THE CITY OF PHILADELPHIA v. SESSIONS

Filing 138

MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 3/13/18. 3/13/18 ENTERED AND COPIES MAILED, E-MAILED.(ti, ) Modified on 3/13/2018 (ti, ).

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
The City of Philadelphia,
Plaintiff,
v.

CIVIL ACTION

NO. 17-3894

Jefferson Beauregard Sessions III,
Attorney General of the United States,
Defendant.
MEMORANDUM RE: MOTION TO DISMISS
Baylson, J.
I.

March

13

, 2018

Introduction
In this action, Plaintiff City of Philadelphia, which has in place policies that “seek to

foster trust” between immigrants and officers of the City, challenges the recent imposition by
Defendant Jefferson Beauregard Sessions III, Attorney General of the United States, of three
immigration-related funding conditions on receipt of federal law enforcement aid under the
Byrne Justice Assistance Grant (“JAG”) program. (Am. Compl. ¶ 2, ECF 84.)
The City alleges that the Attorney General cannot legally or constitutionally condition
JAG Program funds on 1) requiring federal immigration agents access to City detention facilities
(the “Access Condition”); 2) providing the Department of Homeland Security (“DHS”) at least
48 hours’ advance notice of the date and time of the release of any inmate about whom DHS has
requested such information (the “Notice Condition”); and 3) certifying compliance with 8 U.S.C.
§ 1373 (“Certification Condition”; collectively, the “Challenged Conditions”). The City asserts
the following six counts in its Amended Complaint:

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Count I asserts that the Attorney General acted ultra vires and in violation of the
Administrative Procedure Act by imposing the Challenged Conditions. (Am. Compl. ¶¶ 113–21,
ECF 84).
Count II asserts that the imposition of the Challenged Conditions by the Attorney General
violated the Administrative Procedure Act because the Challenge Conditions contravene the
separation of powers. (Id. ¶¶ 122-31.)
Count III alleges that the Attorney General’s imposition of the Challenged Conditions
constituted arbitrary and capricious agency action in violation of the Administrative Procedure
Act. (Id. ¶¶ 132-35.)
Count IV alleges that the Challenged Conditions are invalid under the Spending Clause
of the U.S. Constitution. (Id. ¶¶ 136-43.)
Count V asserts that the Challenged Conditions unconstitutionally seek to commandeer
City officials into the enforcement of federal immigration law in violation of the Tenth
Amendment. (Id. ¶¶ 144-50.)
Count VI seeks a declaration by this Court that the City is in compliance with 8 U.S.C. §
1373, as constitutionally construed. (Id. ¶¶ 151-57.)
The City also seeks to enjoin the Challenged Conditions, asks this Court to declare that
the Challenged Conditions are unconstitutional, and requests a writ of mandamus requiring the
Attorney General to disburse the City’s fiscal year 2017 Byrne JAG award.
For the reasons stated below, the Court DENIES the Attorney General’s motion to
dismiss the Amended Complaint.

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II.

Background
A. Byrne JAG Program
The following facts are taken as true from the City’s Amended Complaint. (ECF 84.)

The federal funding program at issue in this case is the Edward Byrne Memorial Justice
Assistance Grant Program (the “JAG Program” or the “Byrne Program”), which was formed in
2005 from a merger of the Edward Byrne Memorial Formula Grant Program and the Local Law
Enforcement Block Grant Program. (Id. ¶ 57.) The Byrne JAG Program is a formula grant,
whose authorizing statute, 34 U.S.C. § 10151, et seq., allows states and localities to use grant
awards for a wide variety of purposes, such as personnel, equipment, training, and other criminal
justice needs. (Id. ¶ 59 (citing 34 U.S.C. § 10152.)) Since the Edward Byrne Memorial Justice
Assistance Grant program was created in 2005, the City has applied for, and received, awards
each year. (Id. ¶ 4.) The City plans to use its FY 2017 funds to provide use-of-force training to
officers, support collaborations with inner-city youth, and provide doses of naloxone to
Philadelphia police officers to counteract opioid overdoses. (Id. ¶ 66.)
B. The Challenged Conditions
In 2016, the Office of Justice Programs added a condition on Byrne JAG funds,
applicable to fiscal year 2017 and thereafter, requiring applicant jurisdictions to certify
compliance with 8 U.S.C. § 1373 (the “Certification Condition”).

(Id. ¶¶ 77-79.) 8 U.S.C. §

1373, entitled “Communication between government agencies and the Immigration and
Naturalization Service,” prohibits local government and law enforcement officials from
restricting the sharing of information with federal immigration officials regarding the citizenship
status of any individual as follows:
(a) In General
Notwithstanding any other provision of Federal, State, or local law, a Federal,
State, or local government entity or official may not prohibit, or in any way
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restrict, any government entity or official from sending to, or receiving from, the
Immigration and Naturalization Service information regarding the citizenship or
immigration status, lawful or unlawful, of any individual.
(b) Additional Authority of Government Entities
Notwithstanding any other provision of Federal, State, or local law, no person or
agency may prohibit, or in any way restrict, a Federal, State, or local government
entity from doing any of the following with respect to information regarding the
immigration status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or receiving such
information from, the Immigration and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local
government entity.
(c) Obligation to Respond to Inquiries
The Immigration and Naturalization Service shall respond to an inquiry by a
Federal, State, or local government agency, seeking to verify or ascertain the
citizenship or immigration status of any individual within the jurisdiction of the
agency for any purpose authorized by law, by providing the requested verification
or status information.
Philadelphia certified its compliance with 8 U.S.C. § 1373 on June 22, 2017. (Am. Compl. ¶
11.)
In late July 2017, the Attorney General announced two new conditions on every grant
provided by the JAG Program. (Id. ¶ 5.) The two new conditions require, first, that local
authorities provide federal agents advance notice of the scheduled release from state or local
correctional facilities of certain individuals suspected of immigration violations (the “Notice
Condition”), and, second, that local authorities provide immigration agents with access to City
detention facilities and individuals detained therein (the “Access Condition”). (Id.)
The Office of Justice Programs described the three new conditions applicable to JAG
recipients as follows:
The Notice Condition
A State statute, or a State rule, regulation, policy, or practice, must be in place that
is designed to ensure that, when a State (or State-contracted) correctional facility
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receives from DHS a formal written request authorized by the Immigration and
Nationality Act that seeks advance notice of the scheduled release date and time
for a particular alien in such facility, then such facility will honor such request
and—as early as practicable—provide the requested notice to DHS.
The Access Condition
A State statute, or a State rule, regulation, policy, or practice, must be in place that
is designed to ensure that agents of the United States acting under color of federal
law in fact are given access to any State (or State-contracted) correctional facility
for the purpose of permitting such agents to meet with individuals who are (or are
believed by such agents to be) aliens and to inquire as to such individuals' right to
be or remain in the United States.
The Certification Condition
The applicant local government must submit the required “Certification of
Compliance with 8 U.S.C. § 1373” (executed by the chief legal officer of the local
government).
(Award Letter to Greenville, SC at ¶¶ 52, 55, ECF 21-6.)
C. Philadelphia Policies
Philadelphia has a number of policies in place intended to “engender trust with the City’s
immigrant community” that are relevant to this case and the Challenged Conditions. (Am.
Compl. ¶ 24.)
1. Police Department Memorandum 01-06
In 2001, the Philadelphia Police Department issued a memorandum prohibiting its
officers from unnecessarily disclosing individuals’ immigration status, subject to three
exceptions: “(1) required by law, or (2) the immigrant requests, in writing, that the information
be provided, to verify his or her immigration status, or (3) the immigrant is suspected of
engaging in criminal activity, including attempts to obtain public assistance benefits through the
use of fraudulent documents.” (Mem. 01-06 at 1-2, ECF 1-3.) Memorandum 01-06 states also
that “[t]he Philadelphia Police Department will continue to cooperate with federal authorities in
investigating and apprehending immigrants suspected of criminal activities. However,

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immigrants who are victims of crimes will not have their status as an immigrant transmitted in
any manner.” (Id. at 2.)
2. “Confidentiality Order”
In 2008, then-mayor Michael Nutter signed the “Confidentiality Order,” Executive Order
08-09, which prevents city officers outside of law enforcement from “inquir[ing] about a
person’s immigration status unless: (1) documentation of such person’s immigration status is
legally required for the determination of program, service or benefit eligibility or the provision of
services; or (2) such officer or employee is required by law to inquire about such person’s
immigration status.” (Exec. Order 08-09 at 2, ECF 1-4.) With respect to law enforcement, the
Confidentiality Order states that “Law enforcement officers shall not:
…
(2) inquire about a person’s immigration status, unless the status itself is a
necessary predicate of a crime the officer is investigating or unless the status is
relevant to identification of a person who is suspected of committing a crime
(other than mere status as an undocumented alien);
(3) inquire about the immigration status of crime victims, witnesses, or others
who call or approach the police seeking help; or
(4) inquire regarding immigration status for the purpose of enforcing immigration
laws.
(Id.) The following section ordered law enforcement officers “to cooperate with state and federal
authorities in investigating and apprehending individuals who are suspected of criminal activity.”
(Id.)
3. Executive Order 5-16
In 2016, Mayor James F. Kenney signed Philadelphia Executive Order No. 5-16, which
outlined the circumstances under which Philadelphia prison facilities honor requests to hold
inmates pending immigration proceedings. Executive Order 5-16 states in Section 1:

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No person in the custody of the City who otherwise would be released from
custody shall be detained pursuant to an ICE civil immigration detainer request
pursuant to 8 C.F.R. § 287.7, nor shall notice of his or her pending release be
provided, unless such person is being released after conviction for a first or
second degree felony involving violence and the detainer is supported by a
judicial warrant.
(Exec. Order 5-16 at 1-2, ECF 1-6.)

A subsequent memorandum issued to the Prisons

Commissioner clarified that “the Department of Prisons is directed to cooperate with all federal
agencies, including ICE, when presented with a judicial warrant,” irrespective of whether “such
person is being released from custody after conviction for a first or second degree felony
involving violence.” (Am. Compl. ¶ 47).
4. ICE Interview Protocol
In 2017, the Philadelphia Department of Prisons implemented a new policy allowing ICE
to interview inmates only if the inmate consents in writing. (Id. ¶ 52.) When ICE seeks to
interview a prisoner, the Philadelphia Department of Prisons provides a consent form informing
the inmate that “ICE interviews are voluntary”; “[y]ou have the right to remain silent”; “[y]ou
may request to have an attorney present during any interview”; and “[i]f you are already in
removal (deportation) proceedings, you have the right to have your immigration lawyer present
during any questioning.” (Id.; ICE interview consent form, ECF 1-8.)
5. Participation in Federal Databases
Philadelphia law enforcement employ several case management databases visible to or
managed by federal law enforcement agencies, which “provide[] the federal government notice
about—and identifying information for—persons stopped, detained, arrested, or convicted of a
crime in the City.” (Am. Compl. ¶ 55.) The federal government, in turn, “can use information
derived from those databases to obtain knowledge about undocumented persons of interest in the
City.” (Id.) Shared databases include the Preliminary Arraignment Reporting System (PARS),
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the Automated Fingerprint Information System (AFIS), and the National Crime Information
Center (NCIC).

(Id.)

The City asserts that ICE generates detainer requests based on the

information used in AFIS, which is maintained by the FBI. (Id. ¶ 56.)
III.

Procedural History
On August 30, 2017, the City filed a six-count Complaint in this Court (ECF 1). On

September 28, 2017, the City filed a Motion for Preliminary Injunction (ECF 21). The Attorney
General responded to the City’s Motion on October 12, 2016 (ECF 28) and the City replied on
October 19, 2017 (ECF 46). Several amicus briefs were filed in support of the City’s Motion for
a Preliminary Injunction (Brief of County of Amici Curiae Santa Clara et al., ECF 45; Brief of
Amici Curiae Philadelphia Social and Legal Services Organizations, Philadelphia ECF 49; Brief
of Amici Curiae Administrative Law, Constitutional Law, and Immigration Law Scholars, ECF
50; Brief of Amici Curiae ACLU, et al., ECF 52).
This Court held an evidentiary hearing on the Motion for Preliminary Injunction on
October 26, 2017, during which testimony was received from multiple City officials. Oral
argument on the Motion for Preliminary Injunction occurred on November 2, 2017.

On

November 15, 2017, this Court issued a memorandum and order granting the requested
Preliminary Injunction. (ECF 74, 75.) The memorandum concluded that the City was likely to
succeed in its claims that the Challenged Conditions are unconstitutional under the Spending
Clause, the Tenth Amendment, and general principles of federalism. Additionally, this Court
concluded that the City had demonstrated that it was likely to succeed in proving that it is in
substantial compliance with Section 1373, and as such, can properly certify its compliance with
the Byrne JAG condition requiring as much. As a result, this Court issued an order preliminarily
enjoining the Attorney General from rejecting the City’s application for FY 2017 Byrne JAG
funding, or withholding any FY 2017 Byrne JAG funding from the City on the basis of lack of
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compliance with Section 1373. The Attorney General appealed the Preliminary Injunction to the
Third Circuit on January 16, 2018 (ECF 86), which appeal is now pending.
The City filed an Amended Complaint on January 8, 2018 (ECF 84), stating six causes of
action:
I.

Violation of the Administrative Procedure Act through Ultra Vires conduct not
authorized by Congress in the underlying statute;

II.

Violation of the Administrative Procedure Act through violation of the Constitution’s
separation-of-powers;

III.

Violation of the Administrative Procedure Act through arbitrary and capricious
agency action;

IV.
V.
VI.

Violation of the Spending Clause;
Violation of the Tenth Amendment by Commandeering;
Seeking an order that Philadelphia Complies with 8 U.S.C. § 1373 under the
Declaratory Judgment Act.

This Court appointed the Honorable David R. Strawbridge, United States Magistrate Judge, to
serve as a Master in this case under Fed. R. Civ. P. Rule 53, on January 18, 2018 (ECF 88).
On February 2, 2018, the Attorney General filed a Motion to Dismiss all six Counts of
the Amended Complaint (ECF 102). The City responded on February 16, 2018 (ECF 119), and
the Attorney General replied on February 28, 2018 (ECF 130). An amicus brief was filed by the
States of New York, et al. in support of the City’s Opposition to the Motion to Dismiss (ECF
126). 1

1

Litigation over the legality of so-called “sanctuary” jurisdictions is ongoing nationwide. In addition to the Chicago
litigation described in the Court’s memorandum regarding the preliminary injunction, the State of California, also a
Byrne JAG recipient, seeks a declaration that 8 U.S.C. § 1373, as construed by DOJ, is unconstitutional and an
injunction against the Compliance Condition. On March 5, 2018, a judge of the U.S. District Court for the Northern

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IV.

Legal Standard
In considering a motion to dismiss under Rule 12(b)(6), “we accept all factual allegations

as true [and] construe the complaint in the light most favorable to the plaintiff.” Warren Gen.
Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (internal quotation marks and citations
omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, (2007)). While
courts generally may not consider matters outside the pleadings when ruling on a motion to
dismiss, “[a] limited exception exists for documents that are ‘integral to or explicitly relied upon
in the complaint.’” W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 97 n.6 (3d Cir.
2010). See also Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196
(3d Cir. 1993) (“[t]o decide a motion to dismiss, courts generally consider only the allegations
contained in the complaint, exhibits attached to the complaint and matters of public record”).
When considering a defendant’s motion to dismiss under Rule 12(b)(1) for lack of
subject matter jurisdiction, a court “treat[s] the allegations in the complaint as true and draw[s]
all reasonable inferences in favor of the plaintiff.” Plains All Am. Pipeline L.P. v. Cook, 866
F.3d 534, 538 (3d Cir. 2017) (citing NE Hub Partners, L.P. v. CNG Transmission Corp., 239
F.3d 333, 341 (3d Cir. 2001)).

District of California declined to issue a preliminary injunction, ruling that “the record [was] not sufficient at this
stage to determine that State has shown a likelihood of success on the merits” and the State had not shown
irreparable harm. State ex rel. Becerra v. Sessions, No. 17-CV-04701-WHO, 2018 WL 1156774, at *16 (N.D. Cal.
Mar. 5, 2018). Two days later, on March 7, 2018, the Attorney General announced a lawsuit against the State of
California, alleging that several immigration-related state laws are preempted by federal law. See, Press Release,
“Justice Department Files Preemption Lawsuit Against the State of California to Stop Interference with Federal
Immigration Authorities” (Mar. 7, 2018): https://www.justice.gov/opa/pr/justice-department-files-preemptionlawsuit-against-state-california-stop-interference

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V.

Discussion
A. Ripeness
The Attorney General asserts that all Counts in the Amended Complaint should be

dismissed on the basis that they are not ripe for this Court’s consideration. Because this attack is
lodged against all Counts in the Amended Complaint, we address it first.
In order for an APA challenge to be ripe for judicial review the challenged agency action
must 1) “mark the ‘consummation’ of the agency’s decisionmaking process” and 2) “be one by
which ‘rights or obligations have been determined,’ or from which ‘legal consequences will
flow.’” Ocean Cty. Landfill Corp. v. U.S. E.P.A., Region II, 631 F.3d 652 655 (3d Cir. 2011)
(quoting Bennett v. Spear, 520 U.S. 154, 177-178 (1997)).
The Attorney General asserts that the Amended Complaint fails to identify any “final
agency action” for this Court to review, a requirement for judicial review under the
Administrative Procedure Act (APA). (Def. Br. in Support of Mot. to Dismiss (“Def. Br.”) at 9,
ECF 102.) The Attorney General asserts that DOJ has not yet made a decision in response to the
City’s FY 2017 Byrne JAG funding application, and as such could not possibly have imposed
conditions on the grant of an award that has not yet been granted. (Id.)
The City argues that the first requirement is met by the allegations that the Challenged
Conditions were included in the JAG award to Greenville, South Carolina, which the DOJ
represented in the Chicago litigation would provide the terms for every FY 2017 JAG grant, and
that the DOJ represented at oral argument in this Court that it will not grant Philadelphia a JAG
award until the Chicago appeal is “resolved.” (Pl. Br. in Op. to Def.’s Mot. to Dismiss (“Pl. Br.”)
at 11, ECF 119.) As to the second requirement, the City argues that as a result of the DOJ’s
imposition of the Challenged Conditions the City must either certify compliance or forgo the
grant, which constitutes a legal consequence. (Id. at 12.)
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The City has alleged facts to properly make out final agency action on the part of the
DOJ in imposing the Challenged Conditions on the FY 2017 at the Motion to Dismiss stage. The
Amended Complaint alleges that prior to the application deadline for FY 2017 Byrne JAG grants
the DOJ publicly announced that all grant recipients must comply with all three of the
Challenged Conditions—the Section 1373 condition, the advance notification condition, and the
jail access condition. (Am. Compl. ¶¶ 92, 97.) The Amended Complaint further alleges that if it
is required to comply with these conditions as the DOJ construes them in order to receive its
grant money, the City will have to significantly alter its policies, to the detriment of public health
and safety. (Am. Compl. ¶ 107. )
As this Court observed in the Preliminary Injunction Memorandum, the Attorney
General’s decision to impose the conditions “represents the agency’s definitive position on the
question,” such that it is now “final” and ripe for this Court’s review. Univ. of Med. & Dentistry
of N.J. v. Corrigan, 347 F.3d 57, 69 (3d Cir. 2003); see Abbott Labs. v. Gardner, 387 U.S. 136,
149 (1967).
Finding that the City has properly alleged at the Motion to Dismiss stage that this
controversy and all six Counts are ripe for our consideration, we now turn to an evaluation of the
viability of each Count.
B. Count I: Violation of the Administrative Procedure Act through Ultra Vires conduct
not authorized by Congress in the underlying statute
Count I asserts that DOJ’s imposition of the Challenged Conditions violated the
Administrative Procedure Act as ultra vires conduct not authorized by Congress in the Byrne
JAG statute, which establishes the Byrne JAG program as a formula grant. (Am. Compl. ¶¶ 11321, ECF 84.) The APA commands courts “hold unlawful and set aside agency action, findings,
and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in
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accordance with law” 5 U.S.C. § 706(2)(A), and the City seeks injunctive, declaratory, and
mandamus relief for the Attorney General’s ultra vires conduct.
The positions of the parties in the briefing on the motion to dismiss largely mirror the
arguments made at the preliminary injunction phase.
The Attorney General argues that pursuant to 34 U.S.C. § 10110(2), the Attorney General
possesses “final authority over all functions, including any grants, cooperative agreements, and
contracts made, or entered into, for the Office of Justice Programs,” which is headed by an
Assistant Attorney General pursuant to 34 U.S.C. § 10101; in turn, the Assistant Attorney
General overseeing the Office of Justice Programs may “exercise such other powers and
functions as may be vested in the Assistant Attorney General pursuant to this chapter or by
delegation of the Attorney General, including placing special conditions on all grants, and
determining priority purposes for formula grants.” 34 U.S.C. § 10102(a)(6).
The Attorney General locates an additional source of support for the Certification
Condition in the Byrne JAG statute itself, which requires that applications from jurisdictions
seeking funding shall include a certification that “the applicant will comply with all provisions of
this part and all other applicable Federal laws.” 34 U.S.C. § 10153(a)(5)(D) (emphasis added).
The Attorney General considers 8 U.S.C. § 1373 to be an applicable federal law, making
certification of compliance authorized by the Byrne JAG statute.
The City responds that the Byrne JAG program is a formula-based award rather than a
discretionary program, and neither 34 U.S.C. § 10102(a)(6) nor 34 U.S.C. § 10153(a)(5)(D)
grants authority to the Attorney General to impose additional conditions on Byrne JAG awards.
Specifically, the City considers the ability of the Assistant Attorney General, pursuant to 34
U.S.C. § 10102 (a)(6), to “plac[e] special conditions on all grants, and determin[e] priority

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purposes for formula grants” not to create an independent source of authority for the Attorney
General to impose conditions of his choosing in the absence of any Congressional delegation of
authority to the Attorney General or independent source of authority elsewhere in Chapter 101
for the Assistant Attorney General to impose the Challenged Conditions. The City considers the
phrase “all other applicable Federal laws” in 34 U.S.C. § 10153(a)(5)(D) as referring only to
federal grantmaking laws, which would not include 8 U.S.C. § 1373; thus, conditioning Byrne
JAG awards on certifying compliance with 8 U.S.C. § 1373 is not authorized by statute.
Taking all the facts in the Amended Complaint as true, the Court concludes, as it did in
its memorandum regarding the preliminary injunction, that 34 U.S.C. § 10102 (a)(6) is not a
source of statutory authority for the Challenged Conditions for all of the reasons the Court
identified in its earlier memorandum. See City of Philadelphia v. Sessions, 280 F. Supp. 3d 579
at *26-27 (E.D. Pa. 2017). The Attorney General’s attempt in its most recent briefing to invoke
the Attorney General’s “final authority over all functions, including any grants…for the Office of
Justice Programs” under 34 U.S.C. § 10110(2) cannot plausibly be read as a Congressional grant
of authority to the Attorney General to delegate the ability to impose the Challenged Conditions
to the Assistant Attorney General.

Most naturally read, this statutory subsection simply

establishes chains of command at the Department of Justice, with the Attorney General
ultimately accountable for the activities of a subordinate department.
With respect to the issue of whether 34 U.S.C. § 10153(a)(5)(D) allows the Attorney
General to require certification with 8 U.S.C. § 1373, the Court reiterates its earlier discussion
from the memorandum on the preliminary injunction:
The statutory language is far from unambiguous as it applies to the present case,
as it is unclear whether Congress intended to permit the Attorney General to
require certification from JAG Program applicants on “Federal laws” in contexts
beyond the awarding of federal grants…whether the Certification Condition falls
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inside or outside the Attorney General’s Congressionally-delegated authority
turns on the phrase, “all other applicable Federal laws.”
City of Philadelphia v. Sessions, 280 F. Supp. 3d 579 at *29 (E.D. Pa. 2017).
At the preliminary injunction stage, the Court concluded that it was a “close call” as to
whether 8 U.S.C. § 1373 fell within the ambit of the “all other applicable Federal laws” language
of 34 U.S.C. § 10153(a)(5)(D). Sessions, 280 F. Supp. 3d 579 at *29. The City continues to
present an eminently plausible reading of this language, and the Court therefore denies
Defendant Sessions’ motion to dismiss Count I of the Amended Complaint, without deciding the
legal issue.
C. Count II: Violation of the Administrative Procedure Act through violation of the
Separation of powers
Count II asserts that DOJ’s imposition of the Challenged Conditions violated the
Administrative Procedure Act by contravening the separation of powers.
The Attorney General argues that imposition of the Challenged Conditions did not violate
the separation of powers because it was acting pursuant to statutory authority. The City responds
that by “imposing conditions on federal spending that Congress itself has not, the Attorney
General has usurped Congress’ appropriations power.” (Pl. Br. at 24.) The City argues that
imposition of the Challenged Conditions amounts to an unconstitutional refusal to disburse funds
that Congress had already appropriated, in violation of the President’s duty to “take Care that the
Law be faithfully executed,” see U.S. Const. art. II, § 3, cl. 5, and the Presentment Clause of the
U.S. Constitution.
The City’s briefing rests on basic premises of constitutional law: Congress makes the
laws, and the Executive Branch enforces them. Article I of the U.S. Constitution states that
“[t]he Congress shall have Power…to…provide for the…general Welfare of the United States.”

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U.S. Const. art. I, § 8, cl. 1. In turn, the President is obligated to “take Care that the Law be
faithfully executed.” U.S. Const. art. II, § 3, cl. 5.
By establishing the Byrne JAG program, Congress established a formula grant program
for applicant states and localities to receive funds. See 34 U.S.C. § 10156 (establishing formula).
Imposing grant conditions that Congress did not authorize, as discussed above, and denying duly
appropriated funds for failure to satisfy those unilaterally imposed conditions is not the sort of
“faithful[] execut[ion]” of the laws that Article II requires of the Executive. The U.S. Supreme
Court has held that the executive branch cannot withhold Congressional appropriations to states
and localities. See Train v. City of New York, 420 U.S. 35, 44 (1975) (where Congress
appropriated an amount “not to exceed” $5 billion and $6 billion for local sewer maintenance for
fiscal years 1973 and 1974, the president acted improperly in explicitly ordering the EPA to
disburse only $2 billion and $3 billion in those years where statute did not provide such
discretion); see also In re Aiken Cty., 725 F.3d 255, 261 (D.C. Cir. 2013) (“a President
sometimes has policy reasons…for wanting to spend less than the full amount appropriated by
Congress for a particular project or program. But in those circumstances, even the President does
not have unilateral authority to refuse to spend the funds”).
Taking the facts in the Amended Complaint as true, the Court finds that the City has
plausibly stated a claim for an APA violation due to DOJ’s violation of the separation of powers,
and denies the Attorney General’s motion to dismiss Count II.
D. Count III: Violation of the Administrative Procedure Act through Arbitrary and
Capricious Agency Action
In Count III of its Amended Complaint, the City alleges that the imposition of the
Challenged Conditions on the receipt of FY 2017 Byrne JAG funds was arbitrary and capricious,
in violation of the APA.
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Seeking to dismiss Count III, the Attorney General argues that the City has not properly
stated a claim under the APA because the conditions comport with the Spending Clause and are
authorized by statute, and against this background it would be unreasonable to conclude that the
decision to impose them was arbitrary and capricious. (Def. Br. at 15.) Additionally, the
Attorney General asserts that the Department acted rationally in imposing the Challenged
Conditions, and clearly explained its reasoning for doing so. (Def. Br. at 16-17.)
The City responds that they have properly stated a claim that the decision was arbitrary in
that they have alleged three reasons establishing as much: first, the Department’s stated reasons
for imposing the conditions are not borne out by the actual impact of those conditions; second,
the Attorney General has not explained the decision to impose the conditions in light of the
ample evidence that doing so would impede the purpose of the Byrne JAG program; and third,
the Attorney General has failed to explain the shift in the DOJ’s position. (Pl. Br. at 25-27.)
The APA explicitly exempts grants from the statutory rulemaking requirements that
apply to most agency action. 5 U.S.C. § 553(a)(2). Nevertheless, some general procedural
standards apply to agency action relating to grants. Under the APA, courts must “hold unlawful
and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). An agency “must
examine the relevant data and articulate a satisfactory explanation for its action including a
rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass’n
of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotation
omitted); Encino Motorcars, LLC v. Navarro, 136 S.Ct. 2117, 2125 (2016) (“[A]n agency must
give adequate reasons for its decisions.”). An agency rule will be found to be arbitrary and
capricious “if the agency has relied on factors which Congress has not intended it to consider,

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entirely failed to consider an important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency, or is so implausible that it could not
be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs.
Ass’n, 463 U.S. at 43.

Additionally, reversal or alteration of policy that constitutes an

“unexplained inconsistency” can lead to a finding that the new policy is arbitrary and capricious.
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005).
The City alleges that in the spring of 2016 the Inspector General conducted an
investigation into whether jurisdictions that receive DOJ funding were in compliance with
Section 1373, and ultimately produced a report indicating concern with the level of compliance.
(Am. Compl. ¶¶ 75, 76.) Following the report, the Assistant Attorney General announced that in
response to this report the Office of Justice Programs determined that Section 1373 is an
“applicable” federal law under the Byrne JAG program, and that JAG grantees must certify
compliance with Section 1373. (Am. Compl. ¶¶ 77-78.) On April 21, 2017 the DOJ sent a letter
to Philadelphia instructing the City that it must certify compliance with Section 1373 pursuant to
its receipt of funds under the Byrne JAG program in 2016. (Am. Compl. ¶ 83.) The City alleges
that no explanation was given then, or has since been given, for the decision to require Section
1373 compliance. The jail access and advance notification conditions were announced on July
25, 2017. The City alleges that the DOJ did not offer satisfactory explanations for how it arrived
at any of these three conditions, alternatives that were considered, or what purpose of the JAG
program they further. A review of the relevant documents relied on in the Complaint and thus
available for our consideration at the Motion to Dismiss stage confirms that the City has in fact
properly made out its claim that the Attorney General’s decision to impose the Challenged
Conditions was arbitrary and capricious.

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Indeed, the “Backgrounder on Grant Requirements” published by the DOJ identified “the
goal of increasing information sharing between federal, state, and local law enforcement” in
order to “ensur[e] that federal immigration authorities have the information they need to enforce
the law and keep our communities safe,” but failed to specify how the Challenged Conditions
would achieve that end. (ECF 1-1). A July 6, 2017 press release from the DOJ repeated similar
concerns, again without detailing the connection to the Challenged Conditions. (ECF 1-2).
Exchanges on May 31, 2016 and July 7, 2016 between the Inspector General to the Attorney
General’s office are largely descriptive of the investigative process it undertook into several
jurisdictions’ level of compliance with Section 1373, and lack any thorough evaluation of why
requiring compliance would further the purpose of the Byrne JAG program. (ECF 1-10, 11.)
DOJ guidance materials on the imposition of the Challenged Conditions are likewise thin on this
subject. (ECF 1-12, 13, 15, 16.)
At the Motion to Dismiss stage, we cannot say that the City will be unable to establish
that the DOJ has not properly explained its decision to impose the Challenged Conditions, or that
the decision to impose the conditions runs counter to the evidence available to the DOJ, or an
alternative theory that the decision was arbitrary and capricious. Based on the facts alleged,
viewing them in the light most favorable to the City, the Court concludes that the City has
plausibly stated a claim that the challenged conditions are arbitrary and capricious. The Motion
to Dismiss Count III will be denied.
E. Count IV: Violation of the Spending Clause
Count IV asserts that DOJ’s imposition of the Challenged Conditions exceeds the
constitutional limits under the Spending Clause because the Challenged Conditions are “not
‘reasonably related’ or ‘germane[]’ to the federal interest that underlies the Byrne JAG grant

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program.” (Am. Compl. ¶ 138 (quoting South Dakota v. Dole, 483 U.S. 203, 207-08 & n.3
(1987)).)
The Attorney General moves to dismiss Count IV on the ground that the Challenged
Conditions are consistent with the Spending Clause. The Attorney General argues that they are
not ambiguous and that immigration enforcement is related to criminal justice, thus clearing the
constitutional hurdle for Spending Clause legislation under cases such as Koslow v.
Pennsylvania, 302 F.3d 161, 175 (3d Cir. 2002), which requires only a “discernable relationship”
between a funding condition and the federal interest in a program. Citing legislative history
evincing a Congressional desire to allow localities to develop their own solutions to criminal
justice issues, the City argues that the Challenged Conditions, which seek to enforce immigration
law, do not further the purposes of the Byrne JAG program, and impose unconstitutionally
ambiguous requirements on the City. (City Br. at 29-36.)
As with much of the briefing on the motion to dismiss, the parties mostly repeat their
prior positions from the preliminary injunction phase. In its memorandum issued on November
15, 2017, the Court discussed at considerable length the reasons that the City was likely to
succeed on the merits of its challenge to the imposition of the Challenged Conditions as violating
the Spending Clause. The Court began by reviewing some basic principles of Spending Clause
jurisprudence:
Article I, Section 8, clause 1 of the U.S. Constitution grants Congress the “Power
To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and
provide for the common Defence and general Welfare of the United States.” U.S.
Const. art. I, § 8, cl. 1. Article I grants this power to Congress, and Congress
alone. Nothing in Article II of the Constitution provides the Executive with any
independent authority to spend, or withhold, federal funds that Congress has
appropriated. Rather, the Executive is obligated to “take Care that the Laws be
faithfully executed.” U.S. Const. art. II, § 3.

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Congress regularly appropriates money to be paid out to states and localities, and
uses that financial leverage to induce policy changes at the state and local level. In
this way, “Congress may, in the exercise of its spending power, condition its grant
of funds to the States upon their taking certain actions that Congress could not
require them to take.” Coll. Sav. Bank v. Florida Prepaid Postsecondary Educ.
Expense Bd., 527 U.S. 666, 686 (1999); accord Nat’l Fed’n of Indep. Bus. v.
Sebelius, 567 U.S. 519, 576 (2012). The Supreme Court has likened Spending
Clause legislation to a “contract” whereby “in return for federal funds, the States
agree to comply with federally imposed conditions.” Pennhurst State Sch. &
Hosp. v. Halderman, 451 U.S. 1, 17 (1981)).
At the same time, Congress’ power to condition receipt of federal funds is subject
to a number of limitations: “Spending Clause legislation must: (1) pursue the
general welfare; (2) impose unambiguous conditions on states, so they can
exercise choices knowingly and with awareness of the consequences; (3) impose
conditions related to federal interests in the program; and (4) not induce
unconstitutional action.” Koslow v. Commonwealth of Pennsylvania, 302 F.3d
161, 175 (3d Cir. 2002) (citing South Dakota v. Dole, 483 U.S. 203, 207–08, 210
(1987)).
City of Philadelphia v. Sessions, 280 F. Supp. 3d 579 at *45-46 (E.D. Pa. 2017).
In the section that followed, the Court found that no discernable relationship existed
between the federal government’s interest in a formula grant program established to provide
criminal justice funding to localities and the Access and Notice Conditions, but that the
Certification Condition was a closer issue. Id. at *46-50. The Court also found that the Access
and Notice Conditions were not unambiguously imposed by Congress, as would be required
under the Spending Clause, but had been imposed by the Attorney General, and even the
Certification Condition was a closer call, given the multiple possible readings of the “all other
applicable Federal laws” language of 34 U.S.C. § 10153(a)(5)(D). Id. at *52. However, the
Court declined to make a final ruling on the ambiguity issue at the preliminary injunction phase.
Id.
The discussion in the earlier memorandum remains equally applicable at this stage of the
litigation, when the Court is simply evaluating whether the City has stated a claim upon which

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relief may be granted “that is plausible on its face,” which the City most certainly has. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). Taking the allegations in the Amended Complaint as true,
the Court finds that the City has properly stated a claim that the Challenged Conditions violate
the Spending Clause, and accordingly will deny the Attorney General’s motion to dismiss Count
IV.
F. Count V: Tenth Amendment: Commandeering
In Count V, the City alleges that the Challenged Conditions would commandeer City
employees to perform federal functions in violation of the Tenth Amendment, and thus seeks a
permanent injunction against the imposition of these conditions. The Attorney General moves to
dismiss this Count, arguing that because the Challenged Conditions are attached to a grant that
the City is free to decline, the conditions cannot possibly violate the Tenth Amendment. (Def.
Br. at 24.) The Attorney General further argues that the City has put forth a deficient facial
challenge to Section 1373. (Id. at 25-26.) The City does not address the argument that it can
turn down the grant and thus avoid complying with the conditions, but instead responds that it
has properly stated a claim that the Challenged Conditions constitute affirmative commands on
City employees and would therefore commandeer City officers and employees in violation of the
Tenth Amendment. (Pl. Br. at 37.) In addition, the City clarifies that it has not brought a facial
challenge to 8 U.S.C. §1373 itself; rather, the City asserts that it has properly alleged that
applying Section 1373 to the City as the Attorney General interprets it—as a general matter,
rather than requiring compliance under the Certification Condition—would likewise
unconstitutionally commandeer City officers and employees. (Id. at 38-42.)
The Tenth Amendment states: “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the

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people.” U.S. Const. Am. 10. The anti-commandeering doctrine, driven by federalism, has
emerged from this “truism.” United States v. Darby, 312 U.S. 100, 124 (1941). Important
precedents illuminate both the contours of this doctrine, and its relevance to the present case. In
New York v. U.S., the Supreme Court held that a federal statutory provision that required each
state to either provide for the disposal of waste generated within its borders within ten years, or
take title of such waste, is unconstitutional in that it “is inconsistent with the federal structure of
our Government.” New York v. U.S., 505 U.S. 144, 177 (1992). The Court observed that
“[b]ecause an instruction to state governments to take title to waste, standing alone, would be
beyond the authority of Congress, and because a direct order to regulate, standing alone, would
also be beyond the authority of Congress, it follows that Congress lacks the power to offer the
States a choice between the two.” Id. at 176. In Printz v. United States, the Supreme Court held
that several provisions of the Brady Handgun Violence Prevention Act were unconstitutional
because they “purport[ed] to direct state law enforcement officers to participate, albeit only
temporarily, in the administration of a federally enacted regulatory scheme.” Printz v. United
States, 521 U.S. 898, 904 (1997). In Galarza v. Szalczyk the Third Circuit held that federallyissued “immigration detainers do not and cannot compel a state or local law enforcement agency
to detain suspected aliens subject to removal,” and observed that if they did, it “would violate the
anti-commandeering doctrine of the Tenth Amendment.” Galarza v. Szalczyk, 745 F.3d 634,
636 (3d Cir. 2014).
The Access and Notice conditions both impose affirmative obligations on the City. The
Certification condition appears to limit the City’s ability to direct its officials and employees
conduct with respect to federal immigration enforcement. While the conditions are indeed
attached to a federal grant that the City in theory could decline, the City is heavily reliant on

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these grant funds which the City has received, reliably and predictably, following a standard
formula grant application process for years. As the Court observed in the memorandum on the
preliminary injunction, “Philadelphia is faced with a “Hobson’s Choice” between, on the one
hand, complying with a law it credibly believes is unconstitutional, and on the other hand,
foregoing funds it plans to use for life-saving projects.” City of Philadelphia v. Sessions, 280 F.
Supp. 3d 579 at *124 (E.D. Pa. 2017).
The Amici States also cite to a statute, 34 U.S.C. § 10228(a), mentioned in passing by the
City in its opposition to the motion to dismiss but not in the City’s Amended Complaint, which
is relevant to the City’s commandeering challenge. (Br. of State of New York et al. at 13-15,
ECF 126.) 34 U.S.C. § 10228(a) states:
Nothing in this chapter or any other Act shall be construed to authorize any
department, agency, officer, or employee of the United States to exercise any
direction, supervision, or control over any police force or any other criminal
justice agency of any State or any political subdivision thereof.
Id. Amici freely acknowledge the paucity of federal case law construing the language of §
10228(a)—particularly at the appellate level—but nonetheless argue that imposition of the
Challenged Conditions amounts to unlawful “direction, supervision, or control” over
Philadelphia law enforcement efforts.
The Fourth Circuit, in one of only two appellate opinions to have discussed the language
of what is now 34 U.S.C. § 10228(a), noted that the “dominant concern of Congress” in enacting
this language “apparently was to guard against any tendency towards federalization of local
police and law enforcement agencies” and discussed Congress’s “fear that overbroad federal
control of state law enforcement could result in the creation of an Orwellian ‘federal police
force.’”

Ely v. Velde, 451 F.2d 1130, 1136 (4th Cir. 1971) (denying injunction against

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construction of state prison with federal funds, despite the state’s failure to comply with federal
environmental and historic preservation statutes).
The Third Circuit invoked the “congressional policy of forbidding federal ‘direction,
supervision, or control’ of local police departments” in a decision affirming the dismissal of a
complaint by the United States against the City of Philadelphia and various Philadelphia law
enforcement officials for alleged racial discrimination by law enforcement against minority
citizens. United States v. City of Philadelphia, 644 F.2d 187, 204 (3d Cir. 1980) (describing the
need for specificity in pleading to protect local law enforcement from “frivolous and
insubstantial claims” and “burdensome discovery”). The Court added in a footnote that the
language of what is now 34 U.S.C. § 10228 appeared “in the same section that authorizes the
Attorney General to sue to prevent discrimination in the administration of federal funds.” Id. at
204 n.27.

This seldom-applied statute may have significant impact on this case and also

warrants denial of the motion to dismiss.
We cannot at this stage say that the City will be unable to prove that the Challenged
Conditions violate the Tenth Amendment, particularly as they appear to impose the sort of
federal “direction, supervision, or control” that 34 U.S.C. § 10228(a) forbids. The City has put
forth sufficient allegations to survive a Motion to Dismiss the claim that the Challenged
Conditions, if enforced, would unconstitutionally commandeer City officials. The Attorney
General’s Motion to Dismiss Count V will be denied.
G. Count VI: Declaratory Judgment Act: Philadelphia Complies with 8 U.S.C. § 1373
In Count VI, the City seeks a declaratory judgment that its policies are in compliance
with 8 U.S.C. § 1373. The Attorney General argues that the City has not stated a proper cause of
action to seek this declaratory judgment. (Def. Br. at 28.) Additionally, the Attorney General

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asserts that this claim must be dismissed because the City’s own allegations included in the
Amended Complaint demonstrate that their policies violate Section 1373. (Id. at 30-31.) The
City responds that the Attorney General’s position that the City’s policies conflict with Section
1373 is simply the result of a misreading and misrepresentation of the details of those policies.
(Id. at 52-53.) The City argues that the allegations in the Complaint demonstrate that it is at the
very least in substantial compliance with 1373. (Id. at 53-57.)
Under 28 U.S.C. § 2201, “[i]n a case of actual controversy within its jurisdiction…any
court of the United States, upon the filing of an appropriate pleading, may declare the rights and
other legal relations of any interested party seeking such declaration.” “In the declaratory
judgment context, the normal principle that federal courts should adjudicate claims within their
jurisdiction yields to considerations of practicality and wise judicial administration.” Wilton v.
Seven Falls Co., 515 U.S. 277, 288 (1995). Having already determined that this case is ripe
before this Court, the City’s request for a declaratory judgment is appropriate, and we now
conclude that the City has alleged facts sufficient to state a claim for declaratory relief at the
Motion to Dismiss stage. The City’s policies, as alleged, appear to comply with the requirements
of Section 1373.

The City alleges that it has no policy prohibiting the sharing of any

immigration status information. Further, the City is correct that it would be a logical fallacy to
conclude that policies that instruct City officials and employees not to collect immigration status
information in certain contexts violate Section 1373—as the City points out in its Memorandum,
“Philadelphia cannot restrict the sharing of information it does not collect” in the first place.
(Am. Compl. ¶ 154.) The City has made out a proper claim for a declaratory judgment that its
policies are in compliance with 8 U.S.C. § 1373. The Attorney General’s Motion to Dismiss
Count VI will be denied.

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VI.

Conclusion
For the foregoing reasons, Defendant Jefferson Beauregard Sessions, III’s motion to

dismiss is DENIED. An appropriate order follows.

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