United States District Court, N.D. Illinois, Eastern Division
CITY OF EVANSTON and THE UNITED STATES CONFERENCE OF MAYORS, Plaintiffs,
WILLIAM P. BARR, in his official capacity as Attorney General of the United States, Defendant.
MEMORANDUM OPINION AND ORDER
D. LEINENWEBER JUDGE.
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
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.)
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.)
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.)
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.
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.
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
(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.)
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.”
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.
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.
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.
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.
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 “provide a short and plain statement of
the claim showing that the pleader is ...