9th CIRCUIT AFFIRMS ORDER GRANTING PRELIMINARY INJUNCTION AGAINST DOJ’s USE OF NOTICE AND ACCESS CONDITIONS REGARDING BYRNE JAG GRANT FUNDING

Courtesy of James R. Touchstone, Esq.

On October 31, 2019 in the case of City of Los Angeles v. Barr,[1] the Ninth Circuit Court of Appeals affirmed a District Court order entering a preliminary injunction against the United States Department of Justice (“DOJ”).  The Court concluded that the DOJ lacks statutory authority to require recipients of a formula grant under the Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG”), 34 U.S.C. sections 10151-10158, to comply with Department of Homeland Security (“DHS”) requests for (1) notice of a detained alien’s release date and time and (2) to allow DHS agents access to detained aliens upon request.

Background

Congress established Byrne JAG in 2006 as part of the Violence Against Women and Department of Justice Reauthorization Act of 2005.[2]  Byrne JAG authorized the Attorney General to make grants to state and local governments for “additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice, including for any one or more of” eight programs.  34 U.S.C. section 10152(a)(1).  Congress also established that the Attorney General could make Byrne JAG awards for any purpose that would have been authorized under Byrne JAG’s two predecessor programs, the former Edward Byrne Memorial State and Local Law Enforcement Assistance Programs (“LEAP”) and the Local Government Law Enforcement Block Grants Program (“LGLEBGP”), both of which provided funding to state and local governments for various law-enforcement-related purposes.

Byrne JAG is administered by the Office of Justice Programs (“OJP”), a DOJ department headed by an Assistant Attorney General for OJP that administers a variety of grant programs.  The Assistant AG has responsibility for several grant programs, including Byrne JAG.  The Assistant AG must provide criminal-justice-related information to the public and government entities, coordinate efforts between various government organizations, and fulfill a number of other specified responsibilities.  Moreover, and significant here, the Assistant AG must “exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.”  Id. Section 10102(a)(6) (italics added).

The Attorney General develops and issues rules to carry out the grant program, id. Section 10155, and is also responsible for receiving and reviewing applications, id. Section 10154.  Pursuant to these program development responsibilities, the Attorney General has developed a grant award document that includes a long list of requirements and conditions not explicitly set forth in the Byrne JAG statute itself.  The grant award document warns recipients that the funding is “subject to such conditions or limitations as are set forth on the attached page(s).”  The conditions listed in the grant award document vary from year to year and typically cover a wide variety of subject matter.  Examples of such conditions include implementing specified information sharing requirements, meeting information technology goals, or required participation in various training events or conferences.  The Attorney General must comply by law with general requirements for managing grants, including administrative, cost, and audit requirements.

OJP imposed two new conditions for Byrne JAG funding for fiscal year 2017, both of which were included in the grant award documents.  The first new condition, called the “notice condition,” required a recipient to honor DHS’s requests for advance notice of the scheduled release date and time of any detained alien held in the recipient’s correctional facilities.  The second new condition, the “access condition,” required a recipient to give federal agents access to correctional facilities to meet with detained aliens, or individuals believed to be aliens. The grant award document also stated that these conditions were “an authorized and priority purpose of” the Byrne JAG award and applied “[w]ith respect to the ‘program or activity’ that is funded” by the award, meaning all of the operations of the public entity to which the award was directed.  The 2017 Byrne JAG award document stated that “[f]ailure to comply with any one or more of these award requirements” could result in loss of funding.

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

Following a brief stay pending the Seventh Circuit’s affirmance and subsequent en banc vacatur of a nationwide injunction against the notice and access conditions,[3] the District Court entered a preliminary injunction against DOJ’s use of the notice and access conditions in September 2018. DOJ appealed, arguing that the District Court erred in determining that Los Angeles was likely to succeed on the merits of its claim that DOJ lacked statutory authority to impose the notice and access conditions.

Discussion

On appeal, the DOJ argued that the notice and access conditions were within the Assistant AG’s authority under a 2006 amendment to Section 10102(a)(6) enacted by Congress in the Violence Against Women and Department of Justice Reauthorization Act of 2005, § 1152, 119 Stat. at 3113.  Section 10102(a)(6), as amended now, provides that the Assistant AG must “exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.”  34 U.S.C. section 10102(a)(6) (italics added).  DOJ contended that by amending the statute, Congress gave the Assistant AG the authority to impose notice and access conditions as “special conditions” on Byrne JAG awards and to announce the Attorney General’s determination that such conditions were “priority purposes” of the awards.

As an initial matter, the Ninth Circuit first determined, contrary to Los Angeles’s assertion, that Section 10102(a)(6) must be read as confirming the authority of DOJ to place “special conditions on all grants” and determine “priority purposes for formula grants.”  The Court then addressed the DOJ’s two claims to authority in the matter.

Section 10102(a)(6) Does Not Give DOJ Statutory Authority to Impose Notice and Access Conditions

To address the DOJ’s first claim that its notice and access conditions place “special conditions” on Byrne JAG awards and announce the Attorney General’s determination that such conditions are “priority purposes” of the awards, the Ninth Circuit sought to interpret the meaning of the terms “special conditions” and “priority purposes” in Section 10102(a)(6) as amended.

“Special Conditions”

The term “special conditions” is not defined in the statute.  The Court relied on the dictionary definition, defining the term “special” as “unusual” or “extraordinary,” Special, Black’s Law Dictionary (9th ed. 2009), or “assigned or provided to meet a particular need not covered under established procedures,” Special, Webster’s New Int’l Dictionary (3d ed. 2002).  According to this view of the definition of “special” then, a “special condition” would be applied “to meet a particular need” for carrying out a program that is not covered by established requirements.

The Court noted that in construing specific words in a statute, “we must also look to the ‘language and design of the statute as a whole,’ K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291[] (1988), and read the specific words ‘with a view to their place in the overall statutory scheme.’  Wilderness Soc’y, 353 F.3d at 1060 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)).”  Here, the Court found the interpretation of “special conditions” arising from dictionary definitions consistent with the regulatory backdrop against which Congress enacted both Section 10102(a)(6)’s “including” clause and the Byrne JAG statutes.  At the time, a regulation describing “administrative requirements for grants and cooperative agreements to State and local governments” provided a definition of the term “special conditions.”  See 28 C.F.R. section 66.12 (2006).  The regulation, titled “[s]pecial grant or subgrant conditions for ‘high-risk’ grantees,” provided that if a grantee was “high-risk,” then “special conditions and/or restrictions shall correspond to the high risk condition and shall be included in the award.”  Id. Section 66.12(a)(5).  A grantee could be deemed high risk if it had a history of noncompliance with grant requirements, financial stability issues, or other factors that suggested the grantee’s propensity toward violation of a grant’s terms. Id. Section 66.12(a).  Additionally, the regulation required the awarding agency to inform the grantee of the reasons for the special conditions and identify remedial actions the grantee could take to have the special conditions removed.  Id. Section 66.12(c).  The Court of Appeals determined that this regulatory meaning of “special conditions” presumably informed Congress’s use of the term in Section 10102(a)(6).

The Court also considered other relevant statutory provisions.  Based upon its extensive statutory analysis, the Ninth Circuit determined that this usage suggested that “special conditions” were understood to be individualized requirements included in a specific grant, as set forth in 28 C.F.R. section 66.12(a)(5) (2006).  Otherwise, the auditor would not need to identify the office that issued the condition and engage in consultation on the compliance requirements.

Because “identical words used in different parts of the same act are intended to have the same meaning.” Dep’t of Revenue of Or. v. ACF Indus., 510 U.S. 332, 342 (1994) (internal quotation marks omitted), the Court found that it followed that Congress intended the use of “special conditions” in Section 10102(a)(6) to have the same meaning as it had in Section 10109(a)(2), namely to refer to individualized requirements.  The Court concluded therefore that the inclusion of “placing special conditions on all grants” in Section 10102(a)(6) referred to the power to impose tailored, individualized requirements when necessary, such as when a grantee is “high-risk” pursuant to 28 C.F.R. Section 66.12(a)(5) (2006).

“Priority Purposes”

The Court of Appeals then interpreted Section 10102(a)(6)’s use of the term “priority purposes.”  The Court explained that the Byrne JAG statute in Section 10152(a)(1) establishes that the “purpose” of an award is to “provide additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice,” within various programs proposed by applicants.  The purposes specified in the predecessor grant statutes, LEAP and the LGLEBGP, mentioned quite similar items, and lacked any mention of any reference to detained aliens or immigration.  The Ninth Circuit determined that none of the purposes set forth in Section 10152(a)(1) or the predecessor grant statutes corresponded to DOJ’s requirement that the recipient honor DHS’s requests for advance notice of detained aliens’ release dates or allow federal agents access to correctional facilities to meet with detained aliens.

Considering its interpretation of “special conditions” and “priority purposes,” the Court concluded that Section 10102(a)(6) did not authorize DOJ to require all recipients of Byrne JAG funding to comply with the notice and access conditions. Because the notice and access conditions were inconsistent with these terms’ interpretations, the Court held that DOJ lacked statutory authority to impose them under Section 10102(a)(6).  Therefore, the Ninth Circuit rejected DOJ’s argument that Section 10102(a)(6) provided it the authority to impose the notice and access conditions.

Notice and Access Conditions are Not Proper Exercises of Attorney General’s Authority Under 34 U.S.C. sections 10153(a)(4), (5)

The Ninth Circuit then considered DOJ’s argument that the propriety of the notice and access conditions are supported by provisions in the Byrne JAG statute that authorize the Attorney General to obtain certain information and require coordination with agencies.  See 34 U.S.C. section 10153(a)(4), (5).  According to DOJ, the notice condition is authorized by Section 10153(a)(4), which requires a recipient to report certain programmatic information, and the access condition is authorized by Section 10153(a)(5)(C), which requires a recipient to coordinate with an “affected agenc[y].”

The Court explained that Section 10153(a)(4) requires the applicant to maintain and report information that is financial and “programmatic.”  Although the term “programmatic” is not defined in the statute, the dictionary defined it to mean “of, resembling, or having a program.” Programmatic, Webster’s New Int’l Dictionary (3d ed. 2002).  Section 10152 lists types of “programs” that Byrne JAG may fund, including “[l]aw enforcement programs,” “[p]revention and education programs,” and “[d]rug treatment and enforcement programs.”  34 U.S.C. Section 10152(a)(1).  Given the use of the word “program” elsewhere in the same statutory scheme, the term “programmatic” in Section 10153(a)(4) was best read to refer to a program or programs supported by Byrne JAG funding as outlined in Section 10152(a)(1), such as a particular law enforcement program or drug treatment program.  Accordingly, the Court determined that Section 10153(a)(4) merely required an applicant to maintain and report information relating to the programs funded by a Byrne JAG award.  Because DHS requests for notice of the release of a detained alien did not relate to a program funded by Byrne JAG, the notice condition did not require “programmatic” information under Section 10153(a)(4).

The Ninth Circuit added that the statute indicated yearly reporting requirements because it spoke of the maintenance and reporting of data, records, and information “for each fiscal year covered by an application.” id. Section 10153(a)(4). However, the notice condition’s requirement that a recipient have a policy in place requiring the provision of information to DHS on an ad hoc basis—due whenever DHS requests—was inconsistent with Section 10153(a)(4)’s statutory language.

Looking at the access condition, the Court of Appeals explained that Section 10153(a)(5)(C), which requires a grant recipient to certify that “there has been appropriate coordination with affected agencies,” did not give the Attorney General authority to impose the access condition.  In context, this section required the grant recipient to certify that it has coordinated with the agencies affected by the program to be funded by the Byrne JAG award.  This statutory language, the Court concluded, did not support DOJ’s interpretation that a recipient must coordinate with DHS agents who are not part of a funded program.  Nor did the statutory language (which requires an applicant to certify that “there has been appropriate coordination”) impose an ongoing obligation on the applicant to coordinate with DHS agents throughout the life of the grant, as required under the access condition. Id. Section 10153(a)(5)(C) (emphasis added). Thus, the Court concluded that the access condition was not a proper exercise of the Attorney General’s authority under Section 10153(a)(5)(C).

Because DOJ’s arguments for statutory authority for the power to impose the notice and access conditions were invalid, the conditions were beyond the DOJ’s authority to impose.  Accordingly, the Court affirmed the District Court.

HOW THIS AFFECTS YOUR AGENCY

With this decision, the Ninth Circuit joined the Seventh Circuit in supporting an injunction against the DOJ in its attempts to condition Byrne JAG awards in part on recipient compliance with the notice and access conditions.  Earlier this year, the Third Circuit also rejected the DOJ’s claims to authority to condition Byrne JAG awards on the notice and access requests.  We again recommend working with your department’s legal advisor concerning these complicated ongoing issues regarding separation of powers with respect to these federal grant programs.

As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] City of L.A. v. Barr, 2019 U.S. App. LEXIS 32576 (9th Cir. Oct. 31, 2019).

[2] Pub. L. No. 109-162, § 1111, 119 Stat. 2960, 3094 (2006); see also 34 U.S.C. section 10151(b)(1).

[3] See City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018), reh’g en banc granted in part, opinion vacated in part, No. 17-2991, 2018 U.S. App. LEXIS 21801 (7th Cir. June 4, 2018), vacated, No. 17-2991, 2018 U.S. App. LEXIS 25694 (7th Cir. Aug. 10, 2018).