City of Los Angeles v. William Barr ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY OF LOS ANGELES, No. 18-56292
Plaintiff-Appellee,
D.C. No.
v. 2:17-cv-07215-
R-JC
WILLIAM P. BARR, Attorney
General; ALAN R. HANSON, in his
official capacity as Acting Assistant OPINION
Attorney General of the Office of
Justice Programs; RUSSELL
WASHINGTON, in his official
capacity as Acting Director of the
Office of Community Oriented
Policing Services; UNITED STATES
DEPARTMENT OF JUSTICE,
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted April 10, 2019
Pasadena, California
Filed October 31, 2019
2 CITY OF LOS ANGELES V. BARR
Before: Kim McLane Wardlaw, Jay S. Bybee, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta;
Concurrence by Judge Wardlaw
SUMMARY*
Standing / Federal Grants
The panel affirmed the district court’s preliminary
injunction entered against the U.S. Department of Justice
(“DOJ”)’s use of the notice and access conditions imposed on
recipients of Edward Byrne Memorial Justice Assistance
Grant Program (“Byrne JAG”) formula grants.
Byrne JAG authorized the U.S. Attorney General to make
grants to state and local governments for criminal justice
programs. The authorizing statute allowed the Attorney
General to depart from the statutory formula award in certain
circumstances. DOJ’s Office of Justice Programs imposed
two new conditions for Byrne JAG funding for fiscal year
2017: the “notice condition,” which required a recipient to
honor the Department of Homeland Security’s requests for
advance notice of release times of detained aliens in the
recipient’s correctional facilities; and the “access condition,”
which required a recipient to give federal agents access to
correctional facilities to meet with detained aliens, or
individuals believed to be aliens. The City of Los Angeles
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CITY OF LOS ANGELES V. BARR 3
filed this suit against DOJ, seeking an injunction against
implementation of the notice and access conditions.
DOJ first argued that the notice and access conditions
were within the Assistant Attorney General’s authority under
a 2006 amendment to § 10102(a)(6) in the Violence Against
Women and Department of Justice Act of 2005. The panel
rejected Los Angeles’s threshold argument that Congress’s
amendment to § 10102(a)(6) did not give the DOJ any
independent authority or power; and held that § 10102(a)(6)
confirmed DOJ’s authority to place “special conditions on all
grants” and determine “priority purposes for formula grants.”
The panel held that § 10102(a)(6) did not authorize DOJ to
require all recipients of Byrne JAG funding to comply with
the notice and access condition. Specifically, first, the panel
held that the notice and access conditions were not “special
conditions” because they were not conditions triggered by
specific characteristics not addressed by established
conditions. Second, the panel held that priority purposes
must be chosen from among the various possible purposes of
a Byrne JAG award as set forth in § 10152(a). The panel
concluded that because the notice and access conditions met
neither of these definitions, DOJ lacked statutory authority to
impose them under § 10102(a)(6). The panel agreed with
sister circuits that held that § 10102(a)(6) did not give the
Assistant Attorney General broad authority to impose any
condition it chose on a Byrne JAG award.
The panel next rejected DOJ’s argument that the propriety
of the notice and access conditions were further 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. § 10153(a)(4), (5).
First, the panel held that because the Department of
4 CITY OF LOS ANGELES V. BARR
Homeland Security 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 § 10153(a)(4). Second, the panel held that
§ 10153(a)(5)(C), which required 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.
The panel held that because none of DOJ’s proffered
bases for statutory authority gave the Attorney General or the
Assistant Attorney General the power to impose the notice
and access conditions, the conditions were ultra vires.
Judge Wardlaw concurred with the majority to the extent
that it held that the challenged immigration conditions were
not authorized by Congress, and were unlawful. Judge
Wardlaw wrote that everything else that the majority wrote
about 34 U.S.C. § 10102(a)(6) was unnecessary to the
decision, and dicta.
CITY OF LOS ANGELES V. BARR 5
COUNSEL
Jesse Panuccio (argued), Associate Attorney General; Mark
B. Stern, Daniel Tenny, Katherin Twomey Allen, Laura E.
Myron, and Brad Hinshelwood, Appellate Staff; Hashim M.
Mooppan, Deputy Assistant Attorney General; Nicola T.
Hanna, United States Attorney; Joseph H. Hunt, Assistant
Attorney General; Civil Division, United States Department
of Justice, Washington, D.C.; for Defendants-Appellants.
Neema T. Sahni (argued), Mitchell A. Kamin, and Mónica
Ramirez Almadani, Covington & Burling LLP, Los Angeles,
California; David M. Zionts, Ivano M. Ventresca, and
Benjamin L. Cavataro, Covington & Burling LLP,
Washington, D.C.; Michael N. Feuer, City Attorney; James
P. Clark, Chief Deputy City Attorney; Leela A. Kapur,
Executive Assistant City Attorney; Valerie L. Flores,
Managing Senior Assistant City Attorney; Michael Dundas,
Deputy City Attorney; Office of the City Attorney, Los
Angeles, California; for Plaintiff-Appellee.
Margaret L. Carter and Daniel R. Suvor, O’Melveny & Myers
LLP, Los Angeles, California, for Amici Curiae 20 Counties
and Cities, Metropolitan Area Planning Council, and
International Municipal Lawyers Association.
6 CITY OF LOS ANGELES V. BARR
OPINION
IKUTA, Circuit Judge:
This appeal raises the question whether the Department of
Justice (DOJ) can require recipients of a formula grant under
the Edward Byrne Memorial Justice Assistance Grant
Program (Byrne JAG), 34 U.S.C. §§ 10151–10158, to comply
with Department of Homeland Security (DHS) requests for
notice of a detained alien’s release date and time and to allow
DHS agents access to detained aliens upon request. We
conclude that DOJ lacks statutory authority to impose these
conditions on recipients of Byrne JAG formula grants.
I
Congress established Byrne JAG in 2006 as part of the
Violence Against Women and Department of Justice
Reauthorization Act of 2005, Pub. L. No. 109-162, § 1111,
119 Stat. 2960, 3094 (2006); see also 34 U.S.C.
§ 10151(b)(1). 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. § 10152(a)(1). Under this umbrella, eight different
types of “programs” can be funded, including, for example,
“[l]aw enforcement programs,” “[p]rosecution and court
programs,” and “[d]rug treatment and enforcement
programs.” Id.1 Congress also established that the Attorney
1
The eight different types of “programs” include (1) “[l]aw
enforcement programs,” (2) “[p]rosecution and court programs,”
(3) “[p]revention and education programs,” (4) “[c]orrections and
CITY OF LOS ANGELES V. BARR 7
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, both of which provided funding to state and
local governments for various law-enforcement-related
purposes. Id. § 10152(a)(2); see also id. § 10151(b)(1).
Byrne JAG is administered by the Office of Justice
Programs (OJP), a DOJ department headed by an Assistant
Attorney General for OJP (referred to here as the “Assistant
AG”) that administers a variety of grant programs. See id.
§§ 10101, 10110(1).2 The Attorney General has “final
authority over all functions” of OJP, including making grants.
Id. § 10110(2). Under the Attorney General’s final authority,
the Assistant AG has responsibility for several grant
programs, including Byrne JAG. See id. § 10102(a). 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. Id.
community corrections programs,” (5) “[d]rug treatment and enforcement
programs,” (6) “[p]lanning, evaluation, and technology improvement
programs,” (7) “[c]rime victim and witness programs,” and (8) “[m]ental
health programs and related law enforcement and corrections programs.”
34 U.S.C. § 10152(a)(1).
2
The actual administration of Byrne JAG is carried out by the Bureau
of Justice Assistance (BJA), a component organization of OJP. By statute,
a BJA director reports directly to the Assistant AG, see 34 U.S.C.
§ 10141(b), but the majority of the BJA director’s authority has been
transferred directly to the Assistant AG, see Consolidated Appropriations
Act, 2000, Pub. L. No. 106-113, app. A, tit. I, 113 Stat. 1501, 1501A–20
(1999).
8 CITY OF LOS ANGELES V. BARR
§ 10102(a)(1)–(5). Additionally, 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. § 10102(a)(6).
Byrne JAG is structured and administered as a formula
grant program. In a formula grant program, Congress
appropriates a set amount of funding and specifies “how the
funds will be allocated among the eligible recipients, as well
as the method by which an applicant must demonstrate its
eligibility for that funding.” Office of Justice Programs,
Grant Process Overview, http://go.usa.gov/xPmkA (last
visited June 28, 2019). Byrne JAG’s statutory formula
awards fifty percent of allocated funds to states based on their
populations relative to the population of the United States,
34 U.S.C. § 10156(a)(1)(A), and the other fifty percent to
states based on their relative rates of violent crime, id.
§ 10156(a)(1)(B). Once funding has been allocated to a
particular state under the formula, forty percent of that
funding is allocated to local governments within the state,3
while the state itself keeps sixty percent. Id. § 10156(b).
The statute authorizes the Attorney General to depart
from this formula in certain circumstances. For example, the
Attorney General can reserve up to five percent of Congress’s
total allocation if deemed necessary to address a significant
increase in crime or to remedy “significant programmatic
harm resulting from operation of the formula.” Id.
§ 10157(b). The Attorney General can also retain up to
3
Like state applicants, local government applicants receive funding
based on their relative rates of violent crime. 34 U.S.C. § 10156(d)(2)(A).
CITY OF LOS ANGELES V. BARR 9
$20 million for use by the National Institute of Justice to
help local governments upgrade their technology, and
can withhold a separate $20 million to support local
governments’ antiterrorism training programs. Id.
§ 10157(a). Additionally, a number of federal statutes
enacted independently of Byrne JAG provide additional
grounds for withholding funds from an applicant. For
instance, the Attorney General has discretion to make up to
a ten percent reduction of a state’s Byrne JAG award if it fails
to comply with federal reporting requirements for deaths that
occurred in state custody, id. § 60105(c)(2), and must reduce
a state’s award by ten percent if it fails to “substantially
implement” the Sex Offender Registration and Notification
Act, id. § 20927(a).
State and local governments must submit an application
for Byrne JAG funding to the Attorney General, who has
discretion to dictate the application’s form. Id. § 10153(a).
Some requirements for the application are set out by statute.
The application must include specified certifications and
assurances, including assurances that the applicant will
maintain and report “data, records, and information
(programmatic and financial) as the Attorney General may
reasonably require,” id. § 10153(a)(4), and a certification
“made in a form acceptable to the Attorney General” that the
program to be funded meets Byrne JAG’s requirements, the
application’s information is correct, “there has been
appropriate coordination with affected agencies,” and the
applicant will comply with all applicable federal law, id.
§ 10153(a)(5). Additionally, applicants must submit a
“comprehensive Statewide plan” revealing how Byrne JAG
funds “will be used to improve the administration of the
criminal justice system.” Id. § 10153(a)(6).
10 CITY OF LOS ANGELES V. BARR
The Attorney General develops and issues rules to carry
out the grant program, id. § 10155, and is also responsible for
receiving and reviewing applications, id. § 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 spelled out 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. For example, grant award documents have
required recipients to meet specified information sharing and
information technology systems requirements, to comply with
specified policies relating to human research subjects, and to
participate in various training events, technical assistance
events, and conferences. Other conditions have related more
directly to the use of Byrne JAG funds. For instance, the
grant award document provides that recipients can purchase
only certain types of body armor with Byrne JAG funds. The
Attorney General must comply with general requirements for
managing grants, see 2 C.F.R. § 2800.101, including
“administrative requirements, cost principles and audit
requirements,” id. § 200.100(a)(1).
II
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, referred to as 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
CITY OF LOS ANGELES V. BARR 11
facilities.4 The second new condition, referred to as 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.5
4
The notice condition provides:
With respect to the “program or activity” that is funded
(in whole or in part) by this award, as of the date the
recipient accepts this award, and throughout the
remainder of the period of performance for the award –
. . . A local ordinance, -rule, -regulation, -policy, or
-practice (or an applicable State statute, -rule,
-regulation, -policy, or -practice) must be in place that
is designed to ensure that, when a local-government (or
local-government-contracted) correctional facility
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.
5
The access condition provides:
With respect to the “program or activity” that is funded
(in whole or in part) by this award, as of the date the
recipient accepts this award, and throughout the
remainder of the period of performance for the award –
A local ordinance, -rule, -regulation, -policy, or -(or an
applicable State statute, -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 a local-government
(or local-government-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.
12 CITY OF LOS ANGELES V. BARR
The grant award document 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.6 The document defined
“program or activity” by reference to Title VI, a federal civil
rights law prohibiting discrimination on the basis of race,
color, or national origin in any federally assisted program or
activity. 42 U.S.C. § 2000d-4a. In this context, Congress
defined “program or activity” to mean, in relevant part, “all
of the operations of . . . a department, agency, special purpose
district, or other instrumentality of a State or of a local
government,” or of “the entity of such State or local
government that distributes such assistance and each such
department or agency . . . to which the assistance is
extended.” Id. § 2000d-4a(1)(A)–(B). Finally, the 2017
Byrne JAG award document stated that “[f]ailure to comply
with any one or more of these award requirements” can result
in loss of funding.
The City of Los Angeles applied for a Byrne JAG award
for the 2017 fiscal year. Its application included a letter from
6
The grant award document states:
Compliance with these requirements is an authorized
and priority purpose of this award. To the extent that
such costs are not reimbursed under any other federal
program, award funds may be obligated (including for
authorized reimbursements) for the reasonable,
necessary, and allocable costs (if any) of –
(1) developing and putting into place statutes,
ordinances, rules, regulations, policies, and practices to
satisfy this condition, (2) permitting access as described
in [the access condition], and (3) honoring any request
from DHS that is encompassed [in the notice
condition].
CITY OF LOS ANGELES V. BARR 13
its deputy mayor stating that Los Angeles “is withholding any
commitment to, or confirmation of, its compliance with” the
notice and access conditions. On September 29, 2017, Los
Angeles filed suit against DOJ, seeking an injunction against
implementation of the notice and access conditions. In
connection with this lawsuit, Los Angeles stated it had a
policy against cooperating with federal immigration
enforcement on the ground 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, 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 WL 4268817 (7th Cir. June 4, 2018), vacated, No. 17-
2991, 2018 WL 4268814 (7th Cir. Aug. 10, 2018), the district
court entered a preliminary injunction against DOJ’s use of
the notice and access conditions on September 13, 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.
III
We review the district court’s grant of a preliminary
injunction for an abuse of discretion, and we review its
determination of the underlying legal principles de novo. See
DISH Network Corp. v. FCC, 653 F.3d 771, 776 (9th Cir.
14 CITY OF LOS ANGELES V. BARR
2011).7 When an agency is charged with administering a
congressional statute, “both [its] power to act and how [it is]
to act [are] authoritatively prescribed by Congress.” City of
Arlington v. FCC, 569 U.S. 290, 297 (2013). An agency
“literally has no power to act . . . unless and until Congress
confers power upon it.” La. Pub. Serv. Comm’n v. FCC,
476 U.S. 355, 374 (1986).
DOJ advances two possible bases for its statutory
authority to introduce the notice and access conditions.
A
DOJ first argues that the notice and access conditions are
within the Assistant AG’s authority under a 2006 amendment
to § 10102(a)(6) enacted by Congress in the Violence Against
Women and Department of Justice Reauthorization Act of
2005, § 1152, 119 Stat. at 3113.8
7
Although DOJ has stated that it will not enforce the notice and
access conditions while this litigation is pending, see Office of Justice
Programs, FY 2017 and FY 2018 JAG Award Special Notices,
https://ojp.gov/funding/Explore/LegalNotices-AwardReqts.htm (last
visited June 26, 2019), such temporary restraint does not amount to a
voluntary cessation of DOJ’s enforcement of the challenged conditions.
See Fikre v. FBI, 904 F.3d 1033, 1037 (9th Cir. 2018). Therefore, this
case is not moot.
8
Section 10102 is contained in subchapter I of chapter 101. This
subchapter creates OJP, which oversees the management of all grant
programs, both formula and discretionary, including Byrne JAG. (Byrne
JAG is contained in subchapter V of the same chapter.) Section 10102(a)
provides:
The Assistant Attorney General shall –
CITY OF LOS ANGELES V. BARR 15
From its enactment in 1984 and through 2005,
§ 10102(a)(6) provided that the Assistant AG shall “exercise
such other powers and functions as may be vested in the
Assistant Attorney General pursuant to this title or by
delegation of the Attorney General.” See Joint Resolution,
Pub. L. No. 98-473, § 102, 98 Stat. 1837, 2078 (1984). In
2006, Congress amended § 10102(a)(6) to add the phrase
(1) publish and disseminate information on the
conditions and progress of the criminal justice systems;
(2) maintain liaison with the executive and judicial
branches of the Federal and State governments in
matters relating to criminal justice;
(3) provide information to the President, the Congress,
the judiciary, State and local governments, and the
general public relating to criminal justice;
(4) maintain liaison with public and private educational
and research institutions, State and local governments,
and governments of other nations relating to criminal
justice;
(5) coordinate and provide staff support to coordinate
the activities of the Office and the Bureau of Justice
Assistance, the National Institute of Justice, the Bureau
of Justice Statistics, the Office for Victims of Crime,
and the Office of Juvenile Justice and Delinquency
Prevention; and
(6) 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).
16 CITY OF LOS ANGELES V. BARR
“including placing special conditions on all grants, and
determining priority purposes for formula grants” at the end
of the section. See Violence Against Women and Department
of Justice Reauthorization Act of 2005, § 1152, 119 Stat. at
3113. Accordingly, § 10102(a)(6) 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.
§ 10102(a)(6). DOJ argues 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 are “priority purposes” of
the awards.
Before considering DOJ’s claim, we first address Los
Angeles’s threshold argument that Congress’s amendment to
§ 10102(a)(6) does not give the DOJ any independent
authority or power. Rather, Los Angeles claims, the statute
merely describes the Assistant AG’s ability to exercise
authority specified elsewhere in the relevant chapter (Chapter
101 of title 34). We disagree. Los Angeles has not identified
(and we have not found) any language in the chapter giving
the Attorney General or the Assistant AG authority to place
“special conditions” or determine “priority purposes” for
grants.9 But by amending § 10102(a)(6), Congress
9
Neither of the sections cited by Los Angeles gives the Assistant AG
authority to place “special conditions” on or determine “priority purposes”
for any grants. Section 10142(2) provides that the BJA may allocate
grants “on terms and conditions determined by the [BJA] Director to be
consistent with part B of subchapter V [Discretionary Grants]”, 34 U.S.C.
CITY OF LOS ANGELES V. BARR 17
affirmatively indicated its understanding that the Assistant
AG’s powers and functions could include “placing special
conditions on all grants, and determining priority purposes for
formula grants.” 34 U.S.C. § 10102(a)(6). Therefore, Los
Angeles’s interpretation deprives the 2006 amendment to
§ 10102(a)(6) of any meaning; in effect, we would have to
conclude that Congress amended § 10102(a)(6) for the
purpose of expressly authorizing the Assistant AG to exercise
certain powers that do not exist. We decline to do so, because
we presume Congress makes amendments with purpose, see
Stone v. INS, 514 U.S. 386, 397 (1995), and it is generally
“our duty to give effect, if possible, to every clause and word
of a statute,” United States v. Menasche, 348 U.S. 528,
538–39 (1955) (internal quotation marks omitted).
Accordingly, we reject Los Angeles’s construction of the
statute. Consistent with Congress’s amendment, we read
§ 10102(a)(6) as confirming the authority of DOJ to place
“special conditions on all grants” and determine “priority
purposes for formula grants.”
On the other hand, we also disagree with DOJ’s argument
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. To address this claim, we must first
interpret the terms “special conditions” and “priority
purposes” in § 10102(a)(6). “Canons of statutory
construction help give meaning to a statute’s words. We
§ 10142(2), and § 10446(e)(3) provides that “[i]n disbursing grants under
this subchapter [Grants to Combat Violent Crimes Against Women], the
Attorney General may impose reasonable conditions on grant awards to
ensure that the States meet statutory, regulatory, and other program
requirements,” id. § 10446(e)(3).
18 CITY OF LOS ANGELES V. BARR
begin with the language of the statute.” Wilderness Soc’y v.
U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir.
2003) (citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Found., Inc., 484 U.S. 49, 56 (1987)). Where the statute does
not define the relevant terms, we give them “their ordinary,
contemporary, common meaning,” and “may consult
dictionary definitions.” Transwestern Pipeline Co. v. 17.19
Acres of Prop. Located in Maricopa Cty., 627 F.3d 1268,
1270 (9th Cir. 2010) (internal quotation marks and citations
omitted). 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)); see also United
States v. Lewis, 67 F.3d 225, 228–29 (9th Cir. 1995)
(“Particular phrases must be construed in light of the overall
purpose and structure of the whole statutory scheme.”). In
every case, “it is the intent of Congress that is the ultimate
touchstone.” Arizona v. United States, 567 U.S. 387, 453
(2012) (Alito, J., concurring in part and dissenting in part)
(internal quotation marks omitted).
The term “special conditions” is not defined in the statute.
Under the dictionary definition, the term “special” means
“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). As
this definition of “special” suggests, a “special condition”
CITY OF LOS ANGELES V. BARR 19
would be applied “to meet a particular need” for carrying out
a program that is not covered by established requirements.10
This interpretation of “special conditions” is consistent
with the regulatory backdrop against which Congress enacted
both § 10102(a)(6)’s “including” clause and the Byrne JAG
statutes. See Violence Against Women and Department of
Justice Reauthorization Act of 2005, § 1152, 119 Stat. at
3113. At the time, a regulation setting out “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. § 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. § 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 a propensity toward violation of a grant’s terms.
Id. § 66.12(a). According to the regulation, “[s]pecial
conditions or restrictions may include (1) [p]ayment on a
reimbursement basis; (2) [w]ithholding authority to proceed
to the next phase until receipt of evidence of acceptable
performance within a given funding period; (3) [r]equiring
additional, more detailed financial reports; (4) [a]dditional
project monitoring; (5) [r]equiring the grantee or sub-grantee
10
The distinction between “special conditions” and established
conditions arises in other contexts, as well. For example, the Federal
Aviation Administration is empowered to issue a special condition—“a
regulation that applies to a particular aircraft design”—when a design’s
novel features take it outside the scope of otherwise appropriate safety
regulations. 14 C.F.R. § 11.19.
20 CITY OF LOS ANGELES V. BARR
to obtain technical or management assistance; or
(6) [e]stablishing additional prior approvals.” Id. § 66.12(b).
Additionally, the regulation required the awarding agency to
inform the grantee of the reasons for the special conditions
and identify corrective actions the grantee could take to have
the special conditions removed. Id. § 66.12(c).
This regulatory meaning of “special conditions” is
presumed to have informed Congress’s use of the term in
§ 10102(a)(6). See FAA v. Cooper, 566 U.S. 284, 292 (2012)
(“[W]hen Congress employs a term of art, it presumably
knows and adopts the cluster of ideas that were attached to
each borrowed word in the body of learning from which it
was taken.” (internal quotation marks omitted)). This
conclusion is supported by Congress’s use of this term in a
different provision, § 10109, in the subchapter of the statutes
establishing OJP and Byrne JAG, enacted at the same time
Congress established Byrne JAG and amended § 10102(a)(6).
In § 10109, Congress provided that an Office of Audit,
Assessment, and Management within the OJP would assess
and review OJP’s grant programs to ensure compliance with
program terms and requirements. See 34 U.S.C. § 10109(a),
(b). When conducting such an audit, the auditing office must
“take special conditions of the grant into account and consult
with the office that issued those conditions to ensure
appropriate compliance.” Id. § 10109(a)(2).11 This usage
11
Section 10109(a)(2) provides, in full:
The purpose of the Office shall be to carry out and
coordinate program assessments of, take actions to
ensure compliance with the terms of, and manage
information with respect to, grants under programs
covered by subsection (b). The Director shall take
special conditions of the grant into account and consult
CITY OF LOS ANGELES V. BARR 21
indicates that “special conditions” were understood to be
individualized requirements included in a specific grant, as
set forth in 28 C.F.R. § 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.
Under the “normal rule of statutory construction,” we
presume that “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). Accordingly, we may
presume that Congress intended the use of “special
conditions” in § 10102(a)(6) to have the same meaning as it
has in § 10109(a)(2), namely to refer to individualized
requirements. Therefore, the inclusion of “placing special
conditions on all grants” in § 10102(a)(6) refers to the power
to impose tailored requirements when necessary, such as
when a grantee is “high-risk” pursuant to 28 C.F.R.
§ 66.12(a)(5) (2006).12
We next consider the term “priority purposes.” 34 U.S.C.
§ 10102(a)(6). The Byrne JAG statute establishes that the
“purpose” of an award is to “provide additional personnel,
equipment, supplies, contractual support, training, technical
with the office that issued those conditions to ensure
appropriate compliance.
34 U.S.C. § 10109(a)(2).
12
Congress contemplated that the Assistant AG could place such
conditions on both formula and discretionary grants (“all grants”), but may
determine priority purposes only “for formula grants.” 34 U.S.C.
§ 10102(a)(6).
22 CITY OF LOS ANGELES V. BARR
assistance, and information systems for criminal justice,”
within various programs proposed by applicants. Id.
§ 10152(a)(1). The purposes set forth in the predecessor
grant statutes, LEAP and the Local Government Law
Enforcement Block Grants Program, include funding
“additional personnel, equipment, training, technical
assistance, and information systems” for local government
criminal justice programs, Anti-Drug Abuse Act of 1988,
Pub. L. No. 100-690, § 501(b), 102 Stat. 4181, 4329, and
funding for purposes including hiring additional officers,
establishing drug courts, and setting up task forces consisting
of local government and federal law enforcement officials “to
prevent and control crime,” among others. H.R. 728, 104th
Cong. § 101(a)(2) (1995); see also Omnibus Consolidated
Rescissions and Appropriations Act of 1996, Pub. L. No. 104-
134, tit. 1, 110 Stat. 1321, 1321–12 (incorporating H.R. 728
by reference). None of the purposes set forth in
§ 10152(a)(1) or the predecessor grant statutes corresponds 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.
In light of our interpretation of “special conditions” and
“priority purposes,” it is clear that § 10102(a)(6) does not
authorize DOJ to require all recipients of Byrne JAG funding
to comply with the notice and access conditions.13 First, the
notice and access conditions are not “special conditions”
because they are not conditions triggered by specific
characteristics not addressed by established conditions, as
13
Therefore, contrary to the concurrence’s characterization of our
holding, we do not adopt DOJ’s interpretation of § 10102(a)(6).
Concurrence at 40–41.
CITY OF LOS ANGELES V. BARR 23
was the case for high-risk grantees under 28 C.F.R.
§ 66.12(a)(5) (2006). Second, priority purposes must be
chosen from among the various possible purposes of a Byrne
JAG award as set out in § 10152(a). The notice and access
conditions are not included as purposes of the Byrne JAG
award, nor are they purposes of either of its predecessor grant
statutes. Because the notice and access conditions meet
neither of these definitions, DOJ lacked statutory authority to
impose them under § 10102(a)(6). Therefore, we reject
DOJ’s argument that § 10102(a)(6) gives it the authority to
impose the notice and access conditions.
Because we interpret the terms “special conditions” and
“priority purposes” narrowly, we agree with our sister circuits
that § 10102(a)(6) does not give the Assistant AG broad
authority to impose any condition it chooses on a Byrne JAG
award. City of Philadelphia v. Attorney Gen. of U.S.,
916 F.3d 276, 288 (3d Cir. 2019) (concluding that Congress
would not hide “such a broad power—the power to place any
special conditions on all grants—in a statute outlining
ministerial duties for an Assistant Attorney General”); City of
Chicago, 888 F.3d at 286. Such a broad interpretation would
be antithetical to the concept of a formula grant, see City of
Chicago, 888 F.3d at 285 (noting that “the notion of the broad
grant of authority to impose any conditions on grant
recipients is at odds with the nature of the Byrne JAG grant,
which is a formula grant rather than a discretionary grant”),
and it would render superfluous Congress’s carefully
prescribed conditions under which the Attorney General can
normally withhold Byrne JAG funding, see, e.g., 34 U.S.C.
§ 10157(b) (allowing the Attorney General to withhold up to
five percent of total allocated Byrne JAG funds to address
rapid crime increases or “significant programmatic harm”
caused by the normal operation of the funding formula); id.
24 CITY OF LOS ANGELES V. BARR
§ 30307(e)(2) (providing that a state will lose five percent of
any grant award made under title 34, including Byrne JAG,
if it fails to comply with the national standards set out under
the Prison Rape Elimination Act).14
In opposition to our interpretation of § 10102(a)(6), the
concurrence constructs a strawman argument. It ignores our
actual interpretation of § 10102(a)(6), and instead accuses us
of adopting a “sweeping characterization” of DOJ’s authority,
Concurrence at 44, that allows the “essentially limitless”
imposition of any conditions desired, Concurrence at 44–45
(quoting City of Chicago, 888 F.3d at 287). Based on this
strawman argument, the concurrence then accuses us of
creating a split with our sister circuits, which have rejected
such a broad interpretation. Concurrence at 30, 34–36,
37–38, 42, 44.
While the concurrence has an easy time battering its
strawman, the concurrence fails to explain how our actual
ruling, that DOJ has the limited authority to impose special
conditions designed to meet needs for carrying out the Byrne
JAG program, could abrogate or “subvert” Byrne JAG’s
funding scheme. Concurrence at 44. Nor does the
concurrence explain how our actual ruling is contrary to our
sister circuits, which did not need to consider the viability of
a narrowing construction when considering challenges to
DOJ’s notice and access conditions. Rather, given the issues
14
Moreover, it is unlikely that Congress would recognize such a
broad power in § 10102(a)(6), given the ministerial duties described in the
rest of the section. See City of Philadelphia, 916 F.3d at 288; City of
Chicago, 888 F.3d at 285. By contrast, our more circumscribed
understanding of the power to impose special conditions and determine
priority purposes is in accord with the other administrative duties outlined
in § 10102.
CITY OF LOS ANGELES V. BARR 25
raised by the appeals before them, our sister circuits merely
rejected DOJ’s argument—and the concurrence’s
strawman—that § 10102(a)(6) gives broad authority to
impose any conditions DOJ may choose. The Seventh Circuit
expressly acknowledged that “special conditions” may be a
term of art that “cannot be read as an unbounded authority to
impose ‘any’ conditions generally,” as we have concluded,
but declined to address that potential interpretation of the
term. City of Chicago, 888 F.3d at 285 n.2. Rather, it merely
rejected DOJ’s argument “that the ‘including clause’ itself is
a stand-alone grant of authority to the Assistant Attorney
General to attach any conditions to any grants . . . ,” and it
concluded that § 10102(a)(6) did not give “sweeping power
to impose any conditions on any grants.” Id. at 285; see also
Concurrence at 37–38. Similarly, the Third Circuit
considered the argument that § 10102(a)(6) conferred “a
broad power—the power to place any special conditions on
all grants” on the Assistant AG, “a sweeping grant of
authority.” City of Philadelphia, 916 F.3d at 288; see also
Concurrence at 37–38. In rejecting this broad interpretation,
the court did not have occasion to consider whether the
Attorney General possessed, and therefore could delegate
through § 10102(a)(6), the more modest power to impose
special conditions and designate priority purposes as we
understand those terms. See id. at 287. Given our agreement
with our sister circuits that § 10102(a)(6) does not confer
broad authority on the Assistant AG sufficient to effectively
abrogate the formula grant program Congress has established,
the concurrence is wrong to suggest we are creating a circuit
split. Concurrence at 30.15
15
The concurrence’s disagreement with our interpretation of
§ 10102(a)(6) does not make it dicta. Concurrence at 30, 40–41, 45.
“[W]here a panel confronts an issue germane to the eventual resolution of
26 CITY OF LOS ANGELES V. BARR
We conclude that the 2006 amendment to § 10102(a)(6)
confirms that the Attorney General and the Assistant AG
through delegation have the authority to impose special
conditions on all grants and determine priority purposes for
formula grants, as those terms are properly circumscribed.
The notice and access conditions are not special conditions
placed on grants to grantees that exhibit certain risk factors or
have idiosyncratic issues that must be addressed individually.
Nor are they among the statutorily recognized purposes of a
Byrne JAG award as set out in § 10152(a). Therefore, DOJ
lacked statutory authority to impose them under
§ 10102(a)(6).
B
We next consider DOJ’s argument that the propriety of
the notice and access conditions are further 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. § 10153(a)(4),
the case, and resolves it after reasoned consideration in a published
opinion, that ruling becomes law of the circuit, regardless of whether
doing so is necessary in some strict logical sense.” Cetacean Cmty. v.
Bush, 386 F.3d 1169, 1173 (9th Cir. 2004) (quoting United States v.
Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc) (opinion of
Kozinski, J.)). Only “statements made in passing, without analysis, are
not binding precedent.” In re Magnacom Wireless, LLC, 503 F.3d 984,
993–94 (9th Cir. 2007). In order to resolve the issue on appeal here, we
must construe § 10102(a)(6) to determine whether it gave DOJ any
authority at all, and if so, whether it gave DOJ authority to impose the
notice and access conditions. Our construction of the statutory language,
which leads us to conclude that § 10102(a)(6) gives DOJ some
circumscribed authority, but not the authority to impose the notice and
access conditions, is not dicta under any definition of the term.
CITY OF LOS ANGELES V. BARR 27
(5).16 According to DOJ, the notice condition is authorized
by § 10153(a)(4), which requires a recipient to report certain
programmatic information, and the access condition is
authorized by § 10153(a)(5)(C), which requires a recipient to
coordinate with an “affected agenc[y].”
We disagree. First, § 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 defines it to mean “of,
resembling, or having a program.” Programmatic, Webster’s
New Int’l Dictionary (3d ed. 2002). Section 10152 sets out
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. § 10152(a)(1). Given the use of the
word “program” elsewhere in the same statutory scheme, the
16
Section 10153(a) provides that an application for Byrne JAG
funding must include:
(4) An assurance that, for each fiscal year covered by
an application, the applicant shall maintain and report
such data, records, and information (programmatic and
financial) as the Attorney General may reasonably
require.
(5) A certification, made in a form acceptable to the
Attorney General and executed by the chief executive
officer of the applicant . . . that –
...
(C) there has been appropriate coordination with
affected agencies.
34 U.S.C. § 10153(a)(4), (5).
28 CITY OF LOS ANGELES V. BARR
term “programmatic” in § 10153(a)(4) is best read to refer to
a program or programs supported by Byrne JAG funding as
outlined in § 10152(a)(1), such as a particular law
enforcement program or drug treatment program.17
Accordingly, § 10153(a)(4) merely requires 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 do not relate to a
program funded by Byrne JAG, the notice condition does not
require “programmatic” information under § 10153(a)(4).
Moreover, the statute speaks of the maintenance and
reporting of data, records, and information “for each fiscal
year covered by an application,” id. § 10153(a)(4), which
contemplates yearly reporting. 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—is inconsistent with this statutory
language.
Second, § 10153(a)(5)(C), which requires a grant
recipient to certify that “there has been appropriate
coordination with affected agencies,” does not give the
Attorney General authority to impose the access condition.
In context, this section requires 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
17
To the extent DOJ argues that “programmatic” should be read as
referring to the definition of “program” set out in 42 U.S.C. § 2000d-
4a(1)(A), we disagree. The definition of “program” from federal civil
rights law that was incorporated by reference in the 2017 Byrne JAG
award letter is not a reasonable interpretation of the word “program” or
“programmatic” as used in the statutes authorizing Byrne JAG awards.
CITY OF LOS ANGELES V. BARR 29
statutory language does not support DOJ’s interpretation that
a recipient must coordinate with DHS agents who are not part
of a funded program. Nor does 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.
§ 10153(a)(5)(C) (emphasis added). Therefore, the access
condition is not a proper exercise of the Attorney General’s
authority under § 10153(a)(5)(C).
***
Because none of DOJ’s proffered bases for statutory
authority gives the Attorney General or the Assistant AG the
power to impose the notice and access conditions, the
conditions are ultra vires. See City of Arlington, 569 U.S.
at 297. We affirm the district court.18
AFFIRMED.
WARDLAW, Circuit Judge, concurring in the judgment:
We are faced once again with “the Trump
Administration’s efforts to press state and local police into
federal immigration enforcement,” City of Los Angeles v.
Barr, 929 F.3d 1163, 1183 (9th Cir. 2019) (Wardlaw, J.,
dissenting), this time via an ultra vires attempt to divert
18
Because we affirm the district court on the ground that DOJ lacked
statutory authority to impose the notice and access conditions, we need not
address Los Angeles’s alternative arguments raised on appeal.
30 CITY OF LOS ANGELES V. BARR
Edward Byrne Memorial Justice Assistance Grant Program
(Byrne JAG) funds from their congressionally authorized
purposes. I concur with the majority to the extent it holds
that the challenged immigration conditions were not
authorized by Congress, and are thus unlawful. But once the
majority concluded that the challenged notice and access
conditions are not lawful “special conditions” or “priority
purposes” and were thus beyond the powers granted by
Congress to the Department of Justice, it should have
stopped, as in full stop. Everything else the majority writes
about 34 U.S.C. § 10102(a)(6) is “unnecessary to the decision
in the case and [is] therefore not precedential.” Cetacean
Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir. 2004)
(alteration in original) (quoting Best Life Assur. Co. v.
Comm’r, 281 F.3d 828, 834 (9th Cir. 2002)). In other words,
the rest of the asides cast by the majority are dicta. In dicta,
the majority finds vague, unidentified powers bestowed upon
the DOJ in an illustrative 2006 amendment to a “duties and
functions” statute in a different subchapter of the Act that
established the Byrne JAG program. See Violence Against
Women and Department of Justice Reauthorization Act of
2005, Pub. L. No. 109-162, 119 Stat. 2960 (2006). This
putative power grab not only unnecessarily portends a circuit
split, its analysis also stands contrary to every other court to
have addressed the issue in a reasoned opinion.
As both the Third and Seventh Circuits have held,
Congress did not grant the Assistant Attorney General for the
Office of Justice Programs any authority independent of that
already vested by a different statute or by delegation to the
Attorney General to impose special conditions and determine
priority purposes in 34 U.S.C. § 10102(a)(6). See City of
Philadelphia v. Attorney Gen., 916 F.3d 276, 287–88 (3d Cir.
2019); City of Chicago v. Sessions, 888 F.3d 272, 284–87
CITY OF LOS ANGELES V. BARR 31
(7th Cir.), vacated in part on other grounds, No. 17-2991,
2018 WL 4268817 (7th Cir. June 4, 2018). The majority at
best misperceives, and at worst, falsely characterizes, these
holdings, describing them as rejecting only a “broad
interpretation” of § 10102(a)(6) as authorizing the DOJ to
impose “any condition it chooses on a Byrne JAG award.”
Majority Op. at 23. But our sister circuits plainly rejected the
notion that § 10102(a)(6) provides any independent grant of
authority, broad or narrow—a conclusion that the majority
suggests is incorrect.
As even the DOJ recognizes, “an agency literally has no
power to act . . . unless and until Congress confers power
upon it.” La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374
(1986). The DOJ “does not claim to possess inherent
executive authority to impose the grant conditions, and
instead recognizes that the authority must originate from
Congress.” City of Chicago, 888 F.3d at 283. Both the Third
and the Seventh Circuits rejected outright the argument that
the DOJ makes here, that a residual clause of § 10102, which
describes the duties and functions of the Assistant Attorney
General for the Office of Justice Programs, is such a
congressional delegation of power. That section provides in
full:
(a) Specific, general and delegated powers
The Assistant Attorney General shall—
(1) publish and disseminate information on
the conditions and progress of the criminal
justice systems;
32 CITY OF LOS ANGELES V. BARR
(2) maintain liaison with the executive and
judicial branches of the Federal and State
governments in matters relating to criminal
justice;
(3) provide information to the President, the
Congress, the judiciary, State and local
governments, and the general public relating
to criminal justice;
(4) maintain liaison with public and private
educational and research institutions, State
and local governments, and governments of
other nations relating to criminal justice;
(5) coordinate and provide staff support to
coordinate the activities of the Office and the
Bureau of Justice Assistance, the National
Institute of Justice, the Bureau of Justice
Statistics, the Office for Victims of Crime,
and the Office of Juvenile Justice and
Delinquency Prevention; and
(6) 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.
CITY OF LOS ANGELES V. BARR 33
34 U.S.C. § 10102(a) (emphasis added).1 The DOJ contends
that the bolded language independently authorizes the
Assistant Attorney General to impose any special conditions
he sees fit, as to any grant administered by the Office of
Justice Programs, so long as the condition is “germane” to the
grant program or to “law enforcement” more generally.2
Practically speaking, the DOJ argues that the Assistant
Attorney General for the Office of Justice Programs can
impose almost any “special condition” on any grant the
Office of Justice Programs administers, up to withholding all
grant funds due to a grantee’s failure to comply with the
DOJ’s desired policy.
The DOJ’s interpretation of § 10102(a)(6) conflicts with
the plain language of the statute. See Gonzales v. Oregon,
546 U.S. 243, 258 (2006) (stating that “[t]he starting point”
for the inquiry as to whether Congress delegated any
authority “is, of course, the language of the [alleged]
delegation provision itself”). Specifically, it “runs headlong
into an obstacle: the word ‘including.’” City of Philadelphia,
916 F.3d at 287. We have interpreted “including” as
“ordinarily defined as a term of illustration, signifying that
what follows is an example of the preceding principle.” Ariz.
State Bd. for Charter Schs. v. U.S. Dep’t of Educ., 464 F.3d
1003, 1007 (9th Cir. 2006); see Fed. Land Bank of St. Paul v.
Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (“[T]he term
1
This statute appears in Subchapter I, Chapter 101 of Title 34 of the
United States Code. The Byrne JAG statute is in Subchapter V, Chapter
101 of Title 34. See 34 U.S.C. §§ 10151–10158.
2
See Recording of Oral Argument, City of Los Angeles v.
Barr, No. 18-56292 (9th Cir. Apr. 10, 2019), at 6:25–7:22,
http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000015483.
34 CITY OF LOS ANGELES V. BARR
‘including’ is not one of all-embracing definition, but
connotes simply an illustrative application of the general
principle.”).3 Analyzing Congress’s use of the word
“including” in § 10102(a)(6), the Third and Seventh Circuits
came to the same conclusion. See City of Philadelphia,
916 F.3d at 287 (reasoning that “including” “is used to denote
something that is within a larger whole”); City of Chicago,
888 F.3d at 284 (“The word ‘including’ by definition is used
to designate that a person or thing is part of a particular
group.”).
The Seventh Circuit reasoned that the plain meaning of
“including” in § 10102(a)(6)
is to set forth a subcategory of the types of
powers and functions that the Assistant
Attorney General may exercise when vested
in the Assistant Attorney General either by the
terms of this chapter or by delegation of the
Attorney General. . . . [Because the DOJ] does
not even claim that the power exercised here
[to impose the notice and access conditions] is
authorized anywhere in the chapter, nor that
the Attorney General possesses that authority
and therefore can delegate it to the Assistant
Attorney General . . . the [DOJ’s] argument is
that the “including” clause itself is a stand-
alone grant of authority to the Assistant
3
Dictionary definitions confirm this understanding of the word
“including.” See Include, Webster’s New Int’l Dictionary (3d ed. 2002)
(“to place, list, or rate as a part of component of a whole or of a larger
group, class, or aggregate”); Including, New Oxford Am. Dictionary (3d
ed. 2010) (“containing as part of the whole being considered”).
CITY OF LOS ANGELES V. BARR 35
Attorney General to attach any conditions to
any grants in that subchapter or other
subchapters even though that authority is not
otherwise provided in the chapter and is not
possessed by the Attorney General. Because
that interpretation is so obviously belied by
the plain meaning of the word “including,” the
Attorney General’s position is untenable.
City of Chicago, 888 F.3d at 285. The Third Circuit agreed
that
“including” signifies that the Special
Conditions Clause is part of “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.” 34 U.S.C. § 10102(a)(6) (emphasis
added). Therefore, under the plain text of this
provision, the [Assistant Attorney General]
has the power to place special conditions on
grants only to the extent that such power has
been vested in him or her “pursuant to this
chapter or by delegation of the Attorney
General.” . . . [T]he broad authority [the DOJ]
urges has not been vested in the Attorney
General or the [Assistant Attorney General] in
the Byrne JAG statute or anywhere else in the
United States Code. Therefore, the Special
Conditions Clause cannot authorize this
power on its own.
City of Philadelphia, 916 F.3d at 287–88. Here, nothing in
the statute evinces a congressional intent to use the word
36 CITY OF LOS ANGELES V. BARR
“including” to mean anything other than its ordinary
definition.4 All other courts to consider § 10102(a)(6) have
similarly rejected the DOJ’s argument that the statute
independently authorizes the Assistant Attorney General to
impose conditions of any kind on grants.5
4
By contrast, in United States v. Flores, 901 F.3d 1150 (9th Cir.
2018), we considered a statute listing a number of aggravated felonies,
8 U.S.C. § 1101(a)(43), conviction of which rendered aliens deportable.
8 U.S.C. § 1101(a)(43)(G) listed “a theft offense (including receipt of
stolen property).” Congress’s express inclusion of an independent crime
requiring separate elements of proof led us to conclude that it was at the
least ambiguous as to whether Congress intended “including” to mean “a
subset” or intended to add an independent theft-related crime to the
expanded list of deportable felonies. Flores, 901 F.3d at 1157–58. And,
as the Board of Immigration Appeals, to which we deferred under
Chevron, noted, § 1101(a)(43)(G) “is not the only entry within
1101(a)(43)’s list of aggravated felonies [in which Congress used] the
word ‘including’ ‘to cover a broader range of offenses than those
previously referenced.’” Flores, 901 F.3d at 1158 (quoting Matter of
Alday-Dominguez, 27 I. & N. Dec. 48, 51 n.7 (B.I.A. 2017)).
5
See Oregon v. Trump, __ F. Supp. 3d __, 2019 WL 3716932, at *11,
*13–15 (D. Or. Aug. 7, 2019), appeal docketed No. 19-35843 (9th Cir.
Oct. 4, 2019); City of Providence v. Barr, 385 F. Supp. 3d 160, 163–64
(D.R.I. June 10, 2019), appeal docketed sub nom. City of Providence v.
U.S. Dep’t of Justice, No. 19-1802 (1st Cir. Aug. 19, 2019); City &
County of San Francisco v. Sessions, 349 F. Supp. 3d 924, 947 (N.D. Cal.
2018) (“DOJ’s interpretation that Section 10102 establishes an
independent grant of authority to impose the challenged conditions
contradicts the plain meaning of the statute.”), appeal docketed sub nom.
City & County of San Francisco v. Whitaker, No. 18-17308 (9th Cir. Dec.
4, 2018); States of New York v. Dep’t of Justice, 343 F. Supp. 3d 213, 228
(S.D.N.Y. 2018) (holding that § 10102(a)(6) is not a “stand-alone grant of
authority to the Assistant Attorney General to attach any conditions to any
grants” (quoting City of Chicago, 888 F.3d at 285)), appeal docketed sub
nom. City of New York v. Whitaker, No. 19-275 (2d Cir. Jan. 28, 2019);
City of Chicago v. Sessions, 321 F. Supp. 3d 855, 874 (N.D. Ill. 2018);
City of Chicago v. Sessions, 264 F. Supp. 3d 933, 941–43 (N.D. Ill. 2017)
CITY OF LOS ANGELES V. BARR 37
The DOJ’s interpretation of § 10102(a)(6) is at odds with
the very structure and purpose of § 10102. See Gonzales,
546 U.S. at 273 (“[S]tatutes should not be read as a series of
unrelated and isolated provisions.” (internal quotation marks
omitted)). Section 10102 delineates the “duties and
functions” of the Assistant Attorney General for the Office of
Justice Programs, much like other “duties and functions”
statutes concerning persons who manage agency programs.
See, e.g., 34 U.S.C. § 10444 (duties and functions of Director
of Violence Against Women Office), § 11293 (duties and
functions of the Administrator of the Office of Juvenile
Justice and Delinquency Prevention). The first five
provisions of § 10102(a) describe the Assistant Attorney
General’s various administrative duties, from “coordinat[ing]
and provid[ing] staff support to coordinate the activities” of
other DOJ offices to “maintain[ing] liaison with public and
private educational and research institutions, State and local
governments, and governments of other nations relating to
criminal justice.” Id. § 10102(a)(1)–(5). The sixth provision,
§ 10102(a)(6), is a catch-all provision, simply recognizing
that the Assistant Attorney General can also exercise such
other powers and functions as may be delegated by other
authorities—either by Congress in Chapter 101 or by the
Attorney General. “The ‘including’ phrase is tacked on to
that.” City of Chicago, 888 F.3d at 285.
As all other courts have found, it is inconceivable that
Congress implicitly intended to delegate any independent
(subsequent history omitted); City of Philadelphia v. Sessions, 309 F.
Supp. 3d 289, 321 (E.D. Pa. 2018), aff’d in part, vacated in part sub nom.
City of Philadelphia v. Attorney Gen., 916 F.3d 276 (3d Cir. 2019); City
of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 616–17 (E.D. Pa. 2017)
(subsequent history omitted).
38 CITY OF LOS ANGELES V. BARR
powers in this residual clause. “A clause in a catch-all
provision at the end of a list of explicit powers would be an
odd place indeed to put a sweeping power to impose any
conditions on any grants—a power much more significant
than all of the duties and powers that precede it in the listing
. . . .” Id. (emphasis in original); see City of Philadelphia,
916 F.3d at 288 (“Given the ministerial nature of the powers
in the preceding five subsections, we would be hesitant to
find such a sweeping grant of authority in the sixth subsection
absent clear language to support that interpretation.”).
Congress does not hide such broad powers in such ancillary
provisions. See Whitman v. Am. Trucking Ass’ns, 531 U.S.
457, 468 (2001) (“Congress . . . does not alter the
fundamental details of a regulatory scheme in vague terms or
ancillary provisions—it does not, one might say, hide
elephants in mouseholes.”).
The DOJ’s interpretation of § 10102(a)(6) also interferes
with the Byrne JAG program’s formula grant structure.
Congress created specific, objective eligibility criteria and a
formula to allocate Byrne JAG funds among all jurisdictions
that meet that criteria. See 34 U.S.C. § 10156. Congress
further crafted narrow grounds on which the Attorney
General is authorized to withhold grant funds to jurisdictions
not supporting specific federal priorities, id. §§ 10157(b),
12113(e), 20927(a), 30307(e)(2), 40914(b), 60105(c)(2),
while ensuring that jurisdictions would receive a minimum
grant allocation, id. § 10156(a)(2). Against the backdrop of
Congress’s precise formula and express limits on the
Attorney General’s ability to deviate from that formula, “it is
inconceivable that Congress would have anticipated that the
Assistant Attorney General could abrogate the entire
distribution scheme and deny all funds to states and localities
that would qualify under the Byrne JAG statutory provisions,
CITY OF LOS ANGELES V. BARR 39
based on the Assistant Attorney General’s decision to impose
his or her own conditions—the putative authority for which
is provided in a different statute.” City of Chicago, 888 F.3d
at 286.6
“Congress knew how to grant such authority, and
explicitly did so in another statute within the same Act that
added the ‘including’ language” to § 10102(a)(6). Id. at
286–87 (citing the Violence Against Women and Department
of Justice Reauthorization Act of 2005, Pub. L. No. 109-162,
119 Stat. 2960 (2006)); see United States v. Youssef, 547 F.3d
1090, 1094–95 (9th Cir. 2008) (noting that Congress’s
omission of a term from one section and inclusion of that
term in another “is evidence of Congress’s expressed intent
not to impose” that requirement on the first section).
Congress gave the Attorney General the authority to “impose
reasonable conditions on” Violence Against Women Act
grants “to ensure that the States meet statutory, regulatory,
and other program requirements.” 34 U.S.C § 10446(e)(3).
Additionally, Congress provided that the Assistant Attorney
General shall establish discretionary grant programs under the
Bureau of Justice Assistance, “on terms and conditions
determined by the [Assistant Attorney General] to be
consistent with part B of subchapter V.” 34 U.S.C
6
Indeed, the DOJ’s interpretation of § 10102(a)(6) gives no weight
to Congress’s choice to make Byrne JAG a formula grant program. “If
Congress sought to provide [the DOJ] the ability to exercise its judgment
in the selection of the grantees, it would have made sense for it to do so
by employing the discretionary grant model rather than the formula grant
structure used here.” City of Chicago, 888 F.3d at 286. Were
§ 10102(a)(6) to authorize the DOJ “to withhold all funds because a
jurisdiction does not certify compliance with [a policy] of the Attorney
General’s choosing,” it would effectively “turn[] the formula grant into a
discretionary one.” City of Philadelphia, 916 F.3d at 290.
40 CITY OF LOS ANGELES V. BARR
§ 10142(2).7 In contrast to these explicit grants of authority
to impose conditions on specific grants,
the Byrne JAG statute provides the Attorney
General authority over a carefully delineated
list of actions, with no such broad authority to
impose reasonable conditions. If Congress
had wanted to vest such authority in the
Attorney General regarding the Byrne JAG
grant, one would expect it to include explicit
language in the grant statute itself, as it did in
the Violence Against Women Act. The
Attorney General’s argument that such
sweeping authority over the major source of
funding for law enforcement agencies
nationwide was provided to the Assistant
Attorney General by merely adding a clause
to a sentence in a list of otherwise-ministerial
powers defies reason.
City of Chicago, 888 F.3d at 287.
Yet, in dicta, unnecessary to its holding, the majority
seems to adopt the DOJ’s “independent power” construction
of § 10102(a)(6), writing in passing that “the Attorney
General and the Assistant [Attorney General for the Office of
Justice Programs] through delegation have the authority to
7
Congress transferred the functions of the Director of Bureau of
Justice Assistance to the Assistant Attorney General for the Office of
Justice Programs, with exceptions not relevant here. See Consolidated
Appropriations Act, 2000, Pub. L. No. 106-113, 113 Stat. 1501 (1999)
(note regarding 42 U.S.C. § 3741, which was transferred to 34 U.S.C.
§ 10141).
CITY OF LOS ANGELES V. BARR 41
impose special conditions on all grants and determine priority
purposes for formula grants, as those terms are properly
circumscribed.” Majority Op. at 26; see id. at 17, 21, 24 n.14,
26 (referring to the Assistant AG’s “power” to impose
special conditions under § 10102(a)(6)).8 See In re
Magnacom Wireless, LLC, 503 F.3d 984, 993–94 (9th Cir.
2007) (“[S]tatements made in passing, without analysis, are
not binding precedent.”); see also United States v. Johnson,
256 F.3d 895, 914 (9th Cir. 2001) (en banc) (opinion of
Kozinski, J.) (“[W]here a panel confronts an issue germane
to the eventual resolution of the case, and resolves it after
reasoned consideration in a published opinion, that ruling
becomes the law of the circuit . . . .”). While the majority
characterizes its discussion as a response to a “threshold
argument,” it is nothing of the sort. Majority Op. at 16. All
that is necessary to decide this case is the conclusion, upon
which we all agree, that § 10102(a)(6) does not permit the
Assistant AG to impose the notice and access conditions at
issue here.
In its digression from the issue at hand, the majority
places great weight on its contention that the “including”
clause must have been intended as a grant of authority, or else
the 2006 amendment adding the clause would have no
meaning. Majority Op. at 16–17. The majority identifies no
other support for its suggestion of a grant of independent
powers. The majority’s concern that a contrary reading of
this residual clause would deprive it of meaning rings hollow,
8
The majority never identifies any language in § 10102(a)(6), or any
other statute, to support its untethered statement that § 10102(a)(6) grants
the Attorney General any authority. Majority Op. at 26. While the DOJ
argues that § 10102(a)(6) grants the Assistant Attorney General authority,
it never suggests that this authority extends to the Attorney General.
42 CITY OF LOS ANGELES V. BARR
given that the majority’s interpretative dictum would render
superfluous numerous statutes in which Congress expressly
authorized the Attorney General to withhold a set percentage
of Byrne JAG funds for a specified purpose. See 34 U.S.C.
§§ 10157(b), 12113(e), 20927(a), 30307(e)(2), 40914(b),
60105(c)(2). As the Third Circuit noted, “[i]f Congress had
already given the [Assistant] Attorney General this sweeping
authority to withhold all funds for any reason [by imposing
special conditions], it would have no need to delineate
numerous, specific circumstances under which the Attorney
General may withhold limited amounts of funds.” City of
Philadelphia, 916 F.3d at 286. We generally do not interpret
such ancillary ministerial provisions to render superfluous
Congress’s more specific delegations of power. See
Gonzales, 546 U.S. at 262 (“It would be anomalous for
Congress to have so painstakingly described the Attorney
General’s limited authority to deregister a single physician or
schedule a single drug, but to have given him, just by
implication, authority to declare an entire class of activity
outside ‘the course of professional practice,’ and therefore a
criminal violation of the CSA.”). The notion that through this
“including” clause Congress granted independent authority to
withhold all funds as to a specific grantee is absurd given that
elsewhere Congress explicitly gave the Attorney General
authority to withhold funds only in limited circumstances.
See City of Chicago, 888 F.3d at 285 (recognizing that such
“a power granted to the Assistant Attorney General . . . was
not granted to the Attorney General”); United States v.
Wilson, 503 U.S. 329, 334 (1992) (noting that statutory
interpretation that leads to absurd results is to be avoided).
In contrast, interpreting the “including” clause to illustrate
powers already vested in the Assistant Attorney General or
the Attorney General is consistent with Congress’s precise
CITY OF LOS ANGELES V. BARR 43
grants of power over the Byrne JAG program to the Attorney
General. And, as the City identified, various statutes in
Chapter 101 of Title 34 authorize the Attorney General or the
Assistant Attorney General to impose terms and conditions on
other grants. See, e.g., 34 U.S.C. §§ 10142(2), 10446(e)(3).
The authority to impose conditions clearly includes the
authority to impose special conditions.9 Thus, § 10102(a)(6)
makes clear that the Attorney General can delegate such
authority to the Assistant Attorney General, and that
exercising such authority is part of the Assistant Attorney
General’s “duties and functions.” This interpretation satisfies
“our duty ‘to give effect, if possible, to every clause and word
of a statute,’ rather than to emasculate an entire section.”
United States v. Menasche, 348 U.S. 528, 538–39 (1955)
(citation omitted). That the “including” clause may simply
“remove doubt” that the Assistant Attorney General can,
under some circumstances, impose special conditions and
determine priority purposes does not render the clause
meaningless. See Marx v. Gen. Revenue Corp., 568 U.S. 371,
385 (2013) (concluding that “the phrase ‘and costs’ would not
be superfluous if Congress included it to remove doubt that
defendants may recover costs” under the circumstances set
forth in the statute). Even if this interpretation makes
Congress’s addition of the “including” clause to
§ 10102(a)(6) somewhat redundant, the addition of incidental
language with little meaning does not demonstrate intent to
grant the Assistant Attorney General sweeping authority to
impose special conditions on all Office of Justice Program-
9
Because other statutes in Chapter 101 provide the DOJ with
authority to impose special conditions, the majority is simply wrong to
contend that the City of Los Angeles’s reading of the “including” clause
would “authoriz[e] the Assistant AG to exercise certain powers that do not
exist.” Majority Op. at 16–17.
44 CITY OF LOS ANGELES V. BARR
administered grants. See Conn. Nat’l Bank v. Germain,
503 U.S. 249, 253 (1992) (“Redundancies across statutes are
not unusual events in drafting . . . .”). The majority fails to
confront the ancillary nature of the “including” clause.
The majority’s drift is pernicious because the distinction
it seemingly draws is between special conditions imposed on
individual Byrne JAG grantees, which it suggests are lawful,
as opposed to conditions imposed on all grantees, which are
not. See, e.g., Majority Op. at 22 (“[Section] 10102(a)(6)
does not authorize DOJ to require all recipients of Byrne JAG
funding to comply with the notice and access conditions.”).
This sweeping characterization is far from a “narrowing
construction.” Majority Op. at 24. It would subvert
Congress’s carefully crafted statutory scheme for federal law
enforcement grants.
The majority protests that it is only recognizing the DOJ’s
“limited authority to impose special conditions designed to
meet the needs for carrying out the Byrne JAG program.”
Majority Op. at 24. But what are the limits of that authority?
Beyond stating nebulously that “special conditions” refer to
“individualized requirements” created in response to “certain
risk factors” or “idiosyncratic issues,” the majority provides
no further guidance.10 Majority Op. at 21, 26. It therefore
opens the door for the Assistant Attorney General to lay down
any number of conditions not contemplated or authorized by
Congress, as long as they are imposed on an individual basis
10
While the majority suggests that Congress’s use of the term
“special conditions” was informed by a since-repealed regulation,
28 C.F.R. § 66.12(a)(5) (2006), Majority Op. at 19–21, it conspicuously
does not limit the Assistant Attorney General to imposing only the types
of conditions provided for by that regulation.
CITY OF LOS ANGELES V. BARR 45
and can somehow be said to be “designed to meet the needs
for carrying out the Byrne JAG program.” This essentially
limitless authority “is a tremendous power of widespread
impact,” and, again, “is not the type of authority that would
be hidden in a clause without . . . explanation, [or] without
any reference or acknowledgment of that authority in the
statute that actually contains the grant itself.” City of
Chicago, 888 F.3d at 287.
The Byrne JAG program is the primary provider of
federal criminal justice funding to state and local
governments.11 Congress’s articulated goal for Byrne JAG
grants was to provide States and localities with flexibility to
address their local criminal justice needs, specifically through
funds for “additional personnel, equipment, supplies,
contractual support, training, technical assistance, and
information systems for criminal justice.” 34 U.S.C.
§ 10152(a)(1); see also H.R. Rep. No. 109-233, at 89 (2005)
(stating that the new Byrne JAG program was meant to “give
State and local governments more flexibility to spend money
for programs that work for them”). The majority’s dicta, if it
were to become law, would allow any Assistant Attorney
General for the Office of Justice Programs to set special
conditions or funding priorities on specific grantees, thus
thwarting Congress’s mandate and furthering its own desired
policy goals. This supposed power could be wielded over all
congressionally enacted grants administered by the Office of
11
See Edward Byrne Memorial Justice Assistance Grant Program FY
2017 Local Solicitation, U.S. Dep’t of Justice (Aug. 3, 2017).
46 CITY OF LOS ANGELES V. BARR
Justice Programs, worth upwards of $1.2 billion in fiscal year
2018.12
The enormous impact of such potential authority left our
sister circuits firmly convinced that the plain language of
§ 10102(a)(6) could not support the DOJ’s claimed authority.
I would join them, and respectfully disagree with the portions
of the majority opinion that seemingly find more capacious
powers bestowed by the “including” clause within
§ 10102(a)(6)’s residual clause.
12
See FY 2020 Performance Budget, Office of Justice Programs
(U.S. Dep’t of Justice), March 2019, at 40, 44,
https://www.justice.gov/file/1144566/download (last visited July 29,
2019).