City & County of San Francisco v. Merrick Garland ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY AND COUNTY OF SAN No. 19-15947
FRANCISCO,
Plaintiff-Appellee, D.C. No.
3:18-cv-05146-
v. WHO
MERRICK B. GARLAND, Attorney
General; AMY L. SOLOMON,
Principal Deputy Assistant Attorney
General; UNITED STATES
DEPARTMENT OF JUSTICE,
Defendants-Appellants.
STATE OF CALIFORNIA, ex rel, No. 19-15950
XAVIER BECERRA, in his official
capacity as Attorney General of the D.C. No.
State of California, 3:18-cv-05169-
Plaintiff-Appellee, WHO
v.
MERRICK B. GARLAND, Attorney
General; AMY L. SOLOMON, in her
official capacity as Principal Deputy
Assistant Attorney General; UNITED
STATES DEPARTMENT OF JUSTICE,
Defendants-Appellants.
2 CITY & CTY. OF SAN FRANCISCO V. GARLAND
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
STATE OF OREGON; KATE BROWN, No. 19-35843
Governor; ELLEN ROSENBLUM,
Attorney General; CITY OF D.C. No.
PORTLAND, 6:18-cv-01959-
Plaintiffs-Appellees, MC
v.
OPINION
JOSEPH R. BIDEN, President of the
United States, in his official
capacity; MERRICK B. GARLAND,
Attorney General, Attorney General
of the United States, in his official
capacity; UNITED STATES OF
AMERICA,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Argued and Submitted June 16, 2022
San Francisco, California
Filed July 29, 2022
CITY & CTY. OF SAN FRANCISCO V. GARLAND 3
Before: Sidney R. Thomas, Ronald M. Gould, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge S.R. Thomas;
Partial Concurrence and Partial Dissent by Judge Bea
SUMMARY*
Civil Rights
In consolidated appeals, the panel affirmed in part and
vacated in part district court judgments in actions challenging
immigration enforcement-related conditions imposed by the
Department of Justice on grants made pursuant to the Edward
Byrne Memorial Justice Assistance Grant Program for Fiscal
Years 2017 and 2018.
The Byrne Memorial Justice Assistance Grant (“JAG”)
program is a federal formula grant that supports state and
local criminal justice efforts. Effective Fiscal Years 2017 and
2018, the Department of Justice (“DOJ”) imposed new
immigration enforcement-related conditions (“Conditions”)
on Byrne JAG funds. In order to draw upon their Byrne JAG
funds, grant recipients, among other things, had to certify that
their laws complied with independent provisions of the
Federal Code, specifically 8 U.S.C. § 1373, a provision of the
Illegal Immigration Reform and Immigrant Responsibility
Act enacted in 1996, and 8 U.S.C. § 1644, of the Personal
Responsibility and Work Opportunity Reconciliation Act.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 CITY & CTY. OF SAN FRANCISCO V. GARLAND
The district court for the Northern District of California
and the district court for the District of Oregon determined
that the Conditions exceeded the DOJ’s statutory authority
and permanently enjoined their enforcement. The district
courts also held that Sections 1373 and 1644 violated the
Tenth Amendment, and permanently enjoined their
enforcement.
The United States did not appeal the injunctions to the
extent that they were based on the holding that the Conditions
exceeded DOJ’s statutory power, as conferred by Congress.
The panel, consistent with this Circuit’s prior precedent and
the government decision not to appeal the district courts’
judgments on this issue, affirmed the judgments of the district
courts enjoining DOJ from withholding Byrne JAG program
grant funds based on the Conditions.
Addressing next the facial constitutional challenges under
the Tenth Amendment to Sections 1373 and 1644, the panel
held that these challenges were not justiciable in their present
posture. This Circuit’s precedential interpretation of Section
1373 dispelled any purported conflict between the federal
provisions and plaintiffs’ laws and resolved the controversy
that once animated plaintiffs’ facial challenge. See United
States v. California, 921 F.3d 865 (9th Cir. 2019), cert
denied, 590 141 S. Ct. 124 (2020). Because plaintiffs’ laws
complied with the federal provisions, their facial challenges
were no longer ripe. Having concluded that plaintiffs’ facial
challenges were either not ripe, or were mooted, the panel
narrowly vacated the district courts’ determinations that
Sections 1373 and1644 were facially unconstitutional without
deciding the merits of those claims. The panel remanded
with directions to dismiss the facial challenges to 8 U.S.C.
§§ 1373 and 1644.
CITY & CTY. OF SAN FRANCISCO V. GARLAND 5
Concurring in part, Judge Bea agreed fully with the
majority’s decision to hold non-justiciable the question of
whether §§ 1373 and 1644 are facially unconstitutional under
the Tenth Amendment. Judge Bea respectfully dissented
from Part II of the opinion, in which the majority affirmed the
district courts’ rulings that the DOJ lacked the statutory
authority to impose the challenged grant conditions. Judge
Bea saw no reason to affirm those rulings because the DOJ
waived any appeal of them.
COUNSEL
Daniel Tenny (argued), Mark B. Stern, and Laura E. Myron,
Appellate Staff; Brian M. Boynton, Principal Deputy
Assistant Attorney General; Civil Division, United States
Department of Justice, Washington, D.C.; for Defendants-
Appellants.
Sara J. Eisenberg (argued), Jesse C. Smith, Yvonne R. Mere,
and Tara M. Steeley, Deputy City Attorneys; David Chiu,
City Attorney; Office of the City Attorney, San Francisco,
California; for Plaintiff-Appellee City and County of San
Francisco.
Samuel P. Siegel (argued), Deputy Solicitor General; Michael
J. Mongan, Solicitor General; Lisa C. Ehrlich, Deputy
Attorney General; James F. Zahradka II, Supervising Deputy
Attorney General; Michael L. Newman, Senior Assistant
Attorney General; Rob Bonta, Attorney General; Attorney
General’s Office, California Department of Justice, San
Francisco, California; for Plaintiff-Appellee State of
California.
6 CITY & CTY. OF SAN FRANCISCO V. GARLAND
Ellen F. Rosenblum, Attorney General; Benjamin Gutman,
Solicitor General; Peenesh Shah, Assistant Attorney General;
Office of the Attorney General, Salem, Oregon; Denis M.
Vannier, Senior Deputy City Attorney; Office of the City
Attorney, Portland, Oregon; for Plaintiffs-Appellees State of
Oregon, Kate Brown, Ellen Rosenblum, and City of Portland.
OPINION
S.R. THOMAS, Circuit Judge:
In this appeal, we again consider immigration
enforcement-related conditions (“Conditions”) imposed by
Department of Justice (“DOJ”) on grants made pursuant to
the Edward Byrne Memorial Justice Assistance Grant
Program (“Byrne JAG program”) for Fiscal Years 2017 and
2018. Consistent with our prior precedent and the
government decision not to appeal the district courts’
judgments on this issue, we affirm the judgments of the
district courts enjoining DOJ from withholding Byrne JAG
program grant funds based on the Conditions.
The district courts also held that 8 U.S.C. §§ 1373 and
1644 violated the Tenth Amendment. We conclude that these
facial challenges are either not ripe, or are mooted by our
Court’s construction of the statutes and enjoinment of the
Conditions. We therefore vacate the judgments of the district
court insofar as they hold that 8 U.S.C. §§ 1373 and 1644 are
unconstitutional, without deciding the merits of those claims.
CITY & CTY. OF SAN FRANCISCO V. GARLAND 7
We remand with directions to dismiss the facial challenges to
8 U.S.C. §§ 1373 and 1644.1
I
A
The Byrne JAG program is a federal formula grant that
supports state and local criminal justice efforts. See
34 U.S.C. § 10152. Since the mid-2000s, DOJ’s Office of
Justice Programs has administered the Byrne JAG program,
according to a statutory formula that considers grant
recipients’ populations and violent crime rates. See 34 U.S.C.
§ 10156(a)(1). To receive funds, grant recipients must
demonstrate that they will use the money to further one of
eight law enforcement programs enumerated in the Byrne
JAG statute. See 34 U.S.C. § 10152(a)(1)(A)–(H). Congress
has repeatedly rejected legislative proposals to link the Byrne
JAG program to immigration policy or enforcement. See,
e.g., Securing America’s Future Act of 2018, H.R. 4760,
115th Cong. (2018); Ending Sanctuary Cities Act of 2016,
H.R. 6252, 114th Cong. (2016) (predicating federal grant
eligibility, generally, on compliance with Section 1373);
Sanctuary City All Funding Elimination Act of 2015, H.R.
3073, 114th Cong. (2015) (same); see also City and County
of San Francisco v. Trump, 897 F.3d 1225, 1234 & n. 4 (9th
Cir. 2018) (noting the same).
Effective Fiscal Years 2017 and 2018, DOJ imposed the
new Conditions on Byrne JAG funds. In order to draw upon
their Byrne JAG funds, grant recipients had to let Department
of Homeland Security officials question suspected
1
We GRANT San Francisco’s Request for Judicial Notice.
8 CITY & CTY. OF SAN FRANCISCO V. GARLAND
noncitizens in their custody, as well as provide advance
notice of those persons’ release. Another condition
prohibited grant recipients from disclosing federal law
enforcement information for certain purposes. A final
condition, which the Northern District of California termed
the “Certification Condition,” required recipients to certify
that their laws complied with independent provisions of the
Federal Code. In its ultimate, 2018 form, the Certification
Condition mandated attestations of compliance with 8 U.S.C.
§ 1373, a provision of the Illegal Immigration Reform and
Immigrant Responsibility Act enacted in 1996, see Pub. L.
104-208, § 642, 110 Stat. 3009, 3009-707, and 8 U.S.C.
§ 1644, a provision of the Personal Responsibility and Work
Opportunity Reconciliation Act, also enacted in 1996, see
Pub. L. 104-193, § 434, 110 Stat. 2260, 2275 (discussing
Act’s purposes).
Section 1373 states in relevant part:
(a) In general. Notwithstanding any other
provision of Federal, State, or local law, a
Federal, State, or local government entity or
official may not prohibit, or in any way
restrict, any government entity or official
from sending to, or receiving from, the
Immigration and Naturalization Service
information regarding the citizenship or
immigration status, lawful or unlawful, of any
individual.
8 U.S.C. § 1373.
Almost identically, Section 1644 states “no state or local
government entity may be prohibited, or in any way
CITY & CTY. OF SAN FRANCISCO V. GARLAND 9
restricted, from sending to or receiving from the Immigration
and Naturalization Service information regarding the
immigration status, lawful or unlawful, of an alien in the
United States.” 8 U.S.C. § 1644. Because the parties agree
that Sections 1373 and 1644 are interchangeable for the
purposes of this litigation, we focus the remainder of our
discussion on Section 1373, with the understanding that our
analysis applies to both Sections 1373 and 1644.
Having conditioned Byrne JAG funds on compliance with
Section 1373, DOJ interpreted the provision’s language
broadly. According to Plaintiffs, DOJ stated that Section
1373 encompassed any “information” that could assist federal
immigration authorities in detaining or removing noncitizens.
Based on its expansive interpretation, DOJ determined or
suggested in late 2017 that specific laws of Plaintiffs
conflicted with the federal provision. Then, because
Plaintiffs could not certify compliance with DOJ’s
interpretation of Section 1373, DOJ withheld their Byrne
JAG funds, even as it distributed funds to hundreds of other
jurisdictions.
B
In 2018, Plaintiffs sued the Attorney General, Assistant
Attorney General of the Office of Justice Programs, then-
President Donald Trump, and DOJ; California and San
Francisco (collectively, “San Francisco”), sued for a second
time. See City and County of San Francisco v. Barr (“Barr
II”), 965 F.3d 753, 757 (9th Cir. 2020), cert. dismissed sub
nom. Wilkinson v. City and County of San Francisco, 141 S.
Ct. 1292 (2021) (challenging only the Fiscal Year 2017
conditions). As relevant here, Plaintiffs alleged that the
Conditions exceeded DOJ’s statutory authority and, therefore,
10 CITY & CTY. OF SAN FRANCISCO V. GARLAND
violated the constitutional separation of powers principle.
Plaintiffs also alluded to or alleged facial challenges to
Section 1373’s constitutionality under the Tenth Amendment.
The State of Oregon and the City of Portland, Oregon
(collectively, “Oregon Plaintiffs”) and the City of San
Francisco requested declaratory judgments that Section 1373
is facially unconstitutional, but California did not.
In separate opinions at summary judgment, the District
Court for the Northern District of California and the District
Court for the District of Oregon determined that the
Conditions exceeded DOJ’s statutory authority and
permanently enjoined their enforcement. The district courts
also held that Section 1373 is facially unconstitutional under
the Tenth Amendment,2 and permanently enjoined its
enforcement. But while the District of Oregon enjoined
enforcement of Section 1373 only “in relation to the Byrne
JAG program,” the Northern District of California enjoined
any enforcement of Section 1373 against California or its
subdivisions, including beyond the Byrne JAG program’s
context. These cases were consolidated on appeal.
Since the district court decisions, DOJ has disbursed
Plaintiffs’ withheld funds and announced that it will not
enforce the Conditions, as long as its authority to do so
2
Consistent with our approach here, the Northern District of
California recognized that both Sections 1373 and 1644 were at issue and
contained identical language in its decision, see City and County of San
Francisco v. Sessions, 372 F. Supp. 928, 938 (N.D. Cal. 2019), while
framing its final judgment in terms of Section 1373.
CITY & CTY. OF SAN FRANCISCO V. GARLAND 11
remains the subject of pending litigation.3 However, the
United States did not appeal the portion of the district courts’
judgments enjoining enforcement of the Conditions, and
affirmed at oral argument that it considered the injunctions
binding.
C
To the extent that we have jurisdiction, it arises under
28 U.S.C. § 1291. We have an independent obligation to
consider ripeness and mootness sua sponte, see Ray Charles
Found. v. Robinson, 795 F.3d 1109, 1116 (9th Cir. 2015)
(ripeness); Burrell v. Burrell (In re Burrell), 415 F.3d 994,
997 (9th Cir. 2005) (mootness), and we review questions of
Article III justiciability de novo, see Fikre v. FBI, 904 F.3d
1033, 1037 (9th Cir. 2018). We review the legal conclusions
supporting declaratory judgments and permanent injunctions
granted at summary judgment de novo. See Barr II, 965 F.3d
at 760 (declaratory judgments); Viet. Veterans of Am. v. CIA,
811 F.3d 1068, 1075 (9th Cir. 2016) (permanent injunctions).
II
The district courts held that the Conditions exceeded
DOJ’s statutory authority. See City of Los Angeles v. Barr
(“Barr I”), 941 F.3d 931, 938–44 (9th Cir. 2019)
3
We take judicial notice of the Office of Justice Program’s “Legal
Notice” regarding its non-enforcement of the Challenged Conditions. The
Legal Notice is a public document available on the Office of Justice
Program’s website. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992,
999 (9th Cir. 2010) (citing Federal Rule of Evidence 201 and taking
judicial notice of information on official websites). The Legal Notice was
last updated April 22, 2021 and can be accessed here:
https://www.ojp.gov/funding/explore/legal-notices#notice-10.
12 CITY & CTY. OF SAN FRANCISCO V. GARLAND
(determining that DOJ has only limited statutory authority to
impose special conditions necessary for carrying out the
Byrne JAG program); see also Trump, 897 F.3d at 1233–35
(holding that the Executive Branch may not withhold
properly appropriated funds without congressional
authorization to do so).4 The United States did not appeal the
injunctions to the extent that they were based on the holding
that the Conditions exceeded DOJ’s statutory power, as
conferred by Congress. We therefore affirm the judgments
and injunctions of the district courts enjoining the United
States from imposing the Conditions.
III
The issues that remain on appeal are the district courts’
facial constitutional challenges to Sections 1373 and 1644.
We conclude that these claims in their present posture are not
justiciable, and we vacate the district courts’ judgments to the
extent they hold that these statutes are unconstitutional,
without prejudice to renewal of those claims once they
become justiciable.
A
Our intervening precedent in United States v. California
has resolved the controversy that once animated Plaintiffs’
4
The district court injunctions on this basis were consistent with
controlling authority from this Circuit. See Barr II, 965 F.3d at 761. They
were also consistent with the decisions of our sister Circuits. See City of
Chicago v. Barr, 961 F.3d 882, 892–909 (7th Cir. 2020); City of
Providence v. Barr, 954 F.3d 23, 31–45 (1st Cir. 2020); City of
Philadelphia v. Att’y Gen. of U.S., 916 F.3d 276, 284–91 (3d Cir. 2019);
see also Colorado v. U.S. Dep’t of Just., 455 F. Supp. 3d 1034, 1047–54
(D. Colo. 2020), appeal dismissed 2021 WL 3026820 (10th Cir. 2020).
CITY & CTY. OF SAN FRANCISCO V. GARLAND 13
facial challenges to Section 1373.5 See 921 F.3d 865 (9th Cir.
2019), cert. denied, 590 141 S. Ct. 124 (2020). Plaintiffs
allege actual and concrete injuries to their sovereignty from
DOJ’s interpretation of Section 1373. See Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560–61 (1992). Their theory is that
DOJ indicated Plaintiffs’ laws conflicted with Section 1373
and then, based on that purported statutory conflict, pressured
Plaintiffs to change their laws to align with DOJ’s
interpretation of the federal provision—or else forego Byrne
JAG funding. Plaintiffs allege that, in so doing, DOJ
attempted to commandeer Plaintiffs’ legislatures.
We have rejected DOJ’s interpretation of Section 1373
repeatedly since Plaintiffs filed their amended complaints.
See California, 921 F.3d at 891 (“[T]he United States argues
that Section 1373 actually applies to more information than
just immigration status . . . . We disagree.”); see also Barr II,
965 F.3d at 764 (“[T]he only information to which § 1373
extends” is “a person’s citizenship or immigration status.”);
Steinle v. City and County of San Francisco, 919 F.3d 1154,
1163–64 (9th Cir. 2019) (rejecting private plaintiffs’
argument that Sections 1373 and 1644 include “release-date
5
Because California resolved any ambiguity regarding Section
1373’s scope, this case is distinguishable from our recent decision in
Arizona v. Yellen, 34 F.4th 841 (9th Cir. 2022) (determining that facial
challenges to an ambiguous federal provision under the Spending Clause
and the Tenth Amendment were justiciable); Complaint for Declaratory
and Injunctive Relief at ¶ 50, Arizona v. Yellen, 550 F. Supp. 3d 791(D. Ariz. 2021), 2021 WL 1151079 (stating “[t]his dispute [is] over the
extent of the limitations in the [Provision]” and that “[j]udicial resolution
is required . . . for Arizona to make informed decisions on tax policy”).
14 CITY & CTY. OF SAN FRANCISCO V. GARLAND
information”).6 As we stated in California, Section 1373 only
covers immigration-status information—i.e., “what one’s
immigration status is.” See California, 921 F.3d at 891.
Our precedential interpretation of Section 1373 dispelled
any purported conflict between the federal provision and
Plaintiffs’ laws. We have already applied California to the
laws California and San Francisco identified in their amended
complaints, and we determined that those laws comply with
Section 1373. See Barr II, 965 F.3d at 761–64 (holding that
California’s TRUST, TRUTH, and Values Acts, as well as
San Francisco’s Administrative Code Chapters 12H and 12I,
do not conflict with Section 1373); see also California,
921 F.3d at 893 (stating the Values Act did not conflict with
Section 1373).
Although we have not considered Oregon Plaintiffs’ laws
before, our California decision equally erased any alleged
conflict with Section 1373. DOJ stated that Oregon Revised
Statutes (ORS) 181A.820 and 180.805 conflicted with
Section 1373. Oregon, in turn, identified these supposed
conflicts as the basis of DOJ’s commandeering attempts and
6
We reject California’s argument that the district court decision
leading to Barr II has preclusive power regarding Section 1373’s
constitutionality. Issue preclusion does not apply to issues we declined to
reach on appeal, see City of Colton v. Am. Promotional Events, Inc.-W,
614 F.3d 998, 1004 n.4 (9th Cir. 2010); 18 Charles Alan Wright & Arthur
R. Miller, Fed. Prac. & P. § 4421 (3d ed. 1998 rev. 2022) (“[O]nce an
appellate court has affirmed on one ground and passed over another,
preclusion does not attach to the ground omitted from its decision.”), and
we refused in Barr II to consider the district court’s declaration that
Section 1373 is unconstitutional, see 965 F.3d at 761 (“Because we affirm
on this basis, it is unnecessary for us to consider the district court’s
alternative grounds . . . including constitutional grounds . . . .”).
CITY & CTY. OF SAN FRANCISCO V. GARLAND 15
their resulting sovereignty injuries. But far from limiting
information sharing, ORS 181A.820 explicitly permits state
law enforcement agencies to “exchange information with a
federal immigration authority,” see ORS 181A.820(4), and
has been interpreted by the Oregon Supreme Court
accordingly, see Caruthers v. Kroger, 222 P.3d 706, 707–08
(Or. 2009) (“Other provisions of ORS [181A.820]7 permit
state and local law enforcement agencies, notwithstanding
ORS [181A.820(2)], to exchange information with federal
authorities regarding the immigration status of arrested
persons . . . .”). ORS 180.8058 also does not conflict with
Section 1373. Although ORS 180.805(4) prohibits disclosing
immigration-status information, that provision is subject to a
savings clause requiring compliance with federal law. See
Barr II, 965 F.3d at 763–64 (rejecting DOJ’s argument that
Section 1373 and San Francisco’s laws conflicted because
San Francisco’s “prohibitions are subject to a savings clause,
which requires compliance with federal law”). Portland
Police Bureau Policy 810.10—the alleged source of the City
of Portland’s sovereignty injuries—includes a similar savings
clause. Oregon Plaintiffs’ laws do not restrict sharing “what
[a person’s] immigration status is” and, therefore, comply
with Section 1373. See California, 921 F.3d at 891.
7
ORS 181A.820 was formerly at ORS 181.850, before it was
renumbered in 2015. See Cruz v. Multnomah County, 381 P.3d 856, 857
n.1 (Or. Ct. App. 2016).
8
Oregon has amended ORS 180.805 since the Oregon Plaintiffs filed
their amended complaint. See 2021 Or. Laws., ch. 550, § 8, (H.B. 3265),
eff. July 19, 2021. We consider the Oregon statute’s current version to
evaluate if a live controversy exists. See Hall v. Beals, 396 U.S. 45, 48
(1969) (per curiam) (“We review the judgment below in light of the
Colorado statute as it now stands, not as it once did.”); Rocky Mtn.
Farmers Union v. Corey, 913 F.3d 940, 949 (9th Cir. 2019).
16 CITY & CTY. OF SAN FRANCISCO V. GARLAND
B
Because their laws comply with the federal provisions,
Plaintiffs’ facial challenges to Section 1373 are no longer
ripe. We may only “pass upon the constitutionality of acts of
Congress . . . when the interests of litigants require the use of
this judicial authority for their protection against actual
interference.” United Pub. Workers of Am. v. Mitchell,
330 U.S. 75, 89–90 (1947) (emphasis added).
“[R]ipeness is peculiarly a question of timing,” and we
evaluate “the situation now rather than the situation at the
time of the [decision under review.]” Anderson v. Green,
513 U.S. 557, 559 (1995) (per curiam) (internal quotation
marks omitted); see 13B Charles Alan Wright & Arthur R.
Miller, Fed. Prac. & P. § 3532.1 & n.26 (3d ed. 1998 rev.
2022) (“Many [cases] find that although a dispute was once
ripe, ripeness has been lost to overtaking events . . . .”).
Ripeness has both constitutional and prudential components.
See Thomas v. Anchorage Equal Rts. Comm’n, 220 F.3d
1134, 1138 (9th Cir. 2000) (en banc). “A dispute is ripe in
the constitutional sense if it presents concrete legal issues, . . .
in actual cases, not abstractions.” Mont. Env’t Info. Ctr. v.
Stone-Manning, 766 F.3d 1184, 1188 (9th Cir. 2014) (internal
quotation marks and alteration omitted). “In the context of a
declaratory judgment suit, the inquiry depends upon whether
the facts alleged, under all the circumstances, show that there
is a substantial controversy, between parties having adverse
legal interests, of sufficient immediacy and reality to warrant
the issuance of a declaratory judgment.” Id. (internal
quotation marks omitted). Similarly, “[a] request for
injunctive relief remains live only so long as there is some
present harm left to enjoin.” Bayer v. Neiman Marcus Grp.,
Inc., 861 F.3d 853, 864 (9th Cir. 2017).
CITY & CTY. OF SAN FRANCISCO V. GARLAND 17
Absent a conflict between their laws and Section 1373,
Plaintiffs have not alleged facts identifying actual or concrete
sovereign injuries. Post-California, their remaining
allegations reduce to the theory that Section 1373’s existence
interferes with their sovereignty. But the mere “existence of
[a] law” absent any threat of interference is not sufficient for
ripeness. Mitchell, 330 U.S. at 90–91. Nor does the
possibility of some future unconstitutional application of
Section 1373 entitle Plaintiffs to dispositive judgments on the
provision’s constitutionality. Plaintiffs’ facial challenges are
no longer ripe because “any future injury [i]s purely
conjectural” at “the time the [] case reached this Court[.]”
Clinton v. City of New York, 524 U.S. 417, 431 n.16 (1998).
California resolved the injuries to Plaintiffs’ sovereignty;
“[t]he parties have no live dispute now, and whether one will
arise in the future is conjectural.” Anderson, 513 U.S. at 559.
Having determined that Plaintiffs’ facial challenges lack
constitutional ripeness, we need not reach the prudential
ripeness inquiry. See Educ. Credit Mgmt. Corp. v. Coleman
(In re Coleman), 560 F.3d 1000, 1005 (9th Cir. 2009) (“The
constitutional component of ripeness is a jurisdictional
prerequisite.” (internal quotation marks omitted)); Mont.
Env’t Info., 766 F.3d at 1188 n.3 (declining to reach
prudential ripeness where constitutional ripeness was absent).
C
In light of our intervening decision in California,
Plaintiffs’ facial challenges to Section 1373 are moot, and we
lack jurisdiction to decide them. See MetroPCS Cal., LLC v.
Picker, 970 F.3d 1106, 1115–16 (9th Cir. 2020).
18 CITY & CTY. OF SAN FRANCISCO V. GARLAND
Even if the Certification Condition, under DOJ’s
interpretation of Section 1373, once interfered with Plaintiffs’
sovereignty, our California decision dissolved that injury.
Absent a statutory conflict, Plaintiffs’ allegations reduce to
the theory that Section 1373’s mere existence injures their
sovereignty. “[W]hat makes [a declaratory judgment] a
proper judicial resolution of a ‘case or controversy’ rather
than an advisory opinion [is] the settling of some dispute
which affects the behavior of the defendant towards the
plaintiff.” Bayer, 861 F.3d at 868 (internal quotation marks
and italics omitted). Similarly, requests for injunctive relief
are only live where “there is some present harm left to
enjoin” and “[a] plaintiff who can[] reasonably be expected
to benefit from prospective relief ordered against the
defendant.” Id. at 864. Because we have already rejected
DOJ’s injurious interpretation and clarified why Plaintiffs’
laws comply with Section 1373, see California, 921 F.3d
at 891, invalidating Section 1373 would have no further effect
on DOJ’s behavior toward Plaintiffs. We “can no longer
grant any effectual relief.” Edmo v. Corizon, 935 F.3d 757,
782 (9th Cir. 2019) (internal quotation marks and alterations
omitted); see also Bayer, 861 F.3d at 865 (determining that
Bayer’s request for injunctive relief was moot where he had
not shown “he [wa]s reasonably likely to be subjected” to his
former employer’s conduct or that he had “a reasonably
certain need for prospective relief”).
Plaintiffs’ speculation that Section 1373 might, someday,
limit their legislatures also does not save their facial
challenges from mootness. “[S]peculative contingencies
afford no basis for [a court] passing” on now-moot questions.
See Hall, 396 U.S. at 49–50. Plaintiffs’ hypothetical
injury—that their legislatures may pass new laws that conflict
CITY & CTY. OF SAN FRANCISCO V. GARLAND 19
with Section 1373, even as interpreted in California—is still
too speculative for us to adjudicate or redress. Id.Exceptions to mootness do not save Plaintiffs’ facial
challenges. The voluntary cessation exception does not apply
because our intervening decision in California—not DOJ’s
non-enforcement of the Conditions—mooted Plaintiffs’ facial
challenges. See Friends of the Earth, Inc. v. Laidlaw Env’t
Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (discussing the
exception). Intervening judicial decisions may moot a case
if they effectively end the live controversy and grant the
parties the relief sought. NASD Disp. Resol., Inc. v. Jud.
Council of State of Cal., 488 F.3d 1065, 1068, 1070 (9th Cir.
2007); see also Wright & Miller, Fed. Prac. & P. § 3533.10
(3d ed. 1998 rev. 2022). Here, our California decision
resolved the statutory conflict necessary to DOJ’s alleged
intrusions on Plaintiffs’ sovereignty, and the Government has
not resisted our interpretation of Section 1373 since the
Supreme Court’s denial of certiorari in California. See
921 F.3d 865, cert. denied 141 S. Ct. 124 (2020); cf. Bell v.
Wolfish, 441 U.S. 520, 542 n.25 (1979) (determining that
compliance with a court order did not moot a case where
petitioners still disputed the order’s legality). The “capable
of repetition, yet evading review” exception also does not
apply because Plaintiffs allege that Section 1373 poses an
ongoing, reviewable harm, however speculative. See United
States v. Juvenile Male, 564 U.S. 932, 938 (2011) ( per
curiam) (discussing the exception).
IV
Having concluded that Plaintiffs’ facial challenges to
Section 1373 are either not ripe, or are mooted, we vacate the
district courts’ declaratory judgments that Section 1373 is
20 CITY & CTY. OF SAN FRANCISCO V. GARLAND
facially unconstitutional. We also vacate the Northern
District of California’s permanent injunction, but only to the
extent that it enjoined Section 1373’s enforcement beyond the
Byrne JAG context.
Where “a civil case from a court in the federal system . . .
has become moot” during the course of an appeal and
“pending [a] decision on the merits[,]” the “established
practice . . . is to reverse or vacate the judgment below and
remand with a direction to dismiss.” See United States v.
Munsingwear, 340 U.S. 36, 39 (1950). Vacatur is appropriate
“to clear the path for future relitigation of the issues between
the parties and to eliminate a judgment” for which appellate
review “was prevented through happenstance.” See
Anderson, 513 U.S. at 560 (internal alterations omitted)
(applying Munsingwear to vacate a judgment after plaintiff’s
claim became unripe during the course of an appeal); NASD
Disp. Resol., 488 F.3d at 1068 (“[V]acatur is generally
‘automatic’ in the Ninth Circuit when a case becomes moot
on appeal.”). “Because this practice is rooted in equity, the
decision whether to vacate turns on ‘the conditions and
circumstances of the particular case,’” Azar v. Garza, 138 S.
Ct. 1790, 1792 (2018), and partial vacatur of a lower opinion
can be appropriate, see, e.g., Camreta v. Greene, 563 U.S.
692, 698 (2011) (vacating only “the part of the Ninth Circuit
opinion that decided the Fourth Amendment issue” under
Munsingwear).
While vacatur is not appropriate if mootness stems from
settlement or the losing party’s decision to forego appeal, see
Anderson, 513 U.S. at 560, here mootness stems from
“circumstances not attributable to the parties,” Arizonans for
Official English v. Arizona, 520 U.S. 43, 71 (1997); see
NASD Disp. Resol., 488 F.3d at 1070 (“We therefore hold
CITY & CTY. OF SAN FRANCISCO V. GARLAND 21
that the exception [to Munsingwear] identified in Bonner
Mall for settlements should not apply to judgments mooted
by court decisions in other cases.”).
V
We affirm the district courts’ declaratory judgments that
DOJ lacked statutory authority to impose the Conditions.
Accordingly, we also affirm the permanent injunctions, but
only to the extent that they bar DOJ from withholding,
terminating, or seeking return of Byrne JAG funds based on
the Conditions.
In recognition of the longstanding principle that courts
should avoid “pass[ing] on questions of constitutionality . . .
unless such adjudication is unavoidable,” we narrowly vacate
the district courts’ determinations that Sections 1373 and
1644 are facially unconstitutional and the District Court for
the Northern District of California’s permanent injunction, to
the extent that it enjoined the provision’s enforcement based
on the holding that Sections 1373 and 1644 were facially
unconstitutional. See Spector Motor Serv. v. McLaughlin,
323 U.S. 101, 105 (1944); see also Ashwander v. TVA,
297 U.S. 288, 346–47 (1936) (Brandeis, J., concurring)
(stating the Court should neither “anticipate a question of
constitutional law in advance of the necessity of deciding it”
nor “formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied”).
We remand with instructions to dismiss those claims.
Munsingwear, 340 U.S. at 39.
Another case may require fulsome analysis of Sections
1373 and 1644’s constitutionality. But given intervening
developments, doing so here would “run contrary to the
22 CITY & CTY. OF SAN FRANCISCO V. GARLAND
fundamental principle of judicial restraint that courts should
neither anticipate a question of constitutional law in advance
of the necessity of deciding it nor formulate a rule of
constitutional law broader than is required by the precise facts
to which it is to be applied.” Wash. State Grange v. Wash.
State Republican Party, 552 U.S. 442, 450 (2008) (internal
quotation marks omitted). Each party shall bear its own costs
on appeal.
AFFIRMED IN PART; VACATED IN PART;
REMANDED IN PART.
BEA, Circuit Judge, concurring in part:
I join in nearly all of the majority’s thoughtful opinion.
But in my view, we need not and should not reach the
statutory questions addressed in Part II of the opinion:
whether various federal laws authorize the Department of
Justice (“DOJ”) to impose immigration-related conditions on
certain federal grants.
This case concerns the fiscal year 2018 Edward Byrne
Memorial Justice Assistance Grant Program. In the two
district court rulings here on appeal, Plaintiffs the City and
County of San Francisco and the State of California (in one
ruling) and Plaintiffs the State of Oregon and the City of
Portland (in another ruling) won judgments enjoining the
DOJ from imposing various immigration-related conditions
on the fiscal year 2018 Byrne grant funds. The two district
courts ruled that the conditions both were outside the DOJ’s
statutory authority and violated the federal Constitution, and
found also that two federal statutes incorporated by the grant
CITY & CTY. OF SAN FRANCISCO V. GARLAND 23
conditions, 28 U.S.C. § 1373 and 28 U.S.C. § 1644, facially
violate the Tenth Amendment. And Defendant the DOJ
appeals only that last issue: whether “§§ 1373 and 1644 are
facially unconstitutional.”
In Part II of the opinion, the majority affirms the district
court’s rulings that of the statutes that the DOJ proffered,
none gave the DOJ the authority to impose the challenged
grant conditions. I see no reason to affirm those rulings
because the DOJ waived any appeal of them. The rules
governing waiver are straightforward. “[W]aiver is the
intentional relinquishment or abandonment of a known right,”
Claiborne v. Blauser, 934 F.3d 885, 893 (9th Cir. 2019), and
the Ninth Circuit “will not ordinarily consider matters on
appeal that are not specifically and distinctly argued in
appellant’s opening brief,” Koerner v. Grigas, 328 F.3d 1039,
1048 (9th Cir. 2003). Here, the DOJ not only declined
“specifically and distinctly” to appeal the district courts’
statutory rulings; it expressly disclaimed any such appeal. Its
briefing could not be clearer: “This appeal concerns only the
judgment that §§ 1373 and 1644 are facially
unconstitutional.” So we would ordinarily not decide the
separate question whether federal law authorizes the DOJ to
impose the challenged grant conditions.
Of course, waiver is discretionary, and our cases set aside
several situations when we may choose to overlook a party’s
waiver of an issue. See In re Mercury Interactive Corp. Sec.
Litig., 618 F.3d 988, 992 (9th Cir. 2010). But the majority
does not explain why this case falls into any of those
situations, and even if it had, I still see powerful reasons for
us to refrain from overlooking the DOJ’s waiver here. First,
neither party has asked us to affirm the district courts’
statutory rulings—including the Plaintiffs, who those
24 CITY & CTY. OF SAN FRANCISCO V. GARLAND
statutory rulings benefited. We should be especially hesitant
to decide issues that neither party briefs,1 and the
circumstances of this case give us no reason to take that
unusual step here. Second, most of the statutory issues that
the majority here decides were already resolved in litigation
concerning the FY 2017 Byrne grant funds. See City of Los
Angeles v. Barr, 941 F.3d 931, 938–45 (9th Cir. 2019). So
with Barr on the books, the majority’s overreach does little
incremental work to, say, protect localities from federal
interference or clarify important legal questions. (Barr also
limits the negative impact that the majority’s overreach could
have, but that hardly justifies the overreach in the first place.)
And third, the majority accepts the district courts’
conclusion—that the relevant statutes do not authorize the
DOJ to impose the challenged grant conditions—without any
independent analysis. Barr fills this gap for most of the
statutory provisions at issue, see 941 F.3d at 938–45, but not
for 34 U.S.C. § 10153(a)(5)(D), which Barr did not address.
So for that provision, the majority silently defers to the
district courts’ reasoning without stating whether it relies on
that reasoning in whole, in part, or at all. I think it unwise to
outsource our legal analysis in this way, especially in the
weighty context of construing the DOJ’s statutory authority.
For these reasons, I would adhere to our traditional approach
to waiver and commitment to judicial restraint, the latter a
principle on which we correctly rely in Part V of the opinion.
I thus believe the panel should address only the sole issue
that the parties appealed: whether “§§ 1373 and 1644 are
facially unconstitutional” under the Tenth Amendment. I
1
Jurisdictional questions aside, of course. See, e.g., Burrell v. Burrell
(In re Burrell), 415 F.3d 994, 997 (9th Cir. 2005) (noting that we have “an
independent obligation to consider mootness sua sponte”).
CITY & CTY. OF SAN FRANCISCO V. GARLAND 25
agree fully with the majority’s decision to hold non-
justiciable that Tenth Amendment question. But I
respectfully dissent from Part II of the opinion, in which the
majority affirms the district courts’ rulings that the DOJ lacks
the statutory authority to impose the challenged grant
conditions.