Salus Populi Suprema Lex Esto

About MoreLaw
Contact MoreLaw

Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Help support the publication of case reports on MoreLaw

Date: 02-15-2019

Case Style:

City of Philadelphia v. Attorney General of the United State of America

Case Number: 18-2648

Judge: Rendell

Court: United States Court of Appeals for the Third Circuit on appeal from the Eastern District of Pennsylvania

Plaintiff's Attorney: Jasmeet K. Ahuja, Alexander B. Bowerman, Virginia A. Gibson, Kirti Darla, Matthew J. Higgins, Neal K. Katyal, Marcel S. Pratt, Lewis Rosman, Kelly S. Diffily

Defendant's Attorney: Katherine T. Allen, Bradley Hinshelwood, Laura Myron, Chad A. Readler and Daniel Young for the USAG

Lawrence J. Joseph for Amicus Appellant Immigration Reform Law

Adam S. Lurie for r Amicus American
Jewish Committee

Brenna R. Solomon for r Amicus American
Jewish Committee

Spencer E. W. Amdur for for Amicus Appellee
American Civil Liberties Union

Ilana H. Eisenstein for Amicus Appellee
Philadelphia Social and Legal
Services Organizations

Linda Fang for for Amicus Appellee
State of New York

Robert Perrin for Amicus Appellee Anti
Defamation League


The City of Philadelphia has received funds under the federal Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG”) every year since the program’s inception
in 2006. Last year, however, the Justice Department notified
the City that it was withholding its FY2017 award because the
City was not in compliance with three newly implemented conditions (“the Challenged Conditions”). These conditions required greater coordination with federal officials on matters of
immigration enforcement. The City filed suit to enjoin the Attorney General from withholding its award, and after discovery
and extensive hearings, the District Court granted summary
judgment in its favor.
The City attacked the government’s ability to impose the
Challenged Conditions on several statutory and constitutional
fronts. But we need only reach the threshold statutory question. Where, as here, the Executive Branch claims authority
not granted to it in the Constitution, it “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). Therefore, our inquiry is straightforward: did Congress empower the
Attorney General to impose the Challenged Conditions?
Underlying this question, and potentially complicating its
resolution, is the stark contrast in the priorities of the City and
those of the Executive Branch regarding immigration policy.
In resolving the discrete legal question before us, however, we
make no judgment as to the merits of this policy dispute. Rather, our role is more confined, and our focus is only on the
legality of the particular action before us.
Concluding that Congress did not grant the Attorney General this authority, we hold that the Challenged Conditions
were unlawfully imposed. Therefore, we will affirm the District Court’s order to the extent that it enjoins enforcement of
the Challenged Conditions against the City of Philadelphia.
We will vacate part of the order, however, to the extent that it
exceeds the bounds of this controversy. See infra III. B.
A. Byrne JAG and the Challenged Conditions
Federal grants to state and local governments play a large
role in facilitating national, state, and local policy. In FY2018
alone, the federal government was expected to give approximately $728 billion to state and local governments through
1,319 federal grant programs. Robert Jay Dilger, Cong. Research Serv., R40638, Federal Grants to State and Local Governments: A Historical Perspective on Contemporary Issues 1
(2018). These programs encompass a wide range of policy areas, from health care to special education to infrastructure projects. Our immediate concern, however, is one particular grant
program for state and local law enforcement: the Edward
Byrne Memorial Justice Assistance Grant Program.
Byrne JAG, named for a fallen New York City police officer, was established in 2006 through the merger of two law
enforcement grant programs. See Pub. L. No. 109-162, § 1111,
119 Stat. 2960, 3094 (2006). The Department of Justice administers the program through the Office of Justice Programs
(“OJP”), which is headed by an Assistant Attorney General
(“AAG”). Byrne JAG is the “primary provider of federal criminal justice funding to States and units of local government”
and distributes over $80 million in awards each year. Edward
Byrne Memorial Justice Assistance Grant Program FY 2017
Local Solicitation, Dep’t of Justice (Aug. 3, 2017); App. 332.
It is a “formula grant,” meaning that funds are distributed
among all grantees based on a statutorily fixed formula. In the
case of Byrne JAG, the formula considers two factors: population and violent crime statistics. See 34 U.S.C. § 10156. Once
approved, grantees may spend those funds within any of the
eight statutorily enumerated areas.1
Any “State or unit of local government” may submit an application to the Attorney General for this grant. Id. § 10153(a).
Historically, the OJP has included a number of conditions on
the application (over 50 for FY2017), most of which relate to
program integrity or impose requirements for the handling of
federal funds. Applicants must also certify that they “will comply with all provisions of this part and all other applicable Federal laws.” Id. § 10153(a)(5)(D). Philadelphia has received an
award under Byrne JAG every year since the program’s inception in 2006. Its average annual award from the program is
1 Byrne JAG funds may be used for the following programs:
“(A) Law enforcement programs. (B) Prosecution and court
programs. (C) Prevention and education programs. (D) Corrections and community corrections programs. (E) Drug treatment and enforcement programs. (F) Planning, evaluation,
and technology improvement programs. (G) Crime victim and
witness programs (other than compensation). (H) Mental
health programs and related law enforcement and corrections
programs, including behavioral programs and crisis intervention teams.” 34 U.S.C. § 10152(a)(1).
$2.5 million, which it has used to modernize courtroom technology, fund reentry programs for persons on release from
prison, and operate substance abuse programs, among other
In the FY2017 applications that are the subject of this case,
the Department included three new conditions. These Challenged Conditions are:
• The Certification Condition. Grantees must “certify
compliance with [8 U.S.C. § 1373 (“Section 1373”)].”
Backgrounder on Grant Requirements, Dep’t of Justice
(July 25, 2017); App. 246. Section 1373 prohibits state
and local governments from restricting the sharing of
information relating to an individual’s immigration status—lawful or unlawful—with federal immigration officials.
• The Access Condition. Grantees must “permit personnel of the U.S. Department of Homeland Security
(“DHS”) to access any detention facility in order to
meet with an alien and inquire as to his or her right to
be or remain in the United States.” Id.
• The Notice Condition. Grantees must “provide at least
48 hours advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order
to take custody of the alien.” Id.
The Attorney General maintains that these conditions are “designed to ensure that the activities of federal law-enforcement
grant recipients do not impair the federal government’s ability
to ensure public safety and the rule of law by detaining and
removing aliens upon their release from local criminal custody.” Att’y Gen. Br. 12.
Although the Certification Condition did not apply to
FY2016 applications, DOJ asked ten jurisdictions, including
Philadelphia, to submit legal opinions certifying their compliance with Section 1373. Philadelphia submitted its letter in
April 2017. Upon receiving letters from all ten jurisdictions,
DOJ issued a press release on July 6, 2017. It stated that the
Department was “in the process of reviewing” the letters, but
also stated that “[i]t is not enough to assert compliance, the jurisdictions must actually be in compliance.” Press Release,
Dep’t of Justice (July 6, 2017); App. 248.
B. Immigration Enforcement and Local Law Enforcement
Under our federal system, “both the National and State
Governments have elements of sovereignty the other is bound
to respect.” Arizona v. United States, 567 U.S. 387, 398
(2012). While the federal government has “broad, undoubted
power over the subject of immigration and the status of aliens,”2 id. at 394, the “States possess primary authority for defining and enforcing the criminal law,” United States v. Lopez,
514 U.S. 549, 561 n.3 (1995) (internal quotation omitted).
These powers intersect when a state or city arrests an individual whom ICE would also like to apprehend for removal proceedings.3
This occurs frequently: 142,356 times in FY2017.
2 Within the Executive Branch, immigration enforcement falls
primarily to DHS. And within DHS, U.S. Immigration and
Customs Enforcement (“ICE”) is the law enforcement agency
tasked with identifying, apprehending, and removing aliens
from the United States.
3 “Removal” is synonymous with “deportation.” But as a matter of legal terminology, the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,
U.S. Immigration and Customs Enf’t, Fiscal Year 2017 ICE
Enforcement and Removal Operations Report 8 (2017).
An important tool used by ICE in these situations is the immigration detainer. Once ICE identifies a removable alien who
is in state or local custody, it cannot simply wrest that individual from custody. Instead, it may issue a detainer, which serves
to “advise another law enforcement agency that [it] seeks custody of an alien presently in the custody of that agency, for the
purpose of arresting and removing the alien.” 8 C.F.R. § 287.
Detainers may ask two things of the state or local agency: that
it notify ICE at least 48 hours before a removable alien is released from custody; and that it detain a removable alien for up
to 48 hours past the time that the alien would have otherwise
been released to allow ICE to apprehend the individual. ICE
Operations Report, supra at 7. A detainer is a request, not a
demand. Galarza v. Szalczyk, 745 F.3d 634, 642 (3d Cir. 2014)
(“[D]etainers are not mandatory.”). And DHS’s current policy
authorizes ICE officials to issue detainers only after obtaining
an administrative warrant supported by a showing of probable
cause that the alien is removable. ICE Operations Report, supra at 7-8.
Like the immigration detainer, Section 1373 seeks to facilitate cooperation between the State and National Governments.
Specifically, it prohibits any restrictions on the sharing of immigration information. Section 1373 provides in relevant part:
[A] Federal, State, or local government entity or
official may not prohibit, or in any way restrict,
any government entity or official from sending

replaced all references to “deportation” with “removal.” See
I.N.S. v. St. Cyr, 533 U.S. 289, 315 (2001).
to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
8 U.S.C. § 1373(a).
C. Factual and Procedural History
1. Factual History
Philadelphia filed its FY2017 Byrne JAG application on
September 5, 2017.4
The Department issued a “preliminary
determination” of the application on October 11, stating that
the City “appears to have laws, policies, or practices that violate 8 U.S.C. § 1373.” No doubt, this referred to policies
adopted by police or executive order that limit the circumstances under which City officials will share immigration information with the federal government, permit federal officials
to access City prison facilities, and coordinate with federal officials regarding the release of aliens from local custody.5
4 Philadelphia intended to use FY2017 funds to support the Police Commissioner’s “Crime Fighting Strategy,” support the
City’s “Reality Based Training Unit,” purchase supplies for inner-city youth initiatives, and purchase naxalone for officers
responding to opioid overdoses. See S.A. 23. 5 Specifically, the policies at issue are:
The Confidentiality Memo. Police Memorandum 01-06,
adopted in May 2001, directs law enforcement officers to share
immigration information with the federal government under
limited circumstances: when required by law, when the immigrant consents, or when the “immigrant is suspected of engaging in criminal activity.” App. 250-51.
City believes that these policies help foster trust between the
immigrant community and law enforcement. It argues that
such policies are “critical to reassure law-abiding residents that
contact with the City government will not lead to deportation
by ICE.” Philadelphia Br. 7.
2. Procedural History
This case has unfolded in four main acts: Philadelphia filed
a complaint seeking to enjoin the Department from implementing the Challenged Conditions; the District Court granted a
preliminary injunction; the District Court granted summary
judgement and a permanent injunction for the City; and, finally, the Attorney General filed this appeal.
On August 30, 2017, Philadelphia filed the complaint in
this action against the Department of Justice in the U.S. District
Court for the Eastern District of Pennsylvania. The City sought

The Confidentiality Order. Executive Order 8-09, enacted in
November 2009, bars law enforcement officers from inquiring
about a person’s immigration status, “unless the status itself is
a necessary predicate of a crime the officer is investigating or
unless the status is relevant to identification of a person who is
suspected of committing a crime.” App. 254.
The Detainer Order. Executive Order 5-16, enacted in January
2016, bars City officials from detaining an immigrant pursuant
to an ICE detainer or from providing notice of the immigrant’s
release, unless the request is accompanied by a judicial warrant. App. 258-59.
The Inmate Consent Form. These consent forms are distributed to incarcerated individuals whom ICE requests to interrogate. The forms require the inmate’s consent before ICE is
permitted access to the facility to conduct an interview. App.
to enjoin the Department from implementing the Challenged
Conditions and a writ of mandamus compelling the Department to disburse its FY2017 Byrne JAG funds. The City argued that this relief was warranted for five reasons: the Department acted ultra vires in enacting the Challenged Conditions
in violation of the Administrative Procedure Act (“APA”) and
the Constitution’s separation of powers; the Conditions were
enacted arbitrarily and capriciously in violation of the APA;
they violated the Spending Clause of the Constitution; the Certification Condition and Section 1373 violate the Tenth
Amendment of the Constitution; and the City was, in fact, in
substantial compliance with the Challenged Conditions. App.
The District Court held extensive hearings and issued a preliminary injunction on November 15, 2017. In a thoughtful
and well-reasoned opinion, the Court found that the City was
likely to succeed on all of its claims, and enjoined the Department from denying its FY2017 application. See City of Philadelphia v. Sessions, 280 F. Supp. 3d 579 (E.D. Pa. 2017) (Philadelphia I). The Department appealed the preliminary injunction to this Court on January 16, 2018. After filing its appeal,
the case continued in the District Court, where the Department
also filed a motion to dismiss the City’s complaint. The District Court denied this motion on March 13, 2018. See City of
Philadelphia v. Sessions, 309 F. Supp. 3d 271 (E.D. Pa. 2018).
In two orders, the Court granted summary judgment for the
City on all of its claims. See App. 93; City of Philadelphia v.
Sessions, 309 F. Supp. 3d 289 (E.D. Pa. 2018) (Philadelphia
II). It permanently enjoined the Department from enforcing
the Challenged Conditions, ordered the Department to disburse
the City’s FY2017 funds, and issued declaratory relief on all of
the City’s legal claims. Furthermore, the Court issued additional relief, namely, ordering that “[t]o the extent an agency
of the United States Government has probable cause to assert
that an individual in the custody of the City of Philadelphia is
a criminal alien … and seeks transfer to federal custody of such
individual within a city facility, it shall secure an order from a
judicial officer of the United States for further detention, as allowed by law.” App. 191.
After the District Court issued this order, we dismissed the
Attorney General’s appeal of the preliminary injunction. The
Attorney General filed this timely appeal of the Court’s grant
of summary judgment and permanent injunction.
D. Related Litigation
Philadelphia is not alone in being advised that its Byrne
JAG award depends upon compliance with the Challenged
Conditions. Indeed, several other jurisdictions have sued to
enjoin enforcement of the Challenged Conditions, including
the City of Chicago, the City and County of San Francisco, and
the City of New York (which was joined by seven states—New
York, Connecticut, New Jersey, Rhode Island, Washington,
Massachusetts, and Virginia). In all of these cases, the courts
that have ruled have enjoined enforcement of the Challenged
Conditions. See City of Chicago v. Sessions, 264 F. Supp. 3d
933 (N.D. Ill. 2017) (Chicago I) (issuing a preliminary injunction as to the Notice and Access Conditions); City of Chicago
v. Sessions, 888 F.3d 272 (7th Cir. 2018) (Chicago II) (affirming the district court’s preliminary injunction); City of Chicago
v. Sessions, 321 F. Supp. 3d 855 (N.D. Ill. 2018) (Chicago III)
(issuing a permanent injunction); City & County of San Francisco v. Sessions, 2018 WL 4859528 (N.D. Cal. Oct. 5, 2018)
(San Francisco) (issuing a permanent injunction after declining to issue a preliminary injunction); States of New York, et
al. v. Dep’t of Justice, 2018 WL 6257693 (S.D.N.Y. Nov. 30,
2018) (New York, et al.) (issuing a permanent injunction).
The District Court had jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 1346. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. We review the District Court’s findings of fact for
clear error, and we review its legal conclusions de novo. Blackledge v. Blackledge, 866 F.3d 169, 177 (3d Cir. 2017). We
review the scope of the District Court’s injunctive relief for
abuse of discretion. Allstate Settlement Corp. v. Rapid Settlements, Ltd., 559 F.3d 164, 172 (3d Cir. 2009).
The District Court addressed each of the City’s contentions
and ruled that: the Attorney General did not have statutory authority to promulgate the Challenged Conditions; he did so arbitrarily and capriciously; the Challenged Conditions violate
the Spending Clause; the Certification Condition violates the
Tenth Amendment; and the City was in substantial compliance
with the Challenged Conditions. The Attorney General challenges these rulings and also argues that the District Court
abused its discretion in granting injunctive relief.
We begin with the threshold issue: whether the Attorney
General possessed the statutory authority to enact the Challenged Conditions. If the Attorney General did not have that
authority, then we needn’t reach the other claims.
A. Statutory Authorization for the Challenged Conditions
Where, as here, the Executive Branch is not acting pursuant
to a constitutional power, it “literally has no power to act …
unless and until Congress confers power upon it.” La. Pub.
Serv. Comm’n, 476 U.S. at 374. An executive agency that acts
without statutory authority violates the Administrative Procedure Act, see 5 U.S.C. § 706(2)(C), and may run afoul of the
constitutional separation of powers. Accordingly, we must determine whether Congress empowered the Attorney General to
promulgate the Challenged Conditions. We consider three
sources of authority offered by the Attorney General: first, the
Byrne JAG statute, 34 U.S.C. §§ 10151–10158; second, the
provision defining the duties of the AAG for OJP, 34 U.S.C. §
10102(a); and third, for the Certification Condition only, Section 10153(a)(5)(D) of the Byrne JAG statute.
In interpreting the meaning of these statutory provisions,
we rely on the rules of statutory interpretation articulated by
the Supreme Court and this Court. Our point of departure is
the text of the statute. See Gov’t of Virgin Islands v. Knight,
989 F.2d 619, 633 (3d Cir. 1993). But we are mindful not to
read provisions in isolation. Rather, we look to the text and
structure of the statute as a whole. See K Mart Corp. v. Cartier,
Inc., 486 U.S. 281, 291 (1988). We are also guided by any
relevant, well-established canons of statutory interpretation.
See Schaar v. Lehigh Valley Health Servs., Inc., 598 F.3d 156,
160 (3d Cir. 2010).
1. The Byrne JAG Statute
The Attorney General argues that authorization for the Notice Condition and the Access Condition is found in the Byrne
JAG statute itself.6
See Att’y Gen. Br. 23. He pursues this
6 The Attorney General asserts that one provision of the Byrne
JAG statute, § 10153(a)(5)(D), authorizes the Certification
Condition but not the Notice and Access Conditions. We will
discuss that provision separately, infra III. A. 3.
argument in the least depth, however, and for good reason.
Such authorization is nowhere to be found in the text of the
statute. As other courts have noted, the statute delegates some
authority to the Attorney General, but it is exceptionally limited in nature.7
See, e.g., San Francisco, 2018 WL 4859528,
at *10 (“[T]he Byrne JAG statute contains limited discretionary authority for the Attorney General to carry out specific
parts of the grant program.”). Two aspects of the statute, however, deserve closer scrutiny. The first is cited by the Attorney
General as authorizing the Notice and Access Conditions, and
the second, although not relied on by the Attorney General,
highlights just how little discretionary authority the statute
confers on him.
First, the Attorney General has limited authority to monitor
and review grantees’ program and financial information. For
example, the statute directs him to require grantees to certify
that program funds “will not be used to supplant State or local
funds.” Id. § 10153(a)(1). He is directed to require “each program funded under this part [to] contain a program assessment
component,” id. § 10152(c)(1), but he may waive that requirement if he deems that a program is “not of sufficient size to
justify a full program assessment,” id. § 10152(c)(2). He must
also direct applicants to report “data, records, and information
(programmatic and financial)” that he may “reasonably require,” id. § 10153(a)(4), and require that grantees certify that
7 For example, the Attorney General may determine the “form”
of the application, 34 U.S.C. § 10153(a); he may waive the prohibition on using funds on vehicles, luxury items, real estate,
and construction projects, id. § 10152(d)(2); and he may provide “technical assistance” to jurisdictions that request it, id. §
“there has been appropriate coordination with affected agencies,” id. § 10153(a)(5).
The Attorney General argues that these latter two provisions—regarding data reporting and coordination with affected
agencies—authorize the Notice and Access Conditions. See
Att’y Gen. Br. 26. His theory is that notice of an alien’s release
from custody constitutes “information” that the Attorney General may “reasonably require” and access to prison facilities
constitutes “appropriate coordination” with an affected agency.
But this interpretation stretches those provisions too far. The
data-reporting requirement is expressly limited to “programmatic and financial” information—i.e., information regarding
the handling of federal funds and the programs to which those
funds are directed. It does not cover Department priorities unrelated to the grant program. Furthermore, the coordination
requirement asks for a certification that there “has been” appropriate coordination. Given that “Congress’ use of a verb
tense is significant in construing statutes,” United States v. Wilson, 503 U.S. 329, 333 (1992), and this provision is housed in
a subsection containing several other certification requirements regarding a grantee’s application, we interpret it to require certification that there was appropriate coordination in
connection with the grantee’s application. This does not serve
as a basis to impose an ongoing requirement to coordinate on
matters unrelated to the use of grant funds.
Second, certain provisions of the statute, and other provisions in the U.S. Code that expressly mention the Byrne JAG
statute, give the Attorney General narrow authority to withhold
or re-allocate funds under very limited circumstances.8
For example, he may re-allocate funds among grantees and withhold
a small percentage of funds from a particular grantee. The statute gives the Attorney General the authority to “reserve not
more than 5 percent” of total funds in order to “address … precipitous or extraordinary increases in crime” or to “mitigate
significant programmatic harm resulting from operation of the
formula” in one or more jurisdictions. 34 U.S.C. § 10157. This
provision, however, authorizes the Attorney General to re-allocate funds only in those two, narrow circumstances. And it
only allows the Attorney General to set aside five percent of
the total Byrne JAG funds, leaving the formula in place for distribution of the remainder of the funds. It does not authorize
the enactment of the Challenged Conditions or the withholding
of the entirety of a particular jurisdiction’s award.
There are also circumstances in which the Attorney General
may, or must, withhold Byrne JAG funds for a grantee’s failure
to comply with certain federal laws. For example, he may
withhold up to four percent of a jurisdiction’s Byrne JAG funds
if it fails to meet certain requirements of the National Instant
Criminal Background Check System. See 34 U.S.C. §
40914(b)(1). A mandatory reduction of five percent of Byrne
JAG funds will occur if there are egregious violations. See id.
§ 40914(b)(2). The Attorney General also has the discretion to
withhold “not more than [] 10-percent” of Byrne JAG funds if
a jurisdiction fails to comply with “death-in-custody” reporting
requirements. Id. § 60105(c)(2). All other delegations of this
8 The Attorney General does not rely on these provisions, but
we think that consideration of them is necessary to make our
analysis complete. The limited scope of authority granted by
these provisions stands in stark contrast to the broad authority
the Attorney General seeks.
sort are similarly circumscribed. See id. § 20927(a) (mandatory ten percent penalty for failure to comply with the Sex Offender Registration and Notification Act); id. § 30307(e)(2)
(mandatory five percent penalty for failure to comply with the
Prison Rape Elimination Act).
We discuss these provisions primarily to highlight what
they do not authorize: the power to withhold all of a grantee’s
funds for any reason the Attorney General chooses. See Chicago II, 888 F.3d at 284 (“None of those provisions 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.”). Moreover, as
the District Court and the Seventh Circuit have observed,
Congress knows how to grant this sort of broad discretionary
authority when it wants. See 34 U.S.C. § 10446(e)(3) (Grants
to Combat Violent Crime Against Women) (“In disbursing
grants under this subchapter, the Attorney General may impose
reasonable conditions on grant awards….”). But it has not
done so here.
Such a grant of authority, if it existed, would also render
the aforementioned limited grants of authority superfluous. If
Congress had already given the Attorney General this sweeping authority to withhold all funds for any reason, it would have
no need to delineate numerous, specific circumstances under
which the Attorney General may withhold limited amounts of
9 See City of Philadelphia I, 280 F. Supp. 3d at 616 (“Congress
delegated authority to impose conditions on other grants in the
same chapter, and did so clearly.”); Chicago II, 888 F.3d at 286
(“Congress knew how to grant such authority, and explicitly
did so in another statute within the same Act.”).
funds. Even if the statute were ambiguous—which it is not—
we generally would not interpret such a provision to render superfluous more specific delegations of power. See, e.g., Gonzales v. Oregon, 546 U.S. 243, 262 (2006) (“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.”); see also Chicago II, 888 F.3d at
286 (“Against that backdrop, 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, 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.”).
Finding no authority for the Challenged Conditions in the
Byrne JAG statute or other provisions that specifically mention
it, we turn to the Attorney General’s next suggested source of
2. The Duties and Functions of Assistant Attorney
The Attorney General also argues that all three conditions
are authorized by 34 U.S.C. § 10102, the provision establishing
the “Duties and Functions of Assistant Attorney General” for
the Office of Justice Programs. That provision provides, in relevant part, that “[t]he Assistant Attorney General shall”:
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) (emphasis added). The Attorney General argues that because this provision authorizes “placing special conditions on all grants,” it authorizes placing the Challenged Conditions on the Byrne JAG grant.
But the Attorney General’s argument runs headlong into an
obstacle: the word “including.”10 In the Attorney General’s
view, the Special Conditions Clause confers upon the AAG
new authority, not found elsewhere in the Code, to establish
conditions on grants. This clause, however, is preceded by the
word “including,” which is used to denote something that is
within a larger whole. See Webster’s Third New International
Dictionary of the English Language Unabridged, 1143 (3d ed.
1993) (defining “include” as “to place, list, or rate as a part or
component of a whole or of a larger group class or aggregate”).
10 Several other federal courts have identified this flaw in the
Attorney General’s reasoning. See, e.g., Chicago II, 888 F.3d
at 285 (“Because that interpretation is so obviously belied by
the plain meaning of the word ‘including,’ the Attorney General’s position is untenable.”); New York, et al., 2018 WL
6257693, at *7 (“The problem for Defendants is that the
[Clause] begins with the word ‘including.’”); San Francisco,
2018 WL 4859528, at *12 (“The clause begins with the word
‘including,’ conveying a reference to part of a whole.”).
In the case of this provision, “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 AAG 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.” As we discussed in the
previous section, the broad authority he urges has not been
vested in the Attorney General or the AAG 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.
The structure of Section 10102 also casts serious doubt on
the Attorney General’s interpretation. The Special Conditions
Clause is housed in the sixth of six subsections delineating the
AAG’s power. The preceding five subsections all deal with
the AAG’s power to disseminate criminal justice information
and coordinate with various agencies and officials. See 34
U.S.C. § 10102(a)(1)-(5). The principle of noscitur a sociis—
“a word is known by the company it keeps”—is helpful here.
Yates v. United States, 135 S. Ct. 1074, 1085 (2015). 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.
11 Moreover, hiding such a broad
11 In stating this, we join the District Court and several other
federal courts. See Chicago II, 888 F.3d at 285 (Ҥ 10102(a)(6)
would be an unlikely place for Congress to place a power as
broad as the one the Attorney General asserts.”); Philadelphia
I, 280 F. Supp. 3d at 617 (“Congress is unlikely to ground the
power—the power to place any special conditions on all
grants—in a statute outlining ministerial duties for an Assistant
Attorney General would be akin to hiding an elephant in a
mousehole. And Congress “does not, one might say, hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns, 531
U.S. 457, 468 (2001).
Given its text and structure, 34 U.S.C. § 10102 does not
authorize the Attorney General’s imposition of the Challenged
Conditions. We turn, then, to the Attorney General’s final statutory argument.
3. All Other Applicable Federal Laws
The Attorney General next argues that the Certification
Condition is authorized by 34 U.S.C. § 10153(a)(5)(D). This
section of the Byrne JAG statute requires applicants to certify
that they “will comply with all provisions of this part and all
other applicable Federal laws.” Id. § 10153(a)(5)(D) (emphasis added). The Attorney General argues that Section 1373—
discussed supra, I. B., prohibiting restrictions on the sharing of
information regarding immigration status—is an applicable
federal law, as it applies to local government entities. Accordingly, he argues that he is authorized to require applicants to

Attorney General’s authority to impose substantive conditions
in a subsection dedicated to conferring power on the AAG.”);
New York, et al., 2018 WL 6257693, at *8 (“[Section 10102]
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, and a power granted to the Assistant Attorney General
that was not granted to the Attorney General.”) (quoting Chicago II, 888 F.3d at 285).
certify their compliance with that law. The City responds,
however, that the Applicable Laws Clause only covers laws
that “expressly govern federal grants or grantees.” Philadelphia Br. 20. At first blush, both parties’ interpretations have
merit—the text does not explicitly indicate to whom, or to
what, the laws must be applicable. But closer scrutiny of the
text, structure, and history of the provision leads us to reject
the Attorney General’s expansive view.
Starting with the text, we observe that 34 U.S.C. §
10153(a)(5)(D) contains an initial specific phrase followed by
a general phrase: a grant applicant must certify that it “will
comply with [1] all provisions of this part and [2] all other applicable Federal laws.” In these situations, the principle of
ejusdem generis teaches that “the general term should be understood as a reference to subjects akin to the one with specific
enumeration.” Norfolk & W. Ry. Co. v. Am. Train Dispatchers
Ass’n, 499 U.S. 117, 129 (1991). But “[t]he absence of a list
of specific items undercuts the inference embodied in ejusdem
generis.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 225
(2008) (emphasis added). If the general phrase (“all other applicable Federal laws”) were preceded by a list of specific federal laws, then our task would be much easier. But here we
find only “one specific and one general category.” Id. Moreover, the specific phrase (“all provisions of this part”) tells us
little about the meaning of the general phrase. In short,
ejusdem generis does not get us very far in interpreting “all
other applicable Federal laws.”
But several other considerations all suggest that Section
1373 is not an “applicable” law. First, the canon against surplusage counsels us to read the term “applicable” in a way that
gives it some independent heft. See Paek v. Att’y Gen., 793
F.3d 330, 337 (3d Cir. 2015) (“The canon against surplusage
counsels us to give effect to every word of a statute.”). Here,
the term “applicable” avoids being redundant only by doing
some limiting work beyond delineating the set of all federal
laws that would “appl[y]” to an entity like Philadelphia. Otherwise, Congress could have simply written that a grant applicant must certify compliance with “all other Federal laws.” See
San Fransisco, 2018 WL 4859528 at *17 (“[I]t is superfluous
to interpret ‘all other applicable Federal laws’ as ‘all Federal
laws.’”). Thus, the word “applicable” must have a narrower
meaning than one that sweeps in all possible laws that independently apply to a grant applicant.
Second, the noscitur a sociis canon—discussed supra, III.
A. 2.—provides further guidance. The Applicable Laws
Clause is located in the fourth of four subsections, all of which
require certifications that must be included in a Byrne JAG application. These four requirements provide that an “application
shall include … [a] certification … that”:
(A) the programs to be funded by the grant meet
all the requirements of this part;
(B) all the information contained in the application is correct;
(C) there has been appropriate coordination with
affected agencies; and
(D) the applicant will comply with all provisions
of this part and all other applicable Federal laws.
34 U.S.C. § 10153(a)(5). These requirements all relate to the
programs that will be funded under the grant. See San Francisco, 2018 WL 4859528, at *17 (“[A]ll the other conditions in
Section 10153(a) apply to the grant itself.”); New York, et al.,
2018 WL 6257693, at *9 (“The structure of § 10153, which
concerns requirements pertaining to the grant and the application, points toward the [more narrow] reading.”). This is evident on the face of the first requirement. The second requirement necessarily deals with programs funded under the grant,
as the bulk of information contained in the application is regarding the use of grant funds. And we can infer that the requirement that there “has been appropriate coordination with
affected agencies” relates to coordination that had occurred in
compiling a grantee’s application. Although not dispositive,
these narrow neighboring provisions counsel against a broad
interpretation of the Applicable Laws Clause. Thus, it would
be reasonable to view “all other applicable Federal laws” to
refer specifically to laws that apply to operations relating to the
grant, not to require the City to certify compliance with every
single law that might apply to it.
Third, the historical practice of the Justice Department is
also an important interpretive tool. See N.L.R.B. v. Noel Canning, 134 S. Ct. 2550, 2560 (2014) (“[T]he longstanding ‘practice of the government’ can inform our determination of ‘what
the law is.’”) (quoting McCulloch v. Maryland, 4 Wheat. 316,
401 (1819), and Marbury v. Madison, 1 Cranch 137, 177
(1803)). Here, the Justice Department’s historical practice
does not comport with the broad interpretation that it urges in
this case. Every condition that is authorized by the Applicable
Laws Clause applies specifically to programs funded under the
grant, not more generally to the grantee.
12 While the Attorney General does not expressly state the
statutory authority for each condition, the City does. See
App. 391-400. The Attorney General does not take issue with
the City’s account.
The Attorney General points to several conditions—such as
compliance with laws regarding human research, body armor
purchases, and military equipment purchases—as establishing
a practice of conditioning Byrne JAG funds on certification of
compliance with broader categories of federal law. But these
conditions are not blanket requirements with which the grantee
must comply under all circumstances; rather, their applicability
is conditioned on whether federal funds are used in a particular
area. See, e.g., App. 379 (requiring compliance with 28 C.F.R.
§ 46, which sets out regulations for human research that is
“conducted or supported by a federal department or agency”).
For example, if a grantee uses funds to purchase body armor or
military style equipment, then it must comply with the applicable federal regulations regarding those purchases. And if a
grantee uses funds to conduct research on human subjects, then
it must comply with the applicable federal regulations in that
area. The Certification Condition is written differently: regardless of how a grantee uses its funds, it must certify compliance
with this federal law. The Attorney General has not pointed to
any historical precedent for the kind of unconditional requirement it now seeks to impose.
Fourth, as we have noted, Congress structured the Byrne
JAG program as a “formula grant,” under which a jurisdiction’s award is calculated through a formula that considers only
population and violent crime statistics. The Attorney General
asserts that the Applicable Laws Clause authorizes him to condition Byrne JAG funds on compliance with any law in the
U.S. Code. But that reading of the Clause would destabilize
the formula nature of the grant. Allowing the Attorney General
to withhold all funds because a jurisdiction does not certify
compliance with any federal law of the Attorney General’s
choosing undermines the predictability and consistency embedded in the program’s design, thus turning the formula grant
into a discretionary one. Moreover, if Byrne JAG were intended to be a discretionary grant, one would think that Congress would house it in the section of the U.S. Code containing
discretionary Justice Department grants, see 34 U.S.C. Subt. I,
Ch. 101, Subch. V, Part B (“Discretionary Grants”), not its
own, neighboring section, see 34 U.S.C. Subt. I, Ch. 101,
Subch. V., Part A (“Edward Byrne Memorial Justice Assistance Grant Program”).
Finally, there is reason to doubt that even under a broad
reading of the Applicable Laws Clause, Section 1373 would
apply. In the “Administrative Provisions” section of the same
chapter of the code as the Applicable Laws Clause, Congress
Nothing in this chapter or any other Act shall be
construed to authorize any department, agency,
officer, or employee of the United States to exercise any direction, supervision, or control over
any police force or any other criminal justice
agency of any State or any political subdivision
34 U.S.C. § 10228. Under the plain terms of this provision, the
Applicable Laws Clause “shall” not be “construed” to authorize the Department to “exercise any direction, supervision, or
control” over Philadelphia Police. But under the Attorney
General’s reading of the Applicable Laws Clause, Section
1373 would authorize the Department to direct, supervise, or
control Philadelphia Police communications with ICE. Section
10228 may therefore be a statutory limit to which laws are “applicable” under the Applicable Laws Clause.
Accordingly, we find that Section 1373 is not an applicable
law for the purposes of Byrne JAG.
* * *
After reviewing the three sources of authority offered by
the Attorney General, we hold that Congress has not empowered the Attorney General to enact the Challenged Conditions.
Because the Attorney General exceeded his statutory authority
in promulgating the Challenged Conditions, we needn’t reach
Philadelphia’s other arguments. Therefore, all that remains for
the purposes of our review is the District Court’s injunctive order.
B. The Judicial Warrant Injunction
In its final judgment and decree, the District Court issued
injunctive relief establishing that a judicial warrant shall be
necessary to transfer a criminal alien to federal custody. The
order provides, in relevant part:
To the extent an agency of the United States
Government has probable cause to assert that an
individual in the custody of the City of Philadelphia is a criminal alien (as previously defined by
this Court in City of Philadelphia v. Sessions,
2018 WL 2725503, *19 n. 3 (E.D. Pa. June 6,
2018), and seeks transfer to federal custody of
such individual within a city facility, it shall secure an order from a judicial officer of the United
States for further detention, as allowed by law.
App. 191. The Attorney General asks that, even if we find for
the City on the merits—which we have done—we vacate this
section of the order. In a memorandum accompanying the Order, the District Court explained that the order was necessary
to shield the City from legal liability that might arise if it detained an individual pursuant to an immigration detainer who
should have otherwise been released. App. 194. The Court
stated that, with this order, “[t]his risk can be easily eliminated.” App. 194.
We do not doubt, as the District Court rightly decided, that
equitable relief was warranted in this case. See Philadelphia
II, 309 F. Supp. 3d at 338-43. The question before us, however,
is whether the Court’s order swept too broadly.13 While there
are tried and true standards for determining when equitable relief is warranted, see, e.g., Shields v. Zuccarini, 254 F.3d 476,
482 (3d Cir. 2001) (discussing the four-part test for determine
when a permanent injunction is warranted), there is less authority regarding the scope of equitable relief. The Supreme Court
has instructed that the equity power of the federal courts is confined to “the system of judicial remedies which had been devised and was being administered by the English Court of
Chancery at the time of the separation of the two countries.” Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund,
Inc., 527 U.S. 308, 318 (1999). We have stated, consistent with
many of our sister circuits, that “injunctive relief should be ‘no
more burdensome to the defendant than necessary to provide
complete relief to plaintiffs.’” Novartis Consumer Health, Inc.
v. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d
578, 598 (3d Cir. 2002) (quoting Califano v. Yamasaki, 442
U.S. 682, 702 (1979)); see also Waldman Publ’g Corp. v. Landoll, Inc., 43 F.3d 775, 785 (2d. Cir. 1994) (“Injunctive relief
should be narrowly tailored to fit specific legal violations.”);
Hayes v. N. State Law Enf’t Officers Ass’n, 10 F.3d 207, 217
(4th Cir. 1993) (“An injunction should be tailored to restrain
no more than what is reasonably required to accomplish its
ends.”) (internal quotation omitted). In short, equitable relief
13 “We review the terms of an injunction for abuse of discretion.” Allstate Settlement Corp. v. Rapid Settlements, Ltd., 559
F.3d 164, 172 (3d Cir. 2009).
should be “dictated by the extent of the violation established.”
Califano, 442 U.S. at 702.
Our review of the scope of the District Court’s injunction,
then, has two aspects: first, we must determine “the extent of
the violation established,” id.; and second, we must determine
whether the injunction is “more burdensome to the defendant
than necessary to provide complete relief to plaintiffs.” Novartis, 290 F.3d at 598. On the first point, we have already
addressed the legal violation at length: the Attorney General
acted ultra vires in imposing the three Challenged Conditions
on Byrne JAG grants. Several aspects of the District Court’s
order are narrowly tailored to remedying this legal wrong, including enjoining the Attorney General from enforcing the
Challenged Conditions on Philadelphia’s application and ordering the Attorney General to issue Philadelphia’s FY2017
award. Both of these orders speak directly to the dispute over
the Challenged Conditions.
The judicial warrant requirement, however, goes beyond
the bounds of the complaint. While the District Court’s concerns regarding the legality of holding an alien pursuant to a
detainer may well be legitimate, they are not part of this case
and controversy. Nor, as we noted above, is the broader policy
dispute between the City and the Attorney General regarding
immigration enforcement. The order extends outside of this
particular case and controversy and into those disputes.
Moreover, the other aspects of the order entered by the District Court afford the City full and complete relief. The City
filed its complaint to enjoin the Attorney General from denying
its Byrne JAG award based on unlawfully imposed conditions.
The other aspects of the District Court’s order require that the
Attorney General distribute the City’s FY2017 award and re-
frain from ever enforcing the Challenged Conditions. A district court has discretion to fashion equitable remedies, but
these aspects of the order left the City wanting nothing by way
of further remedies. The judicial warrant requirement was not
requested in the District Court and was not defended with any
vigor at oral argument. See Oral Argument Transcript, 52 (stating that the District Court’s order is “the hardest thing to defend”).
Accordingly, we hold that the District Court abused its discretion as to the scope of the equitable relief and will vacate its
order to the extent it imposed a requirement that the federal
government obtain a judicial warrant before seeking custody
of aliens in City custody.

Outcome: For the aforementioned reasons, we hold that the Attorney
General did not have statutory authority to impose the Challenged Conditions. We also determine that the District Court
abused its discretion in granting broader injunctive relief than
was warranted. Accordingly, we will affirm the District
Court’s order to the extent it is supported by this opinion, and
we will vacate its order as it pertains to the judicial warrant

Plaintiff's Experts:

Defendant's Experts:


Home | Add Attorney | Add Expert | Add Court Reporter | Sign In
Find-A-Lawyer By City | Find-A-Lawyer By State and City | Articles | Recent Lawyer Listings
Verdict Corrections | Link Errors | Advertising | Editor | Privacy Statement
© 1996-2019 MoreLaw, Inc. - All rights reserved.