DocketNumber： Case No. 17-cv-04642-WHO; Case No. 17-cv-04701-WHO
Citation Numbers： 349 F. Supp. 3d 924
Judges： Orrick
Filed Date： 10/5/2018
Status： Precedential
Modified Date： 7/25/2022
INTRODUCTION
In fiscal year 2017, defendants Attorney General Jefferson Beauregard Sessions III and the Department of Justice (collectively, the "DOJ") announced that applicants for federal grants under the Edward Byrne Memorial Justice Assistance Grant ("Byrne JAG") program would need to satisfy three new conditions for funding directed at state and local governments that have adopted so-called "sanctuary city" statutes and ordinances. The conditions require that grant recipients (i) provide the Department of Homeland Security's Immigration and Customs Enforcement agency ("ICE") access to their correctional facilities for immigration enforcement purposes, (ii) provide notice to ICE of the release date for detainees, and (iii) certify their compliance with
These new conditions have sparked litigation around the country. See, e.g. , City of Philadelphia v. Sessions , Case No. 17-cv-03894; City of Chicago v. Sessions , Case No. 17-cv-05720; United States v. California , Case No. 18-cv-490-JAM; City of Los Angeles v. Sessions , Case No. 17-cv-07215-R. In the two separate, related actions captioned above, the State of California and the City and County of San Francisco challenge the conditions requiring access, notice and compliance with Section 1373, as well as the constitutionality of Section 1373.
DOJ has lost each time these issues have been raised thus far. It continues to withhold grant funding to six states and several local jurisdictions, including California and San Francisco, which it believes do not comply with the Byrne JAG program conditions for fiscal year 2017. California requests that I enjoin DOJ from imposing the conditions, award the State the grants for which it is eligible, and declare that certain California laws identified by the State comply with the Section 1373. Alternatively, it seeks declaratory judgment finding Section 1373 unconstitutional on its face. Similarly, San Francisco requests that I enjoin enforcement of the conditions, issue declaratory judgment that San Francisco's sanctuary city laws comply with Section 1373, and issue an injunction restraining the DOJ from withholding Byrne JAG funding to San Francisco because of Section 1373. Both ask that the scope of the injunction be nationwide. DOJ responds with its own motions for summary judgment, essentially urging that I reject the requests of California and San Francisco.
In agreement with every court that has looked at these issues, I find that: the challenged conditions violate the separation of powers; Section 1373 is unconstitutional; the Attorney General exceeds the Spending Power in violation of the United States Constitution by imposing the challenged conditions; the challenged conditions are arbitrary and capricious; California's and San Francisco's laws comply with Section 1373 as construed in this Order; California is deserving of the mandamus relief it seeks; and both parties are entitled to a permanent injunction. Because the requisites for a nationwide injunction are met as a result of the unconstitutionality of Section 1373 and the uniform effect of DOJ's conditions on Byrne JAG grantees around the country, I will follow the lead of the district court in City of Chicago and issue a nationwide injunction but stay its nationwide effect until the Ninth Circuit is able to address it in the normal course on appeal.
BACKGROUND
I. FACTUAL BACKGROUND
A. Section 1373 of the Immigration and Nationality Act
The Immigration and Nationality Act ("INA") granted the Executive Branch, through its Department of Homeland Security ("DHS"), DOJ, and other agencies, "broad, undoubted power over the subject of immigration and the status of aliens." Arizona v. United States ,
Relevant to the present motions for summary judgment,
(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. 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.
B. The Office of Justice Programs and the Byrne JAG Program
The Office of Justice Programs ("OJP") was established with the passage of Title I of the Omnibus Crime Control and Safe Streets Act of 1968 and is managed by an Assistant Attorney General. See Pub. L. No. 90-351,
Under the Byrne JAG program, the Attorney General makes grants to state and local governments through the Bureau of Justice Assistance Grant Programs, a component of the OJP. See
California uses its JAG funds to support education and crime prevention, court programs, and law enforcement programs like task forces focused on criminal drug enforcement, violent crime, and gang activities. See Jolls Decl. ¶ 10 (CA Dkt. No. 29-1); Caligiuri Decl. ¶ 27 (CA Dkt. No. 118-4). Under the formula, it expected to receive (through the Board of State and Community Corrections) $28.3 million in JAG funding for fiscal year 2017, including $17.7 million to the State and the remainder to local jurisdictions. See Jolls Decl. ¶ 5.
San Francisco has received Byrne JAG funding for over a decade; it applied again for funding in the 2017 fiscal year. See Chyi Decl. ¶ 4 (SF Dkt. No. 105). It was entitled to receive Byrne JAG program funds of $524,845 and Byrne JAG sub-grants equal to $923,401 under the formula.
C. New Byrne JAG Program Grant Conditions
In fiscal year 2016, the DOJ announced that Section 1373 was an "applicable law" for Byrne JAG funding, and the DOJ required grantees like California to submit a legal opinion on its compliance with Section 1373. See Jolls Decl. ¶ 55, Ex. B; see also DOJ Request for Judicial Notice ("RJN") Ex. A ¶ 55 (CA Dkt. No. 125). For the following fiscal year, in July and August 2017, the OJP posted state and local solicitations for Byrne JAG grants that formalized other conditions. See Lee Decl. ¶¶ 3-4, Exs. A-B (SF Dkt. No. 106-1). The solicitations included three new conditions required for funding, each relating to federal immigration enforcement.
Byrne JAG grant applicants must now provide a certificate of compliance with Section 1373, signed by the jurisdiction's chief legal officer under penalty of perjury, attesting that the applicant does not have prohibitions on information-sharing with the INS about the citizenship or immigration status of any individuals. See Lee Decl. ¶ 4, Ex. B at 38; CA RJN Ex. 21. California certified that it complies with Section 1373, but the DOJ has not made a final determination on California's compliance. See Sherman Decl. Ex. B (CA Dkt. No. 116-5). San Francisco also believes it complies with Section 1373, but the DOJ has denied this. Lee Decl. ¶ 6 Ex. D, Req. for Admission No. 1.
Grant applicants must also have policies that satisfy "access" and "notice" conditions for Byrne JAG funding. The access and notice conditions require: (i) "that agents of the United States ... are given ... access" to any State or local government correctional facility "for the purpose *937of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals' right to be or remain in the United States;" and (ii) that when a State or local correctional facility "receives from DHS a formal written request ... that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and-as early as practicable ... provide the requested notice to DHS." Lee Decl. Ex. E; Hanson Decl. ¶¶ 55-56, Ex. B (CA Dkt. No. 42-1); DOJ RJN Exs. B and C (CA Dkt. No. 125). The "Rules of Construction" applicable to these new grant conditions clarify that the requirements do not extend to detaining "any individual in custody beyond the date and time the individual would have been released in the absence of this condition" and do not mandate detaining non-citizens at the request of federal immigration officials. See DOJ RJN, Exs. B and C ¶ 55.
D. The Office of Community Oriented Policing Services
In addition to new Byrne JAG program conditions, the DOJ announced that grants issued by the Office of Community Oriented Policing Services ("COPS") would require Section 1373 compliance as well. See DOJ RJN, Ex. F at 1. In fiscal year 2017, access to COPS funding included the Section 1373 certification requirement. One of the programs administered by COPS is the COPS Anti-Methamphetamine Program ("CAMP"), a competitive grant. In the past, California, through its Bureau of Investigations, received CAMP funding to support law enforcement investigations of the unlawful manufacture and distribution of methamphetamine-their work on the task force has led to seizing more than $30 million in illegal drugs since 2015. See Caligiuri Decl. ¶¶ 13-19. California received $1 million in CAMP funding in November 2017 but was informed it could not "draw down" the funds until an inquiry was resolved into its compliance with Section 1373.
E. California's Sanctuary State Laws and Policies
California has enacted the following statutes that are pertinent to its compliance with the access and notice conditions, the certification condition, and Section 1373 : the TRUST Act,
In 2016, the TRUTH Act was enacted. It requires that local law enforcement agencies give notice to inmates before an interview with any immigration officials. See CA RJN Ex. 5. Notification includes informing the detainee that the interview is voluntary and that he has a right to seek *938counsel. See
In October 2017, the Values Act expanded on the TRUST and TRUTH Acts to address the California Legislature's concern with preserving community trust between the state and local governments and California's immigrant communities. See
That said, the Values Act does not prohibit other forms of cooperation with federal immigration authorities. It does not apply to the California Department of Corrections and Rehabilitation, which responds to notification requests by ICE and transfers individuals from state to federal immigration custody. See CA RJN Exs. 12-16. It does not restrict sharing criminal-history via three state-run databases, participation in task forces with immigration officials, or federal access to jails. See
California's confidentiality statutes protect sensitive information of victims, witnesses, and juveniles. California Penal Code section 422.93 prohibits law enforcement from detaining hate-crime victims and witnesses who are not charged with or convicted of any state law crimes if they would be detained solely for immigration violations for transfer to federal immigration officials. See
The State's policies seek to use limited resources for public safety rather than immigration enforcement-the State Legislature concluded that limits on local law enforcement's involvement with immigration enforcement results in safer communities. See
California's policies are based on local law enforcement's belief that it is vital to maintain trust with immigrant communities; otherwise, immigrants will "fail to disclose crimes that they witness and/or are victims to out of fear of deportation." Hart Decl. ¶¶ 7, 9, 11-18, 21, Ex. 3 (CA Dkt. No. 116-3); Rosen Decl. ¶¶ 6-9, Ex. 5 (CA Dkt. No. 116-3); Wong Decl. ¶¶ 4, 34-38, 44, 48, 53, Ex. 10 (CA Dkt. No. 116-4). For example, in a study of 594 undocumented Mexican nationals in San Diego County, 60.8 percent of respondents were less likely to report crimes they witnessed to police, and 42.9 percent were less likely to report being a victim of a crime to police, if the police were working together with ICE. See Wong Decl. ¶ 35. When local law enforcement officials communicated that they were not working with ICE, 71.8 percent of respondents were more likely to report crimes they witnessed, and 70.8 percent were more likely to report being a victim of a crime to the police. See Wong Decl. ¶ 36. California finds that these results accord with other research on undocumented women who are victims of violent crime, sexual assault, or domestic violence, and who are less likely to report these crimes if law enforcement officers are working with federal immigration officials. See Wong Decl. ¶ 38.
F. San Francisco's Sanctuary City Laws and Policies
San Francisco declared itself a City and County of Refuge in 1989 and codified its Sanctuary City Laws in Chapters 12H and 12I of the San Francisco Administrative Code. See SF RJN Ex. A (SF Dkt. No. 107-1). Chapter 12H expressly prohibits any City or County funds or resources from being used to assist federal immigration officers to gather or share information on the release status of individuals unless required by federal or state law. See S.F. Admin. Code § 12H.2. Chapter 12I prohibits law enforcement in San Francisco from responding to federal immigration enforcement requests for notice of release dates for individuals in custody unless the individual meets certain criteria, such as having a recent conviction for a serious or violent felony or three separate felonies other than domestic violence. See S.F. Admin. Code § 12I.3(c), (d), (e).
San Francisco's law enforcement departments have policies consistent with the Sanctuary City Laws, which it also believes are not violative of Section 1373. See Sainez Decl. ¶¶ 9-11 (Police Department) (SF Dkt. No. 100); Fletcher Decl. ¶¶ 6-7 (Adult Probation Department) (SF Dkt. No. 101); Hennessy Decl. ¶¶ 11, 17-18 (Sheriff's Department) (SF Dkt. No. 102). Additionally, the San Francisco Sheriff's Department has policies prohibiting employees from providing ICE or other federal immigration enforcement officials any access to San Francisco jails, computers, databases, release dates, or contact information for inmates in its custody. See Hennessy *940Decl. ¶¶ 17-18, Ex. D. San Francisco shares the views of California that its sanctuary city policies encourage individuals to be candid with law enforcement and facilitate trust between law enforcement and the community. San Francisco believes that these policies lead to greater reporting of crimes, more cooperative witnesses, and more assistance with law enforcement investigations. See Hennessy Decl. ¶ 8; Sainez Decl. ¶ 6.
II. PROCEDURAL BACKGROUND AND RELATED LITIGATION
California and San Francisco filed their respective lawsuits in August 2017, seeking to enjoin DOJ from requiring the three conditions on Byrne JAG program funding and to receive their grant funds. The DOJ unsuccessfully moved to dismiss both suits, arguing that the plaintiffs lacked Article III standing and that their complaints failed to state a claim. See Order Denying Mot. to Dismiss (SF Dkt. No. 78); Order Denying Mot. to Dismiss (CA Dkt. No. 88). California separately moved for a preliminary injunction, which I denied because at the time there was not enough evidence to determine a likelihood of success on the merits and there was uncertainty whether California's injury was irreparable. See Order Denying Amended Mot. for Preliminary Injunction (CA Dkt. No. 89).
Other highly relevant lawsuits are being litigated that challenge the federal government's new conditions for Byrne JAG program funding, and the federal government initiated its own challenge to California sanctuary state laws like the Values Act. In City of Chicago v. Sessions ,
In City of Philadelphia v. Sessions ,
In United States v. California ,
LEGAL STANDARD
A party is entitled to summary judgment where it "shows that there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). To prevail, a party moving for summary judgment must show the lack of a genuine issue of material fact with respect to an essential element of the non-moving party's claim, or to a defense on which the non-moving party will bear the burden of persuasion at trial. See Celotex Corp. v. Catrett ,
On summary judgment, the Court draws all reasonable factual inferences in favor of the non-movant.
DISCUSSION
Before addressing the arguments on the merits, I resolve the evidentiary disputes and administrative motions surrounding the motions for summary judgment.
I. EVIDENTIARY DISPUTES AND ADMINISTRATIVE MOTIONS
A. DOJ's Motions to Strike Exhibits
DOJ moves to strike Exhibit 42 of California's Request for Judicial Notice and *942Exhibits I and J of the Lee Declaration in support of San Francisco's motion for summary judgment, asserting that these exhibits are privileged. See Admin. Mot. to Strike (CA Dkt. No. 123); Admin. Mot. to Strike (SF Dkt. No. 109). It argues that they were inadvertently produced and notes that other copies of the same documents were properly logged as privileged and withheld during discovery. In July 2018, it sent a clawback letter for the inadvertently released privileged documents.
The deliberative process privilege applies to documents if they are predecisional (drafted before an agency adopted a given policy) and deliberative (containing opinions, recommendations, or advice while determining the agency policy). See FTC v. Warner Commc'ns Inc. ,
Both documents are pre-decisional and reflect personal opinions of the personnel who drafted them as opposed to policy determinations. One is an internal memorandum between the Acting Assistant Attorney General and the Associate Attorney General, showing pre-decisional analysis of compliance with California laws and Section 1373. The other is a redlined draft document about the DOJ's decision and talking points. I GRANT the motion to strike Exhibit 42 of California Request for Judicial Notice and Exhibits I and J of the Lee Declaration.
B. San Francisco's Motion to Exclude Declarations
San Francisco seeks to exclude the Madrigal and Atsatt declarations, which DOJ filed in support of its opposition and cross-motion for summary judgment. See Mot. to Exclude (SF Dkt. No. 128). San Francisco argues that DOJ did not comply with Federal Rules of Civil Procedure 26(a) or 26(e), and that DOJ cannot show that its failure to disclose the declarations was harmless or justifiable. Id. at 1. DOJ contends San Francisco cannot complain of any harm from the undisclosed declarations because it committed the same harmful conduct. See Opp. to Mot. to Exclude (SF Dkt. No. 131).
Federal Rule of Civil Procedure 37(c)(1) states that if a party fails to "identify a witness as required by Rule 26(a) or (e)," the party may not use the witness for "evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). Evidence that applies to Rule 37 must be excluded, as this is a "self-executing, automatic sanction to provide a strong inducement for disclosure of material." Hoffman v. Constr. Protective Servs., Inc. ,
*943San Francisco claims that after initial disclosures and throughout discovery, DOJ never mentioned Madrigal or Atsatt at any time and there were no references to any documents authored by them. See Meré Decl. ¶¶ 6, 8 (SF Dkt. No. 129). When the parties discussed limiting discovery, they agreed to declarations by a limited number of fifteen custodians of records. Id. ¶¶ 9-10. Madrigal and Atsatt were not on the finalized list of custodians, nor did DOJ amend or supplement its disclosures. Id. ¶ 13. The first time that San Francisco apparently learned of the declarants was in August 2018, when DOJ filed its opposition and cross-motion for summary judgment. Id. ¶ 16.
As DOJ argues, San Francisco served supplemental initial disclosures for seven new declarations the day before its opposition to the DOJ's motion for summary judgment. See Opp. to Mot. to Exclude at ¶ 2. However, San Francisco contends that two of those declarations were provided only to rebut arguments made by DOJ in its motion for summary judgment, and that the remaining five declarations are substantially justified because they respond to issues raised by the Ninth Circuit in City & County of San Francisco v. Trump ,
In contrast, DOJ has not argued or alleged that its failure to disclose the Madrigal and Atsatt declarations was substantially justified. Rule 37(c)(1) is "self-executing" and DOJ has not met its burden of proof. Hoffman ,
C. Administrative Motions to File Under Seal
California and DOJ submitted administrative motions to file materials under seal. In July 2018, California filed its administrative motion to seal portions of the Caligiuri Declaration. See Admin. Mot. (CA Dkt. No. 118). That same month, DOJ filed its administrative motion to seal a document designated as "Confidential" under a Protective Order in this case and produced by San Francisco. See Admin. Mot. (SF Dkt. No. 111).
Given the historically recognized public right of access to judicial records, there is a "strong presumption in favor of access." Foltz v. State Farm Mutual Auto. Insurance Company,
Here, there are compelling reasons to seal portions of California's Caligiuri Declaration and the document attached to the DOJ's Mauler Declaration. The subject portions of the Caligiuri Declaration contain details about ongoing and active criminal investigations. See Ehrlich Decl.
*944¶ 4 (CA Dkt. No. 118-1). The spreadsheet attached to the Mauler Declaration also contains partially redacted confidential criminal offender record information that could be reverse engineered with extraneous data if unsealed. See McGrath Decl. ¶ 7 (SF Dkt. No. 112). I GRANT the administrative motions to file these materials under seal.
D. Motions for Leave to File Amicus Briefs
There are also eight motions for leave to file amicus briefs with the court. See Admin. Mots. for Leave (CA Dkt. Nos. 129, 130, 132; SF Dkt. Nos. 133, 135, 136, 137, 138). Because each motion complies with my prior Order Regarding Amicus Briefing, I GRANT the motions. See Order (CA Dkt. No. 41; SF Dkt. No. 55).
II. SEPARATION OF POWERS AND THE SPENDING CLAUSE
California and San Francisco argue that the new conditions are unconstitutional because they seek to exercise Congress's exclusive Spending Power in violation of the constitutional separation of powers and the Spending Clause. Article I of the United States Constitution specifically grants the Spending Powers to Congress. "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." Art. I, § 8, cl. 1. Congress's Spending Power includes "condition[ing] the receipt of funds, by states and others, on compliance with federal directives." State of Nev. v. Skinner ,
Congress is in control of the Spending Power to "set the terms on which it disburses federal money to the State," Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy ,
A. Separation of Powers
DOJ argues that the context of the Byrne JAG program statute shows that Congress intended to delegate discretionary authority to the Attorney General. Congress expressly amended the statute to include the Assistant Attorney General's power of "placing special conditions on all grants, and determining priority purposes for formula grants." USDOJ Reauthorization *945Act, § 1152(b), 119 Stat. at 3113, codified at
San Francisco and California offer three generally overlapping arguments to contend that DOJ's conditions on Byrne JAG program funds violate the separation of powers. First, they contend that Congress, through the Byrne JAG program, only authorizes the Attorney General to exercise ministerial powers and not the limitless discretionary authority to impose new conditions. Second, they challenge the notion that
1. The Byrne JAG Program Does Not Grant the Attorney General Authority to Impose the Challenged Conditions
The Byrne JAG Program is a formula grant program, not a discretionary program, meaning that Congress has already determined who the recipients are and how much money they receive. See City of Los Angeles v. McLaughlin ,
Starting with the text itself, the Byrne JAG statute contains limited discretionary authority for the Attorney General to carry out specific parts of the grant program. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. ,
*946
Other actions or inactions of Congress do not support DOJ's position. Congress has exercised its power to impose conditions on Byrne JAG funding in the past, legislating a ten percent withholding of Byrne JAG funds for failing to implement federal Sex Offender Registration and Notification Act,
San Francisco points out that Congress has chosen not to exercise its power to impose immigration conditions on Byrne JAG grants in the past, rejecting such legislation several times. See, e.g. , Stop Sanctuary Cities Act, S. 1814, 114 Cong. § 2(b)(2) (2015); Enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th Cong. § 3(b) (2015). DOJ believes this is unpersuasive. See FTC v. AT & T Mobility LLC ,
DOJ disagrees that a formula grant program like the Byrne JAG program is "irreconcilable" with the access and notice conditions. It relies on the single sentence, "the Attorney General may , in accordance with the formula ..., make grants ...," to contend that there is a difference between grant eligibility discretion and fund allocation discretion.
DOJ does not offer any argument not already considered on this exact issue in the parallel cases. See, e.g. , City of Chicago ,
*947City of Philadelphia v. Sessions ,
2. Section 10102 Does Not Grant the Attorney General Authority to Impose the Challenged Conditions
As an independent basis for imposing the conditions, DOJ relies on the authority granted in
The parties once again offer opposing statutory interpretations. San Francisco argues that Section 10102(a) did not give DOJ authority to impose conditions because the power of "placing special conditions" on and "determining priority purposes" of grants refers to powers that have to be vested by some other statutory authority and are not enumerated in Section 10102. California contends that the access and notice conditions are not justified by Section 10102(a)(6) because it only permits the OJP to place special conditions on all grants to "high-risk" grantees. California also asserts that Section 1373 identifies a "special award condition" to COPS grants as a "high-risk condition" but refers to other conditions as "award terms and conditions" only. CA RJN Ex. 31 at 5, 20.
DOJ counters that Section 10102(a)(6) must be interpreted to grant the Assistant Attorney General discretion to impose the conditions given that the statute was amended to add the "special conditions" and "priority purposes" language. To give the amended language no power would therefore contravene the canon of statutory construction against surplusage. See, e.g. , Johnson v. Consumerinfo.com, Inc. ,
DOJ's interpretation that Section 10102 establishes an independent grant of authority to impose the challenged conditions contradicts the plain meaning of the statute. The Seventh Circuit's decision in City of Chicago ,
In addition, the statutory structure of Section 10102(a)(6) does not support DOJ's broad interpretation of its power to impose the challenged conditions. Section 10102(a)(6) is in a different subchapter than the Byrne JAG statute and there is no text expressly applying it to the Byrne JAG program. See City of Chicago,
3. Section 1373 is Not an Applicable Federal Law for Compliance with the Byrne JAG Statute
In addition to the lack of authority for the notice and access conditions, San Francisco and California assert that DOJ lacks authority to impose the Section 1373 certification condition from the text of the Byrne JAG statute. DOJ insists that language in the Byrne JAG statute supports its authority to impose the certification condition. Specifically,
(a) In general. To request a grant under this part, the chief executive officer of a State or unit of local government shall submit an application to the Attorney General ... Such application shall include the following:
...
(5) A certification, ... that--
...
(D) the applicant will comply with all provisions of this part and all other applicable Federal laws.
a. The Tenth Amendment and Anti-Commandeering Principle
The Tenth Amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. Amend. X. This amendment confirms that "the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States." New York v. United States ,
The Supreme Court has applied the anti-commandeering principle to various claims that the federal government overstepped its bounds. See
DOJ offers three threshold challenges to applying the anti-commandeering principle to this case. First, it asserts that the Tenth Amendment and the Murphy opinion are inapposite because the certification condition is for a voluntary federal grant program. It argues that applicants can simply decline to participate in the Byrne JAG program, making the Spending Clause the appropriate legal battleground as opposed to the Tenth Amendment's anti-commandeering principle. But this argument "ignores that Section 1373 is an extant federal law with which [California or San Francisco] must comply, completely irrespective of whether or not [it] accepts Byrne JAG funding." City of Chicago ,
*950Second, DOJ contends that, regardless of Murphy , the federal government has "broad, undoubted power" over immigration, Arizona , 567 U.S. at 394,
Third, at the hearing DOJ offered a subtler distinction, that Section 1373 is a preemption provision rather than an attempt at commandeering. It insisted that the INA is a broad regulatory scheme over individuals, unlike PASPA in Murphy which involved direct regulation of the states to enforce a specific sports betting policy. See Transcript of Proceeding at 8-9 (CA Dkt. No. 136; SF Dkt. No. 144); see also Murphy ,
Here, Section 1373 applies regardless of any State's attempt to regulate immigration, and in fact restricts States in unrelated criminal justice contexts completely outside the scope of the INA. Section 1373, as already discussed, does not regulate private actors or provide private actors with any additional rights in the INA's statutory scheme. DOJ's preemption argument fails on this distinction.
I turn now to analyzing Section 1373 and the anti-commandeering case law. Murphy provided a non-exhaustive set of three policy reasons that make adhering to the anticommandeering principle important. First, the principle is "one of the Constitution's structural protections of liberty," dividing federal and state authority "for the protection of individuals."
Section 1373 contravenes the idea that liberty is best served by the Constitution's intended division of "authority between federal and state governments for the protection of individuals." Murphy ,
As DOJ interprets Section 1373 today, the statute requires communications by state and local governments in ways that create an appearance of a uniform federal/state/local immigration enforcement policy indiscernible to San Francisco or California residents. Murphy ,
California expresses the legitimate concern that entanglement with federal immigration enforcement erodes the trust that Latino and undocumented immigrant communities have in local law enforcement, which is essential for victims and witnesses to feel they can safely report crimes. See Wong Decl. ¶¶ 4, 41-44, 52-53 (discussing how entanglement affects undocumented immigrants' trust in law enforcement); Hart Decl. ¶¶ 9, 11 (reiterating the Santa Cruz Sheriff's Office view that trust is essential to community-oriented policing); Goldstein Decl. ¶ 5 (summarizing California's belief, embodied in the Values Act, that trust between law enforcement and the immigrant community is central to public safety); Rosen Decl. ¶ 8 (expressing firsthand experience of immigration enforcement actions chilling voluntary reporting in domestic violence cases); see also Chicago ,
The harm that entanglement with immigration enforcement does to community trust is more than theoretical, as plaintiffs and amici have shown. To summarize just one study, the fear of police inquiring into immigration status results in a lower likelihood that Latinos will report being a victim or witnessing crimes by 44 percent, undocumented immigrants by 70 percent, and even U.S.-born Latinos by 28 percent.
*952See CA RJN Ex. 4; see also Wong Decl. ¶¶ 35-38 (sharing similar results in a separate study); Amicus Brief (CA Dkt. No. 130; SF Dkt. No. 136-1) (providing many other studies documenting the erosion of trust in local law enforcement who implicate themselves in immigration enforcement).
Finally, Section 1373 shifts a portion of immigration enforcement costs onto the States. Murphy ,
DOJ does not directly respond to the arguments made by San Francisco and California that track the three policy considerations supporting the anti-commandeering principle, and instead portrays Section 1373 merely as protecting the transfer of information to federal officials. It distinguishes a prohibition on states from regulating their own state citizens and a law that regulates states as "the owners of data bases." Reno ,
In Printz , the Supreme Court found that a federal statute requiring state and local law enforcement to conduct background checks on handgun license applications was unconstitutional.
There is no distinction for anti-commandeering purposes, post- Murphy , between a federal law that affirmatively commands States to enact new laws and one that prohibits States from doing the same. Even if the Court would recognize an exception for statutes requiring "purely ministerial reporting," Printz ,
As the court wrote in City of Chicago , Section 1373"effectively thwart[s] policymakers' ability to extricate their state or municipality from involvement in a federal program."
b. Applicable Federal Laws in the Byrne JAG Statute
DOJ asserts that it has the power to condition Byrne JAG grants on any federal law as long as it gives notice that it applies, as it did for Section 1373. Given that Section 1373 is unconstitutional, "[a]s an unconstitutional law, Section 1373 automatically drops out of the possible pool of 'applicable Federal laws' described in the Byrne JAG statute" whether I interpret the statute as DOJ requests or not. City of Chicago ,
*954does not include unconstitutional state laws) ); see also City of Philadelphia ,
For completeness, though, I will address DOJ's argument on whether Section 1373 is an applicable law if it is constitutional. San Francisco makes three persuasive counterarguments based in the text, context, and legislative history of the Byrne JAG statute to interpret the "applicable Federal laws" provision as limited to federal laws about the grant-making process. See SF Mot. for Summ. J. at 14-15; see also Amicus Brief (SF Dkt. No. 135-1) (advancing similar arguments).
First, it is superfluous to interpret "all other applicable Federal laws" as "all Federal laws," especially considering that Congress explicitly imposed compliance with other conditions by implementing the Sex Offender Registration and Notification Act and the Prison Rape Elimination Act. Second, because all the other conditions in Section 10153(a) apply to the grant itself, the statutory context does not support imposing a condition beyond the grant administration process. Finally, DOJ's own practice narrowly interprets "applicable laws" to the grant process, and the certification form only asks grant applicants to certify compliance with federal laws "applicable to the award." SF RJN Ex. C § 3(a).
Starting with the text, the Ninth Circuit has found that, in isolation, "the term 'applicable' has a spectrum of meanings." Ileto v. Glock, Inc. ,
The statutory structure suggests "applicable" was intended to refer to laws related to grant applications. The entire sentence appears in the last of four "residual clauses" within a proviso, all of which concern the grant application. In Republic of Iraq v. Beaty ,
B. The Spending Clause
California and San Francisco also argue that even if the Attorney General had the power to impose the conditions on grant funding delegated to him by Congress, it exceeds the constitutional limits of the Spending Power to require the new conditions. As discussed above, the Spending Power includes "condition[ing] the receipt of funds, by states and others, on compliance with federal directives." Skinner ,
1. Unambiguous Requirement
When Congress requires conditions on federal funds, "it must do so unambiguously" so that state and local governments can decide whether to accept the funds and "exercise their choice knowingly, cognizant of the consequences of their participation." S. Dakota v. Dole ,
a. Access and Notice Conditions
California asserts that the access and notice conditions do not provide clear notice of what is required to comply. There is no statute providing guidance about the condition requirements, and the award letters presumably outlining the terms of compliance do not explain the requirement that a state or local statute, rule, regulation, policy, or practice, must be in place and "designed to ensure" federal agents have access to and get notice concerning individuals in correctional facilities and their release date information. See DOJ RJN, Ex. B ¶¶ 55, 56. California also takes issue with DOJ's lack of explanation about whether the TRUTH Act disqualifies it from satisfying the access condition, and *956what state entities in the California Board of State and Community Corrections, which receives the Byrne JAG funds, are included in the award letter language "program and activity." See Sherman Decl. Ex. E at RFA Resp. 21 & 39.
San Francisco's contentions focus on the inconsistency of the DOJ's statements and positions explaining the access and notice conditions. San Francisco asserts that the notice condition, requiring notice "as early as practicable," is unclear and that the award letter language does not acknowledge times when notice is impossible because inmates are released with little or no notice. See Lee Decl. ¶ 7, Ex. E at ¶¶ 55, 56; DOJ RJN, Ex. B ¶¶ 55, 56. Further, San Francisco believes it is unclear from the DOJ's briefing in City of Philadelphia v. Sessions and California v. Sessions if San Francisco must provide access to inmates who consent or if it can decline access if the inmate is unwilling to meet with ICE. Compare City of Philadelphia v. Sessions , No. 2:17-cv-03894-MMB, Dkt. No. 28, at 32 (E.D. Pa. Oct. 12, 2017) (citing DOJ's argument that access conditions require access "even if the inmate refuses to answer questions"), with California v. Sessions , Dkt. No. 83, at 6 (N.D. Cal. Nov. 22, 2017) (arguing that the access condition does not "forbid a jurisdiction from informing detainees ... that they may choose not to meet with immigration authorities.").
DOJ's response to San Francisco and California is nearly the same; it quotes the language of its award letters and contends that the notice and access conditions are unambiguous in their text. It also notes that to the extent grant applicants had questions, they should have contacted their respective "Grant Manager" as encouraged in the 2017 Byrne JAG solicitation. See Lee Decl. Ex. A & B. It pushes back against the need to specify the outer limits of its conditions, arguing that the conditions are not ambiguous even if they are indeterminate "provided that the existence of the conditions is clear, such that States have notice that compliance with the conditions is required." Charles v. Verhagen ,
In the case of a condition on federal funding, courts "must view the [governing statute] from the perspective of a state official who is engaged in the process of deciding whether the State should accept [the] funds and the obligations that go with those funds." Arlington Cent. Sch. Dist. Bd. of Educ. ,
Here, as in City of Philadelphia , "[w]hether Congress unambiguously imposed the Challenged Conditions (or unambiguously authorized the Attorney General so to do) entails largely the same inquiry as whether it conferred authority upon the Attorney General to impose *957them."
b. Certification Condition
The certification condition is unclear from San Francisco's perspective because DOJ has maintained different and increasingly broad interpretations of how state and local governments must comply with Section 1373. In 2007, DOJ's Office of Inspector General ("OIG") evaluated San Francisco's compliance with Section 1373 and concluded that even though ICE officials objected to its policies, there was no concern about the flow of information between the two agencies. See Lee Decl. ¶ 9, Ex. G at AR00010-12. However, in 2016, DOJ's OIG noted the opposite conclusion based on its interpretation of San Francisco's Sanctuary City laws' internal savings clause. See Lee Decl. ¶ 10, Ex. H at 5-6 n.7. San Francisco also alludes to various representations that DOJ has made throughout this litigation and in parallel cases, which offer inconsistent guidance on the scope of the certification condition. See SF Mot. Summ. J. at 19-20.
DOJ considers the certification condition unambiguous from the text of the award documents. The award documents in defendants' exhibits show that complying with Section 1373 entails not restricting information on citizenship or immigration status. See DOJ RJN, Ex. B ¶¶ 53-55. In October 2016, DOJ contends that OJP also issued "guidance" on compliance with the Section 1373 certification condition. But at no point in this guidance does the OJP clearly answer the questions raised by San Francisco about what its interpretation of compliance really means. See DOJ RJN, Ex. F (repeating generally that its "goal is to ensure that our JAG and SCAAP recipients are in compliance ...").
In City of Philadelphia , the court found that whether the certification condition was unambiguous was a "close call," just as it found it was a close call whether Section 1373 was authorized by the "all other applicable Federal laws" language in Section 10153(a)(5)(D) of the Byrne JAG statute.
As discussed above, I find that the plain text was not definitive in interpreting the meaning of "all other applicable Federal laws," and the structure of the statute supported a limited interpretation encompassing federal laws related to the grant. See supra Sec. II.A.3.b. Congress required applications for Byrne JAG program grants to be certified in compliance with "all other applicable Federal laws."
*958DOJ's evolving interpretations of the certification condition further demonstrate ambiguities that prevent applicants from deciding whether to accept the funds "cognizant of the consequences of their participation." Dole ,
2. Relatedness Requirement
In addition to being unambiguous, conditions on congressional spending must share some nexus such that they are "reasonably related to the purpose of the federal program." See Dole ,
California contends that the challenged conditions, which pertain to federal immigration enforcement, lack any reasonable relationship to the criminal justice purpose of Byrne JAG program and in fact undermine its purpose of recognizing local control over local public safety. See AR-992 (announcing the DOJ's new conditions so that "federal immigration authorities have the information they need to enforce immigration laws."). It also emphasizes DOJ's increasing focus on removing classes of immigrants who have incurred civil penalties but have not been convicted of any crime, which is beyond the criminal justice goals of the Byrne JAG program. Similarly, San Francisco asserts that Congress's purpose for the Byrne JAG program was to give state and local governments support for their own initiatives related to one of eight criminal justice purposes-none of which is immigration enforcement.
DOJ argues that the grant conditions satisfy the relatedness inquiry because the term "criminal justice" is broadly defined in the same chapter of the Byrne JAG statute as "activities pertaining to crime prevention, control, or reduction, or the enforcement of the criminal law, including, but not limited to, police efforts to prevent, control, or reduce crime or to apprehend criminals, ... activities of courts having criminal jurisdiction, and related agencies."
As I have already discussed at length, on its face the Byrne JAG program is a formula grant program for specified funds to be used by states and local law enforcement in programs related to one of eight broad program areas related to criminal justice.
Congress repealed the only requirement related to immigration that existed before, and it has failed to amend the Byrne JAG statute to add similar conditions since. See Immigration Act of 1990, Pub. L. 101-649, § 507(a); Misc. and Tech. Immigration and Naturalization Amend. of 1991, Pub. L. 102-232, § 306(a)(6) (repealed 2006) (requiring states to provide records of the "criminal convictions of aliens"); CA RJN Exs. 32-36 (various House and Senate bills that failed to amend the Byrne JAG statute with an immigration enforcement component); see also Amicus Brief at 4 n.6 (CA Dkt. No. 132; SF Dkt. No. 138-1) (summarizing failed efforts since the 1990s to impose immigration conditions on Byrne JAG grant funding). In fact, "Congress has repeatedly, and frequently, declined to broadly condition federal funds or grants on compliance with Section 1373 or other federal immigration laws," as DOJ is now attempting to do with the challenged conditions. Cty. of Santa Clara ,
The Byrne JAG programs that are at risk of losing funding because of the access and notice conditions do not relate to immigration enforcement. The conditions address interviewing and accessing detained individuals for removal purposes, and as applied they "target[ ] for defunding grants with no nexus to immigration enforcement at all." Cty. of Santa Clara ,
California's Byrne JAG program funding is intended to support law enforcement programs like task forces focused on criminal drug enforcement, violent crime, and gang activities; none of these involve immigration enforcement. See Caligiuri Decl. ¶ 29. California's COPS grant funding also funds the salaries and costs of four full-time employees who work on anti-methamphetamine efforts. Id. ¶ 21. Likewise, San Francisco's funding goes towards at-risk youth programs to reduce recidivism, law enforcement programs aiming to reduce drug trade and servicing people with drug use and mental health problems. See Chyi Decl. ¶¶ 10, 17, 18. The access and notice conditions, which DOJ admits are intended to promote immigration enforcement, lack any relationship to (and in fact interfere with) the criminal justice priorities set by the plaintiffs applying for criminal justice program funding through the Byrne JAG statute. Contrary to DOJ's view, maintaining liaison with state and local governments on criminal justice matters does not justify requiring access to their detainees and notice of release dates for every individual the federal government requests.
Even if the Attorney General had the Spending Power to impose immigration enforcement on traditional criminal justice responsibilities of local law enforcement, the conditions are more substantial than the relationship between the dual sovereigns can reasonably bear. The Attorney General has made it clear that DOJ "no longer will exempt classes or categories of removable aliens from potential enforcement," yet many immigration violations do not involve criminal law and are only violations of civil penalties. Cf. CA RJN Ex. 37 at 2, with
The certification condition is unrelated as well. In my prior Order on California's motion for a preliminary injunction, I found that the Section 1373 certification condition may have a sufficient nexus to the purposes of the Byrne JAG program "depending on the breadth of the federal government's interpretation of Section 1373." Order at 23 (CA Dkt. No. 89). Even though the federal government's interest in immigration enforcement extends beyond the Byrne JAG statute's goal of supporting criminal justice programming, "the Certification Condition appears to have some relationship with the JAG Program." City of Philadelphia ,
*961The Supreme Court has required only that grant conditions "bear some relationship to the purpose of the federal spending." New York ,
Accordingly, even if Congress delegated the Spending Power to the Attorney General, the challenged conditions are ambiguous and insufficiently related to the grant or the local criminal justice program purposes of the federal spending.
III. CALIFORNIA'S ARBITRARY AND CAPRICIOUS CLAIM
California argues that all three conditions for Byrne JAG program funding are "arbitrary and capricious" under the Administrative Procedure Act ("APA"). DOJ counters that there is no final agency action because it has not yet granted or denied California's fiscal year 2017 Byrne JAG application or imposed the conditions on the grant.
A. Requiring the Challenged Conditions is a Final Agency Action
An agency action is final if it "marks the consummation of the agency's decisionmaking process" and determines "rights or obligations ... from which legal consequences flow." Bennett v. Spear ,
*962For the reasons expressed in the prior Order, I find that all the challenged conditions have been determined by the Attorney General as requirements for grant funding and constitute final agency action.
Courts presiding over the parallel cases agree. On a motion to dismiss in City of Philadelphia , the court found that the decision to impose the conditions was final since plaintiffs pleaded facts showing the conditions were required for funding, and that compliance with them would significantly alter their local policies.
These are the same circumstances here. California has shown that the decision to impose new conditions on the Byrne JAG and COPS grants was final and will lead to significant legal consequences depending on its decision to participate as well as to certify its compliance.
B. Imposing the Challenged Conditions was Arbitrary and Capricious
The APA requires courts to "hold unlawful and set aside agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
Because California challenges grant conditions, the usual administrative procedures that show an agency's justification for its action, such as formal rules, notice and comment, or hearings, are not present here. See
Now I am presented with the complete administrative record of 48 documents totaling 1037 pages. See Administrative Record (CA Dkt. No. 96) (SF Dkt. No. 84). DOJ bases its agency action to impose the new conditions on five documents in the record: (i) a 2007 OIG Audit Report, see
First, citing the 2007 OIG Audit Report, DOJ claims that the challenged conditions were arrived at understandably because they promote interests in "maintain[ing] liaison" between tiers of government in criminal justice matters. DOJ Mot. for Summ. J. at 21. The thorough analysis by the court in City of Philadelphia explains why this argument misses the mark. The 2007 OIG Audit Report concluded that it could not "statistically extrapolate the number of offenses committed by undocumented criminal aliens who were released from local custody without a referral to ICE" and that it "could not determine if ICE was notified before the criminal aliens in our sample were released from custody." AR-00014. As a result, DOJ cannot look to this record to establish that it properly "examine[d] the relevant data to reach a relevant basis for its decision ... because it failed to use the relevant data to form an opinion at all." City of Philadelphia ,
Second, a similar issue arises with the 2016 OIG Memorandum. The Memorandum presents findings on ten state and local jurisdictions, with the express purpose of updating DOJ on steps taken to address compliance with Section 1373. See AR-00367. From the outset, this record comes after "OJP notified SCAAP and JAG applicants about the requirement to comply with Section 1373." AR-00374. It does not attempt to justify any of the new conditions, and instead it offers the DOJ steps to consider in light of DOJ's focus on "ensuring that grant applicants comply with Section 1373."
Nevertheless, the 2016 OIG Memorandum recommends that DOJ consider providing "clear guidance" on whether Section 1373 is an applicable federal law, acknowledging that the record does not purport to provide that guidance and clarifying that DOJ has not yet confirmed Section 1373's applicability to the Byrne JAG grant statute. See AR-00374 at n.13. DOJ cannot justify its certification condition on this record, which did not assess any of the reasons DOJ imposed the certification condition and which offered recommendations to DOJ specifically in response to DOJ's decision to notify applicants of the certification condition. To attempt to justify the condition on this record is an exercise in circular reasoning. See City of Philadelphia ,
Third, in fiscal year 2016 the prior administration introduced the Section 1373 certification idea and recognized Section 1373 as an applicable federal law for the Byrne JAG program. See Attachment to Letter from Assistant Attorney General Kadzik to Rep. Culberson, AR-00384. The attachment is a Memorandum from the Assistant Attorney General for OJP to DOJ's Inspector General, discussing OJP's determination that Section 1373 is an applicable federal law for purposes of the *964Byrne JAG grant program. See
Fourth, relying on the Backgrounder on Grant Requirements, DOJ contends that the challenged conditions had a "goal of increasing information sharing between federal, state, and local law enforcement ... to enforce the law and keep our communities safe." See Backgrounder, AR-00993. I addressed the Backgrounder thoroughly in my prior Order. See Order at 21 (finding that it was unclear that the certification condition had the requisite rational connection to the facts in the Backgrounder). There is not a clear link, or at least the government has not been able to provide one, between localities keeping release dates or contact information confidential and more dangerous or less safe communities.
Finally, DOJ relies on a 2017 press release by the Attorney General proclaiming that sanctuary city policies "make all of us less safe because they intentionally undermine our laws and protect illegal aliens who have committed crimes." DOJ Press Release No. 17-826, AR-00992. The Attorney General contends that "[t]hese [sanctuary city] policies also encourage illegal immigration and even human trafficking by perpetuating the lie that in certain cities, illegal aliens can live outside the law."
It is worth emphasizing that the evidence before me indicates the opposite of DOJ's rhetoric. In contrast to DOJ's unsubstantiated view, California shows that imposing the challenged conditions may damage its law enforcement efforts. In support of its sanctuary policies, the California Assembly Committee on Public Safety relied on a study finding lower likelihoods of contacting law enforcement by Latinos (44 percent), undocumented immigrants (70 percent), and U.S.-born Latinos (28 percent) who were victims of a crime, for fear of police inquiring into their immigration status. See CA RJN Ex. 4; see also Wong Decl. ¶¶ 35-38 (sharing similar results in a separate study of San Diego undocumented Mexican nationals).
This evidence is not isolated to California. A letter from the Mayor of New Orleans to the Attorney General explains the work their law enforcement does in coordination with federal officials and why the conditions and rhetoric of the Executive Branch are hindering their work to make communities safer. See AR-00487 ("Fear *965within immigrant communities pushes individuals and families, undocumented or not, into the shadows, and makes the task of protecting everyone much more difficult for law enforcement."). A second letter from the City Solicitor of Philadelphia explains its view that trust between law enforcement and residents, regardless of immigration status, leads to safer communities. See AR-00640 ("gain[ing] the trust and cooperation of ... residents, crime victims and witnesses ... regardless of their immigration status" makes the "community stronger and ... streets safer."). The record also includes a letter from Milwaukee County's Corporation Counsel to the Acting Assistant Attorney General, stating that its local policies make the community safer and that the conditions will undermine those policies. See AR-00722 (finding that its resolutions "make the community safer by fostering trust between residents and local law enforcement.").
Amici prosecutors and law enforcement leaders provide many other studies showing that interjecting federal immigration enforcement into local law enforcement weakens trust, which is vitally important to community-oriented policing and reducing crime. See Amicus Brief (CA Dkt. No. 130; SF Dkt. No. 136-1). Not only do Latinos and undocumented immigrants become less likely to contact law enforcement if they are victims or witnesses of a crime, but 85 percent of immigrant families are mixed-status households, meaning that the fear or lack of trust extends to United States citizens who worry about the deportation of their family members or close relatives. See
According to a study of law enforcement officers, two-thirds expressed views that immigrants were reporting less crimes. See
The evident consequence of a widespread fear of deportation within Latino communities is an underreporting of violent crimes such as domestic violence and gang-related violence. See
DOJ fails to explain adequately the reasons it imposed the challenged conditions. Its own justifications cannot "be ascribed to a difference in view or the product of agency expertise;" the record demonstrates the lack of evidence supporting its position, that it failed to consider important problems with its conditions and has repeatedly offered explanations that are counter to the evidence. State Farm ,
IV. DECLARATORY RELIEF
California and San Francisco seek a declaratory judgment that their respective laws comply with Section 1373 so that they can complete the certification condition. On its cross motion for summary judgment, DOJ argues that the requests for declaratory relief are non-justiciable under principles of standing and ripeness. Further it asks for judgment denying declaratory relief for California's Values Act and San Francisco's Administrative Code Chapters 12H and 12I.
When a party requests declaratory judgment, "the question in each case is 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." Maryland Cas. Co. v. Pac. Coal & Oil Co. ,
A. Justiciability
DOJ argues that San Francisco and California's claims are not justiciable. It contends that California does not have the injury-in-fact needed to establish standing and its claims are not ripe. This is substantially the same argument it made against California's preliminary injunction motion (pertaining to Section 1373 ), which I rejected in a prior Order. See Order (CA Dkt. No. 89). It makes a ripeness argument against San Francisco, though I also found standing and ripeness previously. See Order Denying Motion to Dismiss at 2 (SF Dkt. No. 78). The analysis in those Orders applies with equal force today and extends to all the challenged conditions.
California and San Francisco have demonstrated Article III standing to challenge the conditions and their claims are ripe for review. Rather than restate the reasoning here, I refer to the discussions of justiciability in my prior Orders. See Order at 11-19 (CA Dkt. No. 89) (finding "the State has demonstrated Article III standing" and "its claims are ripe for review."); Order at 2 (SF Dkt. No. 78) (discussing the same finding for San Francisco); see also Cnty. of Santa Clara v. Trump ,
B. Interpreting Section 1373
Assuming for the moment that Section 1373 is not unconstitutional on its face, I need to consider what it requires. DOJ asserts that Section 1373, at a minimum, includes contact information and release status information for any detained immigrants. See DOJ Mot. for Summ. J. at 29; see also Sherman Decl. Ex. B (Defs. Interog. Resps. 6, 17). San Francisco and California contend that Section 1373 only extends to citizenship and immigration status *967inquiries. See SF Mot. for Summ. J. 22-24; CA Mot. for Summ. J. at 25-27. This familiar disagreement about Section 1373 has already been analyzed and resolved by three district courts.
In Steinle v. City & Cnty. of San Francisco , the Hon. Joseph C. Spero found that Section 1373 was void of anything addressing inmate release dates because by its terms it only governed citizenship or immigration status information.
I have also discussed Section 1373 in my prior Order on California's preliminary injunction motion. See Order (CA Dkt. No. 89). I found that the meaning of the phrase "regarding immigration status" was ambiguous; DOJ offered no definition of the phrase. As I wrote then, "Under the INA, almost every bit of information about an individual could be relevant to status, particularly with respect to the right to asylum or as a defense to removal." Id . I cannot read the phrase "regarding immigration status" as broadly as the DOJ requests without inviting the same concern for ambiguity I identified before. "A contrary interpretation would know no bounds." United States v. California ,
San Francisco and California are also correct that if Congress intended to give Section 1373 broad enforcement application, it could have used broader language. See Custis v. United States ,
*968Accordingly, I agree with the other district courts that found Section 1373 would support only a narrow interpretation that extends to "information strictly pertaining to immigration status (i.e. what one's immigration status is)." United States v. California ,
C. California's Sanctuary State Laws Comply with Section 1373
California asserts that its laws comply with Section 1373 as this court narrowly interprets the statute. It seeks declaratory judgment with respect to its TRUST Act, TRUTH Act, Values Act, California Penal Code Sections 422.93, 679.10, and 679.11, California Code of Civil Procedure Section 155, and California Welfare and Institutions Code Sections 827 and 831. The DOJ only requests judgment for defendants on the Values Act, effectively conceding that the other state laws would comply with Section 1373.
California relies on its interpretation that the Values Act's savings clause in subsection (e) expressly authorizes compliance with Section 1373. See
(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 , or from requesting from federal immigration authorities immigration status information, lawful or unlawful, of any individual, or maintaining or exchanging that information with any other federal, state, or local government entity, pursuant to Sections 1373 and 1644 of Title 8 of the United States Code.
Given my interpretation of Section 1373, limiting it to information relevant to citizenship or immigration status not including release date information, it is clear the Values Act complies with Section 1373. Its savings clause expressly does not prohibit the state government from communicating or sharing "information regarding the citizenship or immigration status, lawful or unlawful, of an individual," exactly what Section 1373 requires. Compare
D. San Francisco's Sanctuary City Ordinances Comply with Section 1373
San Francisco also requests a declaratory judgment that its sanctuary city laws, Chapters 12H and 12I, comply with Section 1373. DOJ disputes declaratory relief because it asserts the San Francisco laws prohibit providing contact information and the release status of detainees. Because I do not interpret Section 1373 broadly to require state and local governments to share contact information and release status information with federal immigration *969officials, I find that San Francisco's sanctuary city laws comply with the federal statute.
Chapter 12H prohibits San Francisco employees from "disseminat[ing] information regarding release status of any individual or any other such personal information" and allows them to communicate that information if required to by federal law. SF Admin. Code § 12H.2. The term "personal information" is defined expressly in Chapter 12I as "any confidential, identifying information about an individual, including, but not limited to, home or work contact information, and family or emergency contact information." See SF RJN Ex. A. San Francisco's Board of Supervisors also amended this chapter in 2016, changing restrictions on communicating "immigration status" to "release status." See SF RJN Ex. G. Chapter 12I prohibits responding to detainer requests from federal immigration officials and allows employees to notify federal officials of inmate release status in certain limited circumstances. SF Admin. Code § 12I.3.
There is no dispute that Chapters 12H and 12I prohibit sharing contact information and release dates with ICE, but that is not a requirement of Section 1373. Still, the DOJ interprets Chapter 12H as violating Section 1373 even under the court's interpretation, based on its language prohibiting employees from "assist[ing] in the enforcement of Federal immigration law." SF Admin. Code § 12H.2. In reply, San Francisco contends that this general prohibition should not control where elsewhere in the chapter there is specific language that only prohibits employees from sharing release status information and personal information. I agree and do not read Chapters 12H and 12I so broadly where a narrower reading harmonizes the sanctuary city laws with Section 1373.
Neither Chapter 12H or 12I concerns communications about information on an individual's immigration and citizenship status. San Francisco's six departments that received Byrne JAG funds: the Department of Children Youth & Their Families, Adult Probation, Sheriff's Department, Police Department, District Attorney's Office, and Public Defender's Office, either administer policies that are consistent with San Francisco's Sanctuary City laws or do not have policies that involve Chapters 12H and 12I. Cf. Fletcher Decl. ¶¶ 6-7; Hennessy Decl. ¶¶ 11, 17-18; Sainez Decl. ¶¶ 9-11 (outlining policies consistent with San Francisco's sanctuary city laws), with Chyi Decl. ¶ 27; DeBerry Decl. ¶ 5; Adachi Decl. ¶ 5 (describing the lack of policies related to Chapters 12H and 12I). Additionally, these departments have notified their employees that federal laws requiring information-sharing, such as Section 1373, should be followed. See SF RJN Ex. D; see also Fletcher Decl. ¶ 8; Hennessy Decl. ¶ 10; Sainez Decl. ¶ 8; Chyi Decl. ¶ 29; DeBerry Decl. ¶ 7; Adachi Decl. ¶ 7.
DOJ discusses several San Francisco documents that it believes communicate policies instructing employees to prohibit immigration status information-sharing. See DOJ Mot. for Summ. J. at 33-34. It also believes the City Attorney's Office's written public guidance on interacting with ICE agents give employees the impression that they should refuse to speak with federal immigration officials because it lists what employees "are not required" to do for ICE agents and italicizes negatives like the word "not." I do not agree that the format of the documents is significant or dispositive of compliance with Section 1373. What is required, and what is apparent in the documents, is that they do not prohibit information-sharing of an individual's immigration status. San Francisco's *970sanctuary city laws, Chapters 12H and 12I, comply with Section 1373.
V. INJUNCTIVE RELIEF
According to well-established principles of equity, a permanent injunction is appropriate when: (i) a plaintiff "suffered an irreparable injury;" (ii) available remedies at law are "inadequate;" (iii) the "balance of hardships" between the parties supports an equitable remedy; and (iv) public interest is "not disserved." eBay Inc. v. MercExchange, LLC ,
The remaining question is one of scope. See Hills v. Gautreaux ,
A district court, pursuant to its powers in equity, "may command persons properly before it to cease or perform acts outside its territorial jurisdiction." Steele v. Bulova Watch Co. ,
In City & Cty. of San Francisco , the Ninth Circuit discussed recent cases upholding nationwide injunctions when "necessary to give Plaintiffs a full expression of their rights."
The Ninth Circuit has offered recent guidance on the breadth of evidence and inquiry needed to justify nationwide injunctive relief in the context of the Trump Administration's Executive Order attempting to place similar conditions on grant funding. See City & Cty. of San Francisco,
California offers three reasons why a nationwide injunction is needed here: (i) it protects California's interest in its Byrne JAG funding because there is a limited annual fund; (ii) it is the most equitable response to Section 1373's unconstitutionality; and (iii) it addresses constitutional deficiencies not geographically limited to California. San Francisco reiterates that nationwide injunctive relief is appropriate when a federal law is invalid, adding that the new conditions for Byrne JAG funding do not vary in their application or the legal issues presented for the hundreds of jurisdictions that also apply for the grants.
As in City of Chicago , I find that this case presents a narrow issue of law that does not vary from one jurisdiction to the next.
California contends that it will be unable to fund critical public safety programs if the federal government continues to cut it off from funding it is allocated by the Byrne JAG program. See Jolls Decl. ¶ 19 ("a substantial number of local programs funded by the BSCC are funded entirely or in large part by JAG" and California will not be able to continue funding them); Caligiuri Decl. ¶¶ 23, 31, 32 (explaining the amount of CAMPgrant funding at issue and what programs it funds); McDonnell Decl. ¶¶ 8-9, 15 (discussing the programs the Byrne JAG program helps fund and the impact that lack of funding will have on them) (CA Dkt. No. 31). DOJ has withheld $56.6 million nationwide and issued $197.3 million in Byrne JAG funding that California was excluded from after the Seventh Circuit partially stayed its injunctive relief. See CA RJN Exs. 27, 28. California's funding also affects San Francisco's sub-grant funding. See
San Francisco offers five declarations from municipal jurisdictions across the country, similarly demonstrating the far-reaching impact that the Byrne JAG conditions and distributions have on all types grant recipients across the geographical spectrum. See Jerzyk Decl. ¶ 9 (SF Dkt. No. 123) (stating Central Falls, Rhode Island is presented with a Hobson's Choice of declining funding to protect its citizens or agreeing to the conditions at the expense of its longstanding policies); Pittman Decl. ¶¶ 8, 10 (SF Dkt. No. 126) (stating the same Hobson's Choice for Seattle and the King County, Washington consortium of cities); Maesta Decl. ¶ 17 (SF Dkt. No. 127) (stating the same Hobson's Choice for Denver, Colorado); Hansen Decl. ¶ 5 (SF Dkt. No. 124) (stating a nationwide injunction would make it possible for Montgomery County, Maryland to accept Byrne JAG funding); Wright Decl. ¶ 8 (SF Dkt. No. 125) (stating that filing a lawsuit for Somerville, Massachusetts is not feasible since the litigation costs outweigh the amount of funding it would receive).
DOJ counters that nationwide injunctive relief is overbroad. It contends that a nationwide injunction would violate Article III standing. See Gill v. Whitford , --- U.S. ----,
I am not persuaded that DOJ's Article III standing argument should prevent a *973nationwide injunction if it is evidently needed to provide complete relief from a facially unconstitutionally and uniformly applied law. Like the Ninth Circuit, I disagree with DOJ's wholesale arguments against nationwide injunctions; the scope of nationwide injunctive relief is not limited to class actions. See, e.g. , Bresgal ,
DOJ expressed additional concern that nationwide injunctions prevent "legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch." Trump v. Hawaii , --- U.S. ----,
Amici assert, on the other hand, that because there is a narrow constitutional issue in dispute with little variance in the DOJ's arguments and defenses, this does not appear to be the type of situation in which allowing more cases to percolate in federal courts would be of much benefit. See Amicus Brief at 11 (SF Dkt. No. 137-1). In addition, a nationwide injunction would not implicate some of the other concerns raised in the DOJ's briefing. In L.A. Haven Hospice, Inc. , the Ninth Circuit held that "a nationwide injunction would not be in the public interest because it would significantly disrupt the administration of the Medicare program ... and would create great uncertainty."
California and San Francisco have shown that Section 1373 is unconstitutional and that the challenged conditions violate the separation of powers. In consideration of the factual record, including the structure of the Byrne JAG program and the harm to jurisdictions across the country, I find that this case justifies nationwide relief under City & Cty. of San Francisco ,
VI. MANDAMUS RELIEF
California also seeks a writ of mandamus compelling the Attorney General to disburse Byrne JAG and COPS grant funding because the challenged conditions are unlawful under the APA. The APA authorizes the court to "compel agency action unlawfully withheld or unreasonably delayed."
(1) the time agencies take to make decisions must be governed by a rule of reason; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.
Each factor supports mandamus relief for the Byrne JAG grant and COPS grant funding. For the first two factors, delays beyond a year time frame preclude recipients from receiving their awards when they need them to support more immediate projects or programs. See City of Philadelphia ,
Factor three favors relief because the delay impacts human health and welfare, particularly for California as the COPS and Byrne JAG funds aid task forces aimed at stopping illicit drug trafficking and go towards funding court programs to reduce recidivism of at-risk youth. See Jolls. Decl. ¶ 10; Caligiuri Decl. ¶¶ 23-25. Similarly, factor five supports relief because the human welfare and community safety concerns that California's grant funding addresses are at risk of being discontinued for lack of funding and are prejudiced by this delay. Expediting this matter, as discussed in factor four, would not prejudicially affect the federal government's tangentially related interest in federal immigration enforcement. Finally, the sixth factor, if it has any weight at all here, would favor relief because DOJ is withholding grant funding based on conditions that violate the separation of powers. I will GRANT California's request for mandamus relief.
*975CONCLUSION
For the reasons stated, California and San Francisco's motions for summary judgment are GRANTED and the DOJ's motions for summary judgment are DENIED.
IT IS SO ORDERED.
They are not dispositive in any event.
Even if there were independent authority granted by Section 10102(a)(6), courts hearing the parallel cases found that the language "placing special conditions on all grants" is most likely a term of art for the additional conditions placed on "high-risk grantees" only. See City of Philadelphia ,
DOJ also asks the court to consider whether Section 1373's language can operate as an independent grant condition regardless of the validity of Section 1373. Because I do not find that the Byrne JAG statute or Section 10102(a)(6) provided independent authority for the Attorney General to impose the conditions, it follows that there would not be authority to impose a separate grant condition identical to Section 1373's terms, without an act of Congress.
In City of Chicago , the court also emphasized the constitutional distinction between Section 1373 and the condition that recipients must certify compliance with Section 1373. The anticommandeering principle may invalidate an unconstitutional law, but it would not invalidate agency authority to impose federal grant conditions if it is appropriately permitted by Congress. See S. Dakota v. Dole ,
Defendants note that their argument is unchanged from earlier in the case, when I found California demonstrated that the imposition of the certifying condition is a final agency action. See DOJ Mot. Summ. J & Opp. at 10 n.4 (CA Dkt. No. 124).
The DOJ discusses in a footnote that the other state laws that California seeks declaratory judgment for may not be implicated by Section 1373 but may still give rise to different conflicts with analogous provisions elsewhere in the INA. See DOJ Mot. for Summ. J at 28 n.19 ("The complexity of such an assessment is yet another reason not to evaluate these statutes where OJP has made no inquiry or allegation that they violate Section 1373.").
At the hearing, California also argued that Ninth Circuit precedent compels a nationwide injunction when there is a violation of the APA, as here, because the agency action is necessarily set aside. See Transcript at 27 (citing Earth Island Inst. v. Ruthenbeck ,
The parties requested judicial notice of various public records and government documents in support of their motions for summary judgment, with no opposition or dispute to their accuracy or authenticity. To the extent I rely on those documents, the requests are GRANTED. See CA Dkt. Nos. 117, 125, 128; SF Dkt. Nos. 107, 115. All other requests for judicial notice are DENIED AS MOOT.