City & County of San Francisco v. William Barr

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY AND COUNTY OF SAN No. 18-17308
FRANCISCO,
Plaintiff-Appellee, D.C. No.
3:17-cv-04642-
v. WHO
WILLIAM P. BARR, Attorney
General; ALAN R. HANSON, Acting
Assistant Attorney General of the
United States; UNITED STATES
DEPARTMENT OF JUSTICE; LAURA L.
ROGERS,
Defendants-Appellants,
and
CURRENT AND FORMER
PROSECUTORS AND LAW
ENFORCEMENT LEADERS; MATT M.
DUMMERMUTH,
Defendants,
v.
CITY OF LOS ANGELES, Proposed
Intervenor-Plaintiff,
Movant.
2 CITY & COUNTY OF SAN FRANCISCO V. BARR
STATE OF CALIFORNIA, EX REL. No. 18-17311
XAVIER BECERRA, in his official
capacity as Attorney General of the D.C. No.
State of California, 3:17-cv-04701-
Plaintiff-Appellee, WHO
v.
OPINION
WILLIAM P. BARR, Attorney
General; ALAN R. HANSON; UNITED
STATES DEPARTMENT OF JUSTICE;
LAURA L. ROGERS; MATT M.
DUMMERMUTH; PHIL E. KEITH,
Defendants-Appellants,
and
TARA MICHELLE STEELEY,
Real-Party-In-Interest.
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Argued and Submitted December 2, 2019
San Francisco, California
Filed July 13, 2020
Before: William A. Fletcher, Richard R. Clifton,
and Eric D. Miller, Circuit Judges.
Opinion by Judge Clifton
CITY & COUNTY OF SAN FRANCISCO V. BARR 3
SUMMARY *
Nationwide Injunction
The panel affirmed in part, and vacated in part, the
district court’s summary judgment entering declaratory
relief for plaintiffs and permanently enjoining the U.S.
Department of Justice (“DOJ”) on a nationwide basis from
imposing certain conditions for providing funding for state
and local criminal justice programs through Edward Byrne
Memorial Justice Assistance Grants.
In Fiscal Year 2017, the Attorney General and DOJ
announced three new conditions that state and local
governments must satisfy to receive Byrne grants: the
Access Condition, the Notice Condition, and the
Certification Condition. Plaintiffs – the City and County of
San Francisco and the State of California – are “sanctuary”
jurisdictions, which have enacted laws that limit their
employees’ authority to assist in the enforcement of federal
immigration laws. Plaintiffs sued to prevent DOJ from
denying funding of Byrne grants for their failure to comply
with the Access, Notice, and Certification Conditions.
The panel affirmed the district court’s order to the extent
it held that DOJ did not have statutory authority to impose
the Access and Notice Conditions and declared that
plaintiffs’ respective sanctuary laws complied with 8 U.S.C.
§ 1373, the law on which the Certification Condition was
based. The panel upheld the permanent injunction barring
*
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 & COUNTY OF SAN FRANCISCO V. BARR
DOJ from withholding, terminating, or clawing back Byrne
funding based on the Challenged Conditions and statutes at
issue.
The panel held that the district court abused its discretion
in granting nationwide injunctive relief, which was broader
than warranted. The panel held that nothing in the record or
in the nature of the claims suggested that the relief granted
by the district court needed to be extended to state and local
governments outside of California, not parties to this
litigation, in order to fully shield plaintiffs. The panel
vacated the nationwide reach of the permanent injunction
and limited its reach to California’s geographic boundaries.
COUNSEL
Mark B. Stern (argued), Daniel Tenny, Katherine Twomey
Allen, Brad Hinshelwood, and Laura E. Myron, Appellate
Staff; Hashim M. Mooppan, Deputy Assistant Attorney
General; David L. Anderson, United States Attorney; Joseph
H. Hunt, Assistant Attorney General; United States
Department of Justice, Civil Division, Washington, D.C.; for
Defendants-Appellants.
Aileen M. McGrath (argued), Jesse C. Smith, Ronald P.
Flynn, and Yvonne R. Mere, Deputy City Attorneys; Dennis
J. Herrera, City Attorney; Office of the City Attorney, San
Francisco, California; for Plaintiff-Appellee City and
County of San Francisco.
Joshua A. Klein (argued), Deputy Solicitor General; Kristin
A. Liska, Associate Deputy Attorney General; Lee Sherman,
Deputy Attorney General; Sarah E. Belton, Supervising
Deputy Attorney General; Michael L. Newman, Senior
CITY & COUNTY OF SAN FRANCISCO V. BARR 5
Assistant Attorney General; Edward C. DuMont, Solicitor
General; Xavier Becerra, Attorney General; Office of the
Attorney General, Oakland, California; for Plaintiff-
Appellee State of California.
Matthew J. Piers, Chirag G. Badlani, and Caryn C. Lederer,
Hughes Socol Peters Piers Resnick & Dym Ltd., Chicago,
Illinois; Mary B. McCord, Joshua A. Geltzer, Nicolas Y.
Riley, and Daniel B. Rice, Institute for Constitutional
Advocacy and Protection, Washington, D.C.; for Amici
Curiae Current and Former Prosecutors and Law
Enforcement Leaders.
Elizabeth B. Wydra, Brianne J. Gorod, and David H. Gans,
Constitutional Accountability Center, Washington, D.C., for
Amici Curiae Members of Congress.
James R. Williams, County Counsel; Greta S. Hansen, Chief
Assistant County Counsel; Kavita Narayan and Laura S.
Trice, Lead Deputy County Counsel; H. Luke Edwards,
Fellow; Office of the County Counsel, County of Santa
Clara, San Jose, California; for Amici Curiae 43 Counties,
Cities, and Municipal Agencies; National League of Cities;
International Municipal Lawyers Association; and
International City/County Management Association.
Robert W. Perrin, Sarah F. Mitchell, and Michael A. Hale,
Latham & Watkins LLP, Los Angeles, California, for
Amicus Curiae Anti-Defamation League.
Rachel S. Brass, Gibson Dunn & Crutcher LLP, San
Francisco, California; Abiel Garcia and Ian F. Sprague,
Gibson Dunn & Crutcher LLP, Los Angeles, California; for
Amicus Curiae Public Counsel.
6 CITY & COUNTY OF SAN FRANCISCO V. BARR
Barbara D. Underwood, Solicitor General; Anisha S.
Dasgupta, Deputy Solicitor General; Eric R. Haren, Special
Counsel; Linda Fang, Assistant Solicitor General of
Counsel; Letitia James, Attorney General; Office of the
Attorney General, New York, New York; Phil Weiser
Attorney General, Denver, Colorado; William Tong,
Attorney General, Hartford, Connecticut; Kathleen
Jennings, Attorney General, Wilmington, Delaware; Kwame
Raoul, Attorney General, Chicago, Illinois; Brian E. Frosh,
Attorney General, Baltimore, Maryland; Maura Healey,
Attorney General, Boston, Massachusetts; Dana Nessel,
Attorney General, Lansing, Michigan; Keith Ellison,
Attorney General, St. Paul, Minnesota; Gurbir S. Grewal,
Attorney General, Trenton, New Jersey; Hector Balderas,
Attorney General, Santa Fe, New Mexico; Ellen F.
Rosenblum, Attorney General, Salem, Oregon; Peter F.
Neronha, Attorney General, Providence, Rhode Island;
Thomas J. Donovan, Jr., Attorney General, Montpelier,
Vermont; Robert W. Ferguson, Attorney General, Olympia,
Washington; Karl A. Racine, Attorney General,
Washington, D.C.; for Amici Curiae States of New York,
Colorado, Connecticut, Delaware, Illinois, Maryland,
Massachusetts, Michigan, Minnesota, New Jersey, New
Mexico, Oregon, Rhode Island, Vermont, and Washington,
and the District of Columbia.
Omar C. Jadwat and Lee Gelernt, American Civil Liberties
Union, New York, New York; Spencer E. Amdur and Cody
H. Wofsy, American Civil Liberties Union, San Francisco,
California; Mark Fleming and Katherine E. Melloy Goettel,
National Immigrant Justice Center, Chicago, Illinois; for
Amici Curiae American Civil Liberties Union, National
Immigrant Justice Center, National Immigration Law
Center, Washington Defender Association, Southern
CITY & COUNTY OF SAN FRANCISCO V. BARR 7
Poverty Law Center, Northwest Immigrant Rights Project,
and New Orleans Workers’ Center for Racial Justice.
W. Hardy Callcott, Naomi A. Igra, and Mark Prior, Sidley
Austin LLP, San Francisco, California, for Amici Curiae
Immigrant Legal Resource Center and Asian Americans
Advancing Justice-Asian Law Caucus.
OPINION
CLIFTON, Circuit Judge:
The federal government has provided funding for state
and local criminal justice programs through Edward Byrne
Memorial Justice Assistance Grants since 2006. In Fiscal
Year (“FY”) 2017, the Attorney General and the Department
of Justice (“DOJ”) announced three new conditions that state
and local governments must satisfy to receive Byrne grants.
Two conditions require recipient jurisdictions to provide the
Department of Homeland Security (“DHS”) with (1) access
to the jurisdiction’s detention or correctional facilities to
interview people in custody about their right to be in the
United States (the “Access Condition”), and (2) advance
notice of the scheduled release of aliens in the jurisdiction’s
custody (the “Notice Condition”). The third condition
requires jurisdictions to certify that their laws and policies
comply with 8 U.S.C. § 1373, a federal statute prohibiting
states and localities from restricting the flow of “information
regarding [an individual’s] citizenship or immigration
status” between state and local officials and DHS (the
“Certification Condition”).
Plaintiffs—the City and County of San Francisco and the
State of California—are so-called “sanctuary” jurisdictions,
which have enacted laws that limit their employees’
8 CITY & COUNTY OF SAN FRANCISCO V. BARR
authority to assist in the enforcement of federal immigration
laws. Plaintiffs sued DOJ, the Attorney General, and other
DOJ officials (collectively, “DOJ”) to prevent DOJ from
denying funding of Byrne grants for failure to comply with
the Access, Notice, and Certification Conditions
(collectively, the “Challenged Conditions”). Plaintiffs also
sought a declaratory judgment that their respective
“sanctuary” laws do not violate 8 U.S.C. § 1373, or
alternatively, that 8 U.S.C. § 1373 is unconstitutional. On
summary judgment, the district court entered declaratory
relief in favor of Plaintiffs on all of their legal claims. It also
permanently enjoined DOJ, among other things, from
“[u]sing the Section 1373 certification condition, and the
access and notice conditions . . . as requirements for Byrne
JAG grant funding.” It extended relief to the entire country
by providing that the permanent injunction applied to “any
California state entity, any California political subdivision,
or any jurisdiction in the United States.”
Recent precedential decisions by this court have done the
heavy lifting with regard to the merits of the relief granted
by the district court. We held that DOJ lacked statutory
authority to impose the Access and Notice Conditions on
Byrne funds in reviewing a preliminary injunction obtained
by the City of Los Angeles. See City of Los Angeles v. Barr,
941 F.3d 931 (9th Cir. 2019). Consistent with our discussion
in City of Los Angeles, we affirm the injunction barring DOJ
from using the Access and Notice Conditions as Byrne
funding requirements for any California state entity or
political subdivision.
We also uphold the injunction barring DOJ from denying
or withholding Byrne funds on account of the Certification
Condition based on Plaintiffs’ alleged non-compliance with
8 U.S.C. § 1373. We narrowly construed the statutory
CITY & COUNTY OF SAN FRANCISCO V. BARR 9
language of 8 U.S.C. § 1373 in an action filed by DOJ to
enjoin California’s enforcement of its newly-enacted Values
Act, Cal. Gov’t Code § 7284 et seq., to conclude that the
Values Act did not conflict with § 1373. See United States
v. California, 921 F.3d 865 (9th Cir. 2019), cert. denied, 590
U.S. — (U.S. Jun. 15, 2020) (No. 19-532). Consistent with
our analysis in that case, we hold that the remaining
California and San Francisco laws at issue here also comply
with 8 U.S.C. § 1373 and cannot be cited in relation to the
Certification Condition as a basis to deny Byrne funding.
With regard to the geographical reach of the relief
granted by the district court, however, we conclude that the
district court abused its discretion in issuing an injunction
that extended nationwide. Although San Francisco offered
evidence that some jurisdictions across the country might
welcome an injunction against the Challenged Conditions,
nothing in the record or in the nature of the claims suggests
that the relief granted by the district court needs to be
extended to state and local governments outside of
California, not parties to this litigation, in order to fully
shield Plaintiffs. Therefore, we vacate the nationwide reach
of the permanent injunction and limit its reach to
California’s geographical boundaries.
I. Background
The Byrne program is the “primary provider” of federal
grant dollars to support state and local criminal justice
programs. DOJ’s Office of Justice Programs, which
administers the grant, disburses over $80 million in awards
each year. California has used prior Byrne awards to support
programs focused on criminal drug enforcement, violent
crime, and anti-gang activities. San Francisco has used them
to support programs focused on reducing the drug trade and
10 CITY & COUNTY OF SAN FRANCISCO V. BARR
providing services to individuals with substance and mental
health issues.
Each year, DOJ distributes Byrne funds pursuant to a
statutory formula based on population and violent crime rate.
See 34 U.S.C. § 10156(d)(2)(A). In FY 2017, California,
through its Board of State and Community Corrections,
expected to receive $28.3 million and allocate $10.6 million
in sub-grants to its localities. San Francisco expected to
receive a sub-grant of $923,401, plus a direct award of
$524,845 pursuant to its own FY 2017 application.
To receive and draw upon a Byrne award, a state or local
government must submit an application that complies with
the statutory requirements outlined in 34 U.S.C. § 10153, in
a form set forth in annual solicitation documents that DOJ
provides and in accordance with all lawful conditions stated
therein. See 34 U.S.C. § 10153. DOJ’s FY 2017 solicitation
documents included the Challenged Conditions at issue in
this appeal.
A. The Challenged Conditions
The FY 2017 Byrne solicitations included the Access
and Notice Conditions, “two new express conditions”
related to “the ‘program or activity’ that would be funded by
the FY 2017 award.” Respectively, the Access and Notice
Conditions require recipient jurisdictions to:
(1) permit personnel of the U.S. Department
of Homeland Security (“DHS”) to access any
correctional or detention facility in order to
meet with an alien (or an individual believed
to be an alien) and inquire as to his or her
right to be or remain in the United States; and
CITY & COUNTY OF SAN FRANCISCO V. BARR 11
(2) 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 pursuant to
the Immigration and Nationality Act.
The Byrne statute requires applicants to certify that “the
applicant will comply with all provisions of this part and all
other applicable Federal laws.” 34 U.S.C. § 10153(a)(5)(D).
In FY 2016, DOJ announced that 8 U.S.C. § 1373 is an
“applicable Federal law” under the Byrne statute. In relevant
part, 8 U.S.C. § 1373 prohibits states and localities from
restricting their officials from sharing “information
regarding the citizenship or immigration status, lawful or
unlawful, of any individual” with DHS. 1
1
Congress enacted 8 U.S.C. § 1373 as part of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996. See
Pub. L. No. 104-208, div. C, tit. VI, § 642, 110 Stat. 3009, 3009–707. It
provides in full:
(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.
(b) Additional authority of government entities
12 CITY & COUNTY OF SAN FRANCISCO V. BARR
In FY 2017, DOJ attached the Certification Condition to
all Byrne awards. In the FY 2017 Byrne solicitations, DOJ
announced that a jurisdiction cannot validly accept an award
until its Chief Legal Officer executes and submits a form
certifying that the jurisdiction complies with 8 U.S.C.
§ 1373. This form and the statutory text of 8 U.S.C. § 1373were attached as appendices to the solicitations.
Notwithstanding any other provision of Federal,
State, or local law, no person or agency may
prohibit, or in any way restrict, a Federal, State, or
local government entity from doing any of the
following with respect to information regarding
the immigration status, lawful or unlawful, of any
individual:
(1) Sending such information to, or
requesting or receiving such information
from, the Immigration and Naturalization
Service.
(2) Maintaining such information.
(3) Exchanging such information with any
other Federal, State, or local government
entity.
(c) Obligation to respond to inquiries
The Immigration and Naturalization Service shall
respond to an inquiry by a Federal, State, or local
government agency, seeking to verify or ascertain
the citizenship or immigration status of any
individual within the jurisdiction of the agency for
any purpose authorized by law, by providing the
requested verification or status information.
CITY & COUNTY OF SAN FRANCISCO V. BARR 13
B. Factual and Procedural History
The City and County of San Francisco and the State of
California filed lawsuits in the Northern District of
California in August 2017, seeking to enjoin DOJ from
implementing the Challenged Conditions. Plaintiffs asserted
that the Challenged Conditions are not authorized by the
Byrne statute and violate constitutional separation of
powers, the Spending Clause, and the Administrative
Procedure Act (“APA”). Plaintiffs also argued that 8 U.S.C.
§ 1373 cannot be enforced against them because it violates
the Tenth Amendment.
Plaintiffs understood the Access and Notice Conditions
to be inconsistent with the sanctuary laws and policies they
have enacted. Plaintiffs claimed, however, that they could
comply with the Certification Condition if the statute on
which it is based, 8 U.S.C. § 1373, were appropriately
construed. Because DOJ threatened to withhold FY 2017
funds based on the assertion that Plaintiffs’ sanctuary laws
violate 8 U.S.C. § 1373, Plaintiffs sought declaratory relief
narrowly construing § 1373 and holding that the statute as so
construed does not conflict with Plaintiffs’ sanctuary laws. 2
2
The State of California sought similar relief related to a condition
that DOJ placed on FY 2017 awards under the Community Oriented
Policing Services (“COPS”) grant program and the COPS Anti-
Methamphetamine Program (“CAMP”). See generally 34 U.S.C.
§ 10381 et seq. Like the Certification Condition attached to Byrne
awards, the challenged condition attached to the COPS/CAMP awards
requires applicants to certify their compliance with 8 U.S.C. § 1373.
California’s Department of Justice submitted this certification when it
applied for a FY 2017 CAMP award, and although it received $1 million
in CAMP funding that year, it was told it could not “draw down” the
funds pending an inquiry into its compliance with § 1373.
14 CITY & COUNTY OF SAN FRANCISCO V. BARR
In October 2018, the district court decided the case in
Plaintiffs’ favor on cross-motions for summary judgment.
See City & Cty. of San Francisco v. Sessions, 349 F. Supp.
3d 924, 934 (N.D. Cal. 2018), judgment entered sub nom.
California ex rel. Becerra v. Sessions, No. 3:17-CV-04701-
WHO, 2018 WL 6069940 (N.D. Cal. Nov. 20, 2018). It
issued declaratory and injunctive relief on all of Plaintiffs’
legal claims, holding the Challenged Conditions and 8
U.S.C. § 1373 unconstitutional and unenforceable against
Plaintiffs and any other jurisdiction in the United States. The
district court stayed the effect of the injunction’s nationwide
scope pending appellate review. See id. at 973–74.
On appeal, DOJ argues that the Challenged Conditions
were imposed pursuant to lawful authority and did not
violate the Spending Clause or the APA, and that the district
court erroneously construed 8 U.S.C. § 1373 and erred in
holding that Plaintiffs’ respective laws did not conflict with
§ 1373. DOJ also argues that the district court abused its
discretion by extending the scope of injunctive relief to non-
parties nationwide.
II. Standard of Review
Decisions regarding matters of law, including issues of
statutory interpretation, are reviewed de novo. Ileto v.
The dispositive issue on appeal related to COPS/CAMP is whether
California’s state laws render California ineligible for COPS/CAMP
funding based on asserted non-compliance with 8 U.S.C. § 1373. This
issue is identical to the issue regarding the Certification Condition
attached to the Byrne program. See infra Part IV. For the sake of
simplicity, the issue is discussed in the text of this opinion in terms of
the Byrne program’s Certification Condition, but that discussion and our
resolution of that challenge applies similarly to the § 1373 certification
condition under COPS/CAMP.
CITY & COUNTY OF SAN FRANCISCO V. BARR 15
Glock, Inc., 565 F.3d 1126, 1131 (9th Cir. 2009) (citations
omitted). We review a decision to enter a nationwide
injunction for abuse of discretion. Los Angeles Haven
Hospice, Inc. v. Sebelius, 638 F.3d 644, 654 (9th Cir. 2011).
“District courts abuse their discretion when they rely on an
erroneous legal standard or clearly erroneous finding of
fact.” E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242,
1271 (9th Cir. 2020) (citation omitted). “[A]n overbroad
injunction is an abuse of discretion.” California v. Azar, 911
F.3d 558, 582 (9th Cir. 2018) (quoting Stormans, Inc. v.
Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009)).
III. The Access and Notice Conditions
The district court invalidated the Access and Notice
Conditions on multiple grounds, holding that they exceed
DOJ’s statutory authority, violate constitutional separation
of powers, violate the Spending Clause, and are arbitrary and
capricious under the APA. See City & Cty. of San Francisco,
349 F. Supp. 3d at 944–48, 955–66. While this appeal was
pending, we upheld a preliminary injunction obtained by the
City of Los Angeles against DOJ’s enforcement of the
Access and Notice Conditions, holding that DOJ lacked
statutory authority to implement them. See City of Los
Angeles v. Barr, 941 F.3d 931, 945 (9th Cir. 2019).
DOJ contends that Congress granted it independent
authority to establish the Access and Notice Conditions
under 34 U.S.C. § 10102(a)(6). This statute provides: “The
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.” In City of Los Angeles, we held that when § 10102
was amended in 2006, “Congress affirmatively indicated its
16 CITY & COUNTY OF SAN FRANCISCO V. BARR
understanding that the Assistant AG’s powers and functions
could include ‘placing special conditions on all grants, and
determining priority purposes for formula grants.’” 941 F.3d
at 939 (quoting 34 U.S.C. § 10102(a)(6)). We held,
however, that the Access and Notice Conditions did not
constitute “special conditions” or “priority purposes.” See
id. at 939–44. Therefore, although we agreed with DOJ that
it was given independent authority in § 10102(a)(6), we held
that the Access and Notice Conditions were not imposed
pursuant to this authority. Id. at 944.
DOJ alternatively argues that the Access and Notice
Conditions are authorized by provisions in the Byrne statute
requiring applicants to certify that “there has been
appropriate coordination” between the applicant and
“affected agencies,” 34 U.S.C. § 10153(a)(5)(C), and to
assure that it will maintain “programmatic” information “as
the Attorney General may reasonably require,” id.§ 10153(a)(4). We rejected these arguments in City of Los
Angeles, holding that the requirements under the Access and
Notice Conditions far exceed what the statutory language of
these provisions require. See 941 F.3d at 944–45.
Other circuits have reached differing conclusions
regarding DOJ’s authority under § 10102(a)(6) and the
Byrne statute to impose the Access and Notice Conditions,
which has resulted in a circuit split. 3 Consistent with our
3
To date, only the Second Circuit has held that the Access and
Notice Conditions were imposed pursuant to appropriate authority. New
York v. Dep’t of Justice, 951 F.3d 84, 101–04, 116–22 (2d Cir. 2020).
The First, Third, and Seventh Circuits have held to the contrary. City of
Chicago v. Barr, 957 F.3d 772 (7th Cir. 2020); City of Chicago v.
Sessions, 888 F.3d 272, 283–87 (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.
CITY & COUNTY OF SAN FRANCISCO V. BARR 17
analysis in City of Los Angeles, we affirm the district court’s
order declaring the Access and Notice Conditions unlawful
and enjoining DOJ from enforcing them against Plaintiffs.
IV. The Certification Condition and 8 U.S.C. § 1373The district court enjoined DOJ from enforcing the
Certification Condition on multiple alternative grounds. See
City & Cty. of San Francisco, 349 F. Supp. 3d at 948–55,
957–61. Among other things, the district court declared that
Plaintiffs’ sanctuary laws do not violate 8 U.S.C. § 1373,
which it narrowly construed, and that DOJ cannot withhold
Byrne funds pursuant to the Certification Condition by
asserting that Plaintiffs’ laws prevent their compliance with
§ 1373. See id. at 968–70. Because we affirm on this basis,
it is unnecessary for us to consider the district court’s
alternative grounds for enjoining the Certification
Condition, including constitutional grounds, and we do not
address them.
As described above, at page 11, applicants for Byrne
grants are required to certify that they “will comply with all
provisions of this part and all other applicable Federal laws.”
34 U.S.C. § 10153(a)(5)(D). DOJ has identified 8 U.S.C.
§ 1373 as an “applicable Federal law” referenced in the
statute. In relevant part, § 1373 prohibits states and local
governments from restricting their officials from sharing
“information regarding the citizenship or immigration status,
lawful or unlawful, of any individual” with DHS.
Aug. 10, 2018); City of Philadelphia v. Att’y Gen., 916 F.3d 276, 284–
88 (3d Cir. 2019); City of Providence v. Barr, 954 F.3d 23, 45 (1st Cir.
2020).
18 CITY & COUNTY OF SAN FRANCISCO V. BARR
This court recently interpreted § 1373 in United States v.
California, 921 F.3d 865 (9th Cir. 2019), cert. denied, 590
U.S. — (U.S. Jun. 15, 2020) (No. 19-532), a decision that
was rendered while this appeal was pending. In California,
we reviewed the denial of DOJ’s motion for a preliminary
injunction against California’s implementation of several
recent enactments, including the Values Act, which DOJ
brought affirmative litigation to invalidate. Among other
things, DOJ argued that provisions in the Values Act
governing the exchange of information with federal
immigration authorities, see Cal. Gov’t Code
§ 7284.6(a)(1)(C)–(D), 4 are prohibited by the information-
sharing requirements of 8 U.S.C. § 1373. See California,
921 F.3d at 886, 891–93. We disagreed. See id. at 893.
DOJ argued that § 1373’s language referring to
“information regarding . . . citizenship or immigration
status” should be construed to include information that helps
federal immigration authorities determine “whether a given
alien may actually be removed or detained,” such as
information about when a person will be released from state
or local custody. Id. at 891. We rejected DOJ’s broad
construction of § 1373, holding that § 1373, by its terms,
only concerned “‘information strictly pertaining to
4
Cal. Gov’t Code § 7284.6(a)(1)(C) prohibits California law
enforcement agencies from “[p]roviding information regarding a
person’s release date or responding to requests for notification by
providing release dates or other information unless that information is
available to the public, or is in response to a notification request from
immigration authorities” under certain circumstances.
Cal. Gov’t Code § 7284.6(a)(1)(D) prohibits the agencies from
“[p]roviding personal information . . . about an individual, including, but
not limited to, the individual’s home address or work address unless that
information is available to the public.”
CITY & COUNTY OF SAN FRANCISCO V. BARR 19
immigration status (i.e. what one’s immigration status is).’”
Id. (quoting United States v. California, 314 F. Supp. 3d
1077, 1102 (E.D. Cal. 2018)).
In November 2017, using the same broad construction of
§ 1373 we later rejected in California, DOJ informed
Plaintiffs that it had identified specific laws that appeared to
violate § 1373, thereby rendering Plaintiffs ineligible for FY
2017 Byrne awards. In a letter to the State, DOJ specifically
identified provisions of the Values Act and suggested that
additional offending laws may be identified in the future.
California accordingly sought a declaratory judgment that
the Values Act and other state laws related to immigration
enforcement and information-sharing—the TRUST Act, the
TRUTH Act, and six confidentiality statutes 5—did not
violate 8 U.S.C. § 1373 or render California ineligible for
Byrne funds under the Certification Condition. San
Francisco requested similar relief regarding chapters 12H
and 12I of the San Francisco Administrative Code, which
5
The TRUST Act limits the ability of state and local law
enforcement officers to provide federal immigration authorities
information regarding a person’s release date from custody. Cal. Gov’t
Code §§ 7282.5(a), 7284.6(a)(1)(C). The TRUTH Act requires local
officials to provide inmates in their custody a notification of rights before
any interview by immigration authorities takes place regarding civil
immigration violations. Id. § 7283.1(a). The six confidentiality laws at
issue include three statutes concerning the protection of minors’ personal
information, see Cal. Welf. & Inst. Code §§ 827, 831; Cal. Code of Civ.
Proc. § 155, and three statutes concerning California’s policy of
protecting the personal information of victims and witnesses of crime,
see Cal. Penal Code §§ 422.93, 679.10, 679.11.
20 CITY & COUNTY OF SAN FRANCISCO V. BARR
DOJ identified as likely violative of § 1373 in a letter to San
Francisco. 6
The district court entered declaratory judgment in
Plaintiffs’ favor. See City & Cty. of San Francisco, 349 F.
Supp. 3d at 966–70. It held that 8 U.S.C. § 1373 only
narrowly “extends to ‘information strictly pertaining to
immigration status (i.e. what one’s immigration status is),’”
id. at 968 (quoting California, 314 F. Supp. 3d at 1102), and
concluded that Plaintiffs’ respective sanctuary laws did not
violate § 1373 so construed, see id. at 968–70. We affirm.
As noted above, while this appeal was pending, we
adopted the same narrow construction of § 1373 in
California, holding that § 1373’s information-sharing
requirements applied to “just immigration status” or “a
person’s legal classification under federal law.” 921 F.3d at
891. We also held that the challenged provisions of the
Values Act did not conflict with § 1373 because they
restricted the sharing of release status and contact
6
DOJ’s letter cited specific concerns with sections 12H.2 and 12I.3
of the San Francisco Administrative Code. Section 12H.2 prohibits the
“use [of] any City funds or resources to assist in the enforcement of
Federal immigration law or to gather or disseminate information
regarding release status of individuals or any such personal information
as defined in Chapter 12I,” except as “required by Federal or State
statute, regulation, or court decision.” S.F., Cal., Admin. Code ch. 12H,
§ 12H.2; see id. ch. 12I, § 12I.2 (“‘Personal information’ means any
confidential, identifying information about an individual, including, but
not limited to, home or work contact information, and family or
emergency contact information.”). Section 12I.3 provides that City law
enforcement officials “shall not . . . provide any individual’s personal
information to a federal immigration officer, on the basis of an
administrative warrant, prior deportation order, or other civil
immigration document based solely on alleged violations of the civil
provisions of immigration laws.” Id. ch. 12I, § 12I.3(e).
CITY & COUNTY OF SAN FRANCISCO V. BARR 21
information but did not prohibit the sharing of information
regarding “immigration status.” 7 See id. at 891–93.
Consistent with these holdings in California, we affirm the
district court’s decision below, applying the same narrow
construction of § 1373 to the state and local laws at issue in
this case.
DOJ “effectively conceded” that the TRUST Act,
TRUTH Act, and confidentiality statutes do not conflict with
§ 1373 by not arguing otherwise on summary judgment.
City & Cty. of San Francisco, 349 F. Supp. 3d at 968; see
Kingdomware Tech., Inc. v. United States, 136 S. Ct. 1969,
1978 (2016). DOJ now argues for the first time on appeal
that these laws offend § 1373 because, “[a]s relevant here,”
they constrain law enforcement from sharing the release
dates of people in custody. Section 1373 does not cover
release dates, however. California, 921 F.3d at 891–92. We
therefore affirm that these California laws do not conflict
with § 1373.
DOJ similarly argues that San Francisco’s laws conflict
with § 1373 because they prohibit local officials from giving
federal immigration authorities the contact information and
release status of aliens and from “us[ing] any City funds or
resources to assist in the enforcement of Federal immigration
law.” S.F., Cal., Admin. Code ch. 12H, § 12H.2; see also id.
ch. 12I, §§ 12I.2, 12I.3. However, these prohibitions are
subject to a savings clause, which requires compliance with
7
Indeed, we noted that one provision of the Values Act expressly
permits the sharing of information pursuant to § 1373. California, 921
F.3d at 891 (quoting Cal. Gov’t Code § 7284.6(e) (“This section does
not prohibit or restrict any government entity or official from sending to,
or receiving from, federal immigration authorities, information
regarding the citizenship or immigration status, lawful or unlawful, of an
individual . . . pursuant to Section[ ] 1373.”)).
22 CITY & COUNTY OF SAN FRANCISCO V. BARR
federal law. See id. ch. 12H, § 12H.2. Because § 1373 does
not extend to contact and release status information, see
California, 921 F.3d at 891–92, federal law does not
preclude San Francisco from prohibiting the release of such
information.
DOJ claims that San Francisco, in accordance with these
provisions, “provides no information in response to ICE
requests regarding individuals in local custody.” The
declaration cited in the record, however, only states that
“[l]ocal law enforcement officials in San Francisco,
California, do not respond to any non-criminal requests from
ICE, including requests for notification regarding the release
of detainees . . . .” Again, such information is not within the
scope of 8 U.S.C. § 1373. See California, 921 F.3d at 891–
92. And while San Francisco prohibits the “use [of] any City
funds or resources to assist in the enforcement of federal
immigration law,” see S.F. Admin. Code ch. § 12H.2, no
evidence has been cited to suggest that local officials have
ignored ICE requests for “immigration status” information
based on this provision or on any other basis.
In sum, we affirm the ruling below holding that
Plaintiffs’ respective sanctuary laws comply with 8 U.S.C.
§ 1373. Although the laws restrict some information that
state and local officials may share with federal authorities,
they do not apply to information regarding a person’s
citizenship or immigration status, which is the only
information to which § 1373 extends. We uphold the
injunction barring DOJ from withholding or denying Byrne
funds to Plaintiffs based on the assertion that these laws
violate 8 U.S.C. § 1373 and/or the Certification Condition.
CITY & COUNTY OF SAN FRANCISCO V. BARR 23
V. The Nationwide Injunction
We uphold the district court’s entry of permanent
injunctive relief barring DOJ from withholding or denying
Plaintiffs’ Byrne awards based on the Challenged
Conditions. However, we vacate the district court’s
imposition of a nationwide injunction. The district court
abused its discretion by issuing a nationwide injunction
without determining whether Plaintiffs needed relief of this
scope to fully recover. We do not remand to the district court
for further consideration because Plaintiffs have established
no nexus between their claimed injuries and the nationwide
operation of the Challenged Conditions, and they advance
no reason why limiting the injunction along state boundaries
would not grant them full relief. Therefore, the geographical
reach of the relief should be limited to California.
“Although ‘there is no bar against . . . nationwide relief
in federal district court or circuit court,’ such broad relief
must be ‘necessary to give prevailing parties the relief to
which they are entitled.’” California v. Azar, 911 F.3d 558,
582 (9th Cir. 2018) (quoting Bresgal v. Brock, 843 F.2d
1163, 1170–71 (9th Cir. 1987)). On appeal, Plaintiffs argue
that they are entitled to nationwide relief by emphasizing
evidence in the record, including declarations from “all types
[of] grant recipients across the geographical spectrum” about
how they are affected by the Challenged Conditions.
Plaintiffs argue that the “far-reaching impact” of the
Challenged Conditions makes this “one of the ‘exceptional
cases’ in which program-wide relief is necessary.”
The district court agreed, basing its analysis on “recent
guidance” from the Ninth Circuit “on the breadth of
evidence and inquiry needed to justify nationwide injunctive
relief in the context of [Executive action] attempting to place
similar conditions on grant funding.” See City & Cty. of San
24 CITY & COUNTY OF SAN FRANCISCO V. BARR
Francisco, 349 F. Supp. 3d at 971 (citing City & Cty. of San
Francisco v. Trump, 897 F.3d 1225, 1245 (9th Cir. 2018)).
In those cases, we held that nationwide injunctions against
unlawful Executive action, obtained by state and municipal
plaintiffs, were overbroad where, among other things, the
record contained no evidence showing impact to other
jurisdictions. See Trump, 897 F.3d at 1244 (noting that the
proffered evidence was “limited to the effect of the
[Executive] Order on their governments and to the State of
California”); Azar, 911 F.3d at 584 (holding that there was
no “showing of nationwide impact or [harm to other
jurisdictions of] sufficient similarity to the plaintiff states”).
Citing these cases, the district court reasoned that, before
issuing a nationwide injunction, it must “undertake ‘careful
consideration’ of a factual record evidencing ‘nationwide
impact,’ or in other words, ‘specific findings underlying the
nationwide application of the injunction.’” City & Cty. of
San Francisco, 349 F. Supp. 3d at 971 (quoting Trump, 897
F.3d at 1231, 1244).
While it was correct to state this rule, the district court
erred by considering only this rule. This rule addresses one
form of tailoring: “Once a constitutional violation is found,
a federal court is required to tailor the scope of the remedy
to fit the nature and extent of the constitutional violation.”
Trump, 897 F.3d at 1244 (quoting Hills v. Gautreaux, 425
U.S. 284, 293–94 (1976)). However, this is not the only
form of tailoring a court must do when issuing a remedy.
See, e.g., Azar, 911 F.3d at 584.
We have long held that an injunction “should be no more
burdensome to the defendant than necessary to provide
complete relief to the plaintiffs before the court.” Los
Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664
(9th Cir. 2011) (quoting Califano v. Yamasaki, 442 U.S. 682,
CITY & COUNTY OF SAN FRANCISCO V. BARR 25
702 (1979)) (internal quotation marks omitted). Under this
rule, the appropriate inquiry would be whether Plaintiffs
themselves will continue to suffer their alleged injuries if
DOJ were enjoined from enforcing the Challenged
Conditions only in California. The district court did not
make such a finding, and it is not apparent how the record
would support one.
We look first to the injuries Plaintiffs claimed. By
imposing the Challenged Conditions, San Francisco argued,
DOJ offered “an unacceptable choice: either comply with
[the Challenged Conditions] and abandon local policies that
San Francisco has found to promote public safety and foster
trust and cooperation between law enforcement and the
public, or maintain these policies but forfeit critical funds
that it relies on to provide essential services to San Francisco
residents.” San Francisco claimed that it faced “the
immediate prospect of losing over $1.4 million” in program
funds. California claimed it was at risk of “losing $31.1
million,” which would have devastating impacts on state and
local law enforcement agencies, requiring many of their
programs to be cut.
An injunction barring DOJ from enforcing the
Challenged Conditions within California’s geographical
limits would resolve Plaintiffs’ injuries by returning
Plaintiffs to the status quo. While extending this same relief
to non-party jurisdictions beyond California’s geographical
bounds would likely be of consequence to those other
jurisdictions, it does nothing to remedy the specific harms
alleged by the Plaintiffs in this case. A nationwide
injunction was therefore unnecessary to provide complete
relief. It was overbroad and an abuse of discretion.
We acknowledge the “increasingly controversial” nature
of nationwide injunctions, Innovation Law Lab v. Wolf, 951
26 CITY & COUNTY OF SAN FRANCISCO V. BARR
F.3d 1073, 1094 (9th Cir. 2020), and distinguish this case
from recent decisions in which we upheld this form of relief.
See id. (affirming an injunction operating in four states
within three circuits); E. Bay Sanctuary Covenant v. Barr (E.
Bay Transit), Nos. 19-16487, 19-16773, slip. op. (9th Cir.
Jul. 6, 2020) (same); E. Bay Sanctuary Covenant v. Trump
(E. Bay Port-of-Entry), 950 F.3d 1242 (9th Cir. 2020).
Plaintiffs here, a state and a municipality, “‘operate in a
fashion that permits neat geographic boundaries.’” E. Bay
Port-of-Entry, 950 F.3d at 1282–83 (quoting E. Bay
Sanctuary Covenant v. Trump (E. Bay III), 354 F. Supp. 3d
1094, 1120–21 (N.D. Cal. 2018)). Because Plaintiffs do not
operate or suffer harm outside of their own borders, the
geographical scope of an injunction can be neatly drawn to
provide no more or less relief than what is necessary to
redress Plaintiffs’ injuries. This is distinguishable from a
case involving plaintiffs that operate and suffer harm in a
number of jurisdictions, where the process of tailoring an
injunction may be more complex.
We recognized this distinction when we affirmed the
nationwide injunction entered in East Bay Port-of-Entry:
The Organizations . . . represent “asylum
seekers” broadly. Unlike the plaintiffs in
California v. Azar—individual states seeking
affirmance of an injunction that applied past
their borders—the Organizations here “do
not operate in a fashion that permits neat
geographic boundaries.” [E. Bay] III, 354 F.
Supp. 3d at 1120–21. . . An injunction that,
for example, limits the application of the
Rule to California, would not address the
harm that one of the Organizations suffers
from losing clients entering through the
CITY & COUNTY OF SAN FRANCISCO V. BARR 27
Texas-Mexico border. One fewer asylum
client, regardless of where the client entered
the United States, results in a frustration of
purpose (by preventing the organization from
continuing to aid asylum applicants who seek
relief), and a loss of funding (by decreasing
the money it receives for completed cases).
950 F.3d at 1282–83 (citation omitted).
Accordingly, we vacate the nationwide reach of the
permanent injunction and limit its reach to California’s
geographical boundaries.
VI. Conclusion
We affirm the district court’s order to the extent it held
that DOJ did not have statutory authority to impose the
Access and Notice Conditions and declared that Plaintiffs’
respective sanctuary laws comply with 8 U.S.C. § 1373, the
law on which the Certification Condition is based. We
uphold the permanent injunction barring DOJ from
withholding, terminating, or clawing back Byrne funding
based on the Challenged Conditions and statutes at issue.
We also determine that the district court abused its discretion
in granting nationwide injunctive relief, which was broader
than warranted, and vacate that portion of the district court’s
order.
Each party to bear its own costs.
AFFIRMED in part; VACATED in part.