City and County of San Francisco v. Sessions et al

Filing 78

ORDER DENYING 66 MOTION TO DISMISS by Judge William H. Orrick. (jmdS, COURT STAFF) (Filed on 3/5/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CITY AND COUNTY OF SAN
FRANCISCO,

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United States District Court
Northern District of California

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Plaintiff,
v.

Case No. 17-cv-04642-WHO
ORDER DENYING MOTION TO
DISMISS
Re: Dkt. No. 66

JEFFERSON BEAUREGARD SESSIONS,
et al.,
Defendants.
This case continues the clash between the City and County of San Francisco’s (“the City”)

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sanctuary city policies and the federal defendants’ interpretation of its “broad, undoubted power

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over the subject of immigration and the status of aliens.” U.S. v Arizona, 567 U. S. 387, 394

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(2012). I enjoined the President’s Executive Order 13,768 in County of Santa Clara v. Donald J.

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Trump, 275 F. Supp. 3d. 1196, 1212 (N.D. Cal. 2017), because it purported to give power to the

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Executive to deny eligibility for all federal grants, regardless of their relationship to immigration,

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to any jurisdiction violating the Executive’s interpretation of its powers concerning immigration

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enforcement. This case concerns the City’s eligibility for one federal grant program, the Edward

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Byrne Memorial Justice Assistance Grant (“Byrne JAG”) Program, which the City has historically

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received but appears virtually certain not to receive this year because of the defendants’ differing

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interpretation of 8 U.S.C. § 1373 and how it applies to the condition that grantees comply with all

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applicable laws. The City states claims for declaratory relief that it complies with Section 1373

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and that the defendants are violating the separation of powers and spending clause by their actions.

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The defendants move to dismiss. For reasons similar to their rationale opposing the

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injunction in the Executive Order case and in the motion to dismiss the case filed by the State of

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California concerning its complaint regarding its sanctuary policies, State of California v.

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Sessions, No. 17-4701, Motion to Dismiss (Dkt. 66), the defendants assert that the City lacks

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Article III standing and that the Amended Complaint fails to state a claim. And for reasons

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similar to the ones given in my Orders in those cases, I find that the City has Article III standing

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because it has a well-founded fear of enforcement, injury-in-fact, and ripe claims. See State of

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California, Order Denying Motion to Dismiss, at 1 (N.D.Cal. March 5, 2018); Cnty. of Santa

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Clara, 275 F. Supp. 3d. at 1208-11.
The City has been a primary target of the Trump Administration’s ire over sanctuary city

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policies. On September 5, 2017, the City submitted an application for a FY 2017 Byrne JAG

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grant. First Amended Complaint ¶127 (Dkt. No. 61). The Office of Justice Programs (“OJP”)

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responded with a letter to the City expressing concerns over its “sanctuary city” ordinances and

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United States District Court
Northern District of California

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compliance with Section 1373. Id., Ex. A (Dkt. No. 61-1). The City answered that it believed that

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its ordinances complied with Section 1373; its interpretation of Section 1373 apparently cannot be

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reconciled with the defendants’ interpretation. Id., Ex. C (Dkt. No. 61-3). There is no doubt that

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the Executive will not provide the Byrne JAG grant to San Francisco because of those policies. 1
At this stage, the City has stated legally sufficient claims for relief. With respect to the

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Notice and Access conditions, the reasoning in the orders in City of Chicago v. Sessions and City

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of Philadelphia v. Sessions makes plain that the City has at least stated plausible claims

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concerning them. See City of Philadelphia v. Sessions, No. 17–3894, ––– F.Supp.3d ––––, 2017

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WL 5489476, at *48-49 (E.D. Pa. Nov. 15, 2017) (finding that the Notice and Access conditions

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are not statutorily authorized and the imposition of the conditions implicate constitutional

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concerns); City of Chicago v. Sessions, 264 F.Supp.3d 933, 943 (N.D. Ill. 2017) (holding that the

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Notice and Access conditions exceed statutory authority of Executive Branch and imposition of

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the conditions violated the separation of powers doctrine). This is not to say that the City is likely

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to prevail; I cannot make that determination without a complete record on the novel and weighty

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constitutional issues this case presents. But for purposes of pleading, the claims may proceed and

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The comments of the leaders of the Executive Branch underscore that a case and controversy
exists with respect to these claims. See State of California, Order Denying Amended Motion for
Preliminary Injunction, at 14-15 (N.D. Cal. March 5, 2018) (detailing comments from the Acting
Director of ICE, the Attorney General and the President).
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defendants’ motion is DENIED.
The parties are directed to meet and confer and agree to the extent possible on a schedule

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for discovery and cross-motions for summary judgment. A Joint Case Management Statement

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shall be filed on March 20, 2018 setting forth either an agreed schedule or competing ones. A

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Case Management Conference will be held on March 27, 2018 at 2 p.m. in the event the parties

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have been unable to agree or that one of the parties wishes to be heard on any other issue in the

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litigation.

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IT IS SO ORDERED.
Dated: March 5, 2018

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United States District Court
Northern District of California

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William H. Orrick
United States District Judge

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