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City of Chicago v. Sessions

United States District Court, N.D. Illinois, Eastern Division

July 27, 2018

JEFFERSON BEAUREGARD SESSIONS III, Attorney General of the United States, Defendant.



         This case involves the overlap, and potential conflict, between core areas of state and federal power: the state's traditional police powers and the federal government's broad, undoubted power over immigration. In order to advance federal immigration policies, the Attorney General attached several new immigration-related conditions to a longstanding federal grant which provides funds to local and state police departments. Those immigration-related conditions conflict with Chicago's policy goals of promoting cooperation between local law enforcement and immigrant communities and ensuring access to essential city services for all city residents regardless of citizenship status. Chicago brought suit to enjoin the Attorney General from attaching those conditions to the grant funds.

         Before the Court is the Attorney General's Motion to Dismiss the Complaint in its entirety and the City of Chicago's Partial Motion for Summary Judgment on Counts I, II, and V. The Court addresses both below.

         I. BACKGROUND

         In addition to reciting here the most relevant facts, the Court also incorporates those facts previously described in its earlier ruling. See City of Chicago v. Sessions, 264 F.Supp.3d 933, 937-40 (N.D. Ill. 2017), aff'd, 888 F.3d 272 (7th Cir. 2018), en banc reh'g granted and vacated in part by Order, No. 17-2991 (7th Cir. June 4, 2018), Dkt. No. 128.

         The dispute centers around the Edward Byrne Memorial Justice Assistance Grant (the “Byrne JAG grant”), a federal grant named after a fallen New York City police officer which awards funds to states and local jurisdictions to support criminal justice initiatives for personnel, equipment, training, and other community services. See 34 U.S.C. § 10152(a). The Byrne JAG program distributes grant funds by a statutorily-defined formula based on a state's population and the number of violent crimes reported within that jurisdiction in the past year. See 34 U.S.C. § 10156. To receive funds under the program, the would-be grantee must submit an application and comply with all conditions outlined in the Solicitation document provided by the Attorney General. (See 34 U.S.C. § 10153; see, e.g., FY 2017 Local Solicitation, Ex. T to Pl.'s Request for Judicial Notice, Dkt. No. 157-20.) The City of Chicago and its neighboring localities have received Byrne JAG funds every year since 2005. In 2016, Chicago used those funds to buy police vehicles and to support the efforts of non-profit organizations working in its high crime communities. (See Def.'s Resp. to Pl.'s Statement of Undisputed Material Facts (“Facts”) ¶ 14, Dkt. No. 168; Sachs Decl. ¶ 4, Dkt. No. 154.) The funds at issue now were originally earmarked to be distributed in 2017, but this litigation ensued. Should Chicago receive those 2017 funds, the City intends to expand its use of “SpotShotter” acoustic surveillance technology, which allows officers to pinpoint the location of gun shots across the City and thus respond more quickly. (Def.'s Resp. to Pl.'s Facts ¶ 15, Dkt. No. 168.)

         The grant conditions causing Chicago umbrage are related to federal immigration enforcement. In 2016, the Attorney General determined that various state and local policies of withholding information and other cooperation from federal immigration authorities were frustrating the federal government's immigration-related goals. (See May 31, 2016 Office of Inspector General Mem., Ex. H to Def.'s Request for Judicial Notice, Dkt. No. 140-8.) Citing public safety concerns, the Attorney General announced that the Department of Justice (“DOJ”) would award Byrne JAG grants only to localities that: share certain immigration-related information with federal immigration agencies, allow immigration agents access to local detention facilities, and provide notice before releasing certain undocumented individuals. (See DOJ Press Release, Ex. B to Compl., Dkt. No. 1-2.) In this suit, Chicago challenges all three of these new conditions (hereafter, “the Conditions”):

1. The “Access Condition” requires that Byrne JAG recipients permit personnel of the U.S. Department of Homeland Security (“DHS”) to access any detention facility to meet with undocumented immigrants and inquire as to their right to be or remain in the United States.
2. The “Notice Condition” requires that Byrne JAG recipients provide DHS at least 48 hours advance notice of the scheduled release date and time of an alien in the jurisdiction's custody whenever DHS requests such notice in order to take custody of the alien upon release. The Attorney General later amended this Condition to clarify that “[i]n the event that . . . the scheduled release date and time for an alien are such as not to permit the advance notice [of scheduled release] . . . it shall not be a violation of this condition to provide only as much advance notice as practicable.”
3. The “Compliance Condition” requires that Byrne JAG recipients certify compliance with 8 U.S.C. § 1373, a federal statute that bars local governments from restricting the sharing of immigration status information with federal law enforcement.

(See FY 2017 Local Solicitation, Ex. T to Pl.'s Request for Judicial Notice, Dkt. No. 157-20; Example Byrne JAG award documents, Exs. F, G to Jennings Decl., Dkt. No. 158.) The Attorney General added the Notice and Access Conditions for the first time in FY 2017, but the Compliance Condition also applied the previous year. (Def.'s Resp. to Pl.'s Facts ¶¶ 17-18.)

         According to Chicago, these Conditions conflict with longstanding City policy of ensuring access to essential city services regardless of a resident's citizenship status and of promoting cooperation between local law enforcement and immigrant communities. (See Compl. ¶ 1, Dkt. No. 1.) Chicago's local policies protecting immigrant rights date back to 1985, when they were first embodied in executive orders and then eventually codified. (Def.'s Resp. to Pl.'s Facts ¶¶ 4-8, Dkt. No. 168.) The City's Welcoming City Ordinance, enacted in 2012, encapsulates its current policy. (Id. ¶¶ 7-8.) Though Chicago's policy and others like it are commonly referred to as “sanctuary city policies, ” the Seventh Circuit has recognized the inaptness of that term. See City of Chicago v. Sessions, 888 F.3d at 281 (noting the term is “commonly misunderstood” and does not accurately describe the effect of such policies).)

         The Welcoming City Ordinance reflects both the City's determination that effective police work relies on willing community assistance and its belief that the “cooperation of the city's immigrant communities is essential to prevent and solve crimes and maintain public order, safety and security in the entire city.” Chicago, Ill. Muni. Code § 2-173-005. The City intended the Welcoming City Ordinance to clarify both the communications and enforcement relationship between the City and the federal government as well as the specific conduct City employees are prohibited from undertaking, given the City's view that such prohibited conduct would “significantly harm[ ] the city's relationship with immigrant communities.” Id.

         Specifically, the Ordinance prohibits all City agents and agencies from: requesting or disclosing information about an individual's immigration status, id. §§ 2-173-020, -030; detaining anyone based solely on their immigration status or an ICE detainer, id. § 2-173-042(a); and spending on-duty time “responding to ICE inquiries or communicating with ICE regarding a person's custody status or release date, ” unless the responding City employee is “acting pursuant to a legitimate law enforcement purpose that is unrelated to the enforcement of a civil immigration law, ” id. § 2-173-042(b). Notably, these prohibitions do not apply to certain classes of potentially dangerous individuals, including known gang members and those with outstanding criminal warrants, felony convictions, or pending felony charges. Id. § 2-173-042(c); see also Chicago Police Department (“CPD”)'s Special Order S06-14-03, Ex. F to Pl.'s Request for Judicial Notice, Dkt. No. 157 (reiterating the policies of the Welcoming City Ordinance and establishing rules for CPD officers in conformance therewith).

         Chicago contends that the new Conditions put it in an untenable position, forcing the City either to accept the grant funds with the attached Conditions and-the City believes-lose the trust and cooperation of its immigrant communities or decline the grant and forgo much-needed funding for critical police resources and community services. (Compl. ¶ 9.) Chicago argues that the Constitution protects it from making this Hobson's choice.

         To that end, Chicago brings a seven-count Complaint, alleging constitutional infirmities and unlawful agency action. (See generally Compl., Dkt. No. 1.) Counts I and II allege the Conditions are unconstitutional because the Byrne JAG statute does not provide the Attorney General statutory authority to impose them. Count III alleges the Conditions violate the Spending Clause. Id. Chicago's Count IV alleges that, independent of the Byrne JAG grant, Section 1373 is an impermissible federal conscription of state power and is thus unconstitutional under the anticommandeering doctrine. Id. Next, Chicago charges in Count V's declaratory judgment claim that even if Section 1373 is constitutional, the City complies with it and deserves judgment to that effect. Id. In Count VI, the City alleges the Attorney General's decision to impose the Conditions was arbitrary and capricious and thus violated the Administrative Procedures Act (“APA”). Id. And finally, Count VII alleges violations of the Paperwork Reduction Act. Id.

         After filing its Complaint, Chicago moved for a preliminary injunction as to all three Conditions. This Court found that Chicago was likely to succeed on its argument that the Attorney General lacked the statutory grant of authority to impose the Notice and Access Conditions and accordingly enjoined those Conditions nationwide. See City of Chicago v. Sessions, 264 F.Supp.3d at 943. However, the Court refused to enjoin the third condition, the Compliance Condition, finding the City not likely to succeed in arguing either that the Attorney General lacked the authority to impose it or that Section 1373-again, the statute with which Chicago must certify compliance under this third Condition-is unconstitutional. Id. at 945-46. The Attorney General appealed.

         The Seventh Circuit panel affirmed, agreeing that Chicago demonstrated a likelihood of success that the Byrne JAG statute does not grant the Attorney General the authority to impose the Notice and Access Conditions and approving this Court's corresponding issuance of the nationwide preliminary injunction. See City of Chicago v. Sessions, 888 F.3d 272, 287, 293 (7th Cir. 2018), en banc reh'g granted and vacated in part by Order, No. 17-2991 (7th Cir. June 4, 2018), Dkt. No. 128. The Attorney General petitioned the Seventh Circuit for rehearing en banc. See Def.'s Petition for Rehearing En Banc, City of Chicago v. Sessions, No. 17-2991 (7th Cir. Apr. 27, 2018), Dkt. No. 120. The Seventh Circuit granted the Attorney General's petition on the limited issue of the injunction's nationwide scope, thus vacating that portion of the panel opinion but leaving intact the finding that the Notice and Access Conditions are likely unlawful. See En Banc Order, City of Chicago v. Sessions, No. 17-2991 (7th Cir. June 4, 2018), Dkt. No. 128.

         Turning to the matters now before the Court: The Attorney General moves to dismiss Chicago's Complaint in its entirety, and Chicago cross-moves for partial summary judgment. The Attorney General moves to dismiss the Complaint on two grounds, raising challenges to both this Court's subject matter jurisdiction and to the sufficiency of Chicago's Complaint. See Fed. R. Civ. P. 12(b)(1), (6). For its part, Chicago moves for summary judgment on only Counts I, II, and V. The City requests, first, a finding that all three Conditions are not authorized by the Byrne JAG statute and are thus ultra vires (Count I) and in violation of the separation of powers (Count II). With that request, the City urges the Court to reconsider its earlier-expressed belief that Chicago was not likely to succeed on this argument as to the Compliance Condition. Second, Chicago requests a declaratory judgment that, assuming the Compliance Condition is valid, the City complies with Section 1373 (Count V).


         As already described, the Attorney General moves to dismiss both by challenging jurisdiction and by asserting that the Complaint fails to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(1), (6). To survive a 12(b)(1) motion, the plaintiff must carry the burden of providing sufficient evidence to establish a prima facie case for personal jurisdiction. RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1276 (7th Cir. 1997). To survive a 12(b)(6) motion, the plaintiff must provide “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), and “give the defendant fair notice of what the claim is and the grounds upon which it rests, ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation and alteration omitted). On a 12(b)(6) motion, the reviewing court accepts all well-pleaded facts as true, Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013), and draws reasonable inferences in favor of the plaintiff, Teamsters Local Union No. 705 v. Burlington N. Santa Fe, LLC, 741 F.3d 819, 823 (7th Cir. 2014) (citation omitted). In doing so, the court may consider the “complaint itself, documents attached to the complaint, documents that are critical to the complaint and referred to in it, and information that is subject to proper judicial notice.” Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012) (citations omitted).

         Chicago cross-moves for summary judgment, which is proper where the record shows no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the burden of establishing the absence of any genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986), and the Court construes all facts and reasonable inferences in the light most favorable to the nonmovant, Bentrud v. Bowman, Heintz, Boscia & Vician, P.C., 794 F.3d 871, 874 (7th Cir. 2015) (quotation marks and citation omitted). In ruling on summary judgment, courts do not determine the truth of disputed matters. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).


         A. Jurisdiction

         Before the Court turns to the merits of this dispute, it must address the threshold objection raised by the Attorney General in his 12(b)(1) motion. In short, the Attorney General argues that because the DOJ has not yet reached a final decision on whether to award Chicago funds under the Byrne JAG grant, the DOJ has not yet consummated any “final agency action” that is ripe for judicial review. 5 U.S.C. § 704; see Citizens for Appropriate Rural Roads v. Foxx, 815 F.3d 1068, 1079 (7th Cir. 2016) (“In the context of judicial review under the APA, a challenge to agency conduct is ripe only if it is filed after the final agency action.”). Chicago responds that its lawsuit does not challenge the Attorney General's not-yet-finalized decision whether to award the funds, but rather the decision to attach the Conditions to the grant in the first instance. The Court agrees with Chicago that this earlier determination is the one challenged by this suit. (See Compl. at 45 (requesting that this Court “[d]eclare that all three immigration-related conditions for the FY 2017 Byrne JAG are unlawful”).)

         “[T]wo conditions must be satisfied for agency action to be ‘final': First, the action must mark the ‘consummation' of the agency's decisionmaking process-it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which ‘rights or obligations have been determined,' or from which ‘legal consequences will flow.'” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations omitted); cf. Shanty Town Assocs. Ltd. v. EPA, 843 F.2d 782, 788 (4th Cir. 1988) (evaluating EPA's imposition of conditions on a federal grant under the APA). Both of these conditions are clearly met here. The imposition of these Conditions by the Attorney General is far from “tentative”; Alan Hanson, the Acting Assistant Attorney General for the Office of Justice Programs at the DOJ, states in his declaration that every FY 2017 award-presumptively including the award Chicago seeks here-will include conditions identical to those attendant to the grant awards already handed out to Binghamton and Greenville, the only two cities to receive Byrne JAG funds thus far. (See Hanson Decl. ¶¶ 1, 5-6, Dkt. 32-1 (“[T]he award documents set[] out the various conditions . . . that will apply to the FY 2017 Byrne JAG award” (emphasis added)); see also Def.'s Resp. to Pl.'s Facts ¶ 27, Dkt. No. 168.) Both of those awards explicitly require compliance with all three Conditions. (See Example Byrne JAG Award Documents, Exs. F, G to Jennings Decl., Dkt. Nos. 158-6, 158-7.) Further, all FY 2017 awards, including Chicago's potential one, are awarded based on applications invited by that year's grant Solicitation, which clearly imposes the Conditions as well. (FY 2017 Local Solicitation, Ex. T to Pl.'s Request for Judicial Notice, Dkt. No. 157-20; see also Def.'s Resp. to Pl.'s Facts ¶¶ 27-30, Dkt. No. 168.) Thus, the Attorney General's attachment of the Conditions is the end result of his decision-making process on this score. That satisfies the first requirement for finality under the APA. See Bennett, 520 U.S. at 177-78.

         The second requirement is met as easily as the first. The Conditions attached to the Byrne JAG funds trigger important legal and practical consequences: They force Chicago to choose between accepting the award with the Conditions or forgoing the award in favor of maintaining the City's policy preferences. See City of Chicago v. Sessions, 264 F.Supp.3d at 940 (finding the Notice and Access Conditions irreconcilable with Chicago's Welcoming City Ordinance); see also Abbs v. Sullivan, 963 F.2d 918, 926 (7th Cir. 1992) (finding agency action final where plaintiff faced “a dilemma: comply with a rule that harms [it] and that [it] believe[s] to be invalid or violate the rule at the risk of incurring a heavy penalty” (citation omitted)). The second requirement is met, and the Court accordingly finds that the Attorney General's decision to impose the Conditions constitutes final agency action that is ripe for judicial review.

         Finally, the Court notes that all of its sister courts in parallel cases have reached the same conclusion. See, e.g., City of Philadelphia v. Sessions, No. 17-3894, 2018 WL 1305789, at *18-19 (E.D. Pa. Mar. 13, 2018) (finding the Attorney General's imposition of the Conditions on the Byrne JAG grant was final); California ex rel. Becerra v. Sessions, 284 F.Supp.3d 1015, 1030-31 (N.D. Cal. 2018) (same).

         For reasons that will become clear, the Court considers Chicago's claims out of order.

         B. Anticommandeering ...

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