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City of Evanston v. Barr

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

September 26, 2019

WILLIAM P. BARR, in his official capacity as Attorney General of the United States, Defendant.



         This litigation concerns the U.S. Attorney General’s ability to attach conditions to funds that Congress charged his office with distributing to State and local governments. Plaintiffs, the City of Evanston and the U.S. Conference of Mayors (the “Conference”), bring suit against the Attorney General for alleged violations of the U.S. Constitution and the Administrative Procedures Act. Plaintiffs now seek summary judgment in their favor. The Attorney General, in turn, contends that the Court should dismiss Plaintiffs’ Amended Complaint, or in the alternative, grant summary judgment in his favor. For the reasons stated herein, Defendant’s Motion to Dismiss (Dkt. No. 77) is denied and Plaintiffs’ Motion for Summary Judgment (Dkt. No. 52) is granted in part and denied in part.

         I. BACKGROUND

         In addition to describing the most relevant facts here, the Court incorporates those facts previously described in its earlier ruling. (See Aug. 9, 2018, Order, Dkt. No. 23.) The Conference is a non-profit and non-partisan association that exists to address the intersection of federal and local policy on behalf of cities with populations of 30, 000 or more. (Def.’s Resp. to Pls.’ Stmt. of Facts (“PSOF”) ¶¶ 1, 8-10, Dkt. No. 80.) The Conference’s members are cities, which are represented in the Conference by their mayors. (Id. ¶ 8.) Evanston is a municipal corporation and home rule unit of government in Illinois and is a member of the Conference. (Id. ¶ 2.) The Conference has resolved to oppose the Attorney General’s decision to attach certain immigration-related conditions to Byrne JAG funds. (Id. ¶ 8.)

         The Byrne JAG program is the primary source of federal criminal justice funding to States and units of local government. (PSOF ¶ 18.) The Office of Justice Programs (OJP) within the Department of Justice (DOJ) oversees the Byrne JAG program. (Id.) Byrne JAG funds are administered according to a statutory formula based on share of violent crime, population, and other factors. See 34 U.S.C. § 10156. Conference members have applied for and received Byrne JAG funds since 2006. (PSOF ¶ 24.) In FY 2017, approximately 350 Conference members were directly allocated around $50 million in Byrne JAG funds. (Id. ¶ 26.)

         Cities can also receive Byrne JAG funds indirectly through their State or a nearby local government. DOJ does not make direct grants to cities that, under the Byrne JAG formula, would receive less than a certain minimum-$10, 000 in FY 2017 and FY 2018. (Id. ¶ 20.) Cities that are allocated less than $10, 000 receive their Byrne JAG funds through an application submitted by the State or nearby local government. (PSOF ¶ 21.) Additionally, the Byrne JAG statute requires cities that bear a higher cost of preventing and investigating violent crimes than their neighboring community to submit a joint application for the aggregate JAG funds allocated both to itself and its neighbor. See 34 U.S.C. § 10156(d)(4). For this reason, Evanston receives its Byrne JAG funds through the application submitted by the City of Chicago. (PSOF ¶ 21.) To draw down its JAG funds, Evanston must supply all information or certifications, and agree to any conditions, that DOJ requires of all grant recipients. (Id. ¶ 21.) Evanston was allocated $12, 654 in FY 2017 Byrne JAG funds, and $10, 919 in FY 2018. (Id. ¶¶ 26, 29.)

         Plaintiffs filed this suit in July of 2018, seeking an injunction to keep the Attorney General from enforcing certain “notice, access, and Section 1373 compliance conditions” in the FY 2017 Byrne JAG grants. On August 9, 2018, after issuing a ruling on the merits of those conditions in a parallel case, City of Chicago v. Sessions, No. 17-cv-5720 (N.D. Ill.), the Court issued a preliminary injunction in this case. (See Aug. 9, 2018, Order.) At that time, the Attorney General had imposed a fast-approaching deadline by which Conference members had to agree to those three unlawful conditions or forgo their FY 2017 awards. Accordingly, the Court issued the preliminary injunction to cover both Evanston and those Conference members facing an “accept or decline” deadline. (See Aug. 9, 2018, Order at 11.) However, because the nationwide scope of the injunction in the City of Chicago case was (and remains) on appeal before the Seventh Circuit, the Court stayed the injunction as to the Conference members. Soon after, the Seventh Circuit lifted that stay, holding that this case is “fundamentally different” than the situation in City of Chicago because the injunction in this case is “limited to parties actually before the court who have demonstrated a right to relief.” (See Evanston and U.S. Conference of Mayors v. Sessions, No. 18-2734 (7th Cir.), Aug. 29, 2018, Order, Dkt. No. 33.) Thus, since the Seventh Circuit’s Order, the preliminary injunction has prohibited the Attorney General from imposing the notice, access, and Section 1373 compliance conditions on receipt of the FY 2017 Byrne JAG funds for Evanston or any Conference members that faced an accept or decline deadline.

         DOJ began distributing FY 2018 Byrne JAG awards in October of 2018. (PSOF ¶ 45.) In December of 2018, Plaintiffs filed their Amended Complaint, asserting that the Attorney General had again attached the unlawful notice, access, and Section 1373 compliance conditions (the “repeat conditions”) to the FY 2018 JAG funds. Plaintiffs also alleged that the Attorney General imposed new unconstitutional conditions on the FY 2018 grants, namely:

1. The Section 1644 compliance condition. This condition requires the applicant’s Chief Legal Officer to certify that the “program or activity” funded under the Byrne JAG award complies with 8 U.S.C. § 1644. (Byrne JAG Program FY 2018 Local Solicitation at 27, Ex. H to Pl.’s Request for Judicial Notice (RJN), Dkt. No. 62-2.) 8 U.S.C. § 1644 provides: “Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States.” 8 U.S.C. § 1644.
2. The harboring condition. This condition prohibits the recipient jurisdiction from making any public disclosure “of any federal law enforcement information in a direct or indirect attempt to conceal, harbor, or shield from detection any fugitive from justice under 18 U.S.C. ch. 49, or any alien who has come to, entered, or remains in the United States in violation of 8 U.S.C. ch. 12.” (See Albuquerque FY 2018 Byrne JAG Award ¶ 44, Ex. S to Pl.’s RJN, Dkt. No. 62-3.)
3. The additional certification requirement. This condition requires the applicant’s Chief Executive to submit a “Certifications and Assurances by the Chief Executive of the Applicant Government.” (Certifications and Assurances by the Chief Executive of the Applicant Government, Ex. K to Pl.’s RJN, Dkt. No. 63-2.) The condition incorporates a requirement that the applicant’s Chief Legal officer certify that the applicant government has no “law, rule, policy, or practice that would apply to the ‘program or activity’ to be funded” that would “(a) impede the exercise by federal officers of authority under 8 U.S.C. § 1357(a); or (b) impede the exercise by federal officers of authority relating to 8 U.S.C. § 1226(a) or (c), 8 U.S.C. § 1231(a), or 8 U.S.C. § 1366(1) or (3).” (State or Local Government: FY 2018 Certification, Ex. L to Pl.’s RJN, Dkt. No. 62-3.)
4. The questionnaire condition. This condition requires each applicant to answer the following questions:
(1) Does your jurisdiction have any laws, policies, or practices related to whether, when, or how employees may communicate with [the Department of Homeland Security (DHS)] or [Immigrations and Customs Enforcement (ICE)]?
(2) Is your jurisdiction subject to any laws from a superior political entity (e.g., a state law that binds a city) that meet the description in question 1?
(3) If yes to either: Please provide a copy of each law or policy; Please describe each practice; Please explain how the law, policy, or practice complies with Section 1373.

(Byrne JAG Program FY 2018 Local Solicitation at 27-28, Ex. H to Pl.’s RJN.)

         This Court recently issued a summary judgment opinion in which it held the Section 1644 compliance condition, harboring condition, and the additional certification requirement, as well as the repeat conditions, unlawful. See City of Chicago v. Barr, No. 18 C 6859, 2019 WL 4511546 (N.D. Ill. Sept. 19, 2019). The Court has not yet ruled on the legality of the questionnaire condition. The Court will refer to the seven conditions Plaintiffs seek to enjoin in this suit collectively as the “challenged conditions.”

         The Amended Complaint contains five counts. Counts I and II allege that the challenged conditions are ultra vires and violate the separation of powers, because absent a statutory provision or express delegation, only Congress is entitled to attach conditions to federal funds. Count III asserts that the challenged conditions violate the Spending Clause of the U.S. Constitution. Count IV alleges that the challenged conditions violate the Tenth Amendment’s anti-commandeering doctrine. Count V charges that the challenged conditions are arbitrary and capricious in violation of the Administrative Procedure Act.

         The Attorney General now moves to dismiss the Amended Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), or in the alternative, to grant summary judgment in his favor on all counts of the Amended Complaint. Plaintiffs move for summary judgment in their favor on Counts I, II, and IV, and seek a permanent injunction prohibiting the Attorney General from imposing the challenged conditions on the receipt of Byrne JAG funds. Plaintiffs concede that if the Court grants summary judgment in their favor on Counts I, II, and IV, then Counts III and V should be dismissed as moot. Plaintiffs further reserve their right, upon final judgment of the Court and pursuant to 28 U.S.C. § 2412, to seek reasonable attorneys’ fees, expenses, and costs.

         The Court will first address the jurisdictional arguments for dismissal, and then turn to the merits of the Counts at issue in Plaintiffs’ Motion for Summary Judgment.


         A motion to dismiss pursuant to Rule 12(b)(1) tests the jurisdictional sufficiency of a complaint. See Fed.R.Civ.P. 12(b)(1). The Attorney General asserts a facial challenge, as he argues that the Plaintiffs have not sufficiently alleged a basis of subject matter jurisdiction. See Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015). In a facial challenge to subject matter jurisdiction, a court does not look beyond the allegations in the complaint, which are taken as true for purposes of the motion. Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009). Plaintiffs bear the burden of establishing the elements necessary for jurisdiction. See Silha, 807 F.3d at 173.

         Rule 12(b)(6) allows dismissal for “failure to state a claim upon which relief can be granted.” See Fed.R.Civ.P. 12(b)(6). A court entertaining a Rule 12(b)(6) motion must construe the complaint in the light most favorable to the plaintiff and accept as true all well-pleaded facts alleged. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). To survive a motion to dismiss under Rule 12(b)(6), a complaint must ‚Äúprovide a short and plain statement of the claim showing that the pleader is ...

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