Courtesy of James R. Touchstone, Esq.
On September 13, 2018 in the case of City of Los Angeles v. Jefferson B. Sessions, 293 F. Supp. 3d 1087 (C.D. Cal. 2018), the United States District Court for the Central District of California granted the application by the City of Los Angeles (“City”) for a preliminary injunction to enjoin the imposition of new conditions for the approval of a federal grant based on whether cities and states performed certain immigration-related functions.
Codified at 34 U.S.C. sections 10151-10158, the Edward Byrne Memorial Justice Assistance Grant Program (“the Byrne JAG grant”) is a federal grant that provides additional funds for personnel, training, equipment, and other needs to state and local law enforcement. The Byrne JAG grant is a “formula grant,” which means the funds are awarded according to a formula provided by statute based on the state’s population and rate of violent crime. The City of Los Angeles had received more than $1 million in funding each year since 1997 from the Byrne JAG grant.
In 2017, Defendant Attorney General Sessions announced that the Bureau of Justice Assistance (“BJA”) would impose immigration compliance requirements upon Byrne JAG recipients. These requirements would make certain jurisdictions ineligible for Byrne JAG grant funds if they did not change their policies and operations. The announcement declared that, “‘[f]rom now on, the Department will only provide Byrne JAG grants to cities and states that comply with federal law, allow federal immigration access to detention facilities [“Access Condition”], and provide 40 hours’ notice before they release an illegal alien wanted by federal authorities [“Notice Condition”].’”
Earlier in this case in April 2018, the Court had granted the City’s motion for partial summary judgment in challenging Defendants’ use of immigration-related conditions in assessing funding eligibility for another federal grant funding law-enforcement needs, called the COPS Hiring Program grant. Regarding the Byrne JAG grant here, the City of Los Angeles had not changed its policies or operations to comply with the Access and Notice Conditions, and so had not received Byrne JAG funds for fiscal year 2017. The City sought a preliminary injunction to enjoin the Access and Notice Conditions imposed by Defendants upon the Byrne JAG grant.
The Central District Court explained that “a preliminary injunction is ‘an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.’ Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). A party is entitled to injunctive relief upon a showing that: (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in the moving party’s favor, and (4) an injunction is in the public interest. Id. at 20.”
Considering the injunction’s chances of success on the merits, the Court observed that an agency “‘has no power to act . . . unless and until Congress confers power upon it.’ Louisiana Pub. Serv. Comm’n v. F.C.C., 476 U.S. 355, 374 (1986).” While Congress can delegate authority and discretion to the Executive Branch by statute, “if an agency ‘act[s] improperly . . . what they do is ultra vires.’ City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 291 (2013).” The Court then considered whether the Byrne JAG grant as specified in 34 U.S.C. sections 10151-10158 gave the Attorney General the authority to impose the Access and Notice Conditions. The Court noted that if the statutory language was clear, it must be regarded as conclusive.
The Court explained that the statutes granted the Attorney General power to carry out “very limited actions” – determining the form of the grant application (Section 10153(a)), data and record-keeping requirements (Section 10153(a)(4)), and guidelines for program assessment (Section 10152(c)(1)). The Court determined that the Byrne JAG grant statutes nowhere authorized the Department of Justice (“DOJ”) to add immigration conditions like the Access and Notice Conditions at issue in the case. The Court relied upon the prior decision of Chicago v. Sessions concerning the same issues in observing that Congress “did not ‘grant the Attorney General the authority to impose conditions that require states or local governments to assist in immigration enforcement, nor to deny funds to states or local governments for the failure to comply with those conditions.’ City of Chicago v. Sessions, 888 F.3d 272, 284 (7th Cir. 2018).”
The Court additionally explained that Congress designed the Byrne JAG grant as a “formula grant,” and therefore “‘not awarded at the discretion of a state or federal agency, but … awarded pursuant to a statutory formula.’ City of Los Angeles v. McLaughlin, 865 F.2d 1084, 1088 (9th Cir. 1989).” Pursuant to Section 10156(a), the statutory formula for the Byrne JAG grant requires the Attorney General to provide 50% of available funds to each State in proportion to its population, with the remaining 50% to be awarded to each State in proportion to its violent crime rate. The Court reiterated that the Attorney General’s authority regarding Byrne JAG fund distribution was extremely limited and the formula grant characteristic also supported the view that the Attorney General’s discretion was quite restricted with respect to the distribution of Byrne JAG funds.
The Court accordingly found that the Access and Notice Conditions exceeded statutory authority, and that the Attorney General’s attempt to impose such conditions was a violation of the separation of powers doctrine and ultra vires. Accordingly, the City had shown a likelihood of success on the merits pertaining to the Access and Notice Conditions.
The Court next considered the second element of the Winter preliminary injunction test – whether irreparable harm to the City would be likely without injunctive relief. The City argued, among other things, that the Attorney General’s directive left it with having to choose between two harmful choices: either the City must certify compliance with “unconstitutional and unlawful directives that impinge on the City’s sovereignty, damage community trust, and harm public safety, or it will lose congressionally authorized Byrne JAG funding.” See City of Chicago v. Sessions, 264 F. Supp. 3d 933, 950 (N.D. Ill. 2017) (‘[A] “Hobson’s choice” can establish irreparable harm.’).” The City had a longstanding policy of preventing the Los Angeles Police Department from engaging in civil immigration enforcement in order to avoid losing community trust and to avoid undermining public safety. As the Seventh Circuit noted in City of Chicago v. Sessions, some localities could determine that cooperating with the federal government in immigration enforcement matters to secure Byrne JAG funding would harm the community relationships required to identify and solve crimes: “‘The harm to the City’s relationship with the immigrant community if it should accede to the conditions is irreparable.’ City of Chicago, 264 F. Supp. 3d at 950.” The Court here also found that the City had already been irreparably harmed because the Access and Notice Conditions had deprived it of Byrne JAG funding for the 2017 fiscal year, which it otherwise would have been entitled to based upon the statutory formula. The Court thus found the City had demonstrated irreparable harm.
The Court also found that the public interest would be served by issuance of the preliminary injunction because, without it, the City would face the choice of accepting the DOJ’s unlawful conditions or losing substantial funding for law enforcement needs, both of which constituted significant hardships. The Court stated that the public interest was best served by the City not having to choose between weakening its relationships with the immigrant population and losing the Byrne JAG grant funds. While the defendants contended that the Access and Notice Conditions were authorized by federal law and helped “operational efficiency,” the Court reiterated that the Conditions were ultra vires. Moreover, it was “‘always in the public interest’ to issue an injunction to ‘prevent the violation of a party’s constitutional rights.’ Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012).” The Court thus found the balance of equities tipped in the City’s favor as well.
The District Court concluded that the City had made an adequate showing with respect to each of the injunctive elements, and the Court accordingly granted the City’s application for preliminary injunction.
HOW THIS AFFECTS YOUR AGENCY
This decision builds upon the prior decisions by the Seventh Circuit and to this case’s prior grant of partial summary judgment for the COPS Hiring Program grant matter. These decisions rejected the Attorney General’s attempts to condition federal grant eligibility and distribution upon state and local law enforcement compliance with federal immigration requirements. Immigration matters were also discussed in our previous Client Alert Vol. 33, No. 21, in which we discussed United States v. California, 2018 U.S. Dist. LEXIS 112055 (E.D. Cal. July 5, 2018). There, the issue pertained to an asserted conflict between federal immigration enforcement and California’s authority over law enforcement. We recommend working with your department’s legal advisor concerning these complicated issues regarding separation of powers and the limitations imposed by the Tenth Amendment with respect to seeking funding pursuant to these federal grant programs.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at firstname.lastname@example.org.
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 In the context here, ‘ultra vires’ means those federal agency actions that go beyond the powers that Congress conferred to the agency by statute.
 Russello v. United States, 464 U.S. 16, 20 (1983).