK, JUDGE
STATE OF CALIFORNIA, ex rel,
)
XAVIER BECERRA, in his official)
capacity as Attorney General
)
of the State of California,
)
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Plaintiff,
)
)
vs.
)
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JEFFERSON B. SESSIONS, in his )
official capacity as Attorney )
General of the United States; )
ALAN R. HANSON, in his official)
capacity as Principal Deputy
)
Acting Assistant Attorney
)
General; UNITED STATES
)
DEPARTMENT OF JUSTICE; and
)
DOES 1-100,
)
)
Defendants.
)
_______________________________)

NO. C 17-4701 WHO

San Francisco, California
Wednesday, December 13, 2017

TRANSCRIPT OF PROCEEDINGS
APPEARANCES:
For the Plaintiff:

By:

State of California
Department of Justice
Office of the Attorney General
Civil Rights Enforcement Section
300 South Spring Street
Los Angeles, California 90013
Lee I. Sherman
Deputy Attorney General

(Appearances continued on next page)
Reported By:

Katherine Powell Sullivan, CSR #5812, RPR, CRR
Official Reporter - U.S. District Court

APPEARANCES (CONTINUED):
For the Plaintiff:

By:

For Defendants:

By:

By:

By:

State of California
Department of Justice
Office of the Attorney General
1515 Clay Street, 21st Floor
Okaland, California 94612-1492
Lisa Ehrlich
Sarah E. Belton
Deputy Attorneys General
United States Department of Justice
Civil Division
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Chad A. Readler
Acting Assistant Attorney General
United States Department of Justice
Federal Programs Branch
901 E Street, N.W., Room 986
Washington, D.C. 20530
W. Scott Simpson
Senior Counsel
United States Department of Justice
United States Attorney's Office
450 Golden Gate Avenue, 9th Floor
San Francisco, California 94102
Steven J. Saltiel
Assistant United States Attorney

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Wednesday - December 13, 2017

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P R O C E E D I N G S

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2:04 p.m.

---000---

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THE CLERK:

Calling civil matter 17-4701, State of

California versus Sessions, et al.
Counsel, please come forward and state your appearance.
MR. SHERMAN:
State of California.
THE COURT:

Good afternoon.

MS. EHRLICH:

MS. BELTON:

Sarah Belton on behalf of the State of

California.
THE COURT:

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MR. SALTIEL:

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Welcome.

MR. SIMPSON:

Steven

Good afternoon, Your Honor.

Scott

Simpson for DOJ for the defendant.
THE COURT:

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MR. READLER:

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Good afternoon, Your Honor.

Saltiel for the U.S. Attorney's Office, for the defendants.

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Lisa Ehrlich representing the State of

California.

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My name is Lee Sherman, representing the

Mr. Simpson, good to see you.
Good afternoon, Your Honor.

Chad

Readler on behalf of the defendants.
THE COURT:

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All right.

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Mr. Readler, welcome back also.

almost every issue.

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So I find this to be a very close case on

So, Mr. Sherman, why don't you come up here if you're

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doing the argument.
MR. SHERMAN:

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Thank you, Your Honor.
THE COURT:

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Sure.

All right.

So let me start with you just

a little bit.

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MR. SHERMAN:

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THE COURT:

Absolutely.

When I'm looking at the spending clause

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analysis, should I be looking at the same analysis for both the

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Byrne and the COPS grants?
MR. SHERMAN:

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So, Your Honor, we are not challenging

the COPS grant condition on spending clause grounds.

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THE COURT:

Okay.

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MR. SHERMAN:

We are challenging the JAG 1373

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condition on spending clause grounds and that it's a violation

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of the Administrative Procedure Act for being arbitrary and

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capricious.

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But the COPS grant, we are not challenging the condition

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itself.

What we are asking for, Your Honor -- and this is

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extremely timely because defendants have frozen the State's

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awarded COPS grant, million-dollar COPS grant that the State

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uses for a task force to combat anti-methamphetamine

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trafficking, pending the inquiry into 1373.

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So because we are not -- we are not challenging the

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condition, we do ask Your Honor to determine the State's

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compliance with 1373 as part of this motion.

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THE COURT:

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All right.

So Judge Baylson, in

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Philadelphia vs. Sessions, said something that I agree with.

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And I want you to tell me whether you also agree with it.

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if you do, tell me where it leads.

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MR. SHERMAN:

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THE COURT:

And

Sure.

Okay.

He said that criminal law is

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integral to immigration law; but immigration law has nothing to

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do with local criminal laws.

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And so what conclusion do you think I ought to draw from
that?
MR. SHERMAN:

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not have any bearing on local criminal law enforcement.
THE COURT:

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We would agree that immigration law does

All right.

And would you also agree that

it's integral to immigration law?
MR. SHERMAN:

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It is.

But these grants are for local

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law enforcement to engage in criminal -- criminal justice

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purposes.

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And the intention that Congress had for these grants is

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not to make these grants conditioned on any immigration

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enforcement-related matters in which these grants had --

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originally they had 29 purpose areas.

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Congress then collapsed the purpose areas into eight.

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these purpose areas -THE COURT:

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grants.

And then eventually
None of

Now we're just talking about the Byrne

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MR. SHERMAN:

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Right.

Exactly.

And in addition to

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which there used to be a condition requiring jurisdictions to

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certify -- required jurisdictions to provide information

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regarding criminal convictions of foreign-born individuals

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or -- individuals or immigrants.

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And the -- and the Congress, when it repackaged that, they

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eliminated that condition, indicating that that was not a

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condition that they viewed as being related to the purpose of

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JAG in their -- when it was reauthorized.

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And, then, in addition to which, Congress has repeatedly

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refused to condition JAG on compliance with 1373, and in

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very -- in which there has been various pieces of legislation

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which is not adopted that would require compliance with 1373

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for JAG.

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THE COURT:

Why wouldn't -- if criminal law is

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integral to immigration law, why wouldn't it at least be an

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applicable federal law?

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MR. SHERMAN:

Well, we have not challenged whether it

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is an applicable federal law here.

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whether it has a sufficient nexus to the purpose of the JAG

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grant, the federal interest in the JAG grant.

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Our challenge is regarding

So we understand that there is -- that, indeed, a

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JAG-authorizing statute that allows the federal government to

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identify or -- applicable laws.

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way or the other regarding their ability to do that.

And we are not contesting one

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What we are contesting, though, is that it violates the

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nexus clause under the spending clause, and that it is -- the

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decision in making it an applicable law is arbitrary and

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capricious.
THE COURT:

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What's the best case that you have for why

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1373 shouldn't be an applicable federal law in light of -- in

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light of this situation?
MR. SHERMAN:

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Well, again, we would point to this --

as far as the spending clause issue, we would -- the issue,
this has not come up very much in the cases.
There is the case in Texas in which -- in relation to the

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ACA.

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conditions in the ACA.

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that was a separate program.

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They tied Medicaid funding to compliance with the
And the Court there determined that

And this is what we -- this is what we posit for the JAG,

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is that this is for criminal justice programs.

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intended and Congress intended for this to increase flexibility

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for local jurisdictions to produce innovative solutions to

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criminal justice issues.

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This is

And that is unrelated to immigration enforcement.

And

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immigration enforcement also, Your Honor, is civil in nature.

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And this is for -- and these grants are for criminal justice

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programs.

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THE COURT:

So can you explain to me what the State's

position is with respect to this question?

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MR. SHERMAN:

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THE COURT:

Sure.

If the local enforcement agency knows the

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status of an individual, immigration status, and that

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information is not protected by the confidentiality statutes --

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MR. SHERMAN:

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THE COURT:

Sure.

-- is a local enforcement agency official

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prohibited from providing the status information -- just the

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information about status -- to the federal government?
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No, because of the savings -- you're

asking about the Values Act, Your Honor; correct?

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THE COURT:

Yes.

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MR. SHERMAN:

So, yes, so the Values Act includes a

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savings clause that permits compliance with all aspects of

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1373.

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enforcement to provide an individual's immigration status if --

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if it's requested or if the law enforcement deemed it necessary

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to do so.

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So it does permit local law enforcement and state law

THE COURT:
is just that?

And your definition of status information

Status means status.

MR. SHERMAN:

Information that squarely establishes an

individual's immigration status or citizenship status.

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THE COURT:

And so what is that information?

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MR. SHERMAN:

It could be a visa status.

It could be

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a statement about an individual's immigration status from the

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individual him or herself or another individual.

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THE COURT:

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But it's cabined.

It's just -- and your

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view is that it is just is the person a citizen or not, or does

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that person have a specific visa, I guess, from what you just

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said.

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MR. SHERMAN:

Right.

And we would point -- and as we

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discussed in our reply brief, in page 11, is that because the

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definition of immigration status would dramatically alter the

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federal and state relationship, that the definition -- that

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"immigration status" needs to be unmistakably clear.

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And the statute particularly because Congress in other

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parts of that same act, the illegal immigration act of 1996,

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when it wanted additional information to be a part of the

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provision, they said so.

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And, in fact, in one provision, where it prohibited

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disclosure of information, it said a prohibited disclosure --

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and this is 8 U.S.C. 1367 -- a prohibited disclosure of any

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information relating to an immigrant.

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And here Congress was very specific and used precise terms

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of "citizenship" and "immigration status."

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nationality or individual's address.

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Congress wanted to include those pieces of information, it

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would have included such in 1373.

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THE COURT:

It didn't include

So when Congress -- if

So if I found that 1373 was related or was

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inapplicable federal law, wouldn't the ongoing administrative

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process, with respect to the grants, clarify what specific

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parts of the state law the federal government now thinks is --

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violates 1373?

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And wouldn't that be a benefit to the Court and to the

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State to know exactly what it is that you're shooting at?

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to the Government for that matter.
MR. SHERMAN:

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Sure.

And

Well, positions have been clear

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through the -- through the letter exchanges in which the

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federal government has interpreted 1373 in such a manner to

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include any -- any information regarding an individual's

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identity and their presence in the United States.

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other -- in the Philadelphia proceeding represented that it

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applies to every individual in the United States.

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information about every individual in the United States.

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And also in

Any

And the State, in the response to the inquiry to the BSCC,

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said -- said in response that, We interpret the Values Act to

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not -- not allow the disclosure of release dates and home

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addresses.

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And the positions have been clear.

The lines have been

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drawn.

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there's no real factual development that is necessary regarding

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defendants' interpretation of 1373 and the State's

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interpretation of the Values Act.

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And so that this case is ripe for adjudication.

THE COURT:

And

At least as to a couple of the items, that

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may well be right.

But I suspect that the federal government

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may find other things that they're not happy with the State

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statute about.
Mr. Readler may tell me about that.
MR. SHERMAN:

Sure.

And -- but basically, though, the

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fact is that it is not -- all this other information that they

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would -- are going to be seeking is not -- it's not

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unmistakably clear on the face of the statute that it's

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immigration or citizenship status.

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And, in the meantime, U.S. -- there is harm that is being
placed to the State that the State -- that the State does not

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have to exhaust its administrative remedies if you look at

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McCarthy v. Madigan, if -- if there is injury that's occurring

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during the process or if -- or if there is a constitutional

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issue that's at play, in which it's not within the jurisdiction

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of the agency, or if there is -- or if there's a foregone

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conclusion.

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And here we have all three, in which the State case is an

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injury in which -- which defendants are not only making a

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determination about the State's JAG funding, it's also now, as

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we've seen, preventing the State from having -- from drawing

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down on the COPS grant.

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And they also during the administrative process can --

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under 28 C.F.R. 18.5(i), can -- can suspend the State's JAG

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funding during the administrative process.

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very real harm to the State as we speak.

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THE COURT:

So this is causing

So right now it's holding up a $1 million

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grant; right?

The COPS grant is a $1 million grant.

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MR. SHERMAN:

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THE COURT:

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The Byrne grant is already held up because

of what's going on in the Seventh Circuit.
MR. SHERMAN:

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Sure.

Sure.

Right?

Currently, right now.

But once the Seventh Circuit rules on it, then at some

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point -- these are formula grants, and these are grants that

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were appropriated by Congress.

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awarded two of these grants to other jurisdictions.

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And defendants have already

So these are grants that have to be awarded to the state

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and the other -- and other -- and local jurisdictions and other

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jurisdictions across the country in the manner that Congress

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appropriated these funds because of the effect of the formula

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grants.

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THE COURT:

So tell me how the savings clause works in

the Values Act.

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MR. SHERMAN:

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THE COURT:

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Sure.

You have an interpretation of 1373.

And

you say, We'll comply with that.
What if I have a different interpretation?

Does that mean

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that the State will comply with that and that then the Values

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Act -- or that the savings clause will sort of conform to 1373?

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MR. SHERMAN:

The savings clause would defer to the

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Court's determinations regarding 1373.

So -- and that's an

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important point, that the Values Act is, on its face -- it

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complies with 1373 for that reason.
THE COURT:

So do you know -- and this may be a better

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question for Mr. Readler, but the timeline with respect to the

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Byrne grant, with respect to the Seventh Circuit litigation and

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when that's going to come up, and any other sort of

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administrative issues that should be of interest to me?

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MR. SHERMAN:

Well, there is -- I think the briefing

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completes in the middle -- January 11th or January 12th, and

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there's a hearing on January 18th.

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THE COURT:

And so from the State's perspective,

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besides the constitutional injury and the holding up of a

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million-dollar grant -- which I don't belittle, but in a

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$15 billion budget it's a relatively small amount of money --

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what is the urgency for the State right now?

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MR. SHERMAN:

Well, with all due respect, with respect

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to the million-dollar grant that you speak to, the State has to

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determine the placement of the staff that are part of these

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task force.

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And so long as these are -- that this grant is being held

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up, they cannot make these decisions and commit to having the

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State's leadership as part of this task force that it uses

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to -- to combat anti-methamphetamine -- to combat

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methamphetamine, to combat heroin, to combat cocaine, in which

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the State has seized, as part of this task force, $60 million

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worth of these illicit drugs.

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So with all due respect, this is an important -- the

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million-dollar grant is a -- is something that is causing harm

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and is impacting the State's ability to implement that grant.

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The -- right here, as you mentioned, we have the

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constitutional harm.

There is also the community harm.

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the prospect, too, that the State will have to certify

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compliance with 1373 under penalty of perjury.

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THE COURT:

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don't understand very well.

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And

So that argument is one that I really
Maybe you can explain it to me.

You have a good-faith belief that you're in compliance

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with 1373.

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perhaps, that the attorney general of the United States has.

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But why can't the State certify that it's in compliance with

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1373?

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That belief is different than the interpretation,

This is why you're litigating.
MR. SHERMAN:

Sure.

But, I mean, though, the State

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then would subject itself to enforcement proceedings.

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defendants have said in the JAG solicitation itself and in

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numerous statements they've said that these certifications are

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subject to penalty of perjury, and that they are subject to

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civil and criminal penalties if they are false or misleading.

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THE WITNESS:

As

So you're right, the State has -- the

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State's interpretation of 1373 is that it complies with 1373.

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But if you follow Susan B. Anthony, the Supreme Court decision

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there, if you follow the Ohio ex rel Celebrezze case, these are

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all cases in which the State need not wait for the federal

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government to -- to -- to initiate an enforcement action before

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the State can seek relief.

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Judgment Act, the whole purpose of it is.
THE COURT:

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This is what the Declaratory

So from your perspective -- this is my

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last question, and then I'm going to let you say the things you

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wanted to say when you got up here.

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MR. SHERMAN:

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THE COURT:

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But these were the things that were on my

mind.

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MR. SHERMAN:

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THE COURT:

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Is there any particular date by which you

MR. SHERMAN:

Well, we ask as soon as possible, Your

Honor.
THE COURT:

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Sure.

think you just have to have a decision?

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Sure.

Okay.

So I'm in the middle of a long

trial.

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MR. SHERMAN:

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THE COURT:

Understood.

Is there some impending event that --

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besides the issues that you've already raised for me, is there

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some sort of time that I really need to focus on getting this

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order out?

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MR. SHERMAN:

We would respectfully request an order

sometime by the beginning of January.
THE COURT:
you've described?

And just because of the reasons that

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MR. SHERMAN:

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Right.

Because the State will have

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to -- is -- the California Department of Justice is in the

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process of planning for the -- for CAMP.
And, also, there is the 90-day clock, which defendants

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have represented started on November 16th, in which the State

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has to decide whether it's going to comply -- will accept the

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COPS condition, which is, of course, conditioned on 8 U.S.C.

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1373.

So that clock would end on February 14th.

So that -- so because of those pending deadlines that are

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coming up, we do believe that a decision within that time frame

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is necessary to stay.
THE COURT:

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All right.

Now, is there anything else

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that you wanted to be sure to tell me before Mr. Readler gets

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up?
MR. SHERMAN:

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Sure.

So I do -- because you asked the

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question regarding applicable law, and we talked a little bit

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about the spending clause, we do want you to be aware that we

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also have a claim that the 1373 condition is a violation of the

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Administrative Procedure Act, in which -- and it's -- first of

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all, defendants claim that the condition is not final agency

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action.

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The State disagrees with that, that in -- in Bennett the

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standard is that -- that there is a consummation of the

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decision process and that there is legal obligations that flow

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from it.

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Here, clearly, the defendants have identified 1373 as a

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condition of compliance for JAG in FY2016.

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again for 2017.

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And now the State has to certify compliance under penalty of

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perjury for 1373.

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They have done it

It's a consummation of their decision-making.

And it's arbitrary and capricious, if you look at State

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Farm, that there are three ways in which an agency action would

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be arbitrary and capricious, that the agency did consider

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factors that Congress did not intend, which we have here for

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the reasons we discussed earlier.
And for that I would point you to a case that's on point,

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is Cape May v. Warren, which we discussed on page 17 of our

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opening brief.

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that -- because the agency there did not -- did not interpret

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the -- did not act consistent with Congress's intent.

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And in that case a condition was struck down

And, also, the other -- other is that the defendants have

17

entirely failed to consider an important aspect of the problem,

18

and they failed to offer an explanation that it's -- that is

19

consistent with the evidence before it.

20

And here the State's -- and this is an essential part of

21

what -- of this case, is that the State has the discretion to

22

determine what is best for its public safety and for the

23

maintenance of its public order.

24
25

And here the State and other jurisdictions, both within
the State and across the country, have determined that policies

18

1

that build trust within communities, and policies that --

2

that -- that limit entanglement between local law enforcement

3

and federal immigration enforcement is -- is something that --

4

that would benefit public safety.

5
6
7

And there is no evidence that defendants have considered
that important aspect of the problem.
THE COURT:

Oh, but I am confident that they have

8

considered that, because that is a matter of great disagreement

9

within law enforcement across the country.

There are a number

10

of people -- a number of states and local agencies that take

11

the view that California takes.

12

that take the exact opposite.

13

And there are a number of them

And, certainly, if you read the -- if you read anything in

14

the media, you know that this has been a concern of the

15

attorney generals historically.

16

MR. SHERMAN:

17

THE COURT:

Sure.

So they've thought about it.

They're

18

taking a different view about this and how the statute ought to

19

be enforced.

20

afoul of the police powers?

21

thought about it.

22

And so the question is, at some point do they run

MR. SHERMAN:

But it's not because they haven't

Well, we haven't seen that in the

23

solicitation or any -- any sort of recognition that it is

24

something that they have considered within the documents that

25

have been publicly available, because the defendants have not

19

1

produced the administrative record yet.

So we have not seen

2

any evidence that that was part of the decision-making here.
Your Honor, we also want to -- we talked about the Values

3
4

Act.

We also brought claims regarding the State's compliance

5

with 1373 as to its confidentiality statutes and the TRUTH Act.

6

And here the State believes that it does have standing

7

to -- to bring these claims here.

Which if you look at -- in

8

the executive order litigation, Your Honor, you determined that

9

counties had standing based on a well-founded fear of

10

enforcement against the counties and against -- against the

11

State of California.

12

And here the record is even more acute that the State has

13

a well-founded fear of enforcement of 1373 against the State

14

statutes even before the Values Act, in which -- in which on

15

March 29th the attorney general sent a letter to the California

16

Chief Justice, saying that the State -- state's laws,

17

presumably the TRUTH Act, denied access to ICE, to detention

18

facilities.

19

Which the TRUTH Act does not.

And, in addition, that ICE Directer Holman, on June 13th,

20

said that jurisdictions that do not allow ICE access to

21

detention facilities are in violation of 1373.

22

disagree with both of those claims.

23

credible fear with respect to the TRUTH Act.

24
25

THE COURT:

Which we

But that has brought a

So do you think that I ought to be looking

at the notice and access provisions of these state statutes in

20

1
2

addition to the compliance aspect?
MR. SHERMAN:

Well, the notification and access

3

conditions are different than the 1373 condition.

4

conditions require an affirmative policy to -- for the -- that

5

the jurisdictions must -- must adopt in order to comply with

6

those conditions.

7

the nationwide injunction.

8

Which those

Which we are challenging, but is subject to

But here -- and this is an important point, Your Honor,

9

that defendants have tried to cram everything that they want --

10

all of the immigration enforcement agenda that they have, that

11

they have failed to do in the executive order, that they failed

12

to do with respect to the notification and access conditions,

13

in which they're attempting to cram that into 8 U.S.C. 1373, in

14

which they are proceeding -- which based on their -- based on

15

their conduct, it appears that they are also trying to say that

16

1373 restricts state and local law enforcement from -- from

17

providing access to -- to immigration authorities.

18

state statute does not do that.

19

requirements.

20

And the

It just provides transparency

But it does not deny access.

In addition, with respect to the state's confidentiality

21

statutes, on April 21st, both Defendant Sessions and USDOJ said

22

that California was potentially in violation of 1373 at that

23

time, which obviously was before the Values Act.

24
25

And then, also, October 12th, defendant sent a letter to
Philadelphia saying that its statute, which protected

21

1

disclosure of information for victims and witnesses of crime,

2

that they had determined that that was potentially in violation

3

of 1373.

4

saying essentially the same thing.

And then November 15th they sent a letter to Vermont

5

And the state statutes do regulate the sharing of

6

immigration status information for certain victims and

7

witnesses of crime, in the U-visa statute and the California

8

hate crime statute, and also regulates -- and also the state's

9

juvenile statute protects, generally speaking, information

10

regarding information that's in a juvenile's case file,

11

including immigration status information.

12

So the State has a credible fear that those provision --

13

that the defendants will enforce 1373 against those state

14

statutes.

15

And those -- those state statutes, though, from the

16

State's position, do not violate 1373 because they protect the

17

similar classes of individuals that --

18

THE COURT:

I understand that.

19

MR. SHERMAN:

And we also want to make sure that we

20

discuss our -- that if -- if 1373 were to encompass -- were to

21

encompass the information that defendants -- if Your Honor were

22

to interpret 1373 to encompass this expansive amount of

23

information that defendants seek, and encompass the State's

24

confidentiality statutes, then we do have a serious Tenth

25

Amendment issue here in which the -- in which defendants would

22

1

be commandeering the state to allow its local law

2

enforcement -- to -- to assist immigration authorities.

3

And this really speaks to what is at issue in Printz, in

4

which Printz the Supreme Court determined that background,

5

mandated background checks, that the chief law enforcement

6

officers were obligated to do was -- was commandeering.

7

So here there's a specific -- based on defendants'

8

interpretation of 1373, there is a specific direction on chief

9

law enforcement officers throughout the state to -- to allow

10

their -- their information and information that's only within

11

their capacity as state -- as state or local officials to -- to

12

allow -- to allow that information and the resources to be used

13

for immigration matters.

14
15

THE COURT:

All right.

"regarding" means; right?

16

MR. SHERMAN:

17

THE COURT:

18

status" -MR. SHERMAN:

20

THE COURT:

does it mean -- I'm going to ask Mr. Readler this question -MR. SHERMAN:

23

THE COURT:

25

Sure.

-- means is, does "status" mean status or

22

24

In what way, Your Honor?

The whole -- the issue of what "regarding

19

21

That's the issue of what

Sure.

-- what the Government's current view

about this is.
MR. SHERMAN:

Right.

23

THE COURT:

1
2

But immigration -- "regarding immigration

status" could mean everything in a person's life.

3

MR. SHERMAN:

4

THE COURT:

Right.

Which seems quite broad to me.

But it

5

might be that there's a different definition that I'm going to

6

hear.

7

So why -MR. SHERMAN:

Sure.

Sure.

8

To that point, Your Honor, because the statute is not

9

unmistakably clear, as the Supreme Court said in Gregory and in

10

Bond, then that -- that 1373 should be narrowly read to

11

encompass the information that this Congress said, and which is

12

immigration and citizenship status information.

13
14

THE COURT:

All right.

I think I'm about

ready to hear Mr. Readler.

15

MR. SHERMAN:

16

THE COURT:

17

MR. READLER:

18

THE COURT:

19

MR. READLER:

20

THE COURT:

21

All right.

Sure.

Thank you.

Thank you, Mr. Sherman.
Hi. Good afternoon, Your Honor.

Good afternoon.
If it please the Court.

It's a pleasure to see you.

Now, I want to ask you a few questions before you launch

22

into the things that you want to make sure that I know.

23

And so start with Judge Baylson's observation that

24

criminal law is integral to immigration law; but immigration

25

law has nothing to do with local criminal laws.

24

1
2
3

Do you agree with that?
MR. READLER:

I certainly disagree with the second

half of that for a couple of reasons.

4

One, as 1373 and the INA reflect, they reflect cooperation

5

between the federal government and local governments on matters

6

of local crime.

7

For example, under the INA, if an individual's removable

8

and even in the custody of the United States, if they're also

9

being subject to punishment by a local government, the INA

10

requires that the government, the federal government, turn that

11

individual over to the state or locality so they can be

12

punished for that local crime.

13

returned back to the federal government.

14

And then they should be

So there the INA expressly recognizes the tie between

15

local criminal matters and federal immigration matters.

16

respects a cooperative relationship.

17

would not have expected that the government should have to turn

18

over these individuals, who are removable, to serve their local

19

or state sentences, but then the state or local government

20

would never let the federal government know when those

21

individuals were going to be released, so they can be removed.

22

So that's clearly quite at odds with historical background and

23

understanding of the statute.

24
25

In other words, Congress

Second, the Congress, when it passed Section 1373,
expressly recognized this tie.

And it

In the New York vs.

25

1

United States case, that's very instructive on a number of

2

issues, the Court there quotes a House Report where the House

3

said that with respect to 1373, immigration law enforcement is

4

as high a priority as other aspects of federal law enforcement.

5

So immigration law is clearly part of law enforcement

6

issues, whether it's state or local.

7

not limited just to criminal law.

8

criminal.

9

read just to mean criminal violations.

10
11

And law enforcement is

Law enforcement is civil and

And so this phrase "law enforcement" should not be
And, of course, those

local violations of local law can make someone removable.
So there are a number of ties between law enforcement,

12

immigration, local prerogatives, federal prerogatives.

13

think that's actually a quite easy question for us and clearly

14

shows the nexus here.

15

THE COURT:

And I

So how do you distinguish this case from

16

the Philadelphia case?

17

wrongly decided that case?

18

MR. READLER:

Or do you just think that Judge Baylson

Most of that case was about the actual

19

policies at issue, as the way that Philadelphia was carrying

20

out certain immigration policies and law enforcement policies

21

and whether that satisfied 1373.

22

And the judge found that there was substantial compliance.

23

I think he recognized there were some areas that there was not

24

compliance; but he thought these were insignificant.

25

think he thought that on critical criminal convictions, that

And I

26

1

those individuals were being -- being -- about those

2

individuals, the federal government was being notified about

3

them.

4

But I think to the extent the Court found that there was a

5

lack of a nexus here or germaneness here, that the Court was

6

clearly wrong about that.

7

My friends here, of course, have already told you that

8

they dispute the fact that 1373 is an applicable law.

9

there, by itself, I think, gets us a long ways in terms of the

10

germaneness that a law enforcement grant that requires -- that

11

promotes cooperation between local and state governments

12

includes, as an applicable law, Section 1373.

13

satisfies all the germaneness and nexus concerns that the Court

14

should be worried about.

15

THE COURT:

So that

I think that

So is it the case that the Department of

16

Justice is contending that the State should not follow the

17

confidentiality -- what they call the confidentiality statutes,

18

information regarding U- and T-visas and juvenile records, when

19

providing information to the government?

20

contending that that violates 1373?

21

MR. READLER:

Is the Government

We haven't taken a position on that.

22

And I think the Government should be commended for being very

23

upfront with the State of California.

24

exchanges with the State this year, both sort of initial

25

announcements about these conditions.

We've had a number of

And, of course, these

27

1

conditions go back to 2016 as well.

2

But we've had a number of exchanges with the State.

3

State has put forward, sort of, its interpretation of all of

4

its laws.

5

Values Act, that we think is not consistent with 1373.

6

The

We wrote back to them and identified one law, the

The State has now given us their response to our analysis.

7

And we're considering that response and, sort of, what we're

8

going to do with respect to the Byrne JAG grant.

9

We have not identified any of the other laws as currently

10

being a violation of 1373.

11

that we think are in violation of 1373.

12

We've given them notice of the laws

And we would not finalize the bid on the contract and

13

award them money before they fully understand our

14

interpretation.

15

So I don't think the Court -- those issues really are not

16

ripe for the Court to rule upon.

And I would encourage the

17

Court to only rule with respect to the Values Act, because

18

that's the only statute that's really been implicated by the

19

federal government.

20

THE COURT:

Can you tell me what the -- do you have

21

any insight into the timing of relevant determinations within

22

the Department?

23
24
25

MR. READLER:

Absolutely.

Your Honor was right to focus on the Chicago case.
case is up before the Seventh Circuit.

That

We have filed our

28

1

initial brief.

And the case is set to be argued either in

2

January or February.

3

mid-January.

I now forget the date.

4

THE COURT:

5

MR. READLER:

6
7
8

I think in

Are you doing all these cases?
I am, yes, Your Honor.

Chicago is a little closer than San Francisco.

But I'm

happy to do all of them.
It's likely that no Byrne JAG grant would go out before

9

that case is decided, because, of course, one of the issues

10

there was a nationwide injunction that tied our hands with

11

respect to all of the grants.

12

Seventh Circuit does there.

So we're waiting to see what the

13

With respect to the $1 million COPS grant that's at issue

14

here, I think we explained in our supplemental submission this

15

week to the Court that the COPS Office is willing to work with

16

the State on that grant.

17

They've obviously invoked the findings on the Byrne JAG

18

grant that -- the lack of compliance with respect to 1373, with

19

respect to the Values Act.

20

So the clock is not going to run out on that grant.

The

21

COPS Office, the State, OJP, they fully understand the

22

positions of the State and of the Department of Justice.

23

they've already said that they're willing to, sort of, work out

24

a time period so there's no -- the clock doesn't run out.

25

There may be other reasons why they don't get the grant, but it

And

29

1

won't be because the clock runs out.
THE COURT:

2

Does the State have a legitimate concern

3

that this Justice Department is going to go after them because

4

they signed, in good faith, a certification that they're in

5

compliance with 1373?

6

MR. READLER:

Well, I'm not aware of any perjury, you

7

know, prosecutions or some of the criminal aspects that the

8

Court referred to earlier.

9

upfront about our reading of 1373.

10

But, certainly, we're being very

Of course, last year the Department put the 1373

11

requirement into these grants.

12

for this year we won't be imposing any penalties; but we're

13

giving you a year, essentially, to get your house in order.

14

And then there have been a number of follow-up communications

15

up until this point.

16

And at that point it said that

So this year the Government is expecting that the State,

17

if they certify compliance, will be agreeing to the

18

Government's interpretation on the issues that we've raised to

19

them.

20

There's the two issues, the release date and the address.

21

Those are the two specific issues that we have -- we have

22

raised to the State.

23

our interpretation of those issues.

24
25

THE COURT:

And we have been going back and forth on

So what is the Government's interpretation

of "information regarding status"?

Because it seems totally

30

1
2
3

amorphous to me.
MR. READLER:
broad phrase.

Sure.

Well, obviously, Congress chose a

It could have said "just immigration status."

4

THE COURT:

Or maybe an ambiguous phrase.

5

MR. READLER:

Well, it certainly includes more than

6

just immigration status, because they said that in part C, I

7

think of 1373.

8
9
10
11

And part A says "information regarding."

What I think that means, at bottom, is that the Congress
expected that ICE would have the information that allows it to
do its job.
And one of the key aspects of ICE is that when an

12

individual is being held by a state or local government, that

13

person is only removable once their sentence ends and they're

14

released.

15

So, surely, Congress had in mind that a release date would

16

be the kind of information that a state or city could not

17

exclusively bar -- not to require, but to exclusively bar from

18

sharing with the federal government.

19

completely frustrates the removable system in ICE's job, which

20

is a significant preference to take someone into custody when

21

they're leaving their state or local penitentiary as opposed to

22

then going out on the streets and finding them later.

23

Because, otherwise, that

And I think the history lesson here is important because

24

this law, of course, was passed in 1996.

And it's clear to me

25

that at that time there was no doubt that Congress thought that

31

1

release date information would be shared with the federal

2

government.

3
4
5

And I point you back to, again, the City of New York
decision, which I said is instructive in a number of areas.
But 1373 came, in part, in response to local practices,

6

including in the city of New York, where the City was limiting

7

the kind of immigration information that it would share.

8

that was not criminal information.

9

But

It was clear that the cities at that time were sharing

10

criminal information.

11

opinion, which cites the local ordinance at issue.

12

that:

13

And that's clear from Footnote 1 in the
And it says

"No city officer shall transmit information unless

14

such alien is suspected by such agencies of engaging in

15

criminal activity, including an attempt to obtain public

16

assistance benefits through the use of fraudulent

17

documents."

18

Later on the ordinance says that:

19

"Enforcement agencies, including the police

20

department, shall continue to cooperate with federal

21

authorities in investigating and apprehending aliens

22

suspected of criminal activity."

23

So when Congress wrote this statute, it was against the

24

backdrop of a clear cooperation by the local governments with

25

criminal aliens.

The only change is with respect to the states

32

1

and cities, because for years and years and years they were

2

sharing this information.

3

think, with San Francisco and California and other localities

4

have changed their policies.

5

federal government.

6

terms of their approach.

7

been consistent on this over time.

8
9

THE COURT:

And maybe starting with Chicago, I

But it's not a change by the

It's a change by the local governments in
I think the federal government has

There's been very little judicial -- very

few decisions on 1373, besides City of New York.

And so that's

10

your explanation, is that everybody was doing it just the way

11

the government wanted, and then the localities started

12

changing --

13

MR. READLER:

I think that's right.

That's right.

14

And that was clearly the backdrop against which Congress was

15

writing 1373.

16

last, sort of, five or ten years that these policies have

17

started to shift.

18

The policy was clear.

THE COURT:

And it's only been the

There is 1357(g), where the Government was

19

encouraging localities to act as immigration officers, which is

20

something that clearly doesn't run afoul of the Tenth Amendment

21

because people could volunteer in or out.

22

So does that have any -- does that have any relevance to

23

my analysis about either what happened in the past or what's

24

happening now?

25

MR. READLER:

Well, a couple of responses.

33

1

I'm not sure about the exact statute.

But, again, one,

2

the INA clearly contemplates cooperation.

3

inherent aspects of the INA.

4

in 1373.

5

earlier, where the federal government agrees to hand someone

6

back over to the state or locality on the assumption they will

7

give that person back over to the federal government so they

8

can institute their immigration prerogatives.

9

That's part of the

And I think that's best reflected

But it's also reflected by the example I gave

That's actually exactly what happened in the Steinle case,

10

is the federal government had Mr. Lopez Sanchez in custody and

11

then turned him over to San Francisco because he had some

12

marijuana charges against him.

13

provide release date information back to the federal

14

government, even though asked to.

15

to the result in that case.

16

THE COURT:

17

And the City then did not

And that, unfortunately, led

Don't go too far there.

The Steinle case IS also interesting for another reason;

18

right?

19

doesn't mean all of the other information that the

20

government -- and I don't know how -- you've only given me a

21

couple of examples, but the other information that you seem to

22

be interested -- that the government seems to be interested in

23

getting from the localities.

24
25

Which is, Judge Spero found "status" means status.

MR. READLER:

Right.

It

Well, of course, it has to be

more than immigration status because it says "information

34

1
2

regarding."

So we know that.

I'm not sure, with all due respect, that in that case any

3

of these arguments were raised.

4

presented with the INA regulatory scheme and the fact that

5

information sharing is quite common between the handoff of

6

individuals between the state and federal government.

7

I don't think the Court was

So I don't think that these arguments were presented to

8

the Court in that context.

And, of course, it was in a

9

different context where that was being the basis, I think, of a

10

tort claim against the City.

11

weighed in on those issues at all, because it wasn't, sort of,

12

directly implicated on what the statute required there.

13

And I don't think the Government

So I just don't think that these issues were raised in

14

that case.

15

information-sharing aspects of the INA, that it clearly

16

reflects that release date is really one of the very critical

17

pieces of information that ICE needs to perform its job.

18

But I do think that, when you look at the overall

I really think what Congress was getting at in 1373 is it

19

wanted to make sure that states and localities weren't

20

completely frustrating the ability of ICE to do its job.

21

Not that they had to go out and help.

This is not a

22

commandeering situation where they have to go out and perform

23

background checks; but they couldn't completely frustrate that

24

when a number of these individuals who are removable are in

25

state or local custody.

35

1

THE COURT:

So does that mean that 1373 requires the

2

State to require its law enforcement officers to figure out

3

about the status of the people who are in its custody?

4

MR. READLER:

I don't -- I mean, it doesn't create

5

affirmative obligations to go out and find information.

6

they have that information, then 1373 says they can't have a

7

uniform policy that prohibits the sharing of information.

8
9

THE COURT:

Okay.

If

And what I heard Mr. Sherman saying

was that with the Values Act, with the exception of the

10

confidentiality statutes, when a -- when the government asks,

11

"Do you know the status of this person?" they will answer that

12

question --

13

MR. READLER:

14

THE COURT:

15

MR. READLER:

16

I don't think that's true --

-- if they know it.
-- for all offenders.

And there's some level offender where I think they don't.

17

I hope they do.

18

there are some level offenders where they don't, they aren't

19

allowed to share that information.

20

serious offenses.

21
22
23

But I think the statute clearly says that

THE COURT:

And those are some very

These are the offenses that are beyond the

several hundred that are listed in the Act.
MR. READLER:

That's correct.

24

abandonment or neglect of a child.

25

restraining order.

They include

They include violation of a

They include a hit-and-run not involving

36

1

death.

2

think, a host of others as well.

3

They include trespassing on school grounds and, I

So we know that there are a range of acts where they don't

4

share the information.

5

interpretation.

6

date," and we think it does.

7

We also know they disagree with our

They think that "status" doesn't mean "release

So I think they -- to receive the grant -- again, this is

8

a voluntary grant.

9

prerogatives.

Of course, they are free to have their own

That's the beauty of the federal system.

But if

10

they're going to accept the federal dollars, of course, they

11

have to agree to the conditions put forward.

12

flatly unconstitutional.

13

South Dakota vs. Dole.

14

Unless it's

Of course, that's a requirement of

But the constitutional argument here is the Tenth

15

Amendment.

And the State can certainly waive that obligation

16

by agreeing to the grant.

17

Fourth Amendment violation, they couldn't agree and, sort of,

18

waive their Fourth Amendment duties.

19

waive their Tenth Amendment objection here by accepting the

20

money.
THE COURT:

21

Okay.

If the violation was a

But they can certainly

So, Mr. Readler, tell me any other

22

things that you are interested in making sure that I'm thinking

23

about.

24
25

MR. READLER:

Sure.

Just to -- a couple of points.

First off, on the germaneness and relatedness point that

37

1

we've talked about, the authority on this point is really quite

2

strong for the government.

3

I think it's a D.C. Circuit case that notes that the

4

Supreme Court has never overturned a spending clause challenge

5

on this grounds.

6

And the Ninth Circuit, in the Mayweather case, addressed

7

the standard there and said that the Supreme Court likely

8

imposed a low threshold relatedness test.

9

is fairly easily met.

10
11

So I think the test

And I think it's clearly met here given

the strong tie between law enforcement and immigration.
I walked through the set of statutes that directly relate

12

to release date, and tie that to the importance of 1373, the

13

fact that individuals aren't deportable until they are released

14

from prison.

15

removal periods is 90 days.

16

And that's why it's important for them to have the release date

17

information so they can do their job.

18

And the fact that once they are released, the
So the clock is moving on ICE.

And the Ninth Circuit has said in the Preap case, that the

19

ICE must pick up the alien right away when released or they

20

forfeit certain rights.

21

the importance of that time in terms of the removal process.

22

So the Ninth Circuit has recognized

The second piece of information that we think is included

23

with respect to the "information regarding," that we haven't

24

talked about much, is the address.

25

important for a couple of reasons.

And the address is

38

1

Again, one, that allows ICE to do its job if the

2

individual has been released and ICE was not able to obtain or

3

detain them before they were released from prison.

4

way they are going to be able to find them is their address.

The only

5

And while the state, again, is not required to share that

6

information, I think Congress, in 1373, certainly contemplated

7

that there would be a flat prohibition ever sharing that

8

address information.

9

And, also, address is critical to a couple of different

10

immigration categories.

11

nonimmigrant visitor status, a V2 nonimmigrant visitor, they

12

are required to have a permanent residence in a foreign

13

country.

14

somewhere in the United States, then that would show they are

15

not in compliance with their immigration status.

16

For example, an alien with a

And if they indicated their permanent residence was

Sometimes address can confirm that someone is actually in

17

compliance with their visa status.

18

important pieces: one, it helps ICE to do their job; and, two,

19

it can confirm the immigration or visa status for an

20

individual.

21

So address has two

Just with respect to the other statutes that have been

22

invoked by the State, I think it would be an advisory opinion

23

to sort of rule on those again, at this point, because the

24

federal government has not invoked those statutes, at the

25

moment, as being in compliance.

39

1

And if we think there is a problem, we would raise that

2

before the grant is finalized so that the State has notice.

3

They have to have notice of all the grant conditions.

4

would give them our interpretation before that's finalized.

5

We haven't raised issues with those other ones.

And we

I'm not

6

saying they never could, but those issues certainly are not

7

ripe today for the Court to consider.

8

THE COURT:

9

going to be considering them?

10

And when do you think the Department is
Are you not considering anything

until you find out what happens in the Seventh Circuit?
MR. READLER:

11

Well, with respect to 1373, of course,

12

the issuing of the Byrne JAG will not come until that case is

13

resolved.

14

course, doesn't directly raise the 1373 issue.

At least that's the current plan.

But that, of

15

With respect to the interpretation of 1373, with respect

16

to California, we have made our interpretation clear to them.

17

And there's been a lot of exchange of documentation over the

18

year.

19

They have now given us their counterinterpretation where

20

at least I think we solved one of the issues regarding the

21

savings clause and how that works.

22

We have not responded yet to them about the other issue

23

that we have between us.

So there's still some work to be done

24

there.

25

That could be a possibility, but I'm not anticipating that we

I'm not anticipating that we'll find other issues.

40

1

will find them.

2

award is finalized.

3

But we will certainly tell them before the

And the other thing I think to note, of course, is that

4

there is some chance that this Values Act would never go into

5

law if this referendum would happen to take place.

6

might, sort of, counsel the Court to wait and see happens there

7

before it ultimately rules.

8

THE COURT:

9

So that

You don't have any urgency in my ruling, I

suspect?
MR. READLER:

10

Well, the grants -- the grants are on

11

hold.

12

are proceeding along the same way with some other -- some other

13

cities and states.

14

released anytime soon.

15

So we think we're right about this.

And we are -- we

But, certainly, we don't expect money to be
That's correct.

And just one final point regarding the APA challenge.

I

16

think it's important to note that there's long history here

17

with 1373.

18

Administration.

It was first put into effect during the Obama

19

Administration.

The Trump Administration is now including

20

certain requirements with the grants, many of which were also

21

included in the last administration.

22

And, again, it was enacted during the Clinton

There's been a lot of writing on that back and forth.

23

We've put out a lot of notices this year.

So, I think, in

24

terms of putting them on notice and articulating the federal

25

government's position, I think the Court understood that's been

41

1

well documented in this case.

2

And the conditions, as the Government has noted, probably

3

one example is in a July 25th, from this year, a background on

4

grant requirements.

5

We noted these requirements have the goal of increasing

6

information sharing between federal, state, and local law

7

enforcement.

8
9
10
11

And, again, the Byrne JAG grant is about cooperation.
It's about law enforcement cooperation.

It's about giving an

opportunity for local governments to use that money.
But it certainly makes clear that the attorney general has

12

the ability to determine priority purposes for the grant.

13

has the ability to determine applicable laws.

14

ability to determine the forum that has to be filled out by the

15

states.

16

federal and state law enforcement.

17

the factors I would make -- points I would make.

18

It

It has the

And it reflects, again, a cooperative aspect between
So I think those are all

With respect to the PI standard, of course, there are a

19

couple of other considerations: irreparable harm and the public

20

interest.

21

irreparable harm, at this point, to the State.

22

We've talked a lot about why we don't see

And with respect to the public interest, of course, the

23

United States has a significant interest in its grant program

24

and how it spends its money.

25

It's true that Congress has made allocations to spend the

42

1

money.

2

much tries to work with recipients.

3

money; they're just trying to make sure there's compliance.

4

It's also true that the Office of Justice Programs very
They're not trying to deny

But it's also true that the United States has a

5

significant interest in carrying out the grant program

6

consistent with its prerogative and its law enforcement

7

prerogatives.

8

think public interest, for that reason, weighs in favor of the

9

United States.

And the State here seeks to upset those.

10

THE COURT:

11

MR. READLER:

12

THE COURT:

13
14
15

All right.

And I

Thank you, Mr. Readler.

Thank you.

Mr. Sherman, would you like the last words

here?
MR. SHERMAN:

Sure.

A few things, Your Honor.

First of all, I want to clear up a misconception about the

16

savings clause the defendants have.

17

to immigration status information.

18

The savings clause applies

I believe the defendants, when they're talking about

19

exceptions, the defendant is referring to the release date

20

provision which provides -- which allows state and local law

21

enforcement discretion in -- when -- when they can provide

22

release dates if the individual meets the hundreds of criminal

23

offenses that were identified here.

24
25

But there is no exception to the exchange of sharing of
immigration status information.

That is permitted under the

43

1

savings clause.

2

Second, regarding the claim that we are not contesting the

3

applicable law aspect of the JAG, what we are not contesting is

4

there is authority in the JAG operations statute for defendants

5

to identify applicable laws.

6

that this 1373, is it an applicable law that meets the

7

constitutional standard.

8
9
10
11

THE COURT:

But what we are contesting is

No, I understood that that was your

argument.
MR. SHERMAN:

Sure.

And in addition to which, with respect to their -- they

12

are seeking to use the Tenth Amendment -- they are looking at

13

this not as a commandeering analysis but as a spending clause

14

analysis with respect to our Tenth Amendment claim.

15

And here, because their authority is limited to applicable

16

to -- to determine -- to require jurisdictions to comply with

17

applicable law, what they can ask for state, local

18

jurisdictions is also confined to what that applicable law

19

requires or prohibits.

20

So here we believe that the Tenth Amendment commandeering

21

analysis is the correct analysis to use, not the spending

22

clause analysis.

23

THE COURT:

24

MR. SHERMAN:

25

Okay.
With respect to the Steinle decision,

Steinle squarely decided this issue, in which Judge Spero said

44

1

that no plausible reading of 1373 would encompass release

2

dates.

3

And Steinle considered the arguments about legislative

4

history.

5

because it's the authority -- the text is the authority of what

6

the statute says.

7

And Judge Spero determined they're not persuasive

And defendants also mentioned this distinction between

8

subsection C and subsection A.

So subsection C is -- doesn't

9

have the "regarding" language, because to the extent one's

10

immigration -- to the extent ICE has one's immigration status,

11

that information is presumably definitive.

12

reason, in subsection C, for there to be -- to input

13

"regarding" language in there.

14

So there's no

But they do not have information of individuals that are

15

not within their databases.

16

or state law enforcement may potentially have.

17

the "regarding" language is in A versus subsection C.

18

And that is information that local
And that's why

Defendants also point out the City of New York case.

19

case is not the City of New York case.

20

executive order that broadly restricted the sharing of

21

immigration status information and only to immigration

22

This

authorities.

23

That case was about an

Here the state -- the state confidentiality statutes are

24

very -- are narrow with respect to these certain classes of

25

individuals that the INA also provides protections to.

45

1

And with respect to the Values Act, even though it allows

2

in the sharing of immigration status information, the -- the

3

release dates and personal information is only being restricted

4

to the extent that the information is not publicly available.

5

So it's treating ICE no differently than it would treat

6

members of the public.

So that's a very important distinction

7

here in looking at both the text of 1373 and the constitutional

8

issues in which the Court, in that case, had very substantial

9

concerns regarding the Tenth Amendment implications if it were

10

to impact the direct -- the direct functioning of state and

11

local law enforcement.
THE COURT:

12
13

One thing that has come in and out of my

mind.

14

MR. SHERMAN:

15

THE COURT:

16
17

Sure.

Wouldn't USCIS have the information on the

U- and T-visas anyway?
MR. SHERMAN:

Right.

And 1367 prohibits the

18

disclosure of that information during the pendency of the U-

19

and T-visa process to -- so that speaks to that point.

20

THE COURT:

I do think that's problematic -- if the

21

Government ended up with that perspective, that might be

22

problematic.

23

MR. SHERMAN:

Right.

And that's -- that's exactly the

24

concern that the State has, particularly in light of defendants

25

seeking to enforce 1373 against Philadelphia and the State of

46

1

Vermont that protects witnesses and victims of crime.
THE COURT:

2

What I understood Mr. Readler to say is

3

that that's still a matter that, in California, is under

4

discussion: the applicability of confidentiality statutes

5

vis-a-vis the Government's interpretation of 1373.
MR. SHERMAN:

6
7

Right.

That is -- that is their

position.

8

But our concern, and the case law plays this out, such as

9

in the Susan B. Anthony case, in which a plaintiff there, even

10

though the -- the statute in Susan B. Anthony wasn't enforced

11

against that plaintiff, the plaintiff was asserting that they

12

were going to undertake the same speech as the other plaintiff

13

that the statute was enforced against.

14

determined that that -- that they had pre-enforcement standing

15

there.

16

And the Supreme Court

And here what we have is we have -- the State is similarly

17

in connection with how they're enforcing 1373, against

18

Philadelphia.

19

And we don't want to be back here if Your Honor were to

20

make a ruling on the Values Act and determine that the Values

21

Act complies with 1373.

22

months from now or a year from now, or however long from now,

23

then having to go with the State's confidentiality statutes.

24

THE COURT:

25

MR. SHERMAN:

We don't want to be back here six

My feelings are hurt.
Well, I mean -- always nice to see you.

47

1

But I think that's the credible fear that the State has right

2

now, particularly in light of -- in light of defendants'

3

conduct with respect to the State before the Values Act was

4

even a law.

5
6

THE COURT:

Well, this case is going on regardless.

And a preliminary injunction is preliminary regardless.

7

MR. SHERMAN:

8

THE COURT:

9

MR. SHERMAN:

10
11

THE COURT:

Sure.

So you will be back here.
Sure.

Right.

And you will be considering the issues.

One of the things that I'm struggling with is how sharply

12

defined the issues are now and whether they are going to be

13

shifting over time.

14

advisory opinion.

Because I don't -- I don't want to do an

15

MR. SHERMAN:

16

THE COURT:

17
18

Sure.

I do want to say something that will be

consistent over time.
So that's just one of the things that I'm worrying about.

19

And I'm not sure that you're going to be able to convince me

20

one way or the other.

21

MR. SHERMAN:

22

THE COURT:

23
24
25

Sure.

I think I'm just going to have to think

this through.
MR. SHERMAN:

Sure.

I will only say that as far as

the constitutional ripeness standards, which the Ninth Circuit

48

1

has used, and because of the concern that the Supreme Court has

2

had about the viability of a prudential ripeness standard, in

3

Maldonado says that plaintiff has issued a concrete plan of

4

violating the law; that there's a threat of prosecution; and

5

whether -- and whether the statute at issue has been previously

6

enforced.

7

And here we do have all three, in which the BSCC, in its

8

letter, effectively said that the State's interpretation of the

9

Values Act does not square with the defendants' interpretation.
THE COURT:

10

I'm thinking that the State has standing.

11

I am wondering whether it could meet its burdens, at this

12

stage, for a preliminary injunction based on the state of the

13

record.

So that's --

14

MR. SHERMAN:

15

THE COURT:

16

That's something that I'm going to have to

think about.

17

MR. SHERMAN:

18

THE COURT:

19

MR. SHERMAN:

20
21
22

Sure.

Sure.

Is there anything else?
No, Your Honor.

Thank you for your

time.
THE COURT:

All right.

Thank you, both.

As I said at the beginning, I think this is -- I think

23

there are a lot of very interesting issues that this raises.

24

And I will look forward to wrestling them to the ground.

25

thank you.

So

49

MR. SHERMAN:

1
2

Thank you.

(At 4:10 p.m. the proceedings were adjourned.)
-

3

-

-

-

4
5

CERTIFICATE OF REPORTER
I certify that the foregoing is a correct transcript

6
7

from the record of proceedings in the above-entitled matter.

8
9

DATE:

Friday, December 15, 2017

10
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13

______________________________________________

14

Katherine Powell Sullivan, CSR #5812, RMR, CRR
U.S. Court Reporter

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EXHIBIT B

Case 3:17-cv-04701-WHO Document 42 Filed 11/22/17 Page 1 of 39

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CHAD A. READLER
Principal Deputy Assistant Attorney General
BRIAN STRETCH
United States Attorney
JOHN R. TYLER
Assistant Director
W. SCOTT SIMPSON (Va. Bar #27487)
Senior Trial Counsel
ANTONIA KONKOLY
Trial Attorney
Department of Justice, Room 7210
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, D.C. 20530
Telephone:
[phone]
Facsimile:
[phone]
E-mail:
[e-mail]
COUNSEL FOR DEFENDANTS
JEFFERSON B. SESSIONS III, Attorney
General of the United States; ALAN R.
HANSON, Acting Assistant Attorney General;
and U.S. DEPARTMENT OF JUSTICE

14
15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

18
19

STATE OF CALIFORNIA, ex rel. XAVIER
BECERRA, Attorney General of the State of
California,

20
21
22
23
24

Plaintiff,
v.
JEFFERSON B. SESSIONS III, Attorney
General of the United States, et al.,
Defendants.

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26
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Opposition Prelim. Injunction
No. 3:17-cv-04701-WHO

No. 3:17-cv-04701-WHO
OPPOSITION TO PLAINTIFF’S
AMENDED MOTION FOR
PRELIMINARY INJUNCTION
Date:
Time:

December 13, 2017
2:00 p.m.

Case 3:17-cv-04701-WHO Document 42 Filed 11/22/17 Page 2 of 39

1

TABLE OF CONTENTS

2
3
4

TABLE OF AUTHORITIES............................................................................................................... iii
INTRODUCTION ................................................................................................................................ 1

5
6

STATUTORY AND ADMINISTRATIVE BACKGROUND ........................................................... 3

7

I.

The Immigration and Nationality Act ......................................................................... 3

8

II.

DOJ Office of Justice Programs and the Byrne JAG Program.................................. 3

9

III.

The DOJ Office of Community Oriented Policing Services and the
Anti-Methamphetamine and Anti-Heroin Task Force Programs ............................... 6

IV.

Recent Developments .................................................................................................. 7

10
11
12
13

ARGUMENT ........................................................................................................................................ 8
I.

Plaintiff Cannot Establish a Likelihood of Success on the Merits ............................. 8
A.

14
15

The Section 1373 Condition in the Byrne JAG Program
Is Consistent with Law .................................................................................... 8
1.

The Section 1373 Condition Is Consistent with
the Spending Clause ............................................................................ 9

2.

The Section 1373 Condition Is Consistent with
the Administrative Procedure Act ..................................................... 11

16
17
18

B.

19

Plaintiff Is Unlikely to Succeed in Showing that None
of Its Laws Violate Section 1373 .................................................................. 13
1.

20
21

Plaintiff’s Claims Regarding Compliance with
Section 1373 Are Non-Justiciable .................................................... 14
a.

Plaintiff Lacks Standing to Seek a Ruling Regarding
Any State Statute Other Than the Values Act ...................... 15

b.

Plaintiff’s Request for a Ruling Regarding the
Values Act Is Unripe ............................................................. 17

22
23
24

2.

25
C.

26
27

II.

Plaintiff Is Unlikely to Succeed in Showing that None of Its
Laws Would Violate the Section 1373 Compliance Condition ....... 18

Plaintiff Is Unlikely to Succeed in Showing that the Section 1373
Compliance Condition Violates the Tenth Amendment .............................. 22

Plaintiff Fails to Establish Irreparable Harm Absent Preliminary Relief ................. 26

28

i
Opposition Prelim. Injunction
No. 3:17-cv-04701-WHO

Case 3:17-cv-04701-WHO Document 42 Filed 11/22/17 Page 3 of 39

1

III.

The Public Interest and the Balance of Harms Militate Against
the Entry of a Preliminary Injunction........................................................................ 28

2
3

CONCLUSION ................................................................................................................................... 28

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
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26
27
28

ii
Opposition Prelim. Injunction
No. 3:17-cv-04701-WHO

Case 3:17-cv-04701-WHO Document 42 Filed 11/22/17 Page 4 of 39

1

TABLE OF AUTHORITIES

2
3

CONSTITUTIONS

4

U.S. Const. art. I, § 8, cl. 1 ............................................................................................................... 9

5

U.S. Const. art. III, § 2, cl. 1 .......................................................................................................... 14

6

Cal. Const. art. II, § 9(c)................................................................................................................. 18

7
8

CASES

9

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .............................................................................. 15

10

Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046 (9th Cir. 2009) .................................. 8

11

Arc of Cal. v. Douglas, 757 F.3d 975 (9th Cir. 2014).................................................................... 26

12
Arcsoft, Inc. v. Cyberlink Corp., 153 F. Supp. 3d 1057 (N.D. Cal. 2015) ..................................... 26

13
14

Ardalan v. McHugh, 2014 WL 3846062 n.10 (N.D. Cal. Aug. 4, 2014) ....................................... 17

15

Arizona v. United States, 567 U.S. 387 (2012) .......................................................................... 3, 10

16

Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006) ....................................... 9

17

Barbour v. Wash. Metro. Area Transit Auth., 374 F.3d 1161 (D.C. Cir. 2004) ............................ 10

18

Bigelow v. Virginia, 421 U.S. 809 (1975) ...................................................................................... 14

19

Boardman v. Pac. Seafood Grp., 822 F.3d 1011 (9th Cir. 2016) .................................................. 27

20
21
22

Bologna v. San Francisco, 121 Cal. Rptr.3d 46 (Cal. App. 2011) ................................................ 20
Caribbean Marine Servs. Co. v. Baldridge, 844 F.2d 668 (9th Cir. 1988).................................... 26

23

Chicago v. Sessions, 2017 WL 4081821 (N.D. Ill. Sept. 15, 2017) .......................................... 7, 25

24

Chicago v. Sessions, 2017 WL 5499167 (N.D. Ill. Nov. 16, 2017) ........................................... 7, 17

25

City of New York v. United States, 179 F.3d 29 (2d Cir. 1999) ..................................................... 25

26
27

Davis v. Fenton, 26 F. Supp. 3d 727 (N.D. Ill. 2014) .................................................................... 20
Dean v. United States, 556 U.S. 568 (2009) .................................................................................. 20

28

iii
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No. 3:17-cv-04701-WHO

Case 3:17-cv-04701-WHO Document 42 Filed 11/22/17 Page 5 of 39

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2

Demore v. Kim, 538 U.S. 510 (2003)............................................................................................. 10

3

Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003) ........................................................... 23

4

FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) ..................................................... 12, 13

5

Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205 (4th Cir. 2002) ............................... 24, 25

6

Fullilove v. Klutznick, 448 U.S. 448 (1980)................................................................................... 28

7

Gallo Cattle Co. v. USDA, 159 F.3d 1194 (9th Cir. 1998) ............................................................ 11

8
Haw. Cty. Green Party v. Clinton, 14 F. Supp. 2d 1198 (D. Haw. 1998) ..................................... 14

9
10

Invention Submission Corp. v. Rogan, 357 F.3d 452 (4th Cir. 2004) ............................................ 11

11

Lopez v. Brewer, 680 F.3d 1068 (9th Cir. 2012).............................................................................. 8

12

Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ....................................................... 10, 11

13

Morales v. Trans World Airlines, 504 U.S. 374 (1992) ................................................................. 20

14

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) ............................................... 2, 23, 27

15

Nat’l Parks & Conservation Ass’n v. BLM, 606 F.3d 1058 (9th Cir. 2010) .................................. 11

16
New York v. United States, 505 U.S. 144 (1992) ................................................................... 2, 9, 23

17
18
19

Nken v. Holder, 556 U.S. 418 (2009)............................................................................................. 28
Or. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc.,
288 F.3d 414 (9th Cir. 2002) ..................................................................................................... 14

20
21
22

Painsolvers, Inc. v. State Farm Mut. Auto. Ins. Co., 685 F. Supp. 2d 1123 (D. Haw. 2010) ........ 27
Philadelphia v. Sessions, 2017 WL 5489476 (E.D. Pa. Nov. 15, 2017).......................................... 7

23

Pollara v. Radiant Logistics Inc., 2012 WL 12887095 (C.D. Cal. Sept. 13, 2012) ...................... 14

24

Pollution Denim & Co. v. Pollution Clothing Co.,
2009 WL 10672270 (C.D. Cal. Feb. 9, 2009) ..................................................................... 15, 16

25
26
27

Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016) .......................................................................... 22
Printz v. United States, 521 U.S. 898 (1997) ................................................................................. 25

28

iv
Opposition Prelim. Injunction
No. 3:17-cv-04701-WHO

Case 3:17-cv-04701-WHO Document 42 Filed 11/22/17 Page 6 of 39

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Rattlesnake Coal. v. EPA, 509 F.3d 1095 (9th Cir. 2007) ............................................................. 11

2

Reno v. Condon, 528 U.S. 141 (2000) ...................................................................................... 24, 26

3
4

San Diego v. Whitman, 242 F.3d 1097 (9th Cir. 2001).................................................................. 12
Sec’y of Labor v. Fitzsimmons, 805 F.2d 682 (7th Cir. 1986) ....................................................... 28

5
6

Sofinet v. INS, 188 F.3d 703 (7th Cir. 1999) .................................................................................. 28

7

South Dakota v. Dole, 483 U.S. 203 (1987) .................................................................................... 9

8

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) .................................................... 14, 16

9

Steinle v. San Francisco, 230 F. Supp. 3d 994 (N.D. Cal. 2017) .................................................. 20

10

Texas v. United States, 523 U.S. 296 (1998) ..................................................................... 15, 17, 18

11

Thomas v. Zachry, 256 F. Supp. 3d 1114 (D. Nev. 2017) ............................................................... 8

12
U.S. Bank, N.A. v. SFR Invs. Pool 1, LLC, 124 F. Supp. 3d 1063 (D. Nev. 2015) .......................... 8

13
14

United States v. Elkins, 683 F.3d 1039 (9th Cir. 2012) ................................................................. 11

15

United States v. Gould, 568 F.3d 459 (4th Cir. 2009) ................................................................... 11

16

United States v. Kebodeaux, 133 S. Ct. 2496 (2013) ..................................................................... 11

17

United States v. Richardson, 754 F.3d 1143 (9th Cir. 2014) ......................................................... 23

18

Whitmore v. Arkansas, 495 U.S. 149 (1990) ..................................................................... 14, 15, 17

19

Winter v. NRDC, 555 U.S. 7 (2008) ..................................................................................... 8, 26, 28

20
21
22
23

STATUTES
5 U.S.C. § 553(a)(2) ....................................................................................................................... 13
5 U.S.C. § 704 ................................................................................................................................ 11

24
25
26
27

8 U.S.C. §§ 1101 et seq. ................................................................................................................... 3
8 U.S.C. § 1101(a)(15) ................................................................................................................... 21
8 U.S.C. § 1226(a) ............................................................................................................. 10, 21, 22

28

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8 U.S.C. § 1226(c) ................................................................................................................... 10, 22

2

8 U.S.C. § 1226(c)(1) ................................................................................................................. 2, 21

3

8 U.S.C. § 1226(d) ......................................................................................................................... 13

4
8 U.S.C. § 1227(a) ................................................................................................................. 2, 3, 24

5
6

8 U.S.C. § 1227(a)(1)(C) ............................................................................................................... 21

7

8 U.S.C. § 1227(a)(2) ............................................................................................................... 10, 12

8

8 U.S.C. § 1228 ...................................................................................................................... 2, 3, 24

9

8 U.S.C. § 1231 ........................................................................................................................ 10, 13

10
11

8 U.S.C. § 1231(a) ......................................................................................................................... 22
8 U.S.C. § 1231(a)(1)(B)(iii) ......................................................................................................... 21

12
8 U.S.C. § 1231(a)(4) ..................................................................................................................... 21

13
14

8 U.S.C. § 1231(i) .......................................................................................................................... 28

15

8 U.S.C. § 1252c ............................................................................................................................ 10

16

8 U.S.C. § 1324(c) ......................................................................................................................... 10

17

8 U.S.C. § 1357(a)(1) ................................................................................................................. 2, 22

18

8 U.S.C. § 1357(g) ................................................................................................................... 10, 13

19

8 U.S.C. § 1357(g)(10)(A) ....................................................................................................... 21, 22

20
21
22

8 U.S.C. § 1373 .............................................................................................................................. 13
8 U.S.C. § 1373(a) ......................................................................................................................... 19

23

8 U.S.C. §§ 1226(c) & 1231(a) ...................................................................................................... 22

24

8 U.S.C. §§ 1226(d) ....................................................................................................................... 13

25

8 U.S.C. § 1357(a)(1) ....................................................................................................... 2, 3, 22, 24

26

18 U.S.C. § 2725(3) ....................................................................................................................... 24

27

34 U.S.C. §§ 10101 et seq. ............................................................................................................... 3

28

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2

34 U.S.C. § 10102(a)(2) ............................................................................................................. 3, 13

3

34 U.S.C. § 10102(a)(6) ................................................................................................................... 4

4

34 U.S.C. § 10108 ............................................................................................................................ 4

5

34 U.S.C. §§ 10151-10158............................................................................................................... 4

6

34 U.S.C. § 10152(a)(1) ................................................................................................................... 4

7

34 U.S.C. § 10153(a) ....................................................................................................................... 4

8
9
10

34 U.S.C. § 10153(a)(5)(C) ........................................................................................................... 13
34 U.S.C. § 10153(a)(5)(D) ............................................................................................................. 4

11

34 U.S.C. § 10154 ................................................................................................................ 4, 12, 17

12

34 U.S.C. § 10156 ............................................................................................................................ 4

13

34 U.S.C. §§ 10221-10238............................................................................................................... 4

14
15

34 U.S.C. § 10223 .......................................................................................................................... 17
34 U.S.C. § 10263 ............................................................................................................................ 4

16
17

34 U.S.C. § 10251(a)(1) ................................................................................................................... 4

18

34 U.S.C. §§ 20901 et seq. ............................................................................................................. 10

19

34 U.S.C. § 20927(a) ............................................................................................................... 11, 23

20

42 U.S.C. § 11133 .......................................................................................................................... 24

21

42 U.S.C. § 11134 .......................................................................................................................... 24

22
23

Pub. L. No. 90-351, 82 Stat. 197 (1968)........................................................................................... 3
Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, 131 Stat. 135 ............................. 4, 6, 7

24
25
26
27

Cal. Civ. Code § 1798.3(a)............................................................................................................. 19
Cal. Civ. Proc. Code § 155............................................................................................................... 1
Cal. Gov’t Code §§ 7282-7282.5 ..................................................................................................... 1

28

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Cal. Gov’t Code § 7282.5(a) .......................................................................................................... 19

2

Cal. Gov’t Code §§ 7283-7283.2 ..................................................................................................... 1

3

Cal. Gov’t Code §§ 7284-7284.12 ............................................................................................. 1, 19

4
Cal. Gov’t Code § 7284.6(a) .......................................................................................................... 19

5
6

Cal. Gov’t Code § 7284.6(a)(1)(C) ............................................................................................ 2, 26

7

Cal. Gov’t Code § 7284.6(a)(1)(D) ............................................................................................ 2, 26

8

Cal. Penal Code § 422.93 ................................................................................................................. 1

9

Cal. Penal Code § 679.10 ................................................................................................................. 1

10
11

Cal. Penal Code § 679.11 ................................................................................................................. 1
Cal. Welf. & Inst. Code § 827.......................................................................................................... 1

12
13

Cal. Welf. & Inst. Code § 831.......................................................................................................... 1

14
15
16

LEGISLATIVE HISTORY
S. Rep. No. 104-249 (1996) ........................................................................................................... 24

17
18

REGULATIONS

19

2 C.F.R. § 200.203(c)(2) .................................................................................................................. 5

20

28 C.F.R. § 0.119 ............................................................................................................................. 6

21

28 C.F.R. § 0.120 ............................................................................................................................. 6

22

28 C.F.R. Part 18 ...................................................................................................................... 12, 17

23
24

OTHER AUTHORITIES

25
Black’s Law Dict. (5th ed. 1979) ................................................................................................... 20

26
27
28

Mem. from Michael E. Horowitz, Inspector Gen., to Karol V. Mason, Assistant Att’y Gen.,
Office of Justice Programs, Department of Justice Referral of Allegations of Potential
Violations of 8 U.S.C. § 1373 by Grant Recipients (May 31, 2016) ........................................... 5
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2

Webster’s New Intern’l Dict. (2d ed. 1958)................................................................................... 21

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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2

INTRODUCTION
This case asks the Court to determine whether the U.S. Department of Justice (“USDOJ”)

3

can require the recipients of certain law enforcement grants to comply with federal law. Section

4

1373 of Title 8, U.S. Code, part of the Immigration of Nationality Act (“INA”), bars state and local

5

governments from prohibiting or restricting the exchange of “information regarding the . . . citizen-

6

ship or immigration status” of any individual with federal immigration authorities. USDOJ requires

7

grantees in certain programs to comply with this requirement, but plaintiff argues that imposing this

8

condition in the Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG

9

Program”), which provides funding for law enforcement, violates the Spending Clause of the U.S.

10

Constitution and the Administrative Procedure Act (“APA”). Those claims are without merit,

11

however, because – as the INA makes clear – immigration enforcement and law enforcement are

12

inextricably linked.

13

Alternatively, plaintiff seeks an order enjoining defendants from finding that any of several

14

state laws violate the Section 1373 compliance condition in either the Byrne JAG Program or two

15

other programs. Specifically, plaintiff seeks an order that Section 1373 is not violated by Califor-

16

nia’s “TRUST Act,” Cal. Gov’t Code §§ 7282-7282.5; the “TRUTH Act,” Cal. Gov’t Code §§

17

7283-7283.2; the “California Values Act,” Cal. Gov’t Code §§ 7284-7284.12 (“Values Act”);

18

California Penal Code §§ 422.93, 679.10, or 679.11; California Code of Civil Procedure § 155; or

19

California Welfare and Institutions Code §§ 827 or 831 (Dkt. No. 26-1). USDOJ has not, however,

20

indicated that any of those state statutes other than the Values Act might violate the Section 1373

21

condition, and even as to that Act, USDOJ has not yet reached a final decision. Moreover, the

22

Values Act is not now in effect and may never take effect because of a voter referendum requested

23

for the November 2018 election. Therefore, plaintiff lacks standing to seek an order regarding any

24

of those statutes other than Values Act, and even plaintiff’s claim regarding that Act is unripe.

25

In any event, even if this alternative claim were justiciable, plaintiff is unlikely to succeed

26

on the merits of its claim that the Values Act would comply with the Section 1373 condition. The

27

Values Act, among other things, prohibits state and local agencies from disclosing an individual’s

28

release date, personal information (including home address), or “other information,” with certain
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exceptions not referencing federal immigration authorities. See Cal. Gov’t Code § 7284.6(a)(1)(C),

2

(D). Section 1373 however, bars prohibiting or restricting the exchange of “information regarding”

3

immigration status with federal immigration authorities, which necessarily encompasses informa-

4

tion regarding custody status and location as needed to carry out the federal responsibilities to

5

“interrogate any . . . person believed to be an alien as to his right to be or to remain in the United

6

States,” to take non-citizens into federal custody upon release from state or local custody, and to

7

remove certain classes of non-citizens from the United States as ordered by the Attorney General or

8

the Secretary of Homeland Security. 8 U.S.C. §§ 1357(a)(1), 1226(c)(1), 1227(a), 1228.

9

Plaintiff lastly argues that Section 1373 would violate the Tenth Amendment if defendants

10

construe it as conflicting with any of the state statutes listed above. Finding that the Values Act –

11

the only state statute legitimately at issue here – violates Section 1373 would not, however, “compel

12

[California] to enact or administer a federal regulatory program” or to “act on the Federal Govern-

13

ment’s behalf” in violation of the Tenth Amendment. See New York v. United States, 505 U.S. 144,

14

188 (1992); Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 620 (2012) (hereinafter NFIB).

15

This case involves a grant condition that the State is free to accept or reject, and, in any event,

16

merely protecting the exchange of information with federal authorities does not compel state and

17

local governments to administer a federal program.

18

Finally, plaintiff fails to establish that it would suffer irreparable harm absent a preliminary

19

injunction, and the public interest and balance of equities militate against the relief sought. The

20

State’s claim of irreparable harm from implementation of the Section 1373 condition is belied by its

21

certification – without objection or complaint – of such compliance in accepting a FY 2016 Byrne

22

JAG award. Moreover, compliance with Section 1373 on the part of state and local governments is

23

important to enforcement of the federal immigration laws – in particular, locating and removing

24

aliens who are in police custody because they have committed crimes – which represents the

25

ultimate “public interest” here.

26

For all these reasons, plaintiff’s motion for preliminary injunction should be denied.

27
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2

STATUTORY AND ADMINISTRATIVE BACKGROUND
I.

3

The Immigration and Nationality Act
Enforcement of the immigration laws, including and especially the investigation and appre-

4

hension of criminal aliens, is quintessentially a law enforcement function. Through the INA, 8

5

U.S.C. §§ 1101 et seq., Congress granted the Executive Branch significant authority to control the

6

entry, movement, and other conduct of foreign nationals in the United States. These responsibilities

7

are assigned to law enforcement agencies, as the INA authorizes the Department of Homeland

8

Security (“DHS”), USDOJ, and other Executive agencies to administer and enforce the immigration

9

laws. The INA permits the Executive Branch to exercise considerable discretion to direct enforce-

10

ment pursuant to federal policy objectives. See Arizona v. United States, 567 U.S. 387, 396 (2012).

11

The INA includes several provisions that protect the ability of federal officials to investigate

12

the status of non-citizens in the United States and otherwise enforce the immigration laws. For

13

example, the statute provides that a federal immigration officer “shall have power without warrant

14

. . . to interrogate any alien or person believed to be an alien as to his right to be or to remain in the

15

United States.” 8 U.S.C. § 1357(a)(1). Separately, pursuant to Section 1373, “a Federal, State, or

16

local government entity or official may not prohibit, or in any way restrict, any government entity

17

or official from sending to, or receiving from, [federal immigration authorities] information regard-

18

ing the citizenship or immigration status, lawful or unlawful, of any individual.” Id. § 1373(a). The

19

INA provides that certain classes of non-citizens shall be removed from the United States upon

20

order of the Attorney General or Secretary of Homeland Security. See, e.g., id. §§ 1227(a), 1228.

21

II.

DOJ Office of Justice Programs and the Byrne JAG Program

22

Title I of the Omnibus Crime Control and Safe Streets Act of 1968 established the Office of

23

Justice Programs, and provides for OJP to be headed by an Assistant Attorney General. See Pub. L.

24

No. 90-351, 82 Stat. 197 (1968), codified as amended at 34 U.S.C. §§ 10101 et seq. Congress gave

25

the AAG certain “[s]pecific, general and delegated powers,” including the power to “maintain

26

liaison with the executive and judicial branches of the Federal and State governments in matters

27

relating to criminal justice.” 34 U.S.C. § 10102(a)(2). Most notably for this case, the statute also

28

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authorizes the AAG to “exercise such other powers and functions as may be vested in [him]

2

pursuant to this chapter or by delegation of the Attorney General, including placing special

3

conditions on all grants, and determining priority purposes for formula grants.” Id. § 10102(a)(6)

4

(emphasis added).

5

The same title of the Omnibus Crime Control Act also established the Byrne JAG Program.

6

See generally 34 U.S.C. §§ 10151-58. Under this program, OJP is authorized to “make grants to

7

States and units of local government . . . to provide additional personnel, equipment, . . . and

8

information systems for criminal justice, including for any one or more of [certain enumerated]

9

programs.” Id. § 10152(a)(1). In the same chapter, “criminal justice” is defined broadly to include

10

various activities of the police, the courts, and “related agencies.” Id. § 10251(a)(1). Various other

11

provisions of the same enactment also apply to OJP and the Byrne JAG Program. See, e.g., id. §

12

10108 (period of availability of grant funds); §§ 10221-10238 (administrative provisions); § 10263

13

(audit requirements and other provisions). To request funds under the Program, applicants must,

14

inter alia, “submit an application to the Attorney General . . . in such form as the Attorney General

15

may require,” id. § 10153(a), and provide a “certification” that “the applicant will comply with all

16

. . . applicable Federal laws,” id., § 10153(a)(5)(D). Before issuing a final disapproval of any

17

application, the Attorney General must “afford[] the applicant reasonable notice of any deficiencies

18

in the application and opportunity for correction and reconsideration.” Id. § 10154.

19

The Byrne JAG Program provides “formula grants” – that is, grants that, when awarded,

20

must follow a statutory formula based on population, the rate of violent crime, and other factors. Id.

21

§§ 10152(a)(1), 10156. Funding under the Program is subject to annual appropriations. For FY

22

2017, Congress appropriated $396,000,000 for the Byrne JAG Program, with certain carve-outs

23

from that amount obligated to specific initiatives. See Consolidated Appropriations Act, 2017, Pub.

24

L. No. 115-31, Div. B, Title II, 131 Stat. 135, 203.

25

The federal grant-making process, including the issuance of Byrne JAG grants, contains

26

several steps. The awarding agency typically issues a solicitation that contains “sufficient infor-

27

mation to help an applicant make an informed decision about whether to submit an application.”

28

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See generally Office of Management and Budget, Uniform Administrative Requirements, Cost

2

Principles, and Audit Requirements for Federal Awards (“OMB Uniform Guidance”), 2 C.F.R.

3

§ 200.203(c)(2). Applicants respond to the solicitation by submitting an application in the form

4

specified and with the relevant information requested. See generally OJP Grant Process Overview,

5

available at https://ojp.gov/funding/ Apply/GrantProcess.htm. The deadline for States to submit

6

Byrne JAG applications for FY 2017 was August 25, 2017. See Byrne JAG Program, FY 2017

7

State Solicitation (Dkt. No. 27-1 at 2-45).

8
9

In past years, OJP has included a variety of conditions in Byrne JAG award documents,
including, for example, conditions requiring the grantee to comply with regulations pertaining to

10

civil rights and nondiscrimination, conditions requiring that body armor purchased with grant

11

funding meet certain quality standards, and conditions designed to encourage grantees to adopt

12

policies banning employees from text messaging while driving on duty. These conditions have

13

varied over time, depending on national law enforcement necessities and USDOJ priorities.

14

In FY 2016, OJP included for the first time in its Byrne JAG awards an explicit recognition

15

that Section 1373, described above, is an applicable federal law under the Program. See Declaration

16

of Alan R. Hanson ¶ 3 & Ex. A (Attachment 1 hereto).1 The State accepted the Section 1373

17

compliance condition (as well as 54 other conditions) for its FY 2016 grant without objection or

18

legal challenge. See Hanson Decl. ¶ 3 & Ex. A. In July 2017, OJP published a solicitation seeking

19

applications from state governments for participation in the FY 2017 Byrne JAG Program (Dkt. No.

20

27-1 at 2-45). As relevant to the instant motion for preliminary relief, that solicitation notified

21

potential applicants that the award documents for FY 2017 would again include a condition that

22

grantees certify their compliance with Section 1373 (id. at 31).2

23
24
25
26
27
28

1

That recognition was prompted by a memorandum issued by USDOJ’s Inspector General,
expressing concern that several state and local governments receiving federal grants, including
California, may not have been complying with Section 1373. See Mem. from Michael E. Horowitz,
Inspector Gen., to Karol V. Mason, Assistant Att’y Gen., Office of Justice Programs, Department of
Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients (May
31, 2016) (Dkt. No. 27-3 at 58-74).
2
The FY 2017 solicitation also notified potential applicants that the award documents for
this Fiscal Year would contain two new special conditions, designed to ensure that grantees would
permit access to correctional facilities for immigration authorities to meet with non-citizens and
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2
3

III.

The DOJ Office of Community Oriented Policing Services and the
Anti-Methamphetamine and Anti-Heroin Task Force Programs
In addition to the Byrne JAG Program, plaintiff’s motion refers to two programs

4

administered by the Office of Community Oriented Policing Services (“COPS Office”). Pursuant to

5

authority granted by the Violent Crime Control and Law Enforcement Act of 1994 (“VCCLEA”),

6

the Attorney General created the COPS Office to administer certain community policing grants. See

7

Declaration of Andrew A. Dorr ¶ 2 (Attachment 2 hereto). The Office is headed by a Director

8

appointed by the Attorney General. Id.; 28 C.F.R. §§ 0.119, 0.120.

9

The COPS Office currently administers six programs, including the COPS Anti-Metham-

10

phetamine Program (“CAMP”) and the Anti-Heroin-Task Force Program (“AHTF”). CAMP

11

“provid[es] funds directly to state law enforcement agencies to investigate illicit activities related to

12

the manufacture and distribution of methamphetamine.” COPS Fact Sheet, FY 2017 COPS Anti-

13

Methamphetamine Program, available at https://cops.usdoj.gov/pdf/2017AwardDocs/

14

camp/Fact_Sheet.pdf. AHTF “provid[es] funds to investigate illicit activities related to the distribu-

15

tion of heroin or unlawful distribution of prescriptive opioids, or unlawful heroin and prescription

16

opioid traffickers[.]” COPS Fact Sheet, FY 2017 COPS Anti-Heroin Task Force Program,

17

available at https://cops.usdoj.gov/pdf/2017AwardDocs/ahtf/Fact_Sheet.pdf. Both programs are

18

authorized by the Consolidated Appropriations Act, 2017. 131 Stat. at 207.

19

Like all programs administered by the COPS Office, CAMP and AHTF are discretionary

20

programs, meaning all applicants must compete against each other for limited available funds. See

21

Dorr Decl. ¶ 4. Funding under these programs is subject to annual appropriations. For FY 2017,

22

Congress appropriated $7,000,000 “for competitive grants to State law enforcement agencies in

23

States with high seizures of precursor chemicals, finished methamphetamine, laboratories, and

24

laboratory dump seizures” (i.e., CAMP), and $10,000,000 “for competitive state grants to statewide

25

law enforcement agencies in States with high rates of primary treatment admissions for heroin and

26
27
28

would notify federal authorities regarding the scheduled release of any non-citizen (Dkt. No. 27-1 at
273). Plaintiff challenges these conditions here, but they are not at issue in the instant motion.
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other opioids” (i.e., AHTF). 131 Stat. at 207.

2

CAMP and AHTF grantees, like all federal grantees, are required to comply with all

3

applicable federal laws. There is no statutorily prescribed method for evaluating CAMP and AHTF

4

applications. Dorr Decl. ¶ 9. Rather, the COPS Office has discretion to determine how best to allo-

5

cate each program’s finite funds every year, and to evaluate and score applications. Id.3 Beginning

6

with FY 2016, the COPS Office has advised each CAMP and AHTF applicant that this requirement

7

includes compliance with 8 U.S.C. § 1373. See Dorr Decl. ¶ 8. In FY 2017, the COPS Office

8

required certification of compliance with Section 1373 as a threshold eligibility requirement. Id.

9

IV.

10

Recent Developments
In a challenge brought by Chicago, a district court recently declined to enter a preliminary

11

injunction against the Section 1373 condition in Byrne JAG. See Chicago v. Sessions, 2017 WL

12

4081821, at *8 (noting that “Congress could [rationally] expect an entity receiving federal funds to

13

certify its compliance with [Section 1373], as the entity is – independent of receiving such funds –

14

obligated to comply”) (“Chicago I”). But see Philadelphia v. Sessions, 2017 WL 5489476 (E.D.

15

Pa. Nov. 15, 2017) (enjoining Section 1373 condition as to Philadelphia). More recently, the

16

Chicago court denied the plaintiff’s motion for reconsideration as to its Section 1373 ruling,

17

holding that any review of the City’s compliance with Section 1373 would be “premature.”

18

Chicago v. Sessions, 2017 WL 5499167, at *1 (N.D. Ill. Nov. 16, 2017) (“Chicago II”).

19

California submitted its application for an FY 2017 Byrne JAG award on August 25, 2017.

20

See Hanson Decl. ¶ 4. On November 1, 2017, OJP sent California a letter setting forth its “prelim-

21

inary assessment” of the State’s compliance with Section 1373. Id. ¶ 13 & Ex. F. On November 13,

22

California, as requested, replied in writing. Id. ¶ 14 & Ex. G. At present, OJP is assessing Califor-

23

nia’s letter of November 13, and has not yet reached a decision on the issues. Id. ¶ 15. Further, at

24

this time OJP is not issuing FY 2017 Byrne JAG award documents to any applicants while awaiting

25
26
27
28

3

Beginning with FY 2017, the COPS Office offered applicants the opportunity to receive
additional points in the scoring process by certifying the existence of circumstances similar to those
called for in the Byrne JAG access and notice conditions described above. See Dorr Decl. ¶ 10.
Those scoring factors are not at issue in this motion for preliminary injunction.
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developments in the Chicago litigation. Id. ¶ 10. California has also submitted applications to the

2

COPS Office for awards under CAMP and AHTF, which also remain pending. See Dorr Decl. ¶ 12.

3

Finally, as explained in plaintiff’s original motion for preliminary injunction and as

4

discussed further below, on October 17, 2017, the California Department of Justice received a

5

request for a proposed statewide voter referendum regarding the Values Act (Dkt. No. 17 at 2 n.2).

6

ARGUMENT

7

A preliminary injunction is “an extraordinary and drastic remedy” that should not be

8

granted “unless the movant, by a clear showing, carries the burden of persuasion.” Lopez v. Brewer,

9

680 F.3d 1068, 1072 (9th Cir. 2012). “A plaintiff seeking a preliminary injunction must establish

10

that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

11

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public

12

interest.” Winter v. NRDC, 555 U.S. 7, 20 (2008) (emphasis added). Critically, this is “a four-part

13

conjunctive test, not . . . a four-factor balancing test”; thus, Winter “reject[ed] the sliding-scale test

14

as to the irreparable-injury prong” previously used by some courts. U.S. Bank, N.A. v. SFR Invs.

15

Pool 1, LLC, 124 F. Supp. 3d 1063, 1070 (D. Nev. 2015); see Am. Trucking Ass’ns v. City of Los

16

Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (“To the extent that our cases have suggested a lesser

17

standard, they are no longer controlling, or even viable.”) (footnote omitted). Plaintiff fails to

18

satisfy any of these requirements for a preliminary injunction.

19

I.

20

Plaintiff Cannot Establish a Likelihood of Success on the Merits
“The sine qua non of preliminary injunction inquiry is likelihood of success on the merits:

21

if the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining

22

factors become matters of idle curiosity.” Thomas v. Zachry, 256 F. Supp. 3d 1114, 1118 (D. Nev.

23

2017).

24

A.

25

Plaintiff’s first argument is that, notwithstanding that the State is bound to comply with

26

Section 1373, the requirement that the State certify such compliance as a condition of receiving

27

Byrne JAG funds violates both the Spending Clause and the APA. As set forth below, plaintiff’s

The Byrne JAG Section 1373 Condition Is Consistent with Law

28

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1
2

arguments are unavailing, and thus fail to demonstrate any likelihood of success on the merits.
1.

The Section 1373 Condition Is Consistent with the Spending Clause

3

Article I of the Constitution confers on Congress the authority to “lay and collect Taxes,

4

Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general

5

Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1. It is well-established that the Spending

6

Clause authority is “broad,” and empowers Congress to “set the terms on which it disburses federal

7

money to the States[.]” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296

8

(2006); see also, e.g., South Dakota v. Dole, 483 U.S. 203, 206 (1987) (noting that Congress has

9

“repeatedly employed the [spending] power to further broad policy objectives by conditioning

10

receipt of federal moneys upon compliance by the recipient with federal statutory and adminis-

11

trative directives.”) (citations omitted).

12

For purposes of the instant motion, plaintiff does not dispute that the Byrne JAG Section

13

1373 condition is – as required under the Supreme Court’s Spending Clause jurisprudence – both

14

“in pursuit of the general welfare” and “unambiguous[],” thus properly enabling California to

15

“exercise [its] choice” to participate (or not) in the Program “knowingly, cognizant of the conse-

16

quences of [its] participation.” Dole, 483 U.S. at 207 (internal citations omitted).

17

Rather, the sole Spending Clause-related argument presently advanced by the plaintiff is

18

that the Section 1373 compliance condition purportedly does not have a sufficient “nexus” to the

19

JAG program (Dkt. No. 26 at 15-16). According to California, the Section 1373 condition is

20

insufficiently related to the purpose of the Byrne JAG Program because “it requires state and local

21

jurisdictions to comply with a condition to support a different program (the federal government’s

22

civil immigration priorities) than the ‘criminal justice’ program being funded” (id. at 16). This

23

argument fails, on multiple grounds.

24

First, courts have generally found that the relatedness showing does not pose a difficult

25

hurdle. In Dole itself, the Supreme Court upheld conditioning the receipt of federal highway funds

26

on the only loosely-related requirement that a State adopt a minimum drinking age of twenty-one.

27

See 483 U.S. at 208; see also New York, 505 U.S. at 167 (stating that only “some relationship” is

28

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1

necessary between spending conditions and “the purpose of federal spending.”). The Ninth Circuit

2

has emphasized that conditions on federal grants “might be illegitimate if the conditions share no

3

relationship to the federal interest in particular national projects or programs,” Mayweathers v.

4

Newland, 314 F.3d 1062, 1066 (9th Cir. 2002), and characterized this bar as one that, at most,

5

constitutes a “low-threshold” test that “is a far cry from . . . an exacting standard for relatedness,”

6

id. at 1067. As the D.C. Circuit has observed, the Supreme Court has never “overturned Spending

7

Clause legislation on relatedness grounds.” Barbour v. Wash. Metro. Area Transit Auth., 374 F.3d

8

1161, 1168 (D.C. Cir. 2004).

9

Second, plaintiff is simply wrong in viewing immigration enforcement as unrelated to law

10

enforcement. Numerous provisions of the INA link these two subjects. A conviction for any of a

11

wide array of criminal offenses renders an alien removable from this country, see 8 U.S.C.

12

§ 1227(a)(2), and thus, once deported, no longer present here with the potential to re-offend. See

13

Demore v. Kim, 538 U.S. 510, 518 (2003) (discussing Congress’s strong interest in effective

14

removal of aliens who have committed criminal offenses); 8 U.S.C. § 1226(a), (c) (authorizing

15

detention of criminal alien during removal proceedings and requiring detention for certain criminal

16

aliens); id. § 1231 (providing for continued detention during removal period). The INA also

17

repeatedly contemplates cooperation among state and local officers and federal officials on immi-

18

gration enforcement. See, e.g., 8 U.S.C. § 1357(g) (providing for formal agreements under which

19

local officers may perform specified immigration functions relating to the investigation, apprehen-

20

sion, or detention of aliens); id. § 1324(c) (authorizing state and local officers to make arrests for

21

violations of INA’s prohibition against smuggling, transporting, or harboring aliens); id. § 1252c

22

(authorizing state and local officers to arrest certain felons who have unlawfully returned). Under

23

authorities such as these, “state officers may perform the functions of an immigration officer.”

24

Arizona, 567 U.S. at 408. Thus, given that the INA expressly contemplates local law enforcement

25

activity with respect to immigration law enforcement, it is perfectly germane and appropriate for

26

USDOJ to condition grant funding to promote this purpose.4

27
28

4

California’s argument also fails to account for the federal Sex Offender Registration and
Notification Act (“SORNA”), 34 U.S.C. § 20901 et seq., which – like the federal immigration
10
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1

Accordingly, because there is a clear relationship between the Section 1373 condition and

2

the Byrne JAG Program’s goals, the condition easily satisfies the “low-threshold” relatedness

3

inquiry. Mayweathers, 314 F.3d at 1067.

4

2.

5

Plaintiff further contends that imposition of the Section 1373 condition in Byrne JAG is

The Section 1373 Condition Is Consistent with the APA

6

“arbitrary and capricious” under the APA. But there has been no final determination that California

7

is in violation of the condition, meaning that this APA claim fails at the threshold because the State

8

does not challenge “final agency action.” 5 U.S.C. § 704. Further, even if APA review were some-

9

how available, the challenged condition is well-supported by a reasoned explanation.

10

a. The APA “does not provide judicial review for everything done by an administrative

11

agency.” Invention Submission Corp. v. Rogan, 357 F.3d 452, 459 (4th Cir. 2004) (internal citation

12

omitted)). One limitation is that “[u]nder the [APA], only ‘final agency action’ is subject to judicial

13

review.” Nat’l Parks & Conservation Ass’n v. BLM, 606 F.3d 1058, 1064 (9th Cir. 2010) (quoting 5

14

U.S.C. § 704)). “Agency action is ‘final’ if a minimum of two conditions are met.” Gallo Cattle Co.

15

v. USDA, 159 F.3d 1194, 1198 (9th Cir. 1998). “[F]irst, the action must mark the consummation of

16

the agency’s decision making process . . . [I]t must not be of a merely tentative or interlocutory

17

nature. And second, the action must be one by which rights or obligations have been determined, or

18

from which legal consequences will flow.” Id. at 1198-99. Consistent with this framework, and as

19

relevant here, in the Ninth Circuit, there is no “final agency action” in the context of a federal grant

20

program “until [the agency] has reviewed a grant application and decided to disburse [or withhold]

21

the funds.” Rattlesnake Coal. v. EPA, 509 F.3d 1095, 1103 (9th Cir. 2007).

22

Plaintiff fails to identify any agency action that satisfies these tests for finality. Although

23

OJP has sent California a letter containing a “preliminary assessment” of the State’s compliance

24
25
26
27
28

regime – is “a civil regulatory scheme rather than a criminal one.” United States v. Elkins, 683 F.3d
1039, 1044-45 (9th Cir. 2012). Yet, notwithstanding that SORNA is civil in nature, a state’s
compliance with the same is directly tied, by statute, to its entitlement to its otherwise full allotment
of Byrne JAG funding. 34 U.S.C. § 20927(a); see, e.g., United States v. Kebodeaux, 133 S. Ct.
2496, 2504-05 (2013) (observing with approval that SORNA “used Spending Clause grants to
encourage States to adopt its uniform definitions and requirements. It did not insist that the States
do so.”); United States v. Gould, 568 F.3d 459, 463 n.1 (4th Cir. 2009).
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with Section 1373, Hanson Decl. ¶ 13 & Ex. F, to which the State has now replied, Id. ¶ 14 & Ex.

2

G, OJP is, at present, still assessing California’s response, and has not yet reached a decision on the

3

issues addressed therein. Id. ¶ 15. This administrative review-and-reconsideration process is statu-

4

torily mandated prior to any “final[] disapprov[al]” of a Bryne JAG grant application, 34 U.S.C.

5

§ 10154 – and even were OJP to determine, at the conclusion of this conferral process, to deny

6

plaintiff’s grant application, the State would be entitled to invoke regulatory appeal procedures. See

7

generally 28 C.F.R. Part 18 (Office of Justice Programs hearing and appeal procedures applicable

8

to certain agency actions). Until this administrative appeal process is completed, “judicial review is

9

premature.” San Diego v. Whitman, 242 F.3d 1097, 1101 (9th Cir. 2001).

10

b. Even if APA review of the challenged conditions were available here (which it is not),

11

plaintiff’s claim is unlikely to succeed. Claims arising under the APA are accorded a “narrow

12

standard of review” under which “a court is not to substitute its judgment for that of the agency, and

13

should uphold a decision of less than ideal clarity if the agency’s path may reasonably be

14

discerned.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513-14 (2009) (citation omitted).

15

“[I]t suffices that the new policy is permissible under the statute, that there are good reasons for it,

16

and that the agency believes it to be better.” Id. at 515.

17

Here, “the agency’s reasons for” imposing the challenged conditions “were entirely

18

rational.” Fox Television, 556 U.S. at 517. USDOJ publicly offered – before FY 2017 applications

19

were due and before any FY 2017 awards were made – a sound explanation for the challenged

20

conditions. Federal immigration enforcement undoubtedly intersects with criminal justice, at a

21

minimum for the simple reason that a conviction for any of a wide array of criminal offenses

22

renders an alien removable from this country. Once removed, a criminal alien who has committed

23

such an offense – such as an aggravated felony, certain firearm offenses, domestic violence, or child

24

abuse – is no longer present in this country with the potential to re-offend. See 8 U.S.C.

25

§ 1227(a)(2). Accordingly, as stated in USDOJ’s July 25, 2017 “Backgrounder on Grant Require-

26

ments,” available at https://www.justice.gov/opa/press-release/file/984346/download, the condi-

27
28

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1

tions have a “goal of increasing information sharing between federal, state, and local law enforce-

2

ment” so that “federal immigration authorities have the information they need to enforce the law

3

and keep our communities safe.”

4

Further, plaintiff’s demand for supporting “studies” or “analysis” (Dkt. No. 26 at 17),

5

ignores that Congress did not intend to encumber agencies with burdensome procedures for

6

determining grant conditions; to the contrary, Congress expressly exempted “grants” from the

7

APA’s notice-and-comment procedures. 5 U.S.C. § 553(a)(2). It suffices that the challenged

8

conditions rationally promote interests in “maintain[ing] liaison” among the various branches of

9

government “in matters relating to criminal justice,” 34 U.S.C. § 10102(a)(2), and in ensuring

10

“appropriate coordination with affected agencies,” id. § 10153(a)(5)(C), and that they comport with

11

the cooperation between federal, state, and local authorities in immigration enforcement that

12

Congress contemplates. See, e.g., 8 U.S.C. §§ 1226(d), 1231, 1357(g), 1373; cf. Fox Television, 556

13

U.S. at 521 (“[E]ven in the absence of evidence, the agency’s predictive judgment (which merits

14

deference) makes entire sense” as “an exercise in logic rather than clairvoyance.”). Finally, while

15

attempting to impose heightened scrutiny because USDOJ has allegedly departed from past

16

practice, California ignores both that compliance with Section 1373 has been required since the

17

statute’s enactment in 1996, and that a requirement to certify compliance with Section 1373 was

18

first imposed by the prior Administration in the FY 2016 grant cycle and accepted at that time by

19

the State as a condition of its Byrne JAG award. See 2016 California Award ¶ 55.

20
21
22
23
24

For all of these reasons, even if APA review were available, plaintiff is unlikely to succeed
on the merits of its claim regarding the Byrne JAG Section 1373 compliance condition.
B.

Plaintiff Is Unlikely to Succeed in Showing that None of Its Laws
Violate Section 1373

Plaintiff also seeks an order enjoining the defendants from “withholding, terminating, or

25

clawing back funding” under the Byrne JAG Program or any COPS Office program from “the State

26

and its political subdivisions” based on Section 1373 and any of several state statutes (Dkt. No. 26

27
28

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1

at 1). In other words, plaintiff seeks an order enjoining the defendants from “interpreting or enforc-

2

ing Section 1373” in such a way that any of those state statutes renders the State or its political sub-

3

divisions ineligible for funding under Byrne JAG or any COPS Office program.

4

Plaintiff lacks standing to seek a ruling regarding any state statutes other than the Values

5

Act, and even its request for a ruling on the Values Act is unripe. Alternatively, if plaintiff’s claim

6

regarding the Values Act were justiciable, the State would be unlikely to succeed in showing that

7

that law does not violate Section 1373.

8
9

1.

Plaintiff’s Claims Regarding Compliance with Section 1373
Are Non-Justiciable

10

Under Article III of the Constitution, the jurisdiction of the federal courts extends only to

11

“Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. Matters outside this rubric are “non-

12

justiciable.” Or. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc., 288 F.3d

13

414, 416 (9th Cir. 2002). Two principles of justiciability are involved here: standing and ripeness.

14

“While standing is concerned with who is a proper party to litigate a particular matter, the doctrines

15

of mootness and ripeness determine when that litigation may occur.” Haw. Cty. Green Party v.

16

Clinton, 14 F. Supp. 2d 1198, 1201 (D. Haw. 1998). Where a plaintiff lacks standing or its claims

17

are unripe, the court lacks jurisdiction, and where jurisdiction is lacking, the plaintiff necessarily

18

cannot show a likelihood of success for purposes of a preliminary injunction. See Pollara v. Radiant

19

Logistics Inc., 2012 WL 12887095, at *5 (C.D. Cal. Sept. 13, 2012) (noting that “standing to bring

20

a claim . . . is a necessary predicate to demonstrate a likelihood of success on the merits”).

21

To satisfy the “irreducible constitutional minimum” of standing, a plaintiff must demon-

22

strate an “injury in fact,” a “fairly traceable” causal connection between the injury and defendant’s

23

conduct, and redressability. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998). The

24

injury needed for constitutional standing must be “concrete,” “objective,” and “palpable,” not

25

merely “abstract” or “subjective.” See Whitmore v. Arkansas, 495 U.S. 149, 155 (1990); Bigelow v.

26

Virginia, 421 U.S. 809, 816-17 (1975). Additionally, the injury must be “certainly impending”

27
28

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1

rather than “speculative.” Whitmore, 495 U.S. at 157, 158. In short, for the plaintiff to have stand-

2

ing, “an actual, live controversy must exist between parties with adverse legal interests.” Pollution

3

Denim & Co. v. Pollution Clothing Co., 2009 WL 10672270, at *8 (C.D. Cal. Feb. 9, 2009).

4

Constitutional justiciability also requires that a dispute be ripe for judicial consideration –

5

that is, that the challenged action “has been formalized and its effects felt in a concrete way by the

6

challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). In other words, “[a]

7

claim is not ripe for adjudication [under the Constitution] if it rests upon contingent future events

8

that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S.

9

296, 300 (1998) (internal quotation marks omitted).

10

Applying these standards here, the plaintiff cannot show the “injury in fact” needed for

11

constitutional standing, and its claims are not constitutionally ripe for judicial review. First,

12

defendants have not withheld or threatened to withhold grant funding based on any state statute

13

other than the Values Act, such that plaintiff lacks standing to seek a ruling regarding any of the

14

other statutes listed. Second, there is no ripe controversy regarding the Values Act itself because

15

(1) defendants have not yet made a final determination regarding whether the Values Act violates

16

Section 1373, (2) the Act is not currently in effect, and it may never come into effect because of a

17

proposed voter referendum.

18
19

a.

Plaintiff Lacks Standing to Seek a Ruling Regarding
Any State Statute Other Than the Values Act

20

As described above, on April 21, 2017, OJP wrote to the California agency responsible for

21

administering Byrne JAG grants, asking that it document its compliance with 8 U.S.C. § 1373. See

22

Hanson Decl. ¶ 11 & Ex. D. That letter did not refer to any specific California statutes. On June 29,

23

2017, the State responded that “there are no state laws of general application that violate Section

24

1373,” and specifically discussed only two enactments – the TRUST Act and the TRUTH Act –

25

asserting that those statutes do not “create tension with Section 1373.” Id. ¶ 12 & Ex. E.

26
27

In its reply of November 1, 2017, OJP stated that the Department of Justice had determined
that two provisions of a different enactment – namely, the Values Act – “may violate 8 U.S.C.

28

15
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1

§ 1373, depending on how your jurisdiction interprets and applies them”: specifically, Sections

2

7284.6(a)(1)(A) and 7284.6(a)(1)(C) and (D) of that Act, which prohibit a law enforcement agency

3

from using money or personnel to “[i]nquir[e] into an individual’s immigration status” or to

4

disclose, with certain exceptions, an individual’s release date, personal information (including home

5

address), or “other information.” Id. ¶ 13 & Ex. F. OJP asked the State to “certify that it interprets

6

and applies [Section 7284.6(a)(1)(A)] to not restrict California officers and employees from

7

requesting information regarding immigration status from federal immigration officers” and that it

8

“interprets and applies [Section 7284.6(a)(1)(C) and (D)] to not restrict California officers from

9

sharing information regarding immigration status with federal immigration officers, including

10
11

information regarding release date and home address.” Id.
California responded on November 13, 2017 – nine days ago – stating (1) that Section

12

7284.6(a)(1)(A) “prohibits law enforcement officers from asking an individual about his or her

13

immigration status, or from asking for that information from non-governmental third parties, but

14

does not restrict law enforcement from inquiring about an individual’s immigration status from

15

government entities,” and (2) that Section 7284.6(a)(1)(C) and (D) prohibit the disclosure of release

16

dates and home addresses, but purportedly “do not violate Section 1373 because Section 1373 only

17

prohibits restrictions on ‘citizenship or immigration status information,’ not other information.” Id.

18

¶ 14 & Ex. G. OJP has not yet responded to California’s letter of November 13, and has not yet

19

determined administratively whether the State’s laws comply with Section 1373. Id. ¶ 15.

20

Under these circumstances, plaintiff lacks standing to seek a ruling on whether any state

21

laws other than the Values Act violate Section 1373 such that defendants may withhold federal

22

grant funds based on non-compliance. Given that USDOJ has not addressed whether any provisions

23

of California law other than the Values Act may violate Section 1373 and thus render California

24

ineligible for grant funds, there is no “live controversy” regarding whether any other state statutes

25

comply with Section 1373 and no foreseeable “injury in fact” arising out of defendants’ application

26

of any such statutes. See Pollution Denim & Co., 2009 WL 10672270, at *8; Steel Co., 523 U.S. at

27

102-03. Any assumption that defendants might one day withhold grant funds based on any

28

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1

California statute other than the Values Act would be “speculative,” and thus cannot be the basis for

2

standing. See Whitmore, 495 U.S. at 157, 158.

3

b.

4
5

Plaintiff’s Request for a Ruling Regarding the
Values Act Is Unripe

Plaintiff’s request for a ruling on whether defendants can withhold grant funds based on the

6

Values Act, is also non-justiciable, for three reasons. First, as noted already, OJP has not yet

7

responded to California’s letter regarding the Values Act, and has not determined administratively

8

whether the Act violates Section 1373. See Hanson Decl. ¶ 15. OJP has only stated that portions of

9

the Values Act “may” violate Section 1373, and has not had an opportunity to fully consider the

10

State’s arguments to the contrary. Id. Exs. D, F. Moreover, OJP’s letter of November 1 stated

11

explicitly that it was only a “preliminary assessment of [California’s] compliance with 8 U.S.C.

12

§ 1373” and did not “constitute final agency action.” Id. Ex. F; see 34 U.S.C. § 10223 (stating that

13

OJP’s “determinations, findings, and conclusions shall be final and conclusive upon all

14

applications”). As the district court in Chicago recently explained, “addressing an as-applied

15

challenge to Section 1373 based on [USDOJ’s preliminary determination regarding plaintiff’s

16

compliance] is premature.” Chicago II, 2017 WL 5499167, at *1. Moreover, even after OJP

17

determines whether the Values Act violates Section 1373, the State will have an opportunity to

18

appeal that initial determination administratively. See 34 U.S.C. § 10154; see generally 28 C.F.R.

19

Part 18. OJP could decide, either upon consideration of the State’s letter of November 13, 2017, or

20

upon consideration of any administrative appeal, that the Values Act does not violate Section 1373

21

and thus that USDOJ will not withhold grant funds on that basis. Therefore, plaintiff’s request for a

22

ruling on whether the Values Act violates Section 1373 “rests upon contingent future events that

23
24
25
26
27
28

may not occur as anticipated, or indeed may not occur at all.” Texas, 523 U.S. at 300.5
Second, the Values Act is not currently in effect, and it may never come into effect because
5

Defendants’ alternative argument below that plaintiff is unlikely to show that part of the
Values Act does not violate Section 1373 does not make this claim ripe, given that OJP must still be
permitted to consider the State’s arguments in the administrative process. Cf. Ardalan v. McHugh,
2014 WL 3846062, at *12 n.10 (N.D. Cal. Aug. 4, 2014) (noting that “the futility exception [to
administrative exhaustion] requires a plaintiff [to] show it is certain that the claim will be denied on
appeal, or that resort to administrative remedies is clearly useless”) (citations omitted).
17
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1

of a referendum request. The Values Act was approved by the Governor on October 5, 2017 (Dkt.

2

No. 28-1 p. 54). But on October 17, 2017, the Attorney General received a referendum request

3

(Attachment 3 hereto);6 under California law, proponents of the referendum have until January 3,

4

2018, to submit the requisite number of signatures. If the proposed referendum is submitted with the

5

required signatures by that deadline, the referendum will appear on the ballot for “the next general

6

election.” See Cal. Const. art. II, § 9(c). The Values Act will not go into effect until this process is

7

concluded, and if a referendum on November 6, 2018, results in rejection of the Values Act, it will

8

never become effective.

9

Finally, this case is not justiciable because a ruling that the Values Act does not violate

10

Section 1373 would not free the State from legal jeopardy unless all its laws, together with policies

11

implementing those laws, are consistent with Section 1373. That is a fact-intensive inquiry, and is

12

much better handled through the administrative process rather than through the type of ruling

13

sought here. As noted earlier, that process is ongoing and is narrowing the scope of the dispute

14

between the parties. Importantly, if this Court does address the Values Act, that ruling cannot

15

properly immunize the State from liability under Section 1373 if it turns out, in fact, that the State is

16

implementing the Act in a way that violates Section 1373.

17

Under these circumstances, plaintiff’s request for an order regarding whether the Values Act

18

would violate the Section 1373 compliance condition is constitutionally unripe, in that it “rests upon

19

contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas,

20

523 U.S. at 300. Thus, any judicial consideration of this issue should await further developments.

21

2.

22
23

Plaintiff Is Unlikely to Succeed in Showing that None of Its Laws
Would Violate the Section 1373 Compliance Condition

Alternatively, even if plaintiff’s request for an order against withholding grant funds based

24

on any California laws were justiciable at this point, the State could not establish a likelihood of

25

success on its claim that none of its laws would violate the Section 1373 compliance condition. As

26

explained already, the only state law that may legitimately be at issue here is the California Values

27
28

6

Also available at https://oag.ca.gov/system/files/initiatives/pdfs/17-0040%20%28
Referendum%20of%20SB%2054%29_0.pdf (last visited Nov. 22, 2017).
18
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Act, Cal. Gov’t Code §§ 7284-7284.12. Assuming this issue were justiciable, however, plaintiff is

2

unlikely to show that the Values Act is consistent with Section 1373.

3

The Values Act provides, among other things, that California law enforcement agencies

4

shall not use “moneys or personnel to investigate persons “for immigration enforcement purposes,”

5

including by “[p]roviding information regarding a person’s release date or responding to requests

6

for notification by providing release dates or other information unless that information is available

7

to the public, or is in response to a notification request from immigration authorities in accordance

8

with Section 7282.5, or by “[p]roviding personal information, as defined in Section 1798.3 of the

9

Civil Code, about an individual, including, but not limited to, the individual’s home address or work

10

address unless that information is available to the public.” Cal. Gov’t Code § 7284.6(a). Section

11

7282.5 of the Government Code, referenced in the Values Act, sets forth a very specific list of

12

circumstances in which a law enforcement agency is permitted to “cooperate with federal immigra-

13

tion officials,” based mostly on whether the individual in question has committed any of certain

14

listed felonies. Id. § 7282.5(a). Section 1798.3 of the Civil Code, also cited in the Values Act,

15

defines “personal information” as “any information that is maintained by an agency that identifies

16

or describes an individual, including, but not limited to, his or her name, social security number,

17

physical description, home address, home telephone number, education, financial matters, and

18

medical or employment history.” Cal. Civ. Code § 1798.3(a).

19
20
21
22
23
24

As described earlier, 8 U.S.C. § 1373 provides, among other things:
Notwithstanding any other provision of . . . 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, [federal authorities] information
regarding the citizenship or immigration status . . . of any individual.
8 U.S.C. § 1373(a). The Values Act cannot be squared with this statute.
a. Section 1373 forbids a state or local government from prohibiting the exchange of

25

“information regarding” an individual’s immigration status, not merely the individual’s immigra-

26

tion status, as California argues in its attempt to narrow the reach of the federal law. Congress’s use

27

of “information regarding” was clearly intended to broaden the scope of information covered, as

28

19
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1

demonstrated by comparing Section 1373(a) to Section 1373(c), which uses the alternative phrase

2

“[immigration] status information.” See Dean v. United States, 556 U.S. 568, 573 (2009) (“Where

3

Congress includes particular language in one section of a statute but omits it in another section of

4

the same Act, it is generally presumed that Congress acts intentionally and purposely in the

5

disparate inclusion or exclusion.”) (citations omitted). And the meaning of the word “regarding” is

6

quite broad. See Morales v. Trans World Airlines, 504 U.S. 374, 383 (1992) (citing Black’s Law

7

Dict. 1158 (5th ed. 1979)) (interpreting the closely analogous words “relating to,” and concluding

8

that the “ordinary meaning of these words is a broad one – ‘to stand in some relation; to have

9

bearing or concern; to pertain; refer; to bring into association with or connection with….’”); Davis

10

v. Fenton, 26 F. Supp. 3d 727, 740 (N.D. Ill. 2014) (concluding that the term “regarding” is “just as

11

broad of a term as ‘arising out of’ and ‘relating to’”). The breadth of the provision is also reinforced

12

by the language Congress used, such as making clear that no local policy could “in any way

13

restrict” the sharing of such information, reinforcing Congress’s overarching interest in halting

14

policies that might stymie the sharing of information between local law enforcement and

15

immigration authorities. See Bologna v. San Francisco, 121 Cal. Rptr.3d 46, 414 (Cal. App. 2011)

16

(law “’designed to prevent any State or local law . . . that prohibits or in any way restricts any

17

communication between State and local officials and the INS’”) (quoting House report) (emphasis

18

added). Indeed, California’s cramped reading of Section 1373 would render it largely meaningless,

19

as DHS already is aware of an individual’s legal right to be present in the United States. See

20

Steinle v. San Francisco, 230 F. Supp. 3d 994, 1016 (N.D. Cal. 2017) (explaining that “ICE was

21

already aware of Lopez-Sanchez’s immigration status”). Such an overly narrow interpretation, so as

22

to render the congressional enactment all but meaningless, should not be adopted. See Dkt. No. 26

23

at 19 (“Section 1373 must be read in the context of the rest of the INA.”).

24

b. The Values Act prevents sharing personal and identifying information that plainly

25

qualifies as information regarding immigration status. First, California law defines personal

26

information very broadly as “any information . . . that identifies . . . an individual” such as name or

27

address. Thus, under the law, state officials would be unable to confirm or reveal the identity of

28

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1

individuals in state custody. But a person’s identity and name are highly relevant to determining

2

immigration status and removability: No such evaluation can be made if the person’s identity is not

3

disclosed. And the person’s address directly relates to whether the person is “lawfully present in the

4

United States,” which Congress described as a component of “immigration status.” 8 U.S.C.

5

§ 1357(g)(10)(A) (emphasis added); see Webster’s New Intern’l Dict. (2d ed. 1958) (defining

6

“present” as “being in a certain place and not elsewhere”). Identity and other personal information

7

are also relevant to many immigration status issues, such as whether the person was born outside

8

the United States, whether the person derived citizenship from a relative, whether the person quali-

9

fies for immigrant status under 8 U.S.C. § 1101(a)(15), whether the alien’s place of residence quali-

10

fies them as a non-resident visitor, 8 U.S.C. § 1227(a)(1)(C), and to facilitate taking the alien into

11

custody for lawful removal proceedings, id. § 1226(a). The restrictions on sharing personal

12

information cannot be squared with Section 1373.

13

c. The Values Act provisions that prevent the sharing of prisoner release dates also violate

14

Section 1373 because an alien’s release date is information regarding the person’s immigration

15

status. An alien’s release date is directly relevant to when the alien can ultimately be removed from

16

the country. Federal immigration law recognizes the importance of allowing States and localities to

17

impose criminal punishment on individuals who are in this country illegally and commit crimes, to

18

allow state and local governments to vindicate their core criminal law enforcement interests. Thus,

19

federal law specifies that, except in limited circumstances, DHS “may not remove an alien who is

20

sentenced to imprisonment until the alien is released from imprisonment.” 8 U.S.C. § 1231(a)(4).

21

But that law – and the comity interests that underlie it – render the time of an alien’s release from

22

state custody critical information regarding the alien’s immigration status, as the alien is subject to

23

removal only at the end of that custody period. See id. § 1231(a)(1)(B)(iii) (removal period “begins

24

on . . . the date the alien is released from [state criminal] detention”). Similarly, the statute requiring

25

the detention of criminal aliens specifies that immigration detention for removal proceedings must

26

begin “when the alien is released” from state criminal custody. Id. § 1226(c)(1). The Ninth Circuit

27

has held that this statute requires that immigration custody begin immediately upon the release from

28

21
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state criminal custody, underscoring the importance of the release date to the person’s status under

2

the immigration laws. See Preap v. Johnson, 831 F.3d 1193, 1202 (9th Cir. 2016) (Section 1226(c)

3

“governs the full life cycle of the criminal aliens’ detention” including “specifying the requirements

4

for taking them into custody”), petition for cert filed, No. 16-1363 (May 11, 2017). Other INA

5

provisions also confirm that an alien release date is highly relevant to the person’s status under the

6

immigration laws given the relevance of that persons’ location within the United States. See 8

7

U.S.C. § 1357(g)(10)(A) (“immigration status” includes whether individual is “lawfully present in

8

the United States”); id. § 1357(a)(1) (immigration officers “shall have power without warrant . . . to

9

interrogate any alien or person believed to be an alien as to his right to be or to remain in the United

10

States”); id. § 1226(a) (“alien may be arrested and detained” on a warrant). Because a key premise

11

of these immigration statutes is that when an alien commits a crime subject to punishment by a state

12

or locality, that locality will first have the opportunity to prosecute and punish for that crime, and

13

then the alien will be detained to consider whether removal is appropriate and, if so, to effectuate

14

removal. See id. §§ 1226(c) & 1231(a). Given that premise, release date information relates to that

15

persons’ status under the immigration laws because it is a core aspect of the enforcement process

16

Congress designed.

17

In light of all the above, although no final agency decision has been made by OJP, plaintiff

18

is unlikely to show that the Values Act does not violate Section 1373, and the State cannot prevail

19

in its request for an injunction regarding conformity of its laws with Section 1373.

20
21

C.

Plaintiff Is Unlikely to Succeed in Showing that the Section 1373
Compliance Condition Violates the Tenth Amendment

22

California’s final argument is that the Section 1373 compliance condition would violate the

23

Tenth Amendment if the statute were construed to “cover” the state statutes identified in plaintiff’s

24

motion (Dkt. No. 26 at 21). The Tenth Amendment provides that “[t]he powers not delegated to the

25

United States by the Constitution, nor prohibited by it to the States, are reserved to the States

26

respectively, or to the people.” It stands for the proposition that “[t]he Federal Government may not

27

compel the States to enact or administer a federal regulatory program” or to “act on the Federal

28

22
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1

Government’s behalf.” New York, 505 U.S. at 188; NFIB, 567 U.S. at 620.

2

As explained above, only one state statute could possibly become legitimately at issue here

3

under the present circumstances: the Values Act. The question under plaintiff’s Tenth Amendment

4

claim, therefore, is whether applying the Section 1373 compliance condition in such a way that the

5

Values Act violates the condition would “compel the State[] to enact or administer a federal regula-

6

tory program” or to “act on the Federal Government’s behalf.” For several reasons, it would not.

7

First, the dispute here does not involve a federal statutory mandate that directly regulates

8

California, but rather a condition on receipt of federal funds that the State and its subdivisions are

9

free to accept or reject. Thus, the relevant question here is not whether Section 1373, as an indepen-

10

dent statutory obligation, would violate the Tenth Amendment. Instead, the only pertinent question

11

is whether conditioning the receipt of federal funds on compliance with Section 1373 is a valid

12

exercise of the spending power – which, as discussed above, it is. In this context, it is well-settled

13

that the federal government “may offer funds to the States, and may condition those offers on

14

compliance with specified conditions..” NFIB, 567 U.S. at 537; cf. Envtl. Def. Ctr., Inc. v. EPA, 344

15

F.3d 832, 847 (9th Cir. 2003) (“[A]s long as the alternative to implementing a federal regulatory

16

program does not offend the Constitution’s guarantees of federalism, the fact that the alternative is

17

difficult, expensive or otherwise unappealing is insufficient to establish a Tenth Amendment

18

violation.”) (citation omitted). In effect, by requesting funds from the Federal Government, the

19

State acts voluntarily and waives any Tenth Amendment concerns. 7

20
21

Second, the purpose and effect of Section 1373 and the challenged grant condition are to
further the express goals of the INA, not to “commandeer” state officials. As noted earlier, the INA

22
7

23
24
25
26
27
28

As discussed above, SORNA provides an instructive analogy. That statute generally
requires States to comply with various requirements related to the maintenance of sex offender
databases – including “provid[ing] the information in the registry” to various national and local law
enforcement agencies and community organizations – on penalty of forfeiture of 10% of the state’s
otherwise allotted Byrne JAG grant funds. 34 U.S.C. § 20927(a). Courts have uniformly rejected
Tenth Amendment challenges to this requirement. As the Ninth Circuit explained, “SORNA does
not compel states or state officials to comply with its requirements; rather, Congress engaged in a
constitutionally valid exercise of its spending power by conditioning the receipt of [Byrne JAG]
federal funds on the implementation of SORNA.” United States v. Richardson, 754 F.3d 1143, 1146
(9th Cir. 2014) (emphasis added).
23
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1

provides that a federal immigration officer “shall have power without warrant . . . to interrogate any

2

alien or person believed to be an alien as to his right to be or to remain in the United States.” 8

3

U.S.C. § 1357(a)(1). The INA also provides that certain classes of non-citizens, including certain

4

criminal aliens, shall be removed from the United States upon the order of the Attorney General or

5

the Secretary of Homeland Security, see, e.g., id. §§ 1227(a), 1228. Federal officials cannot carry

6

out these duties without knowing where those persons are located. Indeed, the legislative history of

7

Section 1373 indicates that the statute was intended to counteract passive resistance to sharing

8

information. See, e.g., S. Rep. No. 104-249, at 19-20 (1996) (noting that “the acquisition,

9

maintenance, and exchange of immigration-related information by State and local agencies is

10

consistent with, and potentially of considerable assistance to, the Federal regulation of immigration

11

and the achieving of the purposes and objectives of the [INA]”).

12

Third, even if an outright mandate rather than a grant condition were involved here, a mere

13

requirement not to prohibit individuals from providing information would not violate the Tenth

14

Amendment. The courts have rejected Tenth Amendment challenges to a number of federal statutes

15

that regulated the handling of information. For example, in Reno v. Condon, the Supreme Court

16

rejected a challenge to a federal law regarding information on motor vehicle operators, which both

17

required States to disclose the information in certain circumstances and prohibited its disclosure in

18

other circumstances. 528 U.S. 141, 143-46, 149-150 (2000).8 Similarly, in Freilich v. Upper

19

Chesapeake Health, Inc., the Fourth Circuit rejected a challenge to a federal statute that required

20

health care entities to provide certain information regarding physicians to the State Board of Medi-

21

cal Examiners, and required state boards to forward that information to a federal database under the

22

auspices. 313 F.3d 205, 213-14 (4th Cir. 2002); see 42 U.S.C. §§ 11133, 11134. In rejecting that

23

claim, the court wrote that the federal statute “does not commandeer the state legislature or execu-

24

tive” and “does not compel states to implement a federal regulatory program either. . . . All that the

25
26
27
28

8

Plaintiff objects that the information covered by the Values Act includes “private
information” (Dkt. No. 26 at 22), but the federal statute in Condon regulated the disclosure or nondisclosure of drivers’ “personal information,” including their addresses, “medical or disability
information,” photographs, and Social Security numbers. 528 U.S. at 144; 18 U.S.C. § 2725(3).
24
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1

[statute] requires of states is the forwarding of information.” 313 F.3d at 213-14. Further, the

2

Second Circuit has rejected a Tenth Amendment challenge to Section 1373 on this very basis,

3

noting that the statute does not “directly compel states or localities to require or prohibit anything.

4

Rather, [it] prohibit[s] state and local governmental entities or officials only from directly restricting

5

the voluntary exchange of immigration information . . . .” City of New York v. United States, 179

6

F.3d 29, 35 (2d Cir. 1999); accord Chicago I, 2017 WL 4081821, at *10.

7

Fourth, contrary to plaintiff’s contention, the Section 1373 grant condition – again, even

8

assuming it were more than a mere grant condition – does not “command[]” state and local

9

governments “to allow the unfettered use of their resources and personnel to act in furtherance of a

10

federal immigration enforcement program” (Dkt. No. 26 at 22). For this proposition and others,

11

plaintiff cites Printz v. United States, 521 U.S. 898, 918 (1997), but that decision actually undercuts

12

the State’s Tenth Amendment claim. There, the Supreme Court struck down certain provisions of

13

the Brady Act, which required local law enforcement officers to conduct background checks on

14

prospective handgun purchasers. The Act required much more than the forwarding of information,

15

compelling law enforcement officers to “make a reasonable effort to ascertain within 5 business

16

days whether receipt or possession [of a handgun by a prospective purchaser] would be in violation

17

of the law, including research in whatever State and local recordkeeping systems are available and

18

in a national system designated by the Attorney General,” and to provide, upon request, a written

19

statement of the reasons for any contrary determination. Id. at 903. Other federal laws requiring

20

action by state or local officials were cited in support of the constitutionality of those provisions,

21

but the Court rejected the relevance of those laws, observing that some of them were “connected to

22

federal funding measures, and [could] perhaps be more accurately described as conditions upon the

23

grant of federal funding than as mandates to the States” and that others “require[d] only the provi-

24

sion of information to the Federal Government” and thus did not “involve the precise issue before

25

us here, which is the forced participation of the States’ executive in the actual administration of a

26

federal program.” Id. at 917-18. Unlike the Brady Act, Section 1373 only involves the exchange of

27

information with federal authorities, and it is only a prohibition on policies that bar sharing

28

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1

information, not an affirmative obligation to share information.

2

Moreover, merely barring a state or local government grantee from prohibiting or

3

restricting the exchange of certain information with federal immigration authorities does not

4

“weaken the State’s ability to regulate the actions of [its] own governmental employees” (Dkt. No.

5

26 at 23), any more than did the statutes at issue in Condon and Freilich. Indeed, the Court in

6

Condon expressly acknowledged that the provisions in that case regarding the disclosure or non-

7

disclosure of driver information would “require time and effort on the part of state employees,” but

8

the Court rejected plaintiff’s argument that those effects constituted a violation of the Tenth

9

Amendment. 528 U.S. at 149-50.

10

Fifth and finally, because only the Values Act is involved here, plaintiff’s motion presents

11

no issue regarding “encourag[ing] residents to report crimes” or potentially “entangling local law

12

enforcement in federal immigration matters” (Dkt. No. 26 at 21). Section 1373 merely protects the

13

Federal Government’s receipt of “information regarding the citizenship or immigration status” of

14

individuals, and the Values Act, as relevant here, only prohibits disclosing release dates, “personal

15

information” such as home addresses, and “other information.” Cal. Gov’t Code § 7284.6(a)(1)(C),

16

(D). In seeking a preliminary injunction, therefore, the State cannot rely on the avowed purposes of

17

the other state statutes it has cited, such as the TRUST Act, which governs when a law enforcement

18

agency may detain an individual at the request of federal authorities, or Penal Code § 422.93, which

19

prohibits “reporting” the victim or witness of a hate crime to federal immigration authorities.

20

II.

21

Plaintiff Fails to Establish Irreparable Harm Absent Preliminary Relief
“[P]laintiffs seeking preliminary relief [must] demonstrate that irreparable injury is likely in

22

the absence of an injunction,” not merely that it is possible. Arc of Cal. v. Douglas, 757 F.3d 975,

23

990 (9th Cir. 2014) (quoting Winter, 555 U.S. at 22). Further, “[t]he threat of irreparable harm must

24

. . . be ‘immediate.’” Arcsoft, Inc. v. Cyberlink Corp., 153 F. Supp. 3d 1057, 1071 (N.D. Cal. 2015)

25

(quoting Caribbean Marine Servs. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988)). “A plain-

26

tiff must do more than merely allege imminent harm sufficient to establish standing; a plaintiff must

27

demonstrate immediate threatened injury as a prerequisite to preliminary injunctive relief.”

28

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1

Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1022 (9th Cir. 2016) (citation omitted). Further,

2

where the plaintiff “has failed to establish a likelihood of irreparable harm,” a court need not even

3

consider the other requirements. Painsolvers, Inc. v. State Farm Mut. Auto. Ins. Co., 685 F. Supp.

4

2d 1123, 1139 (D. Haw. 2010).

5

Here, as both a preliminary and a dispositive matter, plaintiff’s claim of irreparable harm is

6

belied by its acceptance of a requirement to certify compliance with Section 1373 in the FY 2016

7

Byrne JAG cycle, and its long delay in raising any legal challenge. At minimum, this delay

8

disqualifies the State from demonstrating immediate irreparable harm, as necessary to obtain the

9

relief it here seeks. See Boardman, 822 F.3d at 1022.

10

Further, even apart from California’s own conduct demonstrating a lack of urgency, its

11

claim that the condition causes irreparable harm by attempting to unconstitutionally coerce the State

12

into abandoning its right to self-government also fails. The Supreme Court has admonished that

13

“courts should not conclude that [an enactment] is unconstitutional on this ground unless the

14

coercive nature of an offer is unmistakably clear,” NFIB, 567 U.S. at 681 (plurality), such as where

15

a State is subjected to the risk of losing “over 10 percent of a State’s overall budget” if it declines to

16

adopt certain conditions. Id. at 582 (emphasis added). The amount of potential funding at stake to

17

California through the subject programs does not come close to meeting that threshold. Plaintiff

18

asserts that it expects to receive $28.3 million in FY 2017 Byrne JAG funding, as well as a

19

combined $2.8 million from the two COPS programs (Dkt. No. at 26 at 3-4, 52). However, the

20

State’s FY 2017 budget estimated obligations of more than $125 billion. See California 2017-18

21

State Budget Overview, available at http://www.ebudget.ca.gov/ budget/2017-18EN/#/Home.

22

Thus, the combined funds that are even potentially at issue constitute approximately 0.025% of

23

California’s overall budget. Such a miniscule impact on the State’s finances does not come close to

24

establishing unconstitutional coercion. See NFIB, 567 U.S. at 581 (noting that in Dole “the

25

threatened loss of less than half of one percent of South Dakota’s budget left that State with a

26

‘prerogative’ to reject Congress’s desired policy”). Plaintiff thus does not meet its burden to

27

demonstrate it will suffer irreparable harm absent preliminary relief.

28

27
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1
2
3

III.

The Public Interest and the Balance of Equities Militate Against the Entry of
a Preliminary Injunction
Lastly, a party seeking a preliminary injunction must “establish . . . that the balance of

4

equities tips in [its] favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20.

5

These factors merge in a suit against the Federal Government. Nken v. Holder, 556 U.S. 418, 435

6

(2009). Here, the public interest weighs heavily against plaintiff’s attempt to enjoin statutorily

7

authorized Executive Branch policies that are designed to promote enforcement of federal immi-

8

gration law in jurisdictions that receive federal law enforcement funds. Courts have routinely held

9

that “the United States has an interest in enforcing federal law . . . .” Sec’y of Labor v. Fitzsimmons,

10

805 F.2d 682, 693 (7th Cir. 1986) (emphasis omitted). The State’s requested relief threatens, in

11

particular, “the public interest in the speedy and effective enforcement of the immigration

12

laws . . . .” Sofinet v. INS, 188 F.3d 703, 708 (7th Cir. 1999), as well as the Federal Government’s

13

interest in seeing that federal funds are used “to further broad policy objectives by conditioning

14

receipt of federal moneys upon compliance by the recipient with federal statutory and

15

administrative directives.” Fullilove v. Klutznick, 448 U.S. 448, 474 (1980).

16

As discussed in the accompanying DHS declaration, the challenged Section 1373

17

compliance condition promotes those interests by promoting operational efficiency by conserving

18

the resources needed by DHS to execute its mission; supporting the federal ability to remove

19

criminal aliens from the country; and helping reduce federal expenditures on the State Criminal

20

Alien Assistance Program, see 8 U.S.C. § 1231(i), under which the federal government compen-

21

sates states and localities for their incarceration of certain criminal aliens. See Declaration of Jim

22

Brown ¶¶ 6-11 (Attachment 4 hereto). At bottom, encouraging cooperation among local govern-

23

ments and federal immigration authorities promotes the public interest in executing federal laws

24

that require removal of criminal aliens. See id. These concrete interests tip the equities in this case

25

sharply toward denying an injunction.

26
27

CONCLUSION
Accordingly, plaintiff’s motion for preliminary injunction should be denied.

28

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1

Dated: November 22, 2017

2
Respectfully submitted,

3

CHAD A. READLER
Principal Deputy Assistant Attorney General

4
5

BRIAN STRETCH
United States Attorney

6
7

JOHN R. TYLER
Assistant Director

8

/s/ W. Scott Simpson

9
10

W. SCOTT SIMPSON (Va. Bar #27487)

11

ANTONIA KONKOLY
Trial Attorney

12

Attorneys, Department of Justice
Civil Division, Room 7210
Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, D.C. 20530
Telephone: [phone]
Facsimile: [phone]
E-mail:
[e-mail]

13
14
15
16
17
18

COUNSEL FOR DEFENDANTS
JEFFERSON B. SESSIONS III, Attorney
General of the United States; ALAN R.
HANSON, Acting Assistant Attorney General;
and U.S. DEPARTMENT OF JUSTICE

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Opposition Prelim. Injunction
No. 3:17-cv-04701-WHO

EXHIBIT C

Case 3:17-cv-04701-WHO Document 77 Filed 01/16/18 Page 1 of 40

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CHAD A. READLER
Acting Assistant Attorney General
BRIAN STRETCH
United States Attorney
JOHN R. TYLER
Assistant Director
W. SCOTT SIMPSON (Va. Bar #27487)
Senior Trial Counsel
ANTONIA KONKOLY
Trial Attorney
Department of Justice, Room 7210
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, D.C. 20530
Telephone:
[phone]
Facsimile:
[phone]
E-mail:
[e-mail]
COUNSEL FOR DEFENDANTS
JEFFERSON B. SESSIONS III, Attorney
General of the United States; ALAN R.
HANSON, Principal Deputy Assistant Attorney
General; and U.S. DEPARTMENT OF JUSTICE

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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STATE OF CALIFORNIA, ex rel. XAVIER
BECERRA, Attorney General of the State of
California,

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Plaintiff,
v.
JEFFERSON B. SESSIONS III, Attorney
General of the United States, et al.,
Defendants.

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Defs’ Motion to Dismiss; Memo.
No. 3:17-cv-04701-WHO

No. 3:17-cv-04701-WHO
DEFENDANTS’ NOTICE OF MOTION
AND MOTION TO DISMISS;
MEMORANDUM OF POINTS AND
AUTHORITIES
Date:
Time:

February 28, 2018
2:00 p.m.

Case 3:17-cv-04701-WHO Document 77 Filed 01/16/18 Page 2 of 40

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TABLE OF CONTENTS

2
3

TABLE OF AUTHORITIES.............................................................................................................. iii

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NOTICE OF MOTION AND MOTION TO DISMISS ..................................................................... 1

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MEMORANDUM OF POINTS AND AUTHORITIES .................................................................... 1

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INTRODUCTION ............................................................................................................................... 1

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STATUTORY AND ADMINISTRATIVE BACKGROUND .......................................................... 3

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I.

The Immigration and Nationality Act......................................................................... 3

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II.

DOJ Office of Justice Programs and the Byrne JAG Program .................................. 4

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III.

DOJ Office of Community Oriented Policing Services and the
Anti-Methamphetamine and Anti-Heroin Task Force Programs............................... 6

IV.

Recent Developments ................................................................................................. 8

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12
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ARGUMENT ....................................................................................................................................... 8
I.

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The Challenged Immigration-Related Byrne JAG Conditions Are Lawful .............. 9
A.

The Access and Notice Conditions Are Authorized by Statute
and Do Not Violate the Separation of Powers ............................................... 9

B.

The Notice, Access, and Section 1373 Conditions
Are Consistent with the Spending Clause .................................................... 11

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1.

The Notice and Access Conditions Are Unambiguous ................... 11

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2.

The Notice, Access, and Section 1373 Conditions Are
Related to the Purposes of the Byrne JAG Program ........................ 13

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C.

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Plaintiff’s APA Claims Must be Dismissed for
Additional Reasons ....................................................................................... 16
1.

The APA Claims Do Not Challenge Final Agency Action
Reviewable under the APA .............................................................. 16

2.

The Challenged Conditions Are Not Arbitrary or Capricious ........ 17

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27

II.

Plaintiff’s Claim for a Declaration Regarding its Statutes’ Compliance
with Section 1373 Should Be Dismissed.................................................................. 19
A.

Plaintiff’s Request for a Ruling Regarding Compliance with
Section 1373 Is Non-Justiciable ................................................................... 19
1.

Plaintiff Lacks Standing to Seek a Ruling Regarding
Any State Statute Other Than the Values Act.................................. 21

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Defs’ Motion to Dismiss; Memo.
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2.

Plaintiff’s Request for a Ruling Regarding the
Values Act Is Constitutionally Unripe ............................................. 22

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B.

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4
5

III.

The Court Should Dismiss Plaintiff’s Claim for Declaratory
Judgment Regarding the Values Act on Its Merits ...................................... 24

Section 1373 Is Consistent with the Tenth Amendment .......................................... 27

CONCLUSION.................................................................................................................................. 30

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Defs’ Motion to Dismiss; Memo.
No. 3:17-cv-04701-WHO

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TABLE OF AUTHORITIES

2
3

CONSTITUTION

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U.S. Const. art. I, § 8, cl. 1 ............................................................................................................. 11

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U.S. Const. art. III, § 2, cl. 1........................................................................................................... 19

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7

CASES

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Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ............................................................................ 20

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Abbs v. Sullivan, 963 F.2d 918 (7th Cir. 1992) ............................................................................ 17

10

Ardalan v. McHugh, 2014 WL 3846062 (N.D. Cal. Aug. 4, 2014) ............................................. 23

11
12
13

Arizona v. United States, 567 U.S. 387 (2012) .................................................................. 3, 15, 19
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006) .................................... 11

14

Barbour v. Wash. Metro. Area Transit Auth., 374 F.3d 1161 (D.C. Cir. 2004) ........................... 14

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Bennett v. Spear, 520 U.S. 154 (1997) ......................................................................................... 16

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Benning v. Georgia, 391 F.3d 1299 (11th Cir. 2004) ................................................................... 13

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18

Bigelow v. Virginia, 421 U.S. 809 (1975) .................................................................................... 20
Bologna v. San Francisco, 121 Cal. Rptr. 3d 406 (Cal. App. 2011) ............................................ 25

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20

Charles v. Verhagen, 348 F.3d 601 (7th Cir. 2003) ..................................................................... 13

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Chicago v. Sessions, 264 F. Supp. 3d 933 (N.D. Ill. 2017) ...................................................... 8, 30

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Chicago v. Sessions, 2017 WL 5499167 (N.D. Ill. Nov. 16, 2017) ............................................. 23

23

Citizens Alert Regarding Env't v. EPA, 102 F. App’x 167 (D.C. Cir. 2004) ............................... 16

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Citizens for Appropriate Rural Roads v. Foxx, 815 F.3d 1068 (7th Cir. 2016) ........................... 17

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Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ...................................... 17

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City of New York v. United States, 179 F.3d 29 (2d Cir. 1999) ................................................... 29

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28

Clinton v. City of New York, 524 U.S. 417 (1998) ......................................................................... 9
Defs’ Motion to Dismiss; Memo.
No. 3:17-cv-04701-WHO

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Conservation Force v. Salazar, 646 F.3d 1240 (9th Cir. 2011) ..................................................... 8

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Coons v. Lew, 762 F.3d 891 (9th Cir. 2014) ................................................................................ 21

3

Courthouse News Serv. v. Planet, 750 F.3d 776 (9th Cir. 2014) ................................................... 8

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Davis v. Fenton, 26 F. Supp. 3d 727 (N.D. Ill. 2014) .................................................................. 25

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6

Dean v. United States, 556 U.S. 568 (2009) ................................................................................ 25

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DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275 (D.C. Cir. 1989) ...................................................... 9

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Duvall v. Att’y Gen. of U.S., 436 F.3d 382 (3d Cir. 2006) ........................................................... 14

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Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003) ......................................................... 28

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11

FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) ................................................... 18, 19
Freilich v. Bd. of Directors, 142 F. Supp. 2d 679 (D. Md. 2001) ................................................ 30

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13
14

Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205 (4th Cir. 2002) ................................... 29
Haw. Cty. Green Party v. Clinton, 14 F. Supp. 2d 1198 (D. Haw. 1998) .................................... 20

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J&G Sales Ltd. v. Truscott, 473 F.3d 1043 (9th Cir. 2007) ......................................................... 17

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Karst Envtl. Educ. & Prot., Inc. v. EPA, 403 F. Supp. 2d 74 (D.D.C. 2005),
aff’d, 475 F.3d 1291 (D.C. Cir. 2007) ..................................................................................... 16

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18

Koslow v. Pennsylvania, 302 F.3d 161 (3d Cir. 2002) ................................................................. 14

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Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) .............................................................. 8

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Louisiana Mun. Police Emps.’ Ret. Sys. v. Wynn, 829 F.3d 1048 (9th Cir. 2016) ......................... 8

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Madison v. Virginia, 474 F.3d 118 (4th Cir. 2006) ...................................................................... 12

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Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ........................................................... 14

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Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992) ....................................................... 25

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25

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) ................................................... 3, 28

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Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) ............................................................................. 8

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New York v. United States, 505 U.S. 144 (1992) ......................................................... 3, 12, 14, 28

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Defs’ Motion to Dismiss; Memo.
No. 3:17-cv-04701-WHO

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Or. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc.,
288 F.3d 414 (9th Cir. 2002) ................................................................................................... 19

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Or. Nat. Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977 (9th Cir. 2006) ................................... 16

4

Padilla v. Kentucky, 559 U.S. 356 (2010) .................................................................................... 14

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Pollara v. Radiant Logistics Inc., 2012 WL 12887095 (C.D. Cal. Sept. 13, 2012) ..................... 20

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7

Pollution Denim & Co. v. Pollution Clothing Co., 2009 WL 10672270
(C.D. Cal. Feb. 9, 2009) ....................................................................................................... 20, 22

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Preap v. Johnson, 831 F.3d 1193 (9th Cir. 2016) .................................................................. 15, 27

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Printz v. United States, 521 U.S. 898 (1997) ......................................................................... 29, 30

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11

Providence Yakima Med. Ctr. v. Sebelius, 611 F.3d 1181 (9th Cir. 2010) .................................. 17
Rattlesnake Coal. v. EPA, 509 F.3d 1095 (9th Cir. 2007) ........................................................... 16

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Reno v. Condon, 528 U.S. 141 (2000) .......................................................................................... 29
S. Dakota v. Dole, 483 U.S. 203 (1987) ........................................................................... 11, 12, 14

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Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) .................................................. 20, 22

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Steinle v. San Francisco, 230 F. Supp. 3d 994 (N.D. Cal. 2017) ................................................. 26

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Stone v. Immigration & Naturalization Serv., 514 U.S. 386 (1995) ............................................ 11

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Texas v. United States, 523 U.S. 296 (1998) .......................................................................... 20, 23

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United States v. Miami Univ., 294 F.3d 797 (6th Cir. 2002) ........................................................ 12

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21
22

Wash. Legal Found. v. Legal Found. of Wash., 271 F.3d 835 (9th Cir. 2001),
aff’d sub nom. Brown v. Legal Found. of Wash., 538 U.S. 216 (2003) .................................... 20
Whitmore v. Arkansas, 495 U.S. 149 (1990) .......................................................................... 20, 22

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24

STATUTES

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5 U.S.C. § 704 .............................................................................................................................. 16

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8 U.S.C. § 1101 ........................................................................................................................ 3, 26

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8 U.S.C. § 1226 ...................................................................................................... 3, 15, 19, 26, 27

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Defs’ Motion to Dismiss; Memo.
No. 3:17-cv-04701-WHO

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8 U.S.C. § 1227 ........................................................................................................ 3, 4, 14, 26, 29

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8 U.S.C. § 1228 .................................................................................................................... 3, 4, 29

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8 U.S.C. § 1231 ...................................................................................................................... 15, 27

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8 U.S.C. § 1252c ........................................................................................................................... 15

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6

8 U.S.C. § 1324(c) ........................................................................................................................ 15

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8 U.S.C. § 1357 ..................................................................................................................... passim

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8 U.S.C. § 1373 ..................................................................................................................... passim

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18 U.S.C. § 1913 .......................................................................................................................... 13

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11

28 U.S.C. § 530C(a)(4) ................................................................................................................. 10
31 U.S.C. § 1352 .......................................................................................................................... 13

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14

34 U.S.C. § 10101 .................................................................................................................... 4, 10
34 U.S.C. § 10102(a) .................................................................................................... 4, 10, 14, 19

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34 U.S.C. § 10110 .......................................................................................................................... 9

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34 U.S.C. §§ 10151-58 ................................................................................................................... 4

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34 U.S.C. § 10152(a) ............................................................................................................ 4, 5, 14

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34 U.S.C. § 10153(a) ........................................................................................................................... 5

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34 U.S.C. § 10154 .................................................................................................................. 16, 23

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21

34 U.S.C. § 10156 ................................................................................................................................ 5

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34 U.S.C. § 10202 .......................................................................................................................... 5

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34 U.S.C. § 10223 ........................................................................................................................ 23

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34 U.S.C. § 10251(a)(1) ....................................................................................................................... 5

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34 U.S.C. § 10444(7) ................................................................................................................... 10

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42 U.S.C. § 11133 ........................................................................................................................ 29

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42 U.S.C. § 11134 ........................................................................................................................ 29

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Defs’ Motion to Dismiss; Memo.
No. 3:17-cv-04701-WHO

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Consolidated Appropriations Act, Pub. L. No. 115-31, 131 Stat. 135 (2017) ............................... 5, 7

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Dep’t of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006) ...... 10

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4

Joint Resolution Making Continuing Appropriations for FY 1985,
Pub. L. No. 98-473, 98 Stat. 1837 (1984) ............................................................................... 10

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Pub. L. No. 90-351, 82 Stat. 197 (1968) ............................................................................................. 4

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Cal. Civ. Code § 1798.3 ................................................................................................... 24, 25, 26

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Cal. Gov’t Code §§ 7282-7282.5 ....................................................................................... 2, 19, 24

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9
10

Cal. Gov’t Code §§ 7283-7283.2 ............................................................................................. 2, 19
Cal. Gov’t Code §§ 7284-7284.12 ..................................................................................... 2, 19, 24

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Cal. Gov’t Code § 7284.6 ............................................................................................. 2, 21, 22, 24

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California Code of Civil Procedure § 155 ................................................................................ 2, 19

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California Penal Code § 422.93 ................................................................................................ 2, 19

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California Penal Code § 679.10 ................................................................................................ 2, 19
California Penal Code § 679.11 ................................................................................................ 2, 19

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17
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California Welfare and Institutions Code § 827 ....................................................................... 2, 19
California Welfare and Institutions Code § 831 ....................................................................... 2, 19

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LEGISLATIVE MATERIALS

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21
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H.R. Rep. No. 109-233 (2005) ..................................................................................................... 10
S. Rep. No. 104-2490 (1996) ............................................................................................................. 29

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ADMINISTRATIVE AND EXECUTIVE MATERIALS

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25

28 C.F.R. Part 18 .................................................................................................................... 16, 23

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28 C.F.R. § 0.119 ........................................................................................................................... 7

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28 C.F.R. § 0.120 ........................................................................................................................... 7

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Exec. Order No. 13,688, 80 Fed. Reg. 3451 (Jan. 16, 2015) ......................................................... 5
Defs’ Motion to Dismiss; Memo.
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OTHER AUTHORITIES
Black’s Law Dictionary (5th ed. 1979) .................................................................................. 25, 26

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Defs’ Motion to Dismiss; Memo.
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NOTICE OF MOTION AND MOTION TO DISMISS
PLEASE TAKE NOTICE that on Wednesday, February 28, 2018, at 2:00 p.m., or as soon

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thereafter as counsel may be heard, before The Honorable William H. Orrick, in Courtroom 2,

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17th Floor, of the United States Courthouse, 450 Golden Gate Avenue, San Francisco, California,

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the defendants will move, and hereby do move, to dismiss this action under Rule 12(b)(1) and

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12(b)(6) of the Federal Rules of Civil Procedure. This motion is based on the following Memo-

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randum of Points and Authorities, Defendants’ Request for Judicial Notice, the other evidence

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and records on file in this action, and any other written or oral evidence or argument that may be

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presented at or before the time this motion is heard by the Court.1

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MEMORANDUM OF POINTS AND AUTHORITIES

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INTRODUCTION

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This case asks the Court to determine whether the U.S. Department of Justice (“USDOJ” or

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“Department”) can require, in exchange for certain federal law enforcement grants, that state and

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local governments comply with federal law and cooperate in providing certain information needed

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for federal law enforcement. USDOJ distributes federal grant funds to aid law enforcement in

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jurisdictions throughout the country. These funds serve to aid both local and cooperative law

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enforcement priorities. Consistent with federal prerogatives, the Department has long imposed

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conditions on these grants, including in the Edward Byrne Memorial Justice Assistance Grant

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Program (“Byrne JAG Program”). If plaintiff’s theories were correct, all of these longstanding and

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never-before-challenged conditions would be in jeopardy.

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To receive grant funds, Byrne JAG Program recipients are required to certify compliance

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with Section 1373 of Title 8, U.S. Code, part of the Immigration of Nationality Act (“INA”), which

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bars state and local governments from prohibiting or restricting the exchange of “information

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regarding the . . . citizenship or immigration status” of any individual with federal immigration

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Plaintiff names “DOES 1-100” as defendants in this matter but does not identify those
individuals or specify the capacity in which they are being sued. See Am. Compl. ¶ 29 (Dkt. No.
11). Undersigned counsel does not purport to represent those individuals, and claims against
them are not at issue in this motion to dismiss. Moreover, because those individuals have not
been named or served, granting this motion would resolve this litigation in its entirety.
Defs’ Motion to Dismiss; Memo.
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authorities. Also, grants under the Byrne JAG Program are conditioned on giving federal

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immigration authorities access to correctional facilities to meet with aliens and on notifying federal

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authorities “as early as practicable” before the scheduled release of an alien from custody. Plaintiff

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argues that these grant conditions are ultra vires and violate the constitutional Separation of Powers,

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the Spending Clause, and the Administrative Procedure Act (“APA”). Those claims are without

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merit, however, because – as the INA makes clear – immigration enforcement and law enforcement

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are inextricably linked. The INA contemplates that federal, state, and local authorities will

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cooperate on immigration enforcement and that federal authorities will take custody of certain

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aliens upon their release from state or local custody.

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Alternatively, plaintiff seeks an order enjoining defendants from finding that any of several

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state laws violate the Section 1373 compliance condition in either the Byrne JAG Program or two

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other programs. Specifically, plaintiff seeks an order that Section 1373 is not violated by Califor-

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nia’s “TRUST Act,” Cal. Gov’t Code §§ 7282-7282.5; the “TRUTH Act,” Cal. Gov’t Code §§

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7283-7283.2; the “California Values Act,” Cal. Gov’t Code §§ 7284-7284.12 (“Values Act”);

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California Penal Code §§ 422.93, 679.10, or 679.11; California Code of Civil Procedure § 155; or

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California Welfare and Institutions Code §§ 827 or 831 (Dkt. No. 26-1). In considering awarding

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the Byrne JAG grants, the Office of Justice Programs (“OJP”) has not, however, indicated that any

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of those state statutes other than the Values Act might violate the Section 1373 condition, and even

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as to that Act, OJP has not yet reached a final decision. Therefore, plaintiff lacks standing to seek

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an order regarding any of those statutes other than Values Act, and even plaintiff’s claim regarding

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that Act is unripe.

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In any event, even if this alternative claim were justiciable, plaintiff’s request for a ruling

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that the Values Act complies with the Section 1373 condition should be dismissed on its merits.

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The Values Act, among other things, prohibits state and local agencies from disclosing an

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individual’s release date, personal information (including home address), or “other information,”

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with certain exceptions not referencing federal immigration authorities. See Cal. Gov’t Code

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§ 7284.6(a)(1)(C), (D). Section 1373 however, bars prohibiting or restricting the exchange of

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“information regarding” immigration status with federal immigration authorities, which necessarily
Defs’ Motion to Dismiss; Memo.
No. 3:17-cv-04701-WHO

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encompasses information regarding custody status and location as needed to carry out the federal

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responsibilities to “interrogate any . . . person believed to be an alien as to his right to be or to

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remain in the United States,” to take aliens into federal custody upon release from state or local

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custody, and to remove certain classes of aliens from the United States as ordered by the Attorney

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General or the Secretary of Homeland Security. 8 U.S.C. §§ 1357(a)(1), 1226(c)(1), 1227(a), 1228.

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Finally, plaintiff argues that Section 1373 would violate the Tenth Amendment if

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defendants construe it as conflicting with any of the state statutes listed above. Finding that the

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Values Act – the only state statute legitimately at issue here – violates Section 1373 would not,

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however, “compel [California] to enact or administer a federal regulatory program” or to “act on the

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Federal Government’s behalf” in violation of the Tenth Amendment. See New York v. United

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States, 505 U.S. 144, 188 (1992); Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 620 (2012).

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This case involves a grant condition that the State is free to accept or reject, and, in any event,

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merely protecting the exchange of information with federal authorities does not compel state and

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local governments to administer a federal program.

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For these reasons, plaintiff’s First Amended Complaint and all of its claims should be
dismissed.

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STATUTORY AND ADMINISTRATIVE BACKGROUND
I.

The Immigration and Nationality Act
Enforcement of the immigration laws, including and especially the investigation and appre-

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hension of criminal aliens, is quintessentially a law enforcement function. Through the INA, 8

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U.S.C. §§ 1101 et seq., Congress granted the Executive Branch significant authority to control the

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entry, movement, and other conduct of foreign nationals in the United States. These responsibilities

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are assigned to law enforcement agencies, as the INA authorizes the Department of Homeland

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Security (“DHS”), USDOJ, and other Executive agencies to administer and enforce the immigration

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laws. The INA permits the Executive Branch to exercise considerable discretion to direct enforce-

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ment pursuant to federal policy objectives. See Arizona v. United States, 567 U.S. 387, 396 (2012).

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The INA includes several provisions that protect the ability of federal officials to investigate

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the status of aliens in the United States and otherwise enforce the immigration laws. For example,
Defs’ Motion to Dismiss; Memo.
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the statute provides that a federal immigration officer “shall have power without warrant . . . to

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interrogate any alien or person believed to be an alien as to his right to be or to remain in the United

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States.” 8 U.S.C. § 1357(a)(1). Separately, pursuant to Section 1373, “a Federal, State, or local

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government entity or official may not prohibit, or in any way restrict, any government entity or

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official from sending to, or receiving from, [federal immigration authorities] information regarding

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the citizenship or immigration status, lawful or unlawful, of any individual.” Id. § 1373(a).2 The

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INA provides that certain classes of aliens shall be removed from the United States upon order of

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the Attorney General or Secretary of Homeland Security. See, e.g., id. §§ 1227(a), 1228.

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II.

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DOJ Office of Justice Programs and the Byrne JAG Program
Title I of the Omnibus Crime Control and Safe Streets Act of 1968 established the Office of

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Justice Programs (“OJP”), and provides for OJP to be headed by an Assistant Attorney General

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(“AAG”). See Pub. L. No. 90-351, 82 Stat. 197 (1968), codified as amended at 34 U.S.C. §§ 10101

13

et seq. Congress gave the AAG certain “[s]pecific, general and delegated powers,” including the

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power to “maintain liaison with . . . State governments in matters relating to criminal justice.” 34

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U.S.C. § 10102(a)(2) (emphasis added). Notably, the statute also authorizes the AAG to “exercise

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such other powers and functions as may be vested in [him] pursuant to this chapter or by delegation

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of the Attorney General, including placing special conditions on all grants, and determining

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priority purposes for formula grants.” Id. § 10102(a)(6) (emphasis added).

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The same title of the Omnibus Crime Control Act also established the Byrne JAG Program.

20

See generally 34 U.S.C. §§ 10151-58. Under this program, OJP is authorized to “make grants to

21

States and units of local government . . . to provide additional personnel, equipment . . . and

22

information systems for criminal justice, including for any one or more of [certain enumerated]

23

programs.” Id. § 10152(a)(1). In the same chapter, “criminal justice” is defined broadly to include

24
25
26
27
28

2

Additionally, 8 U.S.C. § 1373(b) provides that “[n]otwithstanding 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, [federal immigration authorites].
(2) Maintaining such information. (3) Exchanging such information with any other Federal, State,
or local government entity.”
Defs’ Motion to Dismiss; Memo.
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2

various activities of the police, the courts, and “related agencies.” Id. § 10251(a)(1).
The Byrne JAG Program provides “formula grants” – that is, grants that, when awarded,

3

must follow a statutory formula based on population, the rate of violent crime, and other factors. Id.

4

§§ 10152(a)(1), 10156. Funding under the Program is subject to annual appropriations. For FY

5

2017, Congress appropriated $396,000,000 for the Byrne JAG Program, with certain carve-outs

6

from that amount obligated to specific initiatives. See Consolidated Appropriations Act, Pub. L.

7

No. 115-31, Div. B, Title II, 131 Stat. 135, 203 (2017). By statute, in order to request a Byrne JAG

8

grant, the chief executive officer of a State or unit of local government must submit an application

9

“in such form as the Attorney General may require,” 34 U.S.C. § 10153(a); and the application

10

must include, among other things, “[a] certification, made in a form acceptable to the Attorney

11

General . . . that . . . the applicant will comply with . . . all . . . applicable Federal laws,” id.

12

§ 10153(a)(5)(D). The application also must contain several assurances, including “[a]n assurance

13

that, for each fiscal year covered by an application, the applicant shall maintain and report such

14

data, records, and information (programmatic and financial) as the Attorney General may

15

reasonably require.” Id. § 10153(a)(4).

16

OJP has historically included a variety of conditions in Byrne JAG award documents. For

17

example, OJP has imposed, without objection, conditions related to information sharing and

18

privacy protection, see Request for Judicial Notice (“RJN”), Ex. A ¶ 27, research using human

19

subjects, see id. ¶ 30, and training, see id. ¶¶ 33-34. Other historical conditions imposed by the

20

Assistant Attorney General have been inspired by Executive Branch prerogatives, and in some

21

instances resulted in subsequent congressional codification. One such condition, which prohibits

22

use of Byrne JAG funds to purchase military style equipment, relates in part to an Executive

23

Order issued by President Obama in 2015. See id. ¶ 43; Exec. Order No. 13,688, 80 Fed. Reg.

24

3451 (Jan. 16, 2015). Since 2012, other conditions have required that recipients (a) comply with

25

specific national standards when purchasing body armor and (b) institute a “mandatory wear”

26

policy for any purchased armor. RJN, Ex. A ¶¶ 39-40. While those conditions have now been

27

codified by Congress, see 34 U.S.C. §§ 10202(c)(1)(B), (C), they originated as exercises of

28

USDOJ’s authority to impose special conditions. And the Assistant Attorney General has
Defs’ Motion to Dismiss; Memo.
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imposed an “American-made” requirement for body armor purchases, something Congress did

2

not choose to codify last year. RJN, Ex. A ¶ 39. The conditions attached to Byrne JAG grants

3

have varied over time, depending on national law enforcement necessities and USDOJ priorities.

4

For the current Byrne JAG grant cycle, Fiscal Year (“FY”) 2017, OJP notified applicants

5

that awards under the Program will include three conditions requiring modest cooperation with

6

federal law enforcement prerogatives in the immigration setting. Those conditions will require

7

grantees to (1) have a policy of providing DHS with advance notice of the scheduled release date of

8

certain individuals held in state or local correctional facilities (the “notice condition”); (2) have a

9

policy permitting federal agents to access state or local correctional facilities for certain immigra-

10

tion enforcement purposes (the “access condition”); and (3) comply with 8 U.S.C. § 1373, which, as

11

noted above, prohibits state and local government and law enforcement entities or officials from

12

restricting certain communications with DHS (the “Section 1373 condition”). RJN, Ex. B

13

(Greenville SC Award 2017) ¶¶ 53, 55, 56; RJN, Ex. C (Binghamton NY Award 2017) ¶¶ 16, 24,

14

41; Am. Compl. ¶¶ 75-77, 84 (Dkt. No. 11).

15

Under the “Rules of Construction” within those grant conditions, the award documents

16

make clear that nothing in the notice or access conditions requires a grantee to detain “any

17

individual in custody beyond the date and time the individual would have been released in the

18

absence of this condition.” RJN, Ex. B ¶¶ 53, 55, 56; RJN, Ex. C ¶¶ 53, 55, 56. The documents

19

also make clear that these conditions impose no requirements in relation to any requests by

20

federal immigration authorities to detain non-citizens, and that the notice condition requires “only

21

as much advance notice as practicable” before the release of a non-citizen. Id. Finally, the

22

conditions apply only to the “program or activity” to be funded under the award (as stated above),

23

and they allow awarded funds to be used for costs incurred in implementing the conditions. See

24

id.

25

III.

26
27
28

DOJ Office of Community Oriented Policing Services and the
Anti-Methamphetamine and Anti-Heroin Task Force Programs
Pursuant to authority granted by the Violent Crime Control and Law Enforcement Act of

1994 (“VCCLEA”), the Attorney General created the Office of Community Oriented Policing
Defs’ Motion to Dismiss; Memo.
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Services (“COPS Office”) to administer certain community policing grants. The Office is headed

2

by a Director appointed by the Attorney General, 28 C.F.R. §§ 0.119, 0.120, and currently

3

administers several programs, including the COPS Anti-Methamphetamine Program (“CAMP”)

4

and the Anti-Heroin-Task Force Program (“AHTF”). CAMP “provid[es] funds directly to state law

5

enforcement agencies to investigate illicit activities related to the manufacture and distribution of

6

methamphetamine.” RJN, Ex. D (CAMP Fact Sheet 2017). AHTF “provid[es] funds to investigate

7

illicit activities related to the distribution of heroin or unlawful distribution of prescriptive opioids,

8

or unlawful heroin and prescription opioid traffickers[.]” RJN, Ex. E (AHTF Fact Sheet 2017); see

9

Am. Compl. ¶¶ 95-96. Both programs are authorized by the Consolidated Appropriations Act,

10
11

2017. 131 Stat. at 207.
Like all programs administered by the COPS Office, CAMP and AHTF are discretionary

12

programs, meaning all applicants must compete against each other for limited available funds. See

13

Am. Compl. ¶¶ 95-96. Funding under these programs is subject to annual appropriations. For FY

14

2017, Congress appropriated $7,000,000 “for competitive grants to State law enforcement agencies

15

in States with high seizures of precursor chemicals, finished methamphetamine, laboratories, and

16

laboratory dump seizures” (i.e., CAMP), and $10,000,000 “for competitive grants to statewide law

17

enforcement agencies in States with high rates of primary treatment admissions for heroin and other

18

opioids” (i.e., AHTF). 131 Stat. at 208.

19

CAMP and AHTF grantees, like all federal grantees, are required to comply with all

20

applicable federal laws. There is no statutorily prescribed method for evaluating CAMP and AHTF

21

applications. Rather, the COPS Office develops factors and methods to determine how best to allo-

22

cate each program’s finite funds each year, and to evaluate and score applications. RJN, Ex. F

23

(2017 CAMP Methodology), Ex. G (2017 AHTF Methodology). Beginning with FY 2016, the

24

COPS Office has advised each CAMP and AHTF applicant that this requirement includes

25

compliance with 8 U.S.C. § 1373. RJN, Ex. H at 1 (CAMP Award Owner’s Manual 2016), Ex. I at

26

1 (AHTF Award Owner’s Manual 2016). In FY 2017, the COPS Office required certification of

27

compliance with Section 1373 as a threshold eligibility requirement. RJN, Ex. J at 5 (CAMP Pre-

28

Award FAQs 2017), Ex. K at 5 (AHTF Pre-Award FAQs 2017).
Defs’ Motion to Dismiss; Memo.
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IV.

Recent Developments

2

On September 15, 2017, a federal district court entered a partial preliminary injunction in

3

similar litigation brought by the City of Chicago. Chicago v. Sessions, 264 F. Supp. 3d 933, 945

4

(N.D. Ill. 2017) (“Chicago I”). The Chicago court enjoined the notice and access conditions in the

5

Byrne JAG Program, but declined plaintiff’s request to enjoin the Section 1373 condition. See id.

6

(noting that “Congress could [rationally] expect an entity receiving federal funds to certify its

7

compliance with [Section 1373], as the entity is – independent of receiving federal funds –

8

obligated to comply”). Defendants appealed the preliminary injunction order; that appeal is now

9

fully briefed and scheduled to be argued before the U.S. Court of Appeals for the Seventh Circuit

10

on January 19, 2018, Chicago v. Sessions, 17-2991 (7th Cir.).

11

ARGUMENT

12

Defendants move for dismissal of this action under Rule 12(b)(1) and 12(b)(6) of the

13

Federal Rules of Civil Procedure. A motion under Rule 12(b)(1) challenges the subject matter

14

jurisdiction of the court to reach a claim. “A ‘facial’ attack [on jurisdiction] asserts that a

15

complaint’s allegations are themselves insufficient to invoke jurisdiction,” Courthouse News

16

Serv. v. Planet, 750 F.3d 776, 780 n.3 (9th Cir. 2014), while a factual challenge to jurisdiction

17

“relies on affidavits or any other evidence properly before the court to contest the truth of the

18

complaint’s allegations,” id. at 780 (citation omitted). A motion under Rule 12(b)(6) “tests the

19

legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal

20

under this rule is proper if there is a “lack of a cognizable legal theory or the absence of sufficient

21

facts alleged under a cognizable legal theory.” Conservation Force v. Salazar, 646 F.3d 1240,

22

1241-42 (9th Cir. 2011) (internal citation omitted). Under both 12(b)(1) and 12(b)(6), the court

23

“may take judicial notice of matters of public record.” Lee v. City of Los Angeles, 250 F.3d 668,

24

689 (9th Cir. 2001) (citation omitted); see Louisiana Mun. Police Emps.’ Ret. Sys. v. Wynn, 829

25

F.3d 1048, 1063 (9th Cir. 2016).

26

Plaintiff’s constitutional and APA challenges to the access, notice, and Section 1373

27

conditions in the Byrne JAG Program should be dismissed on their merits under Rule 12(b)(6).

28

Further, plaintiff’s request for a ruling that none of its statutes violate Section 1373 should be
Defs’ Motion to Dismiss; Memo.
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2
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6
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dismissed under both Rule 12(b)(1) and 12(b)(6): Plaintiff lacks standing to seek an order regarding any of the state statutes it identifies other than the California Values Act and the claim regarding
the Values Act is unripe – thus depriving the Court of jurisdiction. And even if the Court had
jurisdiction over plaintiff’s request for a ruling regarding the Values Act, the request should be
dismissed on its merits under Rule 12(b)(6). Finally, plaintiff’s claim that Section 1373 violates the
Tenth Amendment should also be dismissed on its merits.
I.

The Challenged Immigration-Related Byrne JAG Conditions Are Lawful

8
9
10

A.

The Access and Notice Conditions Are Authorized by Statute
and Do Not Violate the Separation of Powers

In the First and Third Claims for Relief in its Amended Complaint,3 California alleges that

11

the notice and access conditions in the Byrne JAG Program – although not, notably, the Section

12

1373 compliance condition – are ultra vires and violate the Constitution’s separation of powers.

13

Am. Compl. ¶¶ 122-26, 133-38. Both theories rest fundamentally on the State’s incorrect view

14

that Congress has not authorized USDOJ to impose these conditions. See id. ¶¶ 88-94.

15

As a threshold matter, there is no serious dispute that Congress may delegate to the

16

Executive Branch the authority to attach conditions on funding. See, e.g., Clinton v. City of New

17

York, 524 U.S. 417, 488 (1998) (“Congress has frequently delegated the President the authority to

18

spend, or not to spend, particular sums of money.”); DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275,

19

280-81 (D.C. Cir. 1989) (upholding statutory delegation to the Executive to impose terms and

20

conditions on federal spending programs). Further, and as relevant here, the Attorney General

21

has “final authority over all functions, including any grants” made by OJP, which administers the

22

Byrne JAG Program. 34 U.S.C. § 10110. Under the Attorney General’s authority, an Assistant

23

Attorney General heads OJP. See id. § 10101; 28 U.S.C. § 530C(a)(4). In setting forth the duties

24
25
26
27
28

3

The theories pled under the First Claim for Relief (which purports to arise directly under
the Constitution) and the Third Claim for Relief (which is pled under the APA) are substantively
identical (except insofar as the Third Claim also reiterates, under the aegis of the APA, the
constitutional Spending Clause theory additionally pled as a stand-alone constitutional claim in
the Second Claim for Relief). For the reasons stated in Section I.C. below, the Third Claim
should be dismissed for the additional threshold reason that California fails to identify a
challengeable final agency action under the APA.
Defs’ Motion to Dismiss; Memo.
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and functions of the AAG, Congress stated that the AAG is to “exercise such other powers and

2

functions as may be vested in the Assistant Attorney General pursuant to this chapter or by

3

delegation of the Attorney General, including placing special conditions on all grants, and

4

determining priority purposes for formula grants.” 34 U.S.C. § 10102(a)(6).

5

Thus, a plain reading of the statutory text indicates that the AAG’s power includes, at a

6

minimum, the power to “plac[e] special conditions on all grants” administered by OJP. Id. The

7

breadth of the AAG’s statutory power is reinforced by the authority to “determin[e] priority

8

purposes for formula grants.” Id. Confirming the statute’s plain text, a report accompanying the

9

enactment of this language stated that the provision “allows the Assistant Attorney General to

10

place special conditions on all grants and to determine priority purposes for formula grants.”

11

H.R. Rep. No. 109-233, at 101 (2005).

12

Indeed, the particular statutory language at issue here – the authority for “placing special

13

conditions on all grants, and determining priority purposes for formula grants” – was added as

14

part of the very same legislation that created the Byrne JAG Program. See DOJ Reauthorization

15

Act of 2005, Pub. L. No. 109-162, § 1152(b), 119 Stat. 2960 (2006) (adding language to

16

subsection (a)(6)); id. § 1111 (creating Byrne JAG Program). Prior to that 2006 enactment, the

17

provision stated only that the AAG for OJP “exercise[s] such other powers and functions as may

18

be vested in the Assistant Attorney General pursuant to this title or by delegation of the Attorney

19

General.” Joint Resolution Making Continuing Appropriations for FY 1985, Pub. L. No. 98-473,

20

§ 603, 98 Stat. 1837 (1984). Also, by contrast, the organic statute for the head of a separate

21

USDOJ grant-making component, enacted in 2002, continues to contain substantially the same,

22

more limited language as Section 10102 earlier contained, without the additional “special

23

conditions” and “priority purposes” powers that Congress elected to bestow with respect to OJP.

24

See 34 U.S.C. § 10444(7) (providing only that Director of Violence Against Women Office

25

“[e]xercis[es] such other powers and functions as may be vested in the Director pursuant to this

26

subchapter or by delegation of the Attorney General”). This context confirms that Congress

27

intended the “special conditions” and “priority purposes” language to confer distinctive and

28

meaningful power. “When Congress acts to amend a statute, [courts] presume it intends its
Defs’ Motion to Dismiss; Memo.
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1
2

amendment to have real and substantial effect.” Stone v. INS, 514 U.S. 386, 397 (1995).
Thus, the notice and access conditions – which merely promote intergovernmental law

3

enforcement cooperation, so that grantee policies do not impair federal policies – come

4

comfortably within the fonts of delegated power in Section 10102(a)(6). Pursuant to this

5

authority, the AAG may prioritize formula grants, like the Byrne JAG Program, for jurisdictions

6

that cooperate with federal authorities in achieving federal law enforcement priorities, including

7

removal of criminal aliens under immigration law.

8

B.

9
10

The Notice, Access, and Section 1373 Conditions
Are Consistent with the Spending Clause

The Second and Third Claims for Relief in the Amended Complaint4 allege that the

11

notice, access, and Section 1373 conditions in the Byrne JAG Program violate the Spending

12

Clause. Am. Compl. ¶¶ 127-32, 137. More specifically, these claims allege that the notice and

13

access conditions – although, again, not the Section 1373 compliance condition – are

14

impermissibly ambiguous, id. ¶¶ 86-87, 131, and further that all three conditions are insufficiently

15

related to the statutory purposes of the Byrne JAG Program, id. ¶ 130; see id. ¶ 137. Both

16

contentions are wrong.
1.

17

The Notice and Access Conditions are Unambiguous

18

Article I of the Constitution confers on Congress the authority to “lay and collect Taxes,

19

Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general

20

Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1. It is well-established that the Spending

21

Clause authority is “broad,” and empowers Congress to “set the terms on which it disburses federal

22

money to the States[.]” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296

23

(2006); see also, e.g., S. Dakota v. Dole, 483 U.S. 203, 206 (1987) (noting that Congress has

24

“repeatedly employed the [spending] power to further broad policy objectives by conditioning

25
4

26
27
28

As with the separation of powers claims in the First and Third Claims for Relief
discussed above, there is substantial overlap between the Second and Third Claims for Relief, the
latter of which reiterates the theories of the First and Second Claims, but under the aegis of the
APA. Defendants again note that, for the reasons stated in Section I.C. below, the Third Claim
fails for the additional threshold reason that California fails to identify a challengeable final
agency action under the APA.
Defs’ Motion to Dismiss; Memo.
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15
16
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19
20
21
22
23
24
25
26
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receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.”) (citations omitted); United States v. Miami Univ., 294 F.3d 797, 808 (6th Cir.
2002) (“Spending clause legislation, when knowingly accepted by a fund recipient, imposes
enforceable, affirmative obligations” on the recipient).
While it is beyond cavil that the Spending Clause confers “broad” authority, that authority is
nonetheless subject to certain discrete limitations, including that any terms attached to the receipt of
federal funds must be “unambiguous[],” and thus enable the potential recipient to “exercise [its]
choice” to participate (or not) in the program “knowingly, cognizant of the consequences of [its]
participation.” Dole, 483 U.S. at 207 (citations omitted); see also, e.g., Madison v. Virginia, 474
F.3d 118, 124 (4th Cir. 2006) (the Spending Clause is a “‘permissible method of encouraging a
State to conform to federal policy choices,’ because ‘the ultimate decision’ of whether to conform is
retained by the States – wh[ich] can always decline the federal grant.”) (quoting New York, 505
U.S. at 168)). Contrary to plaintiff’s assertions, the notice and access conditions easily satisfy the
clear-notice requirement.
These conditions clearly state what conduct is required, so that grantees can “exercise
their choice knowingly, cognizant of the consequences of their participation.” Dole, 483 U.S. at
207 (citation omitted). They require grantees (1) to give “agents of the United States acting under
color of federal law” access to correctional facilities “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,” and (2) to notify DHS, upon “formal written request” and “as early as
practicable,” before “the scheduled release date and time for a particular alien in such facility.”
RJN, Ex. B (Greenville SC Award 2017) ¶¶ 55, 56; RJN, Ex. C (Binghamton NY Award 2017)
¶¶ 55, 56. The award documents also specify that nothing in these conditions requires a grantee
to detain “any individual in custody beyond the date and time the individual would have been
released in the absence of this condition”; that the conditions impose no requirements regarding
any requests by federal immigration authorities to detain aliens; and that the notice condition
requires “only as much advance notice as practicable.” Id. Moreover, to the extent any uncer-

28
Defs’ Motion to Dismiss; Memo.
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tainty might remain, the FY 2017 Byrne JAG solicitation invited any prospective grantee with a

2

question about “any . . . requirement of this solicitation” to contact OJP’s Response Center

3

(customer service center) by telephone, email, or Internet chat. See Am. Compl., Ex. A at 2. A

4

prospective grantee could also contact the appropriate “State Policy Advisor” – that is, a specific,

5

named OJP employee assigned to work with jurisdictions within a specified geographical area.

6

Id.; BJA Programs Office Contact Information, available at https://www.bja.gov/ About/

7

Contacts/ ProgramsOffice.html (last visited Jan. 16, 2018).5

8

Further, to the extent there is any uncertainty at the margins of the notice and access

9

conditions, such a penumbra would not render these conditions unconstitutionally ambiguous.

10

Indeed, “the exact nature of [grant] conditions may be largely indeterminate, provided that the

11

existence of the conditions is clear, such that States have notice that compliance with the

12

conditions is required.” Charles v. Verhagen, 348 F.3d 601, 607 (7th Cir. 2003) (citation

13

omitted); see, e.g., Benning v. Georgia, 391 F.3d 1299, 1306 (11th Cir. 2004) (“Once Congress

14

clearly signals its intent to attach federal conditions to Spending Clause legislation, it need not

15

specifically identify and proscribe in advance every conceivable state action that would be

16

improper.”) (citation omitted). Moreover, plaintiff does not complain about the clarity of any

17

other Byrne JAG conditions, such as those requiring compliance with restrictions on lobbying

18

under 18 U.S.C. § 1913 and 31 U.S.C. § 1352, RJN, Ex. B (Greenville SC Award 2017) ¶ 19;

19

compliance with “federal appropriations statutes” generally, id. ¶ 20; reporting of evidence of

20

violations of the False Claims Act, id. ¶ 21; and compliance with prohibitions on reprisal under

21

41 U.S.C. § 4712, id. ¶ 23.

22

2.

23
24

The Notice, Access, and Section 1373 Conditions Are
Related to the Purposes of the Byrne JAG Program

California further alleges that the notice, access, and Section 1373 compliance conditions

25

are not adequately related to the purposes of the Byrne JAG Program to satisfy the Spending

26

Clause. Am. Compl. ¶ 130. This argument also fails on its face.

27
5

28

“BJA” refers to the Bureau of Justice Assistance, the OJP component that administers
the Byrne JAG Program.
Defs’ Motion to Dismiss; Memo.
13
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First, any relatedness inquiry required by the Spending Clause does not pose a difficult

2

hurdle; to the contrary, the Ninth Circuit has emphasized that this is a “low-threshold” inquiry that

3

“is a far cry from . . . an exacting standard for relatedness.” Mayweathers v. Newland, 314 F.3d

4

1062, 1067 (9th Cir. 2002); see id. (stating that conditions on federal grants “might be illegitimate if

5

the conditions share no relationship to the federal interest in particular national projects or

6

programs”) (citation omitted)). Thus, in Dole, the Supreme Court upheld conditioning the receipt

7

of federal highway funds on the loosely-related requirement that a State adopt a minimum drinking

8

age. See 483 U.S. at 208-09; see also New York, 505 U.S. at 167 (stating that only “some relation-

9

ship” is necessary between spending conditions and “the purpose of the federal spending.”); Koslow

10

v. Pennsylvania, 302 F.3d 161, 175 (3d Cir. 2002) (explaining that there need only be a “discern-

11

able relationship” between a condition imposed pursuant to the Spending Clause and the “federal

12

interest in a program it funds”). As the D.C. Circuit has observed, the Supreme Court has never

13

“overturned Spending Clause legislation on relatedness grounds.” Barbour v. Wash. Metro. Area

14

Transit Auth., 374 F.3d 1161, 1168 (D.C. Cir. 2004).

15

The grant conditions at issue here easily satisfy this “low-threshold” relatedness inquiry.

16

Mayweathers, 314 F.3d at 1067. The Byrne JAG Program’s organic statute specifies that program

17

funds are designed to provide resources “for criminal justice,” to support programs including law

18

enforcement, prosecution, crime prevention, and corrections. 34 U.S.C. § 10152(a)(1). These

19

goals are also reflected in the responsibilities of the AAG, which involve “disseminat[ing] infor-

20

mation” and “maintain[ing] liaison with . . . State governments” in matters relating to “criminal

21

justice.” 34 U.S.C. § 10102(a)(1), (2) (emphasis added). Further, immigration enforcement,

22

which the conditions promote, undoubtedly intersects with the Byrne JAG Program’s criminal

23

justice purposes, at a minimum for the simple reason that a conviction for any of a wide array of

24

criminal offenses renders an alien removable from this country. See 8 U.S.C. § 1227(a)(2).

25

Indeed, “[a] primary goal of several recent overhauls of the INA has been to ensure and expedite

26

the removal of aliens convicted of serious crimes.” Duvall v. Att’y Gen. of U.S., 436 F.3d 382,

27

391 (3d Cir. 2006); see Padilla v. Kentucky, 559 U.S. 356, 360 (2010) (observing that “deporta-

28

tion or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes”)
Defs’ Motion to Dismiss; Memo.
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(citation omitted). Once removed, a criminal alien who has committed a removable offense – for

2

example, an aggravated felony, domestic violence, child abuse, or certain firearm offenses – is no

3

longer present in this country with the potential to re-offend.

4

The Immigration and Nationality Act also repeatedly contemplates cooperation among

5

state and local officers and federal officials on immigration enforcement. See, e.g., 8 U.S.C.

6

§ 1357(g) (authorizing formal cooperative agreements under which trained and qualified state

7

and local officers may perform specified functions of a federal immigration officer in relation

8

to the investigation, apprehension, or detention of aliens); id. § 1324(c) (authorizing state and

9

local officers to make arrests for violations of the INA’s prohibition against smuggling,

10

transporting, or harboring aliens); id. § 1252c (authorizing state and local officers to arrest certain

11

felons who have unlawfully returned to the United States). Under authorities such as these, “state

12

officers may perform the functions of an immigration officer.” Arizona, 567 U.S. at 408.

13

Furthermore, given that the INA contemplates the federal detention of certain aliens upon their

14

release from state or local custody, see 8 U.S.C. § 1226(c), the conditions can be understood as

15

seeking to ensure that a state or local grantee’s law enforcement activities not impair the law

16

enforcement activities of the federal government. Congress has mandated that certain aliens who

17

have committed criminal offenses be taken into federal custody pending removal proceedings, but

18

only “when the alien is released” from state custody. Id. § 1226(c)(1); see Preap v. Johnson, 831

19

F.3d 1193, 1199 (9th Cir. 2016) (holding that mandatory detention provision applies only to

20

aliens who are detained promptly after their release from criminal custody). With respect to

21

incarcerated aliens subject to a final removal order, the INA establishes a “removal period” of 90

22

days that begins with the date of the alien’s release. 8 U.S.C. § 1231(a)(1)(B). It is crucial to this

23

cooperative law enforcement framework that states and localities respond to requests for release

24

date information, give federal agents access to detainees in their custody, and avoid restricting

25

communication of information regarding immigration status to DHS.

26
27
28
Defs’ Motion to Dismiss; Memo.
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1
2
3
4

C.

Plaintiff’s APA Claims Must Be Dismissed for Additional Reasons
1.

The APA Claims Do Not Challenge Final Agency Action
Reviewable under the APA

“To obtain judicial review under the APA, [a plaintiff] must challenge a final agency

5

action.” Or. Nat. Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006) (citing 5

6

U.S.C. § 704). “[F]inality is . . . a jurisdictional requirement,” id. (internal citation omitted),

7

which is satisfied only when the challenged action (1) “mark[s] the consummation of the

8

agency’s decisionmaking process,” and (2) is “one by which rights or obligations have been

9

determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-

10
11

78 (1997) (citations omitted).
Notwithstanding this black-letter requirement, neither of California’s APA claims (the

12

Third and Fourth Claims for Relief) identifies any qualifying final agency action. Indeed,

13

California initiated this litigation before even seeing the text of the actual conditions, and even

14

now USDOJ has not yet reached a final determination as to whether to grant or deny the State’s

15

FY 2017 Byrne JAG application. To the contrary, the Department has, to date, issued only a

16

“preliminary assessment” of California’s compliance with Section 1373, RJN, Ex. L, and the

17

State’s response to the same, RJN, Ex. M, remains under consideration. Further, even if OJP

18

determined to deny California’s grant application at the conclusion of this process, the State would

19

then be entitled to invoke regulatory appeal procedures before any such denial could become

20

statutorily “final[].” 34 U.S.C. § 10154; see generally 28 C.F.R. Part 18. In such circumstances,

21

no final, reviewable agency action will exist until OJP has thoroughly “reviewed [the] grant

22

application and decided [whether] to disburse the funds.” Rattlesnake Coal. v. EPA, 509 F.3d

23

1095, 1103-04 (9th Cir. 2007) (emphasis added); see, e.g., Citizens Alert Regarding Env't v.

24

EPA, 102 F. App’x 167, 168 (D.C. Cir. 2004) (“Until EPA completes its review and reaches a

25

decision [as to whether to award a proposed grant], there has been no final agency action . . . and

26

the matter is not ripe for judicial review.”); Karst Envtl. Educ. & Prot., Inc. v. EPA, 403 F. Supp.

27

2d 74, 81 (D.D.C. 2005) (no final agency action where agency had taken “some action with

28

respect to the grant application, but “had not yet decided whether to award the grant”), aff’d, 475
Defs’ Motion to Dismiss; Memo.
No. 3:17-cv-04701-WHO

16

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1

F.3d 1291 (D.C. Cir. 2007).

2
3
4
5
6
7
8
9
10
11
12

Thus, as concerns California’s challenge to the conditions, the consummation of OJP’s
decision-making process has not yet occurred, plaintiff’s “rights or obligations” have not been
determined, and no “legal consequences” have arisen. Cf. Citizens for Appropriate Rural Roads
v. Foxx, 815 F.3d 1068, 1079 (7th Cir. 2016) (affirming dismissal because “a challenge to agency
conduct is ripe only if it is filed after the final agency action”; the challenge otherwise “rests upon
contingent future events that may not occur as anticipated, or that may not occur at all”); Abbs v.
Sullivan, 963 F.2d 918, 927 (7th Cir. 1992) (“A challenge to administrative action . . . falls
outside the grant of jurisdiction in . . . the Administrative Procedure Act when the only harm the
challenger seeks to avert is the inconvenience of having to go through the administrative process
before obtaining a definitive declaration of his legal rights.”). This Court should, accordingly,
dismiss both of California’s APA claims on this threshold jurisdictional ground alone.

13

2.

14
15
16
17
18
19
20
21
22
23
24
25

The Challenged Conditions Are Not Arbitrary or Capricious

Plaintiff’s Fourth Claim for Relief alleges that the notice, access, and Section 1373
conditions are arbitrary or capricious in violation of the APA. See Am. Compl. ¶¶ 139-44. As an
initial matter, if the conditions are statutorily authorized and comport with the Spending Clause –
which plaintiff largely concedes at least for the Section 1373 condition6 – it is unclear how
“arbitrary or capricious” scrutiny could otherwise limit USDOJ’s broad discretion. In any event,
when the courts review an agency’s action under the “arbitrary or capricious” standard, it is
“required to be ‘highly deferential,’” and to “presum[e] the agency action to be valid” as long as
it is supported by a rational basis. Providence Yakima Med. Ctr. v. Sebelius, 611 F.3d 1181, 1190
(9th Cir. 2010) (quoting J&G Sales Ltd. v. Truscott, 473 F.3d 1043, 1051 (9th Cir. 2007)). This
standard of review is “narrow,” and does not authorize a district court “to substitute its judgment
for that of the agency.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416
(1971).

26
27
28

6

As explained above, the Amended Complaint raises no claim that the Section 1373
compliance condition violates the separation of powers, is ultra vires, or offends the “ambiguity”
inquiry under the Spending Clause.
Defs’ Motion to Dismiss; Memo.
No. 3:17-cv-04701-WHO

17

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1

Here, plaintiff’s claim fails because “the agency’s reasons for” imposing the challenged

2

conditions “were entirely rational.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 517

3

(2009). The imposition of the challenged conditions is understandable as a result of a May 2016

4

report by the Department’s Office of Inspector General (“OIG”) finding deteriorating local

5

cooperation with “efforts to remove undocumented criminal aliens from the United States.” RJN,

6

Ex. N (OIG Memorandum) at 1-2 n.1. The 2016 OIG report advised that “the information we

7

have learned to date during our recent work about the present matter differs significantly from

8

what OIG personnel found nearly 10 years ago” in a 2007 audit, in which federal immigration

9

authorities had “commented favorably to the OIG with respect to cooperation and information

10

flow they received from the seven selected jurisdictions” that were examined. Id. The OIG

11

report focused on California, among other jurisdictions, in reaching its conclusions about the

12

changed state of affairs in 2016. See id. at 13.

13

In the FY 2016 grant cycle, USDOJ under the prior Administration instituted a

14

requirement for grantees to certify compliance with Section 1373. RJN, Ex. C ¶ 55 (California

15

Byrne JAG Award 2016). For the FY 2017 cycle, the Department maintained that condition and

16

added the notice and access conditions, publicly offering a sound explanation for all three

17

conditions. The Department’s “Backgrounder on Grant Requirements” of July 25, 2017, RJN,

18

Ex. O, stated that the conditions have a “goal of increasing information sharing between federal,

19

state, and local law enforcement” so that “federal immigration authorities have the information

20

they need to enforce the law and keep our communities safe.” Id. The Backgrounder also noted

21

that some jurisdictions have “refus[ed] to cooperate with federal immigration authorities in

22

information sharing about illegal aliens who commit crimes,” and stated that the conditions will

23

“prevent the counterproductive use of federal funds for policies that frustrate federal immigration

24

enforcement.” Id. Thus, the three conditions are “common-sense measures,” id., and “even in the

25

absence of evidence, the agency’s predictive judgment (which merits deference) makes entire

26

sense” as “an exercise in logic rather than clairvoyance.” Fox Television, 556 U.S. at 521.

27
28

Finally, as discussed above in relation to the Spending Clause, immigration enforcement
undoubtedly relates to criminal justice. Numerous federal statutes expressly connect these two
Defs’ Motion to Dismiss; Memo.
No. 3:17-cv-04701-WHO

18

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1

subjects. See supra text at 13-15. The challenged conditions thus rationally promote interests in

2

“maintain[ing] liaison” among tiers of government “in matters relating to criminal justice,” 34

3

U.S.C. § 10102(a)(2), and comport with the intergovernmental cooperation that Congress

4

contemplates in immigration enforcement. See, e.g., 8 U.S.C. §§ 1226(d), 1357(g), 1373;

5

Arizona, 567 U.S. at 411-12 (“Consultation between federal and state officials is an important

6

feature of the immigration system” and Congress “has encouraged the sharing of information

7

about possible immigration violations.”).

8

II.

9
10

Plaintiff’s Claim for a Declaration Regarding its Statutes’ Compliance
with Section 1373 Should Be Dismissed
Aside from the Byrne JAG grant conditions, plaintiff’s Fifth Claim for Relief seeks a

11

declaration that several California statutes “comply with Section 1373” – specifically, the TRUST

12

Act, Cal. Gov’t Code §§ 7282-7282.5; the TRUTH Act, Cal. Gov’t Code §§ 7283-7283.2; the

13

California Values Act, Cal. Gov’t Code §§ 7284-7284.12 (“Values Act”); California Penal Code §§

14

422.93, 679.10, and 679.11; California Code of Civil Procedure § 155; and California Welfare and

15

Institutions Code §§ 827 or 831. See Am. Compl. ¶¶ 145-153. Plaintiff also seeks an order

16

enjoining the defendants from “withholding [funding] and terminating, or disbarring and making

17

ineligible the State and its political subdivisions” under the Byrne JAG Program or any COPS

18

Office program based on Section 1373 and any of those state statutes. Id. at 38. Plaintiff lacks

19

standing, however, to seek a ruling regarding any state statutes other than the Values Act, and its

20

request for a ruling on the Values Act is unripe. Alternatively, if plaintiff’s claim regarding the

21

Values Act were justiciable, the Court should deny on its merits the State’s request for a declaration

22

that the Act does not violate Section 1373.

23
24
25
26
27

A.

Plaintiff’s Request for a Ruling Regarding Compliance
with Section 1373 Is Non-Justiciable

Under Article III of the Constitution, the jurisdiction of the federal courts extends only to
“Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. Matters outside this rubric are “nonjusticiable.” Or. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc., 288 F.3d
414, 416 (9th Cir. 2002). Two principles of justiciability are involved here: standing and ripeness.

28
Defs’ Motion to Dismiss; Memo.
No. 3:17-cv-04701-WHO

19

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1

“While standing is concerned with who is a proper party to litigate a particular matter, the doctrines

2

of mootness and ripeness determine when that litigation may occur.” Haw. Cty. Green Party v.

3

Clinton, 14 F. Supp. 2d 1198, 1201 (D. Haw. 1998). Where a plaintiff lacks standing or its claims

4

are unripe, the court lacks jurisdiction, and where jurisdiction is lacking, the plaintiff necessarily

5

cannot show a likelihood of success for purposes of a preliminary injunction. See Pollara v.

6

Radiant Logistics Inc., 2012 WL 12887095, at *5 (C.D. Cal. Sept. 13, 2012) (noting that “standing

7

to bring a claim . . . is a necessary predicate to demonstrate a likelihood of success on the

8

merits”).

9

To satisfy the “irreducible constitutional minimum” of standing, a plaintiff must demon-

10

strate an “injury in fact,” a “fairly traceable” causal connection between the injury and defendant’s

11

conduct, and redressability. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998)

12

(citation omitted). The injury needed for constitutional standing must be “concrete,” “objective,”

13

and “palpable,” not merely “abstract” or “subjective.” See Whitmore v. Arkansas, 495 U.S. 149,

14

155, 178 (1990); Bigelow v. Virginia, 421 U.S. 809, 816-17, 830 (1975). Additionally, the injury

15

must be “certainly impending” rather than “speculative.” Whitmore, 495 U.S. at 157, 158. In short,

16

for the plaintiff to have standing, “an actual, live controversy must exist between parties with

17

adverse legal interests.” Pollution Denim & Co. v. Pollution Clothing Co., 2009 WL 10672270, at

18

*8 (C.D. Cal. Feb. 9, 2009).

19

Constitutional justiciability also requires that a dispute be ripe for judicial consideration. In

20

a challenge to governmental action, that means the challenged action must have been “formalized

21

and its effects felt in a concrete way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S.

22

136, 148-49 (1967). In other words, “[a] claim is not ripe for adjudication if it rests upon contin-

23

gent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v.

24

United States, 523 U.S. 296, 300 (1998) (citation omitted). Like the rules of standing described

25

above, these considerations are part of whether the case presents a concrete controversy under

26

Article III. See Wash. Legal Found. v. Legal Found. of Wash., 271 F.3d 835, 850 (9th Cir. 2001)

27

(“The ripeness doctrine is derived from Article III’s case or controversy requirement. It prevents

28

the courts from entangling themselves in abstract disagreements over administrative policies, and
Defs’ Motion to Dismiss; Memo.
No. 3:17-cv-04701-WHO

20

Case 3:17-cv-04701-WHO Document 77 Filed 01/16/18 Page 30 of 40

1

also protects the agencies from judicial interference until an administrative decision has been

2

formalized and its effects felt in a concrete way by challenging parties.”) (citation omitted), aff’d

3

sub nom. Brown v. Legal Found. of Wash., 538 U.S. 216 (2003).7

4

Applying these standards here, the plaintiff cannot show the “injury in fact” needed for

5

constitutional standing, and its claims are not constitutionally ripe for judicial review. First,

6

defendants have not withheld or threatened to withhold grant funding based on any state statute

7

other than the Values Act, such that plaintiff lacks standing to seek a ruling regarding any of the

8

other statutes listed. Second, there is no ripe controversy regarding the Values Act itself because

9

defendants have not yet made a final determination regarding whether it violates Section 1373.

10

1.

11
12

Plaintiff Lacks Standing to Seek a Ruling Regarding
Any State Statute Other Than the Values Act

OJP wrote to the California agency responsible for administering Byrne JAG grants on

13

April 21, 2017, asking the agency to document its compliance with 8 U.S.C. § 1373. RJN, Ex. L.

14

That letter did not refer to any specific California statutes. On June 29, 2017, the State responded

15

that “there are no state laws of general application that violate Section 1373,” and specifically

16

discussed only two enactments – the TRUST Act and the TRUTH Act – asserting that those statutes

17

do not “create tension with Section 1373.” Id. Ex. M.

18

In its reply of November 1, 2017, OJP stated that the Department of Justice had determined

19

that two provisions of a different enactment – namely, the Values Act – “may violate 8 U.S.C.

20

§ 1373, depending on how your jurisdiction interprets and applies them”: specifically, Sections

21

7284.6(a)(1)(A) and 7284.6(a)(1)(C) and (D) of that Act, which prohibit a law enforcement agency

22

from using money or personnel to “[i]nquir[e] into an individual’s immigration status” or to

23

disclose, with certain exceptions, an individual’s release date, personal information (including home

24

address), or “other information.” Id. Ex. N. OJP asked the State to “certify that it interprets and

25

applies [Section 7284.6(a)(1)(A)] to not restrict California officers and employees from requesting

26

information regarding immigration status from federal immigration officers” and that it “interprets

27
28

7

These considerations do not involve merely “prudential ripeness,” which asks, in contrast,
about the “fitness” of the issues presented for judicial review and whether withholding review
would subject the parties to “hardship.” See Coons v. Lew, 762 F.3d 891, 900 (9th Cir. 2014).
Defs’ Motion to Dismiss; Memo.
21
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1

and applies [Section 7284.6(a)(1)(C) and (D)] to not restrict California officers from sharing

2

information regarding immigration status with federal immigration officers, including information

3

regarding release date and home address.” Id.

4

California responded on November 13, 2017, stating (1) that Section 7284.6(a)(1)(A)

5

“prohibits law enforcement officers from asking an individual about his or her immigration status,

6

or from asking for that information from non-governmental third parties, but does not restrict law

7

enforcement from inquiring about an individual’s immigration status from government entities,”

8

and (2) that Section 7284.6(a)(1)(C) and (D) prohibit the disclosure of release dates and home

9

addresses, but purportedly “do not violate Section 1373 because Section 1373 only prohibits

10

restrictions on ‘citizenship or immigration status information,’ not other information.” Id. Ex. O.

11

OJP has not yet responded to California’s letter of November 13; thus, OJP has not yet determined

12

administratively whether the State’s laws comply with Section 1373.

13

Under these circumstances, plaintiff lacks standing to seek a ruling on whether any state

14

laws other than the Values Act violate Section 1373 such that defendants may withhold federal

15

grant funds based on non-compliance. Given that USDOJ has not addressed whether any provi-

16

sions of California law other than the Values Act may violate Section 1373 and thus render Califor-

17

nia ineligible for grant funds, there is no “live controversy” regarding whether any other state

18

statutes comply with Section 1373 and no foreseeable “injury in fact” arising out of defendants’

19

application of any such statutes. See Pollution Denim & Co., 2009 WL 10672270, at *8-10; Steel

20

Co., 523 U.S. at 102-03. Any assumption that defendants might one day withhold grant funds

21

based on any California statute other than the Values Act would be “speculative,” and thus cannot

22

be the basis for standing. See Whitmore, 495 U.S. at 157, 158.

23
24
25

2.

Plaintiff’s Request for a Ruling Regarding the
Values Act Is Constitutionally Unripe

Plaintiff’s request for a ruling on whether defendants can withhold grant funds based on the

26

Values Act is also non-justiciable, for two reasons. First, as noted already, OJP has not yet

27

responded to California’s letter regarding the Values Act, and thus has not determined adminis-

28

tratively whether the Act violates Section 1373. RJN, Ex. O. OJP has only stated that portions of
Defs’ Motion to Dismiss; Memo.
No. 3:17-cv-04701-WHO

22

Case 3:17-cv-04701-WHO Document 77 Filed 01/16/18 Page 32 of 40

1

the Values Act “may” violate Section 1373, and has not had an opportunity to fully consider the

2

State’s arguments to the contrary. Id. Ex. N. Moreover, OJP’s letter of November 1 stated

3

explicitly that it was only a “preliminary assessment of [California’s] compliance with 8 U.S.C.

4

§ 1373” and did not “constitute final agency action.” Id. Ex. N; see 34 U.S.C. § 10223 (stating that

5

OJP’s “determinations, findings, and conclusions shall be final and conclusive upon all

6

applications”). As the district court in Chicago recently explained, “addressing an as-applied

7

challenge to Section 1373 based on [USDOJ’s preliminary determination regarding plaintiff’s

8

compliance] is premature.” Chicago v. Sessions, 2017 WL 5499167, at *1 (N.D. Ill. Nov. 16,

9

2017) (“Chicago II”). Moreover, even after OJP determines whether the Values Act violates

10

Section 1373, the State will have an opportunity to appeal that initial determination

11

administratively. See 34 U.S.C. § 10154; see generally 28 C.F.R. Part 18. OJP could decide, either

12

upon consideration of the State’s letter of November 13, 2017, or upon consideration of any

13

administrative appeal, that the Values Act does not violate Section 1373 and thus that USDOJ will

14

not withhold grant funds on that basis. Therefore, plaintiff’s request for a ruling on whether the

15

Values Act violates Section 1373 “rests upon contingent future events that may not occur as

16

anticipated, or indeed may not occur at all.” Texas, 523 U.S. at 300 (citation omitted).8

17

Additionally, this case is not justiciable because a ruling that the Values Act does not violate

18

Section 1373 would not free the State from legal jeopardy unless all its laws, together with policies

19

implementing those laws, are consistent with Section 1373. That is a fact-intensive inquiry, and is

20

much better handled through the administrative process rather than through the type of ruling

21

sought here. As noted earlier, that process is ongoing and is narrowing the scope of the dispute

22

between the parties. Importantly, if this Court does address the Values Act, that ruling cannot

23

properly immunize the State from liability under Section 1373 if it turns out, in fact, that the State is

24
25
26
27
28

8

Defendants’ alternative argument below that the Court should dismiss plaintiff’s request
for a declaratory judgment regarding the Values Act on its merits does not make this claim ripe,
given that OJP must still be permitted to consider the State’s arguments in the administrative
process. Cf. Ardalan v. McHugh, 2014 WL 3846062, at *12 n.10 (N.D. Cal. Aug. 4, 2014) (noting
that “the futility exception [to administrative exhaustion] requires a plaintiff [to] show it is certain
that the claim will be denied on appeal, or that resort to administrative remedies is clearly useless”)
(citations omitted).
Defs’ Motion to Dismiss; Memo.
23
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1
2

implementing the Act in a way that violates Section 1373.
Under these circumstances, plaintiff’s request for an order regarding whether the Values Act

3

would violate the Section 1373 compliance condition is unripe, in that it “rests upon contingent

4

future events that may not occur as anticipated, or indeed may not occur at all.” Id. Thus, any

5

judicial consideration of this issue should await further developments.9

6

B.

7
8
9

The Court Should Dismiss Plaintiff’s Claim for Declaratory
Relief Regarding the Values Act on Its Merits

Alternatively, even if plaintiff’s request for an order against withholding grant funds based
on any California laws were justiciable at this point, this Court should dismiss on its merits

10

plaintiff’s request for an order that none of its laws would violate the Section 1373 compliance

11

condition. As explained already, the only state law that may legitimately be at issue here is the

12

California Values Act, Cal. Gov’t Code §§ 7284-7284.12. Assuming this issue were justiciable,

13

however, the Court should decline to rule that the Values Act is consistent with Section 1373.

14

The Values Act provides, among other things, that California law enforcement agencies

15

shall not use “moneys or personnel to investigate persons . . . for immigration enforcement

16

purposes,” including by “[p]roviding information regarding a person’s release date or responding to

17

requests for notification by providing release dates or other information unless that information is

18

available to the public, or is in response to a notification request from immigration authorities in

19

accordance with Section 7282.5,” or by “[p]roviding personal information, as defined in Section

20

1798.3 of the Civil Code, about an individual, including, but not limited to, the individual’s home

21

address or work address unless that information is available to the public.” Cal. Gov’t Code

22

§ 7284.6(a). Section 7282.5 of the Government Code, referenced in the Values Act, sets forth a

23

very specific list of circumstances in which a law enforcement agency is permitted to “cooperate

24

with [federal] immigration officials,” based mostly on whether the individual in question has

25

committed any of certain listed felonies. Id. § 7282.5(b). Section 1798.3 of the Civil Code, also

26
27
28

9

In opposing plaintiff’s motion for preliminary injunction, defendants argued that
plaintiff’s request for a ruling regarding the Values Act was unripe for the additional reason that
the California Secretary of State had received a request for a voter referendum on the Act. As far
as defendants have been able to learn, however, no signatures in support of that referendum have
been submitted, and the Values Act is apparently in effect.
Defs’ Motion to Dismiss; Memo.
24
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1

cited in the Values Act, defines “personal information” as “any information that is maintained by an

2

agency that identifies or describes an individual, including, but not limited to, his or her name,

3

social security number, physical description, home address, home telephone number, education,

4

financial matters, and medical or employment history.” Cal. Civ. Code § 1798.3(a).

5

As described earlier, 8 U.S.C. § 1373 provides, among other things:

6
7
8
9
10

Notwithstanding any other provision of . . . 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, [federal authorities] information
regarding the citizenship or immigration status . . . of any individual.
8 U.S.C. § 1373(a). The Values Act cannot be squared with this statute.
a. Section 1373 forbids a state or local government from prohibiting the exchange of

11

“information regarding” an individual’s immigration status, not merely the individual’s immigra-

12

tion status. Congress’s use of “information regarding” was clearly intended to broaden the scope of

13

the information covered, as demonstrated by comparing Section 1373(a) to Section 1373(c), which

14

uses the different phrase “[immigration] status information.” 8 U.S.C. §1373; see Dean v. United

15

States, 556 U.S. 568, 573 (2009) (“Where Congress includes particular language in one section of a

16

statute but omits it in another section of the same Act, it is generally presumed that Congress acts

17

intentionally and purposely in the disparate inclusion or exclusion.”) (citations omitted). And the

18

meaning of the word “regarding” is quite broad. See Morales v. Trans World Airlines, Inc., 504

19

U.S. 374, 383 (1992) (concluding that “ordinary meaning” of the closely analogous “relating to” is

20

“a broad one – ‘to stand in some relation; to have bearing or concern; to pertain; refer; to bring into

21

association with or connection with’”) (citing Black’s Law Dictionary 1158 (5th ed. 1979)); Davis

22

v. Fenton, 26 F. Supp. 3d 727, 740 (N.D. Ill. 2014) (concluding that “regarding” is “just as broad . .

23

. as ‘arising out of’ and ‘relating to’”). The breadth of this provision is also reinforced by other

24

language that Congress used, such as making clear that no local policy could “in any way restrict”

25

the sharing of such information, reinforcing Congress’s overarching interest in halting policies that

26

might stymie the sharing of information between local law enforcement and immigration

27

authorities. See Bologna v. San Francisco, 121 Cal. Rptr. 3d 406, 414 (Cal. App. 2011) (law

28

“’designed to prevent any State or local law . . . that prohibits or in any way restricts any
Defs’ Motion to Dismiss; Memo.
No. 3:17-cv-04701-WHO

25

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1

communication between State and local officials and the INS’”) (quoting House report) (emphasis

2

added). Indeed, a contrary reading of Section 1373 would render it largely meaningless, as DHS is

3

already aware of an individual’s legal right to be present in the United States. See Steinle v. San

4

Francisco, 230 F. Supp. 3d 994, 1016 (N.D. Cal. 2017) (explaining that “ICE was already aware of

5

Lopez-Sanchez’s immigration status”).

6

b. The Values Act prevents sharing personal and identifying information that plainly

7

qualifies as information regarding immigration status. First, California law defines personal

8

information very broadly as “any information . . . that identifies or describes an individual” such

9

as name or address. See Cal. Civ. Code § 1798.3. Thus, under the Values Act, state officials would

10

be unable to confirm or reveal the identity of individuals in state custody. But a person’s identity

11

and name are highly relevant to determining immigration status and removability: No such

12

evaluation can be made if the person’s identity is not disclosed. And the person’s address directly

13

relates to whether the person is “lawfully present in the United States,” which Congress described

14

as a component of “immigration status.” 8 U.S.C. § 1357(g)(10)(A) (emphasis added); see Black’s

15

Law Dictionary 1065 (5th ed. 1979) (defining “presence” as “being in a certain place and not

16

elsewhere”). Identity and other personal information are also relevant to many immigration status

17

issues, such as whether the person was born outside the United States, whether the person derived

18

citizenship from a relative, whether the person qualifies for immigrant status under 8 U.S.C.

19

§ 1101(a)(15), whether the alien’s place of residence qualifies them as a non-resident visitor, 8

20

U.S.C. § 1227(a)(1)(C); such information also facilitates taking an alien into custody for lawful

21

removal proceedings, id. § 1226(a). The restrictions on sharing personal information cannot be

22

squared with Section 1373.

23

c. The Values Act provisions that prevent the sharing of prisoner release dates also violate

24

Section 1373 because an alien’s release date is information regarding the person’s immigration

25

status. An alien’s release date is directly relevant to when the alien can ultimately be removed from

26

the country. Federal immigration law recognizes the importance of allowing States and localities to

27

impose criminal punishment on individuals who are in this country illegally and commit crimes.

28

Thus, federal law specifies that, except in limited circumstances, DHS “may not remove an alien
Defs’ Motion to Dismiss; Memo.
No. 3:17-cv-04701-WHO

26

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1

who is sentenced to imprisonment until the alien is released from imprisonment.” 8 U.S.C.

2

§ 1231(a)(4). But that law – and the comity interests that underlie it – render the time of an alien’s

3

release from state custody critical information regarding the alien’s immigration status, as the alien

4

is subject to removal only at the end of that custody period. See id. § 1231(a)(1)(B)(iii) (removal

5

period “begins on . . . the date the alien is released from [state criminal] detention”). Similarly,

6

the statute requiring the detention of criminal aliens specifies that immigration detention for

7

removal proceedings must begin “when the alien is released” from state criminal custody. Id.

8

§ 1226(c)(1). The Ninth Circuit has held that this statute requires immigration custody to begin

9

immediately upon release from state criminal custody, underscoring the importance of the release

10

date to the person’s status under the immigration laws. See Preap v. Johnson, 831 F.3d 1193, 1202

11

(9th Cir. 2016) (Section 1226(c) “governs the full life cycle of the criminal aliens’ detention”

12

including “specifying the requirements for taking them into custody”), pet. for cert. filed, No. 16-

13

1363 (May 11, 2017). Other INA provisions also confirm that an alien’s release date is highly

14

relevant to the person’s status under the immigration laws given the relevance of that persons’

15

location within the United States. See 8 U.S.C. § 1357(g)(10)(A) (“immigration status” includes

16

whether individual is “lawfully present in the United States”); id. § 1357(a)(1) (immigration

17

officers “shall have power without warrant . . . to interrogate any alien or person believed to be an

18

alien as to his right to be or to remain in the United States”); id. § 1226(a) (“alien may be arrested

19

and detained” on a warrant). Thus, release date information relates to an individual’s status under

20

the immigration laws because it is a core aspect of the enforcement process Congress designed.

21

In light of all the above, although OJP has made no final agency decision, this Court should

22

decline to hold that the Values Act does not violate Section 1373 or to enter an injunction regarding

23

conformity of California’s laws with Section 1373.

24

IV.

25

Section 1373 Is Consistent with the Tenth Amendment
Plaintiff’s final claim is that the Section 1373 compliance condition would violate the Tenth

26

Amendment if the statute were construed as “extending” to the state statutes identified in the

27

Amended Complaint. See Am. Compl. ¶¶ 149-150, 153. The Tenth Amendment provides that

28

“[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the
Defs’ Motion to Dismiss; Memo.
No. 3:17-cv-04701-WHO

27

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1

States, are reserved to the States respectively, or to the people.” It stands for the proposition that

2

“[t]he Federal Government may not compel the States to enact or administer a federal regulatory

3

program” or to “act on the Federal Government’s behalf.” New York, 505 U.S. at 188; see Nat’l

4

Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 620 (2012).

5

As explained above, only one state statute could possibly become legitimately at issue here

6

under the present circumstances: the Values Act. The question under plaintiff’s Tenth Amendment

7

claim, therefore, is whether applying the Section 1373 compliance condition in such a way that the

8

Values Act violates the condition would “compel the State[] to enact or administer a federal regula-

9

tory program” or to “act on the Federal Government’s behalf.” Id. at 575, 620. For several reasons,

10
11

it would not.
First, the dispute here does not involve a federal statutory mandate that directly regulates

12

California, but rather a condition on receipt of federal funds that the State and its subdivisions are

13

free to accept or reject. Thus, the relevant question here is not whether Section 1373, as an

14

independent statutory obligation, would violate the Tenth Amendment. Instead, the only pertinent

15

question is whether conditioning the receipt of federal funds on compliance with Section 1373 is a

16

valid exercise of the spending power – which, as discussed above, it is. In this context, it is well-

17

settled that the federal government “may offer funds to the States, and may condition those offers

18

on compliance with specified conditions.” Id. at 537; cf. Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832,

19

847 (9th Cir. 2003) (“[A]s long as the alternative to implementing a federal regulatory program

20

does not offend the Constitution’s guarantees of federalism, the fact that the alternative is difficult,

21

expensive or otherwise unappealing is insufficient to establish a Tenth Amendment violation.”)

22

(citation omitted). In effect, by requesting funds from the Federal Government, the State acts

23

voluntarily and waives any Tenth Amendment concerns.

24

Second, the purpose and effect of Section 1373 and the challenged grant condition are to

25

further the express goals of the INA, not to “commandeer” state officials. As noted earlier, the INA

26

provides that a federal immigration officer “shall have power without warrant . . . to interrogate

27

any alien or person believed to be an alien as to his right to be or to remain in the United States.” 8

28

U.S.C. § 1357(a)(1). The INA also provides that certain classes of aliens, including certain criminal
Defs’ Motion to Dismiss; Memo.
No. 3:17-cv-04701-WHO

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1

aliens, shall be removed from the United States upon the order of the Attorney General or the

2

Secretary of Homeland Security, see, e.g., id. §§ 1227(a), 1228. Federal officials cannot carry out

3

these duties without knowing where those persons are located. Indeed, the legislative history of

4

Section 1373 indicates that the statute was intended to counteract passive resistance to sharing

5

information. See, e.g., S. Rep. No. 104-249, at 19-20 (1996) (noting that “[t]he acquisition,

6

maintenance, and exchange of immigration-related information by State and local agencies is

7

consistent with, and potentially of considerable assistance to, the Federal regulation of immigration

8

and the achieving of the purposes and objectives of the [INA]”).

9

Third, even if an outright mandate rather than a grant condition were involved here, a mere

10

requirement not to prohibit individuals from providing information would not violate the Tenth

11

Amendment. The courts have rejected Tenth Amendment challenges to a number of federal

12

statutes that regulated the handling of information. For example, in Reno v. Condon, the Supreme

13

Court rejected a challenge to a federal law regarding information on motor vehicle operators, which

14

both required States to disclose information in certain circumstances and prohibited its disclosure in

15

other circumstances. 528 U.S. 141, 143-46, 149-150 (2000). Similarly, in Freilich v. Upper

16

Chesapeake Health, Inc., the Fourth Circuit rejected a challenge to a federal statute that required

17

health care entities to provide certain information regarding physicians to the State Board of Medi-

18

cal Examiners, and required state boards to forward that information to a federal database. 313 F.3d

19

205, 213-14 (4th Cir. 2002); see 42 U.S.C. §§ 11133, 11134. In rejecting that claim, the court

20

wrote that the federal statute “does not commandeer the state legislature or executive” and “does

21

not compel states to implement a federal regulatory program either. . . . All that the [statute]

22

requires of states is the forwarding of information.” 313 F.3d at 213-14. Further, the Second

23

Circuit has rejected a Tenth Amendment facial challenge to Section 1373 of the kind the State

24

raises here, noting that the Tenth Amendment does not give States and their subdivisions “an

25

untrammeled right to forbid all voluntary cooperation by state or local officials with particular

26

federal programs,” particularly in the information sharing context. City of New York v. United

27

States, 179 F.3d 29, 34-35 (2d Cir. 1999); see Printz v. United States, 521 U.S. 898, 918 (1997)

28

(contrasting federal statutes that “require only the provision of information to the Federal
Defs’ Motion to Dismiss; Memo.
No. 3:17-cv-04701-WHO

29

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1

Government” with those that “force[] participation of the States’ executive in the actual admin-

2

istration of a federal program”); Freilich v. Bd. of Directors, 142 F. Supp. 2d 679, 697 (D. Md.

3

2001) (“This Court has found no case” holding that a statutory command to report information for

4

a federal data bank “commandeers the state.”); accord Chicago I, 264 F. Supp. 3d at 946-47.

5

Fourth, contrary to plaintiff’s allegation, the Section 1373 condition – again, even assuming

6

it were more than a mere grant condition – does not “commandeer[] the State and its political

7

subdivisions by directing their personnel how to act and handle data under State and local control in

8

order to advance a federal program.” See Am. Compl. ¶ 150. For this proposition, plaintiff cites

9

Printz v. United States, 521 U.S. 898, 918 (1997), but that decision actually undercuts the State’s

10

claim. There, the Court struck down certain provisions of the Brady Act, which required local law

11

enforcement officers to conduct background checks on prospective handgun purchasers. The Act

12

required much more than the forwarding of information, compelling officers to “make a reasonable

13

effort to ascertain within 5 business days whether receipt or possession [of a handgun] would be in

14

violation of the law, including research in whatever State and local recordkeeping systems are

15

available and in a national system designated by the Attorney General,” and to provide, upon

16

request, a written statement of the reasons for any contrary determination. Id. at 903 (citation

17

omitted). Other federal laws requiring action by state or local officials were cited in support of the

18

constitutionality of those provisions, but the Court rejected the relevance of those laws, observing

19

that some were “connected to federal funding measures, and [could] perhaps be more accurately

20

described as conditions upon the grant of federal funding than as mandates to the States” and that

21

others “require[d] only the provision of information to the Federal Government” and thus did not

22

“involve the precise issue before us here, which is the forced participation of the States’ executive

23

in the actual administration of a federal program.” Id. at 917-18. Unlike the Brady Act, Section

24

1373 only involves the exchange of information with federal authorities, and it is only a prohibition

25

on policies that bar sharing information, not an affirmative obligation to share information.

26

CONCLUSION

27
28

Accordingly, the Court should dismiss plaintiff’s First Amended Complaint and all of its
claims.
Defs’ Motion to Dismiss; Memo.
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1

Dated: January 16, 2018

2
Respectfully submitted,

3

CHAD A. READLER
Acting Assistant Attorney General

4
5

BRIAN STRETCH
United States Attorney

6
7

JOHN R. TYLER
Assistant Director

8

/s/ W. Scott Simpson

9
10

W. SCOTT SIMPSON (Va. Bar #27487)

11

ANTONIA KONKOLY
Trial Attorney

12

Attorneys, Department of Justice
Civil Division, Room 7210
Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, D.C. 20530
Telephone: [phone]
Facsimile: [phone]
E-mail:
[e-mail]

13
14
15
16
17
18

COUNSEL FOR DEFENDANTS
JEFFERSON B. SESSIONS III, Attorney
General of the United States; ALAN R.
HANSON, Principal Deputy Assistant Attorney
General; and U.S. DEPARTMENT OF JUSTICE

19
20
21
22
23
24
25
26
27
28
Defs’ Motion to Dismiss; Memo.
No. 3:17-cv-04701-WHO

31

EXHIBIT D

Case 3:17-cv-04701-WHO Document 83 Filed 02/06/18 Page 1 of 25

1
2
3
4
5
6
7
8
9
10
11
12
13

CHAD A. READLER
Acting Assistant Attorney General
ALEX G. TSE
United States Attorney
JOHN R. TYLER
Assistant Director
W. SCOTT SIMPSON (Va. Bar #27487)
Senior Trial Counsel
ANTONIA KONKOLY
Trial Attorney
Department of Justice, Room 7210
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, D.C. 20530
Telephone:
[phone]
Facsimile:
[phone]
E-mail:
[e-mail]
COUNSEL FOR DEFENDANTS
JEFFERSON B. SESSIONS III, Attorney
General of the United States; ALAN R.
HANSON, Principal Deputy Assistant Attorney
General; and U.S. DEPARTMENT OF JUSTICE

14
15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE NORTHERN DISTRICT OF CALIFORNIA

17

SAN FRANCISCO DIVISION

18
19

STATE OF CALIFORNIA, ex rel. XAVIER
BECERRA, Attorney General of the State of
California,

20
21
22
23
24

Plaintiff,
v.
JEFFERSON B. SESSIONS III, Attorney
General of the United States, et al.,
Defendants.

25
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Defs.’ Reply Re Motion to Dismiss
No. 3:17-cv-04701-WHO

No. 3:17-cv-04701-WHO
DEFENDANTS’ REPLY
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
THEIR MOTION TO DISMISS
Date:
Time:

February 28, 2018
2:00 p.m.

Case 3:17-cv-04701-WHO Document 83 Filed 02/06/18 Page 2 of 25

1

TABLE OF CONTENTS

2

INTRODUCTION .......................................................................................................................... 1

3

ARGUMENT .................................................................................................................................. 2

4

I.

5

THE CHALLENGED IMMIGRATION-RELATED BYRNE JAG CONDITIONS
ARE LAWFUL ................................................................................................................... 2
A.

The Access and Notice Conditions Are Authorized by Statute................................ 2

B.

The Challenged Conditions Comply with the Spending Clause............................. 4

6
7
1. The Notice and Access Conditions are Unambiguous...................................... 5

8
2. The Conditions Are Related to the Byrne JAG Program.................................. 6

9
C.

Plaintiff’s APA Claims Must Be Dismissed for Additional Reasons....................... 8

10
1. The APA Claims Do Not Challenge Final Agency Action............................... 8

11
2. The Challenged Conditions Are Not Arbitrary or Capricious ........................ 10

12
13

II.

14

California’s Claim for a Declaration Regarding its Statutes’ Compliance with
Section 1373 Should Be Dismissed .................................................................................. 12
A.

15

The Claim Regarding Compliance with Section 1373 Is Non-Justiciable.............. 12
1. California Lacks Standing to Seek a Ruling Regarding Any State

16

Statute Other Than the Values Act................................................................... 12

17

2. California’s Request for a Ruling Regarding the Values Act Is Unripe ........... 13

18

B.

19
20
21

Alternatively, the Court Should Dismiss California’s Claim for
Declaratory Relief Regarding the Values Act on Its Merits ................................... 14

III.

SECTION 1373 IS CONSISTENT WITH THE TENTH AMENDMENT ..................... 16

CONCLUSION ............................................................................................................................. 17

22
23
24
25
26
27
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i
Defs.’ Reply Re Motion to Dismiss
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1

TABLE OF AUTHORITIES

2

CASES

3

Abbott Labs. v. Gardner,

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

PAGE(S)

387 U.S. 136 (1967)..................................................................................................................... 9
Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc.,
570 U.S. 205 (2013)................................................................................................................. 2, 4
All. for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev.,
651 F.3d 218 (2d Cir. 2011) ........................................................................................................ 4
All. for the Wild Rockies v. Peña,
865 F.3d 1211 (9th Cir. 2017) ................................................................................................... 11
Arizona v. United States,
567 U.S. 387 (2012)......................................................................................................... 1, 11, 16
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,
548 U.S. 291 (2006)..................................................................................................................... 4
Bennett v. Spear,
520 U.S. 154 (1997)..................................................................................................................... 8
Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402 (1971)................................................................................................................... 10
City of New York v. United States,
179 F.3d 29 (2d Cir. 1999) ........................................................................................................ 17
City of San Diego v. Whitman,
242 F.3d 1097 (9th Cir. 2001) ..................................................................................................... 9
Clinton v. City of New York,
524 U.S. 417 (1998)..................................................................................................................... 3
Columbia Riverkeeper v. U.S. Coast Guard,
761 F.3d 1084 (9th Cir. 2014) ..................................................................................................... 9

27
28

ii
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No. 3:17-cv-04701-WHO

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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

Commodity Futures Trading Comm’n v. Monex Deposit Co.,
824 F.3d 690 (7th Cir. 2016) ....................................................................................................... 9
Davis v. Michigan Dep’t of Treasury,
489 U.S. 803 (1989)................................................................................................................... 14
FCC v. Fox Television Stations, Inc.,
556 U.S. 502 (2009)................................................................................................................... 11
Freilich v. Upper Chesapeake Health, Inc.,
313 F.3d 205 (4th Cir. 2002) ..................................................................................................... 17
FTC v. Standard Oil Co. of Cal.,
449 U.S. 232 (1980)................................................................................................................... 10
Gregory v. Ashcroft,
501 U.S. 452 (1991)............................................................................................................. 15, 16
Holistic Candlers & Consumers Ass’n v. FDA,
664 F.3d 940 (D.C. Cir. 2012)..................................................................................................... 9
Impro Prods., Inc. v. Block,
722 F.2d 845 (D.C. Cir. 1983)..................................................................................................... 8
Indep. Acceptance Co. v. California,
204 F.3d 1247 (9th Cir. 2000) ................................................................................................... 11
Invention Submission Corp. v. Rogan,
357 F.3d 452 (4th Cir. 2004) ....................................................................................................... 8
Mayweathers v. Newland,
314 F.3d 1062 (9th Cir. 2002) ................................................................................................. 6, 8
Nat’l Ass’n of Home Builders v. Norton,
415 F.3d 8 (D.C. Cir. 2005)......................................................................................................... 9
Nat’l Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519 (2012)................................................................................................................... 17

27
28

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Defs.’ Reply Re Motion to Dismiss
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

New York v. United States,
505 U.S. 144 (1992)..................................................................................................................... 5
Norton v. S. Utah Wilderness All.,
542 U.S. 55 (2004)....................................................................................................................... 9
Or. Nat. Desert Ass’n v. U.S. Forest Serv.,
465 F.3d 977 (9th Cir. 2006) ....................................................................................................... 8
Pierce v. SEC,
786 F.3d 1027 (D.C. Cir. 2015)................................................................................................. 10
Pollution Denim & Co. v. Pollution Clothing Co.,
No. CV 07-05208 MMM, 2009 WL 10672270 (C.D. Cal. Feb. 9, 2009) ................................. 12
Preap v. Johnson,
831 F.3d 1193 (9th Cir. 2016) ................................................................................................... 14
Printz v. United States,
521 U.S. 898 (1997)................................................................................................................... 16
Providence Yakima Med. Ctr. v. Sebelius,
611 F.3d 1181 (9th Cir. 2010) ................................................................................................... 10
Quechan Tribe of Ft. Yuma Indian Reservation v. U.S. Dep’t of the Interior,

18

927 F. Supp. 2d 921 (S.D. Cal. 2013),

19

aff’d, 673 F. App’x 709 (9th Cir. 2016)..................................................................................... 10

20
21
22
23
24
25
26
27

Rattlesnake Coal. v. EPA,
509 F.3d 1095 (9th Cir. 2007) ..................................................................................................... 8
Reno v. Condon,
528 U.S. 141 (2000)................................................................................................................... 17
Rust v. Sullivan,
500 U.S. 173 (1991)..................................................................................................................... 5
S. Dakota v. Dole,
483 U.S. 203 (1987)................................................................................................................. 4, 5

28

iv
Defs.’ Reply Re Motion to Dismiss
No. 3:17-cv-04701-WHO

Case 3:17-cv-04701-WHO Document 83 Filed 02/06/18 Page 6 of 25

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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

San Francisco Herring Ass’n v. U.S. Dep’t of Interior,
683 F. App’x 579 (9th Cir. 2017) ................................................................................................ 9
Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83 (1998)..................................................................................................................... 12
Steinle v. San Francisco,
230 F. Supp. 3d 994 (N.D. Cal. 2017) ....................................................................................... 16
Texas v. United States,
523 U.S. 296 (1998)................................................................................................................... 13
Thomas v. Anchorage Equal Rights Comm’n,
220 F.3d 1134 (9th Cir. 2000) ................................................................................................... 14
United States v. Elkins,
683 F.3d 1039 (9th Cir. 2012) ..................................................................................................... 7
United States v. Kebodeaux,
570 U.S. 387 (2013)..................................................................................................................... 7
Yates v. United States,
--- U.S. ---, 135 S. Ct. 1074 (2015).............................................................................................. 4

17
18

STATUTES

19

5 U.S.C. § 551.................................................................................................................................. 8

20

5 U.S.C. § 704.................................................................................................................................. 8

21

8 U.S.C. § 1226.................................................................................................................... 7, 11, 14

22

8 U.S.C. § 1227.................................................................................................................... 7, 10, 17

23

8 U.S.C. § 1228.............................................................................................................................. 17

24

8 U.S.C. § 1231.......................................................................................................................... 7, 14

25

8 U.S.C. § 1252c .............................................................................................................................. 7

26

8 U.S.C. § 1324................................................................................................................................ 7

27

8 U.S.C. § 1357........................................................................................................................ 11, 17

28

v
Defs.’ Reply Re Motion to Dismiss
No. 3:17-cv-04701-WHO

Case 3:17-cv-04701-WHO Document 83 Filed 02/06/18 Page 7 of 25

1

8 U.S.C. § 1373....................................................................................................................... passim

2

20 U.S.C. § 1411.............................................................................................................................. 4

3

20 U.S.C. § 6332.............................................................................................................................. 4

4

20 U.S.C. § 6333.............................................................................................................................. 4

5

34 U.S.C. § 10102.................................................................................................................. 3, 4, 10

6

34 U.S.C. § 10152...................................................................................................................... 6, 10

7

34 U.S.C. § 10153........................................................................................................................ 2, 3

8

34 U.S.C. § 10251...................................................................................................................... 6, 10

9

34 U.S.C. § 20901............................................................................................................................ 7

10

34 U.S.C. § 20927............................................................................................................................ 7

11

42 U.S.C. § 5301.............................................................................................................................. 4

12

Cal. Gov’t Code § 7284.2 .............................................................................................................. 17

13

Cal. Gov’t Code § 7284.6 ........................................................................................................ 14, 15

14

Cal. Gov’t Code §§ 7284-7284.12 ................................................................................................. 12

15
16

LEGISLATIVE MATERIALS

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H.R. Rep. No. 109-233 (2005)......................................................................................................... 3

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2

INTRODUCTION
Law enforcement in this country is a cooperative endeavor. Criminal acts often implicate

3

the jurisdiction of more than one agency, and thus local, state, tribal, and federal officials work

4

together in a variety of ways to fight crime and ensure public safety. Not surprisingly, then,

5

federal law often contemplates, and is premised upon, such cooperation. This is true for the

6

Immigration and Nationality Act, and it is true for the Edward Byrne Memorial Justice Assistance

7

Grant Program (“Byrne JAG Program”). Both statutes explicitly contemplate and encourage

8

effective law enforcement by promoting cooperation between the Federal Government on the one

9

hand and local, state, and tribal governments on the other. Unfortunately, California has in recent

10

years adopted policies of non-cooperation with respect to law enforcement involving aliens who

11

have committed serious crimes. And in this suit, California seeks to further that policy by

12

claiming that the Federal Government cannot condition its own law enforcement grants on such

13

cooperation—even when the express statutory purpose of that funding is to promote cooperation.

14

As explained in detail in previous briefing in this case, at the core of this suit are three

15

conditions that the DOJ has notified applicants that Fiscal Year (“FY”) 2017 Byrne JAG awards

16

will include. Specifically, the challenged conditions will require grantees to (1) have a policy of

17

providing DHS with advance notice of the scheduled release date of certain individuals held in

18

state or local correctional facilities (the “Notice Condition”); (2) have a policy permitting federal

19

agents to access state or local correctional facilities for certain immigration enforcement purposes

20

(the “Access Condition”); and (3) comply with a federal statute, 8 U.S.C. § 1373, that prohibits

21

state and local government and law enforcement entities from restricting certain communications

22

with DHS (the “Section 1373 Condition”). See Dkt. No. 71-1 (Defendants’ Request for Judicial

23

Notice (“Def. RJN”)), Ex. B (2017 Greenville Award) ¶¶ 53, 55, 56. The call for the modest

24

intergovernmental law enforcement cooperation embodied in these three grant conditions follows

25

from recognition that “[c]onsultation between federal and state officials is an important feature of

26

the immigration system.” Arizona v. United States, 567 U.S. 387, 411 (2012). And the conditions

27

are consonant with the Byrne JAG Program’s purposes of ensuring that grantees “report such data

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… and information … as the Attorney General may reasonably require” and undertake

2

“appropriate coordination with affected agencies.” 34 U.S.C. § 10153(a)(4), (5).

3

California’s suit nevertheless attacks the prospective imposition of these conditions, and

4

seeks a declaration that the State complies with Section 1373. The Amended Complaint warrants

5

dismissal in its entirety, as the claims set forth therein contravene clear statutory language

6

authorizing the Department to condition Byrne JAG funding; ignore the close relationship

7

between the grant conditions, federal law enforcement prerogatives, and the purposes of the

8

Byrne JAG Program; and otherwise suffer from various legal defects. Further, California’s

9

alternative request for an injunction prohibiting any DOJ finding that any of several state laws

10

violate the Section 1373 Condition in either the Byrne JAG Program or two other programs fails to

11

present a justiciable controversy—and, in any event, further fails on its merits, as set forth below.

12

At bottom, California cannot sustain its counterintuitive theory that Byrne JAG applicants

13

can insist on their entitlement to a federal law enforcement grant even as they refuse to provide

14

basic cooperation on law enforcement related to criminal aliens, which the Department has

15

identified as a federal priority and which plainly intersects with criminal justice under the

16

framework of the INA. Cf. Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205,

17

214 (2013) (“As a general matter, if a party objects to a condition on the receipt of federal

18

funding, its recourse is to decline the funds.”). For all of these reasons, and as discussed in more

19

detail below, the Court should dismiss this action in its entirety.

20
21

ARGUMENT
I.

The Challenged Immigration-Related Byrne JAG Conditions Are Lawful

22

A.

23

California’s first contention is that DOJ lacks the statutory authority to impose either the

The Access and Notice Conditions Are Authorized by Statute

24

Access or the Notice Condition, 1 because there is “no provision of the JAG authorizing statute

25

that affirmatively supports the imposition” of these conditions. Dkt. No. 80 (“Opp.”) at 5. But the

26
27

1

California makes no such argument with respect to the Section 1373 condition. Thus, California
concedes that this condition is indeed within the statutory parameters of the Byrne JAG Program.

28

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relevant question is not whether the JAG authorizing statute requires the imposition of the Notice

2

and Access Conditions. Rather, it is whether the statute delegates to the DOJ the authority to add

3

conditions to Byrne JAG funds in order to further Departmental policies and priorities. As

4

explained in Defendants’ opening memorandum, see Dkt. No. 77 (“Def. Mem.”) at 9, Congress

5

may, of course, delegate to the executive branch the authority to attach specific conditions on the

6

receipt of federal funds, just as it may delegate other types of legislative authority. See, e.g.,

7

Clinton v. City of New York, 524 U.S. 417, 488 (1998) (“Congress has frequently delegated the

8

President the authority to spend, or not to spend, particular sums of money.”) (citation omitted).

9

Here, as relevant to the administration of the Byrne JAG Program, Congress expressly

10

authorized the Department to “plac[e] special conditions on all grants,” 34 U.S.C. § 10102(a)(6),

11

to “determin[e] priority purposes for formula grants,” id. (emphasis added), and to ensure that

12

grantees “comply with . . . all other applicable Federal laws.” Id. § 10153(a)(5)(D); see also H.R.

13

Rep. No. 109-233, at 101 (2005). These capacious delegations of authority plainly empower the

14

Department to impose the Notice and Access Conditions to promote intergovernmental law

15

enforcement cooperation, so that grantee policies do not impair federal policies.

16

In an attempt to evade this conclusion, California contends that, as it is used in 34 U.S.C.

17

§ 10102(a)(6), the phrase “special conditions” constitutes a “narrow” “term of art” that is

18

necessarily—and strictly—limited in scope to such conditions as may be placed “on particular

19

high-risk grantees that have struggled or failed to comply with grant conditions in the past,” Opp.

20

at 8 (citing, inter alia, two expired regulations), and DOJ must accordingly award all appropriated

21

Byrne JAG funds to any entity that merely satisfies certain “ministerial requirements and

22

certifications” set forth by the Byrne JAG authorizing statute. Preliminarily, however,

23

California’s purported limitation has no support in the Byrne JAG authorizing statute itself.

24

Further, as Defendants have explained at length, see Def. Mem. at 5-6, the Department has long

25

employed its “special conditions” authority to impose a number of conditions applicable to all

26

grantees—including, to cite but two recent examples, limitations on research using human

27

subjects, and an “American-made” requirement for body armor purchases. Def. RJN, Ex. A ¶¶

28

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30, 39; see generally Def. Mem. at 5-6 (discussing other conditions); Def. RJN, Ex. A (setting

2

forth more than 50 “special conditions” of general applicability). California fails to explain how

3

its narrow reading of “special circumstances” is compatible with any of the across-the-board

4

conditions the Department has historically imposed pursuant to this delegated authority. 2

5

Finally, California argues that were the Court to find delegated authority for the Notice

6

and Access Conditions, it would necessarily bestow Defendants with “unfettered discretion” to

7

impose any condition(s) at all on the receipt of Byrne JAG funds, no matter how remote or

8

irrational. Id. This argument, too, is a straw man. The Byrne JAG Program is indisputably an

9

exercise of the Congressional Spending authority. Thus, in exercising its delegated authority to

10

impose “special conditions on,” and “determin[e] priority purposes for,” Bryne JAG grants, 34

11

U.S.C. § 10102(a)(6), there is no dispute that the Department must adhere to the Spending

12

Clause. While the spending authority is undoubtedly “broad,” Arlington Cent. Sch. Dist. Bd. of

13

Educ. v. Murphy, 548 U.S. 291, 296 (2006), it is “of course not unlimited,” S. Dakota v. Dole, 483

14

U.S. 203, 207 (1987) (citation omitted). However, as set forth below, the Notice and Access

15

Conditions fall easily within the scope of the Spending authority. 3

16

B.

17

The Spending Clause authorizes Congress—or, where relevant, its agency delegee—may

The Challenged Conditions Comply with the Spending Clause

18

“further broad policy objectives by conditioning receipt of federal moneys upon compliance by the

19

recipient with federal statutory and administrative directives.” Dole, 483 U.S. at 206 (emphasis

20
21
22
23
24
25
26
27

2

To the extent California contends that the use of the “special conditions” term in other contexts requires
its ahistorical interpretation here, the Supreme Court has “several times affirmed” that “identical language
may convey varying content when used in different statutes, sometimes even in different provisions of the
same statute.” Yates v. United States, --- U.S. ---, 135 S. Ct. 1074, 1082 (2015) (collecting cases).

3

Because this is so, California’s contentions that the Notice and Access Conditions run afoul of federalism
principles, see Opp. at 5, 7, are similarly misplaced, as “[i]t is well settled that Congress is entitled to
further policy goals indirectly through its spending power that it might not be able to achieve by direct
regulation.” All. for Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218, 230 (2d Cir. 2011),
aff’d sub nom. Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205 (2013). Indeed, federal
grants routinely further federal policy in areas within the traditional purview of state or local governments,
such as education and community development. See, e.g., 20 U.S.C. §§ 1411, 6332-33 (grants under the
Individuals with Disabilities Education Act and Elementary and Secondary Education Acts, respectively);
42 U.S.C. § 5301 et seq. (Community Development Block Grant Program).

28

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Case 3:17-cv-04701-WHO Document 83 Filed 02/06/18 Page 12 of 25

1

added); cf., e.g., Rust v. Sullivan, 500 U.S. 173, 194 (1991) (“[W]hen the Government

2

appropriates public funds to establish a program it is entitled to define the limits of that

3

program.”). Consistent with these principles (and as relevant to this suit), any terms attached to the

4

receipt of federal funds must be “unambiguous[],” Dole, 483 U.S. at 207, and also bear “some

5

relationship” to “the purpose of the federal spending,” New York v. United States, 505 U.S. 144,

6

167 (1992). The challenged conditions easily satisfy these standards.

7
8

1.

The Notice and Access Conditions are Unambiguous

There is nothing “ambiguous” about the Notice and Access Conditions, and California can

9

determine whether to accept FY 17 Byrne JAG funds “knowingly, cognizant of the consequences

10

of [its] participation.” Dole, 483 U.S. at 207 (citation omitted). As Defendants have explained, both

11

conditions are clearly and straightforwardly stated, and do not plausibly fail to give the State

12

adequate notice of the terms to which it would need to commit in order to participate in the FY 17

13

Byrne JAG Program. See Def. Mem. at 12-13 (discussing the challenged grant terms in detail).

14

Further, although California complains that there is no “federal statute that provides

15

guidance on the Access or Notification Conditions,” Opp. at 13, this argument ignores the

16

opportunity for administrative consultation that the Byrne JAG Program invites. The FY 2017

17

Byrne JAG solicitation invited any prospective grantee with a question about “any . . .

18

requirement of this solicitation” to contact the Office of Justice Program’s (“OJP”) Response

19

Center (customer service center) by telephone, email, fax, or online chat. See Dkt. No. 1-16 at 2.

20

A prospective grantee could also contact the appropriate “State Policy Advisor”—that is, a

21

specific, named OJP employee assigned to work with jurisdictions within a specified

22

geographical area. Id. Beyond this invitation in the FY 2017 solicitation, in each of the challenged

23

conditions that appears in the award document for a prospective grantee to consider accepting, the

24

Department has invited submission of “[a]ny questions about the meaning or scope of this

25

condition . . . before award acceptance.” Def. RJN, Ex. B (2017 Greenville Award) ¶¶ 53, 55, 56.

26

Indeed, while California complains that “[t]he Access Condition … fails to provide … notice of

27

whether a law or policy that requires local jurisdictions to inform inmates of their right to have a

28

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lawyer present or to decline an interview with ICE would violate the condition,” Opp. at 13, had

2

California simply availed itself of this consultation process, litigation of this issue could have been

3

avoided altogether. As Defendants would have made clear to California, the Department does not

4

understand either the Notice or the Access Condition to forbid a jurisdiction from informing

5

detainees, where required by law, that they may choose not to meet with immigration authorities.

6
7

Accordingly, and for the additional reasons set forth in Defendants’ motion, see Def.
Mem. at 11-13, the Notice and Access Conditions satisfy the Dole clear statement rule.

8

2.

The Conditions Are Related to the Byrne JAG Program

California also argues that the Notice, Access, and Section 1373 4 Conditions “do not have

9
10

a sufficient nexus” to the goals of the Byrne JAG Program. Opp. at 10. But this aspect of Dole

11

does not impose an “exacting standard”:

12

The Supreme Court has suggested that federal grants conditioned on compliance
with federal directives might be illegitimate if the conditions share no relationship
to the federal interest in particular national projects or programs. This possible
ground for invalidating a Spending Clause statute, which only suggests that the
legislation might be illegitimate without demonstrating a nexus between the
conditions and a specified national interest, is a far cry from imposing an exacting
standard for relatedness.

13
14
15
16

Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002).

17

The challenged conditions easily satisfy this standard. The Byrne JAG Program’s

18

authorizing statute specifies that Byrne JAG funds are designed to provide resources “for criminal

19

justice,” 34 U.S.C. § 10152(a)(1), defined broadly as “activities pertaining to crime prevention,

20

control, or reduction, or the enforcement of the criminal law, including, but not limited to, police

21

efforts to prevent, control, or reduce crime or to apprehend criminals, … activities of courts

22

having criminal jurisdiction, and related agencies,” id. § 10251(a)(1) (emphasis added). Thus,

23

contrary to California’s view that the Byrne JAG Program’s “overarching goal” is to promote

24

State and local flexibility, Opp. at 6, the program’s overall goals are much broader: to support and

25

strengthen law enforcement and criminal justice. And, because the challenged conditions relate to

26

4

27

California does not dispute that the Section 1373 Condition, at least, is statutorily authorized. California
does not, however, explain how a condition that is concededly within the statutory parameters of the Byrne
JAG Program can be wholly “unrelated” to that Program.

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1

specifically to aliens who are under detention and who have either committed crimes or are

2

suspected of having committed crimes, the conditions plainly intersect with these broad

3

programmatic purposes. Relatedly, the INA’s authorization of removal of aliens who commit any

4

of a wide array of criminal offenses, 8 U.S.C. § 1227(a)(2), is part and parcel of law enforcement

5

and criminal justice, if for no other reason than that removal is one of the means by which the

6

Federal Government protects the public and prevents recidivism by criminal aliens. And even if

7

that basic point were not enough, numerous other provisions of the INA also intertwine these two

8

subjects, and/or contemplate cooperation among state and local officers and federal officials on

9

immigration enforcement. 5

10

Tellingly, California’s assertion that “immigration law has nothing to do with enforcement

11

of local criminal laws,” Opp. at 11 (citation omitted), is belied by the connection that the State itself

12

draws between its immigration enforcement policies and its crime rates. See id. at 16 (arguing that

13

“law enforcement policies that collaborate and build trust with immigrant communities result in

14

positive criminal enforcement and safety outcomes”). Thus, while California may disagree with the

15

substance of the federal policy choices embodied by the challenged conditions, the undeniable

16

relationship between these subjects is evident from the State’s own arguments. 6

17

In sum, the challenged conditions relate only to aliens who are under detention and who

18
19
20
21
22
23
24
25
26
27

5

See, e.g., 8 U.S.C. § 1226(a), (c) (authorizing detention of criminal alien during removal proceedings and
requiring detention for certain criminal aliens); id. § 1231 (providing for continued detention during removal
period); id. § 1357(g) (providing for formal agreements under which local officers may perform specified
immigration functions relating to the investigation, apprehension, or detention of aliens); id. § 1324(c)
(authorizing state and local officers to make arrests for violations of INA’s prohibition against smuggling,
transporting, or harboring aliens); id. § 1252c (authorizing state and local officers to arrest certain felons who
have unlawfully returned).

6

Further, insofar as California’s argument that immigration enforcement cannot bear even “some
relationship” to criminal justice relies on the civil nature of the former, see Opp. at11, this argument fails
to account for the federal Sex Offender Registration and Notification Act (“SORNA”), 34 U.S.C. § 20901 et
seq., which is also “a civil regulatory scheme rather than a criminal one.” United States v. Elkins, 683 F.3d
1039, 1044-45 (9th Cir. 2012). Yet notwithstanding SORNA’s civil nature, a state’s compliance with the
same is directly tied to its entitlement to its full allotment of Byrne JAG funding. 34 U.S.C. § 20927(a); see,
e.g., United States v. Kebodeaux, 570 U.S. 387 (2013) (observing with approval that SORNA “used
Spending Clause grants to encourage States to adopt its uniform definitions and requirements.”). The
relatedness inquiry under the Spending Clause thus plainly allows for the linkage of civil and criminal
subject areas.

28

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Case 3:17-cv-04701-WHO Document 83 Filed 02/06/18 Page 15 of 25

1

have either committed crimes or are suspected of having committed crimes. State and local

2

cooperation with the Federal Government through the provision of basic information and access

3

allows for effective enforcement of federal immigration law against aliens who are criminals or

4

suspected criminals—and thus makes communities safer. The challenged conditions thus directly

5

advance the purposes of the Byrne JAG Program, and easily clear the low bar of bearing “some

6

relationship” to the Program’s purposes. Mayweathers, 314 F.3d at 1067.

7
8
9

C.

Plaintiff’s APA Claims Must Be Dismissed for Additional Reasons
1.

The APA Claims Do Not Challenge Final Agency Action

“[T]he Administrative Procedure Act does not provide judicial review for everything done

10

by an administrative agency.” Invention Submission Corp. v. Rogan, 357 F.3d 452, 459 (4th Cir.

11

2004) (citation omitted). One limitation, which is jurisdictional in nature, is that “[t]o obtain

12

judicial review under the APA, [a plaintiff] must challenge a final agency action.” Or. Nat. Desert

13

Ass’n v. U.S. Forest Serv., 465 F.3d 977, 982 (9th Cir. 2006) (citing 5 U.S.C. § 704). As a

14

preliminary matter, “[f]or there to be ‘final’ agency action, there must, of course, be ‘agency

15

action,’” as defined by 5 U.S.C. § 551(13). Impro Prods., Inc. v. Block, 722 F.2d 845, 848-49

16

(D.C. Cir. 1983). Once an appropriate “agency action” is identified, finality is reached only when

17

the action in question (1) “marks the consummation of the agency’s decisionmaking process,”

18

and (2) is “one by which rights or obligations have been determined, or from which legal

19

consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations omitted).

20

California fails to identify an “agency action” within the meaning of the APA, much less

21

one that is “final.” As relevant here, the APA defines “agency action” as “the whole or a part” of,

22

inter alia, agency “relief … or [the] denial thereof,” 5 U.S.C. § 551(13), and “relief,” in turn, as

23

including an agency “grant of money [or] assistance …,” id. § 551(11)(A). In comportment with

24

these definitions, the Ninth Circuit has held that in the context of agency grant-making in

25

particular, “the congressional appropriation to [an agency] of funds for a particular project does

26

not constitute a final agency action by the [agency] until the [agency] has reviewed a grant

27

application and decided to disburse the funds.” Rattlesnake Coal. v. EPA, 509 F.3d 1095, 1103-

28

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3
4
5
6
7
8
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12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

04 (9th Cir. 2007) (emphasis added). As there is no dispute that DOJ has not yet determined
whether to grant FY 17 Byrne JAG funds to California, or deny its pending application, it follows
that there is, as of yet, no final agency action for this Court to review.
California responds that “by requiring the [state’s] chief legal officer to certify compliance
under penalty of perjury with the Section 1373 condition, and the [state] to certify compliance
with all three conditions … Defendants have committed to a view that requires California to act.”
Opp. at 14-15. However, as the Ninth Circuit recently explained, this argument “confuses the
issue of whether an agency action is final with that of whether a case is ripe for judicial review.”
San Francisco Herring Ass’n v. U.S. Dep’t of Interior, 683 F. App’x 579, 581 (9th Cir. 2017)
(explaining that an interlocutory step in an ongoing administrative process may require an entity
to make “‘an immediate and significant change in [its] conduct of [its] affairs with serious
penalties attached to noncompliance’” and yet not be “final” for purposes of APA review)
(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 153 (1967)). Similarly, although California is
correct that the “practical effects” of an agency decision can be relevant to the “final agency
action” analysis, see Opp. at 14 (citing Columbia Riverkeeper v. U.S. Coast Guard, 761 F.3d
1084, 1094-95 (9th Cir. 2014)), where, as here, “the practical effect of the agency action is not a
certain change in the legal obligations of a party, the action is non-final for the purpose of
judicial review.” Nat’l Ass’n of Home Builders v. Norton, 415 F.3d 8, 15 (D.C. Cir. 2005)
(emphasis added); see also, e.g., Holistic Candlers & Consumers Ass’n v. FDA, 664 F.3d 940,
941-946 (D.C. Cir. 2012) (FDA letters requesting that the plaintiffs cease, on potential penalty of
“regulatory action,” the marketing and distribution of certain products which the FDA considered
to be misbranded medical devices was not “final agency action”); City of San Diego v. Whitman,
242 F.3d 1097, 1102 (9th Cir. 2001) (EPA letter providing requested opinion on whether it would
apply certain conditions to a permit application had no legal consequences).
In sum, it is for good reason that “[t]he propriety of an agency’s action is reviewed after
the final administrative decision.” Commodity Futures Trading Comm’n v. Monex Deposit Co.,
824 F.3d 690, 692 (7th Cir. 2016) (citation omitted). “The principal purpose of the APA[’s]
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1

limitations . . . is to protect agencies from undue judicial interference with their lawful discretion,

2

and to avoid judicial entanglement in abstract policy disagreements which courts lack both

3

expertise and information to resolve.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 66 (2004).

4

“[T]he effect of the judicial review sought by [California] is likely to be interference with the

5

proper functioning of the agency and a burden for the courts.” FTC v. Standard Oil Co. of Cal.,

6

449 U.S. 232, 242 (1980); id. at 243 (cautioning that APA review is not “a means of turning

7

prosecutor into defendant before adjudication concludes”). California’s APA claims falter on this

8

threshold ground, apart from the failure of those claims on their merits.

9
10

2.

The Challenged Conditions Are Not Arbitrary or Capricious

It is well-established that when a court reviews an agency’s action under the “arbitrary or

11

capricious” standard, it is “required to be highly deferential,” and to “presum[e] the agency action

12

to be valid” as long as it is supported by a rational basis. Providence Yakima Med. Ctr. v.

13

Sebelius, 611 F.3d 1181, 1190 (9th Cir. 2010) (citation omitted). Thus, in an APA action, the

14

burden is on the plaintiff to show that the challenged action is arbitrary and capricious, not on the

15

defendant agency to disprove the plaintiff’s claim. See Pierce v. SEC, 786 F.3d 1027, 1035 (D.C.

16

Cir. 2015); Quechan Tribe of Ft. Yuma Indian Reservation v. U.S. Dep’t of the Interior, 927 F.

17

Supp. 2d 921, 928 (S.D. Cal. 2013), aff’d, 673 F. App’x 709 (9th Cir. 2016). The APA standard

18

of review is “narrow,” and does not authorize a district court “to substitute its judgment for that of

19

the agency.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).

20

The challenged conditions easily meet this standard. As detailed above, Congress

21

established the Byrne JAG Program to further “criminal justice”-related purposes, 34 U.S.C. §

22

10152(a)(1), broadly defined, id. § 10251(a)(1). And, as also explained above, such purposes are

23

rationally advanced by facilitating federal access to aliens who have violated, or are suspected of

24

violating, state or local criminal laws—if for no other reason than that once removed, an alien

25

who has committed a removable criminal offense is undeniably no longer present in this country

26

with the potential to re-offend. See 8 U.S.C. § 1227(a)(2) (providing that a criminal conviction for

27

any of a wide array of criminal offenses renders an alien removable).

28

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Further, the challenged conditions rationally promote interests in “maintain[ing] liaison”

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among tiers of government “in matters relating to criminal justice,” 34 U.S.C. § 10102(a)(2), and

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comport with the intergovernmental cooperation that Congress contemplates in immigration

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enforcement—which cooperation the May 2016 Office of Inspector General (“OIG”) report found

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decidedly lacking in various jurisdictions around the country. Def. RJN, Ex. P at 1-2 n.1 (OIG

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report finding deteriorating local cooperation with “efforts to remove undocumented criminal

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aliens from the United States,” including in California, among other jurisdictions); see also, e.g.,

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8 U.S.C. §§ 1226(d), 1357(g), 1373; Arizona, 567 U.S. at 411-12 (“Consultation between federal

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and state officials is an important feature of the immigration system” and Congress “has

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encouraged the sharing of information about possible immigration violations.”) (citation omitted).

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As the Department explained in its July 25, 2017 “Backgrounder on Grant Requirements,”

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“[i]mproving the flow of information between federal and state law enforcement authorities is

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paramount to ensuring that federal immigration authorities have the information they need to

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enforce the law and keep our communities safe”). Def. RJN, Ex. Q. Thus, the challenged

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conditions have more than a “reasonable basis” and easily satisfy the “deferential and narrow”

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APA standard. Indep. Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000).

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In response, California argues that none of the challenged conditions were incorporated

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into Byrne JAG grants prior to 2016 (the Section 1373 Condition) or 2017 (the Access and Notice

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Conditions). See Opp. at 15. But where the agency action in question represents a shift in policy,

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the agency “need not demonstrate to a court’s satisfaction that the reasons for the new policy are

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better than the reasons for the old one; it suffices that the new policy is permissible under the

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statute, that there are good reasons for it, and that the agency believes it to be better.” FCC v. Fox

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Television Stations, Inc., 556 U.S. 502, 515 (2009) (emphasis omitted). Further, California’s

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additional argument, that certain unidentified “evidence from jurisdictions around the country”

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purportedly demonstrates that “law enforcement policies that collaborate and build trust with

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immigrant communities result in positive criminal enforcement and safety outcomes,” Opp. at 16,

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reflects only a “difference in view” with the Federal Government regarding how best to promote

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public safety. See All. for the Wild Rockies v. Peña, 865 F.3d 1211, 1217 (9th Cir. 2017). While

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California is entitled to its views, its disagreement does not establish a violation of the APA.

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II.

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California’s Claim for a Declaration Regarding its Statutes’ Compliance
with Section 1373 Should Be Dismissed

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A.

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The Claim Regarding Compliance with Section 1373 Is Non-Justiciable
1.

California Lacks Standing to Seek a Ruling Regarding
Any State Statute Other Than the Values Act

Defendants have not withheld or threatened to withhold grant funding based on any
California statute other than the Values Act, Cal. Gov’t Code §§ 7284-7284.12. Thus, there is no
“live controversy” regarding whether any other state statute violates Section 1373 and no foreseeable “injury in fact” arising from Defendants’ application of Section 1373 to any other statutes,
such that California lacks standing to seek a ruling on any statute other than the Values Act. See
Pollution Denim & Co. v. Pollution Clothing Co., 2009 WL 10672270, at *8-10 (C.D. Cal. Feb. 9,
2009); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998). California makes essentially two arguments to the contrary: that the Federal Government has “called out” other California
laws, and that Defendants have asserted that “similar” laws and policies in other jurisdictions
violate Section 1373. Opp. at 17-18. Neither of these arguments establishes a “live controversy”
regarding any California laws other than the Values Act.
California’s assertion that Defendants have “called out” other California laws for noncompliance with Section 1373 is based on very general statements from the Attorney General, the
DOJ Office of Public Affairs, and the Acting Director of Immigration and Customs Enforcement.
See Opp. at 17-18; Am. Compl. ¶¶ 109-110. None of those statements, however, referred to any
specific state statutes, and some of them did not even refer to Section 1373. Moreover, as the State
acknowledges, some of those statements asserted only that California had “laws that potentially
violate[d] 8 U.S.C. § 1373,” Am. Compl. ¶ 110 (emphasis added); see Opp. at 18. A statement
regarding a “potential” violation does not create a live controversy warranting judicial intervention.
California’s references to “similar” laws in other jurisdictions also does not establish

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standing to seek relief regarding California statutes other than the Values Act. Given the specific

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language of Section 1373 and the great variety in the language of the various state and local laws

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regarding cooperation with federal authorities, each such law must be evaluated on its own. Each

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law has its own specific (or general) prohibitions, its own definitions (or lack of definitions), and its

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own exceptions or purported saving clause. Thus, an assertion by Defendants that a “similar” law

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elsewhere violates Section 1373 would not establish a live controversy regarding a given California

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statute, unless the two enactments were identical or very nearly identical.

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2.

California’s Request for a Ruling Regarding the Values Act is Unripe

As to the Values Act, although Defendants have expressed concern that the Act appears to

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violate Section 1373, the parties have not yet completed their discussion on that subject and DOJ

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has not yet issued any final determination that the Act violates Section 1373. Indeed, after

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Defendants filed their motion to dismiss, OJP requested certain documents from the State to

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facilitate that decision, and awaits the State’s response. Pl. RJN, Ex. D. Thus, California’s claim

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regarding the Values Act is constitutionally unripe because it “rests upon contingent future events

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that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S.

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296, 300 (1998) (citation omitted).

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When evaluating ripeness in the context of a statutory challenge, a Court may consider

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“whether the plaintiffs have articulated a ‘concrete plan’ to violate the law in question, whether the

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prosecuting authorities have communicated a specific warning or threat to initiate proceedings, and

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the history of past prosecution or enforcement under the challenged statute.” Id. California argues

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that these factors are met here because the State’s November 13, 2017 letter to OJP, Def. RJN, Ex.

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O, “articulated a clear plan” to violate Section 1373 as understood by Defendants; Defendants

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allegedly “threatened prosecution” against the State in OJP’s initial letter of November 1 (id., Ex.

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N) and in “public statements”; and Defendants “sought to enforce Section 1373 [thirty-five] times

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since October 2017, including against California.” Opp. at 20. The facts indicate, however, that OJP

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has not yet determined whether to initiate “prosecution”—that is, withholding of funds—because of

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the Values Act. And, as discussed, any action that OJP may take regarding the laws of any other

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jurisdiction cannot predict what the agency may decide regarding the laws of California, given the

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almost infinite variety among the laws of different jurisdictions. Indeed, OJP’s most recent letter to

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California, dated January 24, 2018, stated that DOJ “remains concerned that [the State’s] laws,

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policies, or practices may violate section 1373, or, at a minimum, that they may be interpreted or

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applied in a manner inconsistent with section 1373.” Pl. RJN, Ex. D (emphasis added). In short,

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“neither the mere existence of a proscriptive statute [here, Section 1373] nor a generalized threat of

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prosecution [here, the ongoing correspondence between the State and OJP regarding the Values

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Act] satisfies the ‘case or controversy’ requirement,” Thomas v. Anchorage Equal Rights Comm’n,

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220 F.3d 1134, 1139 (9th Cir. 2000) (en banc), and the Values Act claim is constitutionally unripe.

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B.

Alternatively, the Court Should Dismiss California’s Claim for
Declaratory Relief Regarding the Values Act on Its Merits

Section 1373 facilitates the INA’s comprehensive and cooperative plan of first requiring
aliens to serve any criminal sentences imposed by state and local governments, then commencing
federal immigration detention immediately upon conclusion of criminal sentences. See 8 U.S.C.
§§ 1226(c)(1), 1231(a)(1)(B)(iii), (a)(4); see also Preap v. Johnson, 831 F.3d 1193, 1202 (9th Cir.
2016) (Section 1226(c) “governs the full life cycle of the criminal aliens’ detention” including
“specifying the requirements for taking them into custody”), pet. for cert. filed, No. 16-1363 (May
11, 2017). Thus, Section 1373 forecloses “prohibit[ing], or in any way restrict[ing], any government
entity or official from sending to, or receiving from, [federal authorities] information regarding the
citizenship or immigration status … of any individual.” 8 U.S.C. § 1373(a). Contrary to this
congressional plan, the Values Act prohibits state and local law enforcement from using “moneys
or personnel to investigate … persons for immigration enforcement purposes,” including by
“[p]roviding information regarding a person’s release date or responding to requests for notification
by providing release dates or other information unless that information is available to the public, or
is in response to a notification request from immigration authorities” or by “[p]roviding personal
information … about an individual, including, but not limited to, the individual’s home address or
work address unless that information is available to the public.” Cal. Gov’t Code § 7284.6(a).

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A “fundamental canon of statutory construction” is that “the words of a statute must be read

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in their context and with a view to their place in the overall statutory scheme.” Davis v. Michigan

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Dep’t of Treasury, 489 U.S. 803, 809 (1989). Protecting the exchange of information regarding the

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status of aliens with federal immigration authorities ensures that those authorities will be able to

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track the status of such persons and take custody of them, as required by the INA, upon their release

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from state and local custody. Moreover, as California acknowledges, federal immigration author-

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ities presumably already have “definitive information” as to whether any given individual is in the

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United States legally or illegally. Opp. at 24. Thus, limiting Section 1373 to that information would

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render the statute essentially meaningless as applied to the transfer of information from state and

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local authorities to federal authorities. The phrase “information regarding . . . citizenship or

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immigration status” must, therefore, mean something more. And that something more logically

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includes information needed by federal authorities to carry out their responsibilities under the INA

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to take custody of aliens upon their release from criminal detention.

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California also seeks to rely on the Values Act’s purported saving clause, which essentially

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quotes Section 1373, see Cal. Gov’t Code § 7284.6(e); the State argues that that clause “permits

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compliance with all aspects of Section 1373.” Opp. at 23. In light of the State’s arguments in this

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action, however, the California Attorney General obviously reads the language of that clause too

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narrowly, as permitting the disclosure only of an individual’s citizenship or immigration status, and

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nothing more. The saving clause does not, therefore, save the Values Act from violation of Section

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1373, as the federal statute is properly construed.

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Lastly, relying on Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991), California argues that

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Section 1373 “alter[s] the usual constitutional balance between the States and the Federal

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Government,” such that the statute cannot encompass “release dates, home addresses, or other

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information about a person’s identity” unless that congressional intent is “unmistakably clear.”

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Opp. at 25. The situation here is decisively different from that presented in Gregory, however. In

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Gregory, Missouri state judges argued that a state constitutional provision requiring judges to retire

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at age seventy violated the Age Discrimination in Employment Act. 501 U.S. at 455-61. The Court

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Case 3:17-cv-04701-WHO Document 83 Filed 02/06/18 Page 23 of 25

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observed that the authority to “establish a qualification for those who sit as their judges . . . goes

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beyond an area traditionally regulated by the States; it is a decision of the most fundamental sort for

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a sovereign entity.” Id. at 460. In that context, the Court observed, it would not construe a federal

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statute as overriding the State’s will unless that intention were “unmistakably clear.” Id.

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The information covered by Section 1373 is entirely unlike the qualifications of state judges

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involved in Gregory. As Gregory observed, state judges are among the “most important [state]

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government officials.” 501 U.S. at 463. By contrast, Section 1373 covers information regarding

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aliens in the United States, whose admission, conduct, presence, and potential removal are

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quintessentially the responsibility of the Federal Government. See Arizona, 567 U.S. 387.

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Protecting the transmission information regarding such persons to federal immigration authorities,

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far from endangering “the independence of the States,” Gregory, 501 U.S. at 460, merely ensures

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that federal officers can perform their duties. Thus, there is no basis for applying Gregory’s

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“unmistakable clarity” rule here. 7

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III.

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Section 1373 Is Consistent with the Tenth Amendment
Finally, California’s Tenth Amendment challenge to Section 1373 is without merit. Merely

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protecting the transmission of information to federal authorities does not “compel the State[] to

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enact or administer a federal regulatory program” or to “act on the Federal Government’s behalf,”

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Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 575, 620 (2012). But Section 1373 does ensure

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that the Federal Government can carry out its statutory responsibilities to “interrogate any alien or

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person believed to be an alien as to his right to be or to remain in the United States” and to remove

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the alien “upon the order of the Attorney General” after completion of criminal sentences. 8 U.S.C.

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§§ 1227(a), 1228, 1357(a)(1). 8

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California relies primarily on Printz v. United States, 521 U.S. 898 (1997) in attempting to
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Plaintiff also seeks to rely on Steinle v. San Francisco, 230 F. Supp. 3d 994 (N.D. Cal. 2017), regarding
the scope of Section 1373. Opp. at 24 & n.17). The court in that case did not, however, have the advantage
of the Federal Government’s briefing on that issue.
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Courts have rejected a number of Tenth Amendment challenges to federal statutes regulating the handling
of information. See Reno v. Condon, 528 U.S. 141 (2000) (rejecting challenge to requirement that States
disclose certain information on motor vehicle operators); Freilich v. Upper Chesapeake Health, Inc., 313
F.3d 205 (4th Cir. 2002) (rejecting challenge to requirement to share certain information regarding

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Defs.’ Reply Re Motion to Dismiss
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Case 3:17-cv-04701-WHO Document 83 Filed 02/06/18 Page 24 of 25

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show that the Section 1373 Condition violates the Tenth Amendment. Opp. at 27-29. But the State

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ignores crucial differences between this case and the Brady Act, challenged there. As discussed in

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Defendants’ motion, the provisions of the Brady Act at issue in Printz required local law

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enforcement officers to “make a reasonable effort to ascertain within 5 business days whether

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receipt or possession [of a handgun] would be in violation of the law” by conducting research in

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available databases, and to provide a written statement of the reasons for any contrary

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determination. 521 U.S. at 903. Section 1373’s mere bar against prohibiting or restricting the

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exchange of information regarding aliens is in no way comparable to the detailed instructions and

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mandates of the Brady Act. Nor does Section 1373 require state or local agencies to “absorb” any

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appreciable costs. Contra Opp. at 28.
Finally, California asserts that the Values Act does not “selectively restrict[] the exchange of

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confidential information with immigration authorities.” Opp. at 30. In reality, however, the Act is

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expressly and specifically directed at preventing cooperation with federal immigration authorities,

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stating in its “findings,” among other things, that the State’s interests are “threatened when state and

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local agencies are entangled with federal immigration enforcement.” Cal. Gov’t Code § 7284.2(c).

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In short, while Section 1373 does not “commandeer” the States in violation of the Tenth

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Amendment, California itself seeks to commandeer the Federal Government’s constitutional control

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over the admission, conduct, and potential removal of aliens by preventing federal authorities from

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securing the information they need regarding such persons.

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CONCLUSION

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For the reasons set forth above and also in Defendants’ opening memorandum, the Court
should dismiss plaintiff’s First Amended Complaint in its entirety.

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physicians); see also City of New York v. United States, 179 F.3d 29, 34-35 (2d Cir. 1999) (rejecting Tenth
Amendment challenge to Section 1373). California argues that the federal law at issue in Reno “regulate[d]
states as operators of databases and sellers of information in the same manner that Congress regulates
private entities.” Opp. at 29. But Reno expressly declined to address the plaintiffs’ argument that the
Federal Government could “only regulate the States by means of ‘generally applicable’ laws.” 528 U.S. at
151. Rather, Reno held that the statute did not require the State “to enact any laws or regulations” or
otherwise “assist in the enforcement of federal statutes” other than by conveying information. Id.

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Defs.’ Reply Re Motion to Dismiss
No. 3:17-cv-04701-WHO

Case 3:17-cv-04701-WHO Document 83 Filed 02/06/18 Page 25 of 25

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Dated: February 6, 2018

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Respectfully submitted,

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CHAD A. READLER
Acting Assistant Attorney General

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ALEX G. TSE
United States Attorney

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JOHN R. TYLER
Assistant Director

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/s/ Antonia Konkoly

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ANTONIA KONKOLY

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W. SCOTT SIMPSON
Senior Trial Counsel

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Attorneys, Department of Justice
Civil Division, Room 7210
Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, D.C. 20530
Telephone: [phone]
Facsimile: [phone]
E-mail:
[e-mail]

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COUNSEL FOR DEFENDANTS
JEFFERSON B. SESSIONS III, Attorney
General of the United States; ALAN R.
HANSON, Principal Deputy Assistant Attorney
General; and U.S. DEPARTMENT OF JUSTICE

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Defs.’ Reply Re Motion to Dismiss
No. 3:17-cv-04701-WHO