City of Philadelphia v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case No. 18-2648

CITY OF PHILADELPHIA

v.

ATTORNEY GENERAL OF THE UNITED STATES OF

AMERICA,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No.: 2-17-cv-03894)

District Judge: Honorable Michael M. Baylson

Argued on November 7, 2018

(Opinion filed: February 15, 2019)

Before: AMBRO, SCIRICA and RENDELL, Circuit Judges

Jasmeet K. Ahuja

Alexander B. Bowerman

Virginia A. Gibson

Hogan Lovells US

1735 Market Street

23rd Floor

Philadelphia, PA 19103

Kirti Datla

Matthew J. Higgins

Neal K. Katyal (Argued)

Hogan Lovells US

555 Thirteenth Street, N.W.

Columbia Square

Washington, DC 20004

Marcel S. Pratt

Lewis Rosman

Kelly S. Diffily

City of Philadelphia

Law Department

1515 Arch Street

Philadelphia, PA 19102

Counsel for Appellee

Katherine T. Allen (Argued)

United States Department of Justice

Civil Division, Appellate Staff

Room 7325

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

2

Bradley Hinshelwood

United States Department of Justice

Room 7256

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Laura Myron

United States Department of Justice

Room 7222

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Chad A. Readler

United States Department of Justice

Appellate Section, Criminal Division

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Daniel Tenny

United States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Avenue, N.W.

Room 7130

Washington, DC 20530

Counsel for Appellant

Lawrence J. Joseph

Suite 700-1A

1250 Connecticut Avenue, N.W.

Washington, DC 20036

Counsel for Amicus Appellant Im-

migration Reform Law

Institute

3

Adam S. Lurie

Linklaters

601 Thirteenth Street, N.W.

Suite 400 South

Washington, DC 20006

Counsel for Amicus American

Jewish Committee

Benna R. Solomon

City of Chicago

Corporate Counsel's Office

30 North LaSalle Street

Room 800

Chicago, IL 60602

Counsel for Amicus Appellee City

of Chicago

Spencer E. W. Amdur

American Civil Liberties Union

Immigrants' Rights Project

125 Broad Street

18th Floor

New York, NY 10004

Counsel for Amicus Appellee

American Civil Liberties Union

Foundation

Ilana H. Eisenstein

DLA Piper

1650 Market Street

One Liberty Place, 49th Floor

Philadelphia, PA 19103

4

Counsel for Amicus Appellee

Philadelphia Social and Legal

Services Organizations

Nicolas Y. Riley

Institute for Constitutional Advocacy and Protection

Georgetown University Law Center

600 New Jersey Avenue, N.W.

Washington, DC 20001

Counsel for Amicus Appellee Cur-

rent and Former Prosecutors and

Law Enforcement Leaders

Linda Fang

Office of Attorney General of New York

28 Liberty Street

23rd Floor

New York, NY 10005

Counsel for Amicus Appellee

State of New York

Robert Perrin

Latham & Watkins

355 South Grand Avenue

Suite 100

Los Angeles, CA 90071

Counsel for Amicus Appellee Anti

Defamation League

5

OPINION

RENDELL, Circuit Judge.

The City of Philadelphia has received funds under the fed-

eral Edward Byrne Memorial Justice Assistance Grant Pro-

gram (“Byrne JAG”) every year since the program’s inception

in 2006. Last year, however, the Justice Department notified

the City that it was withholding its FY2017 award because the

City was not in compliance with three newly implemented con-

ditions (“the Challenged Conditions”). These conditions re-

quired greater coordination with federal officials on matters of

immigration enforcement. The City filed suit to enjoin the At-

torney General from withholding its award, and after discovery

and extensive hearings, the District Court granted summary

judgment in its favor.

The City attacked the government’s ability to impose the

Challenged Conditions on several statutory and constitutional

fronts. But we need only reach the threshold statutory ques-

tion. Where, as here, the Executive Branch claims authority

not granted to it in the Constitution, it “literally has no power

to act … unless and until Congress confers power upon it.” La.

Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). There-

fore, our inquiry is straightforward: did Congress empower the

Attorney General to impose the Challenged Conditions?

Underlying this question, and potentially complicating its

resolution, is the stark contrast in the priorities of the City and

those of the Executive Branch regarding immigration policy.

In resolving the discrete legal question before us, however, we

6

make no judgment as to the merits of this policy dispute. Ra-

ther, our role is more confined, and our focus is only on the

legality of the particular action before us.

Concluding that Congress did not grant the Attorney Gen-

eral this authority, we hold that the Challenged Conditions

were unlawfully imposed. Therefore, we will affirm the Dis-

trict Court’s order to the extent that it enjoins enforcement of

the Challenged Conditions against the City of Philadelphia.

We will vacate part of the order, however, to the extent that it

exceeds the bounds of this controversy. See infra III. B.

I. BACKGROUND

A. Byrne JAG and the Challenged Conditions

Federal grants to state and local governments play a large

role in facilitating national, state, and local policy. In FY2018

alone, the federal government was expected to give approxi-

mately $728 billion to state and local governments through

1,319 federal grant programs. Robert Jay Dilger, Cong. Re-

search Serv., R40638, Federal Grants to State and Local Gov-

ernments: A Historical Perspective on Contemporary Issues 1

(2018). These programs encompass a wide range of policy ar-

eas, from health care to special education to infrastructure pro-

jects. Our immediate concern, however, is one particular grant

program for state and local law enforcement: the Edward

Byrne Memorial Justice Assistance Grant Program.

Byrne JAG, named for a fallen New York City police of-

ficer, was established in 2006 through the merger of two law

enforcement grant programs. See Pub. L. No. 109-162, § 1111,

119 Stat. 2960, 3094 (2006). The Department of Justice ad-

ministers the program through the Office of Justice Programs

(“OJP”), which is headed by an Assistant Attorney General

7

(“AAG”). Byrne JAG is the “primary provider of federal crim-

inal justice funding to States and units of local government”

and distributes over $80 million in awards each year. Edward

Byrne Memorial Justice Assistance Grant Program FY 2017

Local Solicitation, Dep’t of Justice (Aug. 3, 2017); App. 332.

It is a “formula grant,” meaning that funds are distributed

among all grantees based on a statutorily fixed formula. In the

case of Byrne JAG, the formula considers two factors: popula-

tion and violent crime statistics. See 34 U.S.C. § 10156. Once

approved, grantees may spend those funds within any of the

eight statutorily enumerated areas. 1

Any “State or unit of local government” may submit an ap-

plication to the Attorney General for this grant. Id. § 10153(a).

Historically, the OJP has included a number of conditions on

the application (over 50 for FY2017), most of which relate to

program integrity or impose requirements for the handling of

federal funds. Applicants must also certify that they “will com-

ply with all provisions of this part and all other applicable Fed-

eral laws.” Id. § 10153(a)(5)(D). Philadelphia has received an

award under Byrne JAG every year since the program’s incep-

tion in 2006. Its average annual award from the program is

1

Byrne JAG funds may be used for the following programs:

“(A) Law enforcement programs. (B) Prosecution and court

programs. (C) Prevention and education programs. (D) Cor-

rections and community corrections programs. (E) Drug treat-

ment and enforcement programs. (F) Planning, evaluation,

and technology improvement programs. (G) Crime victim and

witness programs (other than compensation). (H) Mental

health programs and related law enforcement and corrections

programs, including behavioral programs and crisis interven-

tion teams.” 34 U.S.C. § 10152(a)(1).

8

$2.5 million, which it has used to modernize courtroom tech-

nology, fund reentry programs for persons on release from

prison, and operate substance abuse programs, among other

programs.

In the FY2017 applications that are the subject of this case,

the Department included three new conditions. These Chal-

lenged Conditions are:

• The Certification Condition. Grantees must “certify

compliance with [8 U.S.C. § 1373 (“Section 1373”)].”

Backgrounder on Grant Requirements, Dep’t of Justice

(July 25, 2017); App. 246. Section 1373 prohibits state

and local governments from restricting the sharing of

information relating to an individual’s immigration sta-

tus—lawful or unlawful—with federal immigration of-

ficials.

• The Access Condition. Grantees must “permit person-

nel of the U.S. Department of Homeland Security

(“DHS”) to access any detention facility in order to

meet with an alien and inquire as to his or her right to

be or remain in the United States.” Id.

• The Notice Condition. Grantees must “provide at least

48 hours advance notice to DHS regarding the sched-

uled release date and time of an alien in the jurisdic-

tion’s custody when DHS requests such notice in order

to take custody of the alien.” Id.

The Attorney General maintains that these conditions are “de-

signed to ensure that the activities of federal law-enforcement

grant recipients do not impair the federal government’s ability

to ensure public safety and the rule of law by detaining and

removing aliens upon their release from local criminal cus-

tody.” Att’y Gen. Br. 12.

9

Although the Certification Condition did not apply to

FY2016 applications, DOJ asked ten jurisdictions, including

Philadelphia, to submit legal opinions certifying their compli-

ance with Section 1373. Philadelphia submitted its letter in

April 2017. Upon receiving letters from all ten jurisdictions,

DOJ issued a press release on July 6, 2017. It stated that the

Department was “in the process of reviewing” the letters, but

also stated that “[i]t is not enough to assert compliance, the ju-

risdictions must actually be in compliance.” Press Release,

Dep’t of Justice (July 6, 2017); App. 248.

B. Immigration Enforcement and Local Law Enforce-

ment

Under our federal system, “both the National and State

Governments have elements of sovereignty the other is bound

to respect.” Arizona v. United States, 567 U.S. 387, 398

(2012). While the federal government has “broad, undoubted

power over the subject of immigration and the status of al-

iens,” 2 id. at 394, the “States possess primary authority for de-

fining and enforcing the criminal law,” United States v. Lopez,

514 U.S. 549, 561 n.3 (1995) (internal quotation omitted).

These powers intersect when a state or city arrests an individ-

ual whom ICE would also like to apprehend for removal pro-

ceedings. 3 This occurs frequently: 142,356 times in FY2017.

2

Within the Executive Branch, immigration enforcement falls

primarily to DHS. And within DHS, U.S. Immigration and

Customs Enforcement (“ICE”) is the law enforcement agency

tasked with identifying, apprehending, and removing aliens

from the United States.

3

“Removal” is synonymous with “deportation.” But as a mat-

ter of legal terminology, the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, Pub. L. No. 104-208,

10

U.S. Immigration and Customs Enf’t, Fiscal Year 2017 ICE

Enforcement and Removal Operations Report 8 (2017).

An important tool used by ICE in these situations is the im-

migration detainer. Once ICE identifies a removable alien who

is in state or local custody, it cannot simply wrest that individ-

ual from custody. Instead, it may issue a detainer, which serves

to “advise another law enforcement agency that [it] seeks cus-

tody of an alien presently in the custody of that agency, for the

purpose of arresting and removing the alien.” 8 C.F.R. § 287.

Detainers may ask two things of the state or local agency: that

it notify ICE at least 48 hours before a removable alien is re-

leased from custody; and that it detain a removable alien for up

to 48 hours past the time that the alien would have otherwise

been released to allow ICE to apprehend the individual. ICE

Operations Report, supra at 7. A detainer is a request, not a

demand. Galarza v. Szalczyk, 745 F.3d 634, 642 (3d Cir. 2014)

(“[D]etainers are not mandatory.”). And DHS’s current policy

authorizes ICE officials to issue detainers only after obtaining

an administrative warrant supported by a showing of probable

cause that the alien is removable. ICE Operations Report, su-

pra at 7-8.

Like the immigration detainer, Section 1373 seeks to facil-

itate cooperation between the State and National Governments.

Specifically, it prohibits any restrictions on the sharing of im-

migration information. Section 1373 provides in relevant part:

[A] Federal, State, or local government entity or

official may not prohibit, or in any way restrict,

any government entity or official from sending

replaced all references to “deportation” with “removal.” See

I.N.S. v. St. Cyr, 533 U.S. 289, 315 (2001).

11

to, or receiving from, the Immigration and Natu-

ralization Service information regarding the citi-

zenship or immigration status, lawful or unlaw-

ful, of any individual.

8 U.S.C. § 1373(a).

C. Factual and Procedural History

1. Factual History

Philadelphia filed its FY2017 Byrne JAG application on

September 5, 2017. 4 The Department issued a “preliminary

determination” of the application on October 11, stating that

the City “appears to have laws, policies, or practices that vio-

late 8 U.S.C. § 1373.” No doubt, this referred to policies

adopted by police or executive order that limit the circum-

stances under which City officials will share immigration in-

formation with the federal government, permit federal officials

to access City prison facilities, and coordinate with federal of-

ficials regarding the release of aliens from local custody. 5 The

4

Philadelphia intended to use FY2017 funds to support the Po-

lice Commissioner’s “Crime Fighting Strategy,” support the

City’s “Reality Based Training Unit,” purchase supplies for in-

ner-city youth initiatives, and purchase naxalone for officers

responding to opioid overdoses. See S.A. 23.

5

Specifically, the policies at issue are:

The Confidentiality Memo. Police Memorandum 01-06,

adopted in May 2001, directs law enforcement officers to share

immigration information with the federal government under

limited circumstances: when required by law, when the immi-

grant consents, or when the “immigrant is suspected of engag-

ing in criminal activity.” App. 250-51.

12

City believes that these policies help foster trust between the

immigrant community and law enforcement. It argues that

such policies are “critical to reassure law-abiding residents that

contact with the City government will not lead to deportation

by ICE.” Philadelphia Br. 7.

2. Procedural History

This case has unfolded in four main acts: Philadelphia filed

a complaint seeking to enjoin the Department from implement-

ing the Challenged Conditions; the District Court granted a

preliminary injunction; the District Court granted summary

judgement and a permanent injunction for the City; and, fi-

nally, the Attorney General filed this appeal.

On August 30, 2017, Philadelphia filed the complaint in

this action against the Department of Justice in the U.S. District

Court for the Eastern District of Pennsylvania. The City sought

The Confidentiality Order. Executive Order 8-09, enacted in

November 2009, bars law enforcement officers from inquiring

about a person’s immigration status, “unless the status itself is

a necessary predicate of a crime the officer is investigating or

unless the status is relevant to identification of a person who is

suspected of committing a crime.” App. 254.

The Detainer Order. Executive Order 5-16, enacted in January

2016, bars City officials from detaining an immigrant pursuant

to an ICE detainer or from providing notice of the immigrant’s

release, unless the request is accompanied by a judicial war-

rant. App. 258-59.

The Inmate Consent Form. These consent forms are distrib-

uted to incarcerated individuals whom ICE requests to interro-

gate. The forms require the inmate’s consent before ICE is

permitted access to the facility to conduct an interview. App.

263.

13

to enjoin the Department from implementing the Challenged

Conditions and a writ of mandamus compelling the Depart-

ment to disburse its FY2017 Byrne JAG funds. The City ar-

gued that this relief was warranted for five reasons: the Depart-

ment acted ultra vires in enacting the Challenged Conditions

in violation of the Administrative Procedure Act (“APA”) and

the Constitution’s separation of powers; the Conditions were

enacted arbitrarily and capriciously in violation of the APA;

they violated the Spending Clause of the Constitution; the Cer-

tification Condition and Section 1373 violate the Tenth

Amendment of the Constitution; and the City was, in fact, in

substantial compliance with the Challenged Conditions. App.

411-63.

The District Court held extensive hearings and issued a pre-

liminary injunction on November 15, 2017. In a thoughtful

and well-reasoned opinion, the Court found that the City was

likely to succeed on all of its claims, and enjoined the Depart-

ment from denying its FY2017 application. See City of Phila-

delphia v. Sessions, 280 F. Supp. 3d 579 (E.D. Pa. 2017) (Phil-

adelphia I). The Department appealed the preliminary injunc-

tion to this Court on January 16, 2018. After filing its appeal,

the case continued in the District Court, where the Department

also filed a motion to dismiss the City’s complaint. The Dis-

trict Court denied this motion on March 13, 2018. See City of

Philadelphia v. Sessions, 309 F. Supp. 3d 271 (E.D. Pa. 2018).

In two orders, the Court granted summary judgment for the

City on all of its claims. See App. 93; City of Philadelphia v.

Sessions, 309 F. Supp. 3d 289 (E.D. Pa. 2018) (Philadelphia

II). It permanently enjoined the Department from enforcing

the Challenged Conditions, ordered the Department to disburse

the City’s FY2017 funds, and issued declaratory relief on all of

14

the City’s legal claims. Furthermore, the Court issued addi-

tional relief, namely, ordering that “[t]o the extent an agency

of the United States Government has probable cause to assert

that an individual in the custody of the City of Philadelphia is

a criminal alien … and seeks transfer to federal custody of such

individual within a city facility, it shall secure an order from a

judicial officer of the United States for further detention, as al-

lowed by law.” App. 191.

After the District Court issued this order, we dismissed the

Attorney General’s appeal of the preliminary injunction. The

Attorney General filed this timely appeal of the Court’s grant

of summary judgment and permanent injunction.

D. Related Litigation

Philadelphia is not alone in being advised that its Byrne

JAG award depends upon compliance with the Challenged

Conditions. Indeed, several other jurisdictions have sued to

enjoin enforcement of the Challenged Conditions, including

the City of Chicago, the City and County of San Francisco, and

the City of New York (which was joined by seven states—New

York, Connecticut, New Jersey, Rhode Island, Washington,

Massachusetts, and Virginia). In all of these cases, the courts

that have ruled have enjoined enforcement of the Challenged

Conditions. See City of Chicago v. Sessions, 264 F. Supp. 3d

933 (N.D. Ill. 2017) (Chicago I) (issuing a preliminary injunc-

tion as to the Notice and Access Conditions); City of Chicago

v. Sessions, 888 F.3d 272 (7th Cir. 2018) (Chicago II) (affirm-

ing the district court’s preliminary injunction); City of Chicago

v. Sessions, 321 F. Supp. 3d 855 (N.D. Ill. 2018) (Chicago III)

(issuing a permanent injunction); City & County of San Fran-

cisco v. Sessions, 2018 WL 4859528 (N.D. Cal. Oct. 5, 2018)

(San Francisco) (issuing a permanent injunction after declin-

ing to issue a preliminary injunction); States of New York, et

15

al. v. Dep’t of Justice, 2018 WL 6257693 (S.D.N.Y. Nov. 30,

2018) (New York, et al.) (issuing a permanent injunction).

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 28 U.S.C.

§§ 1331 and 1346. We have jurisdiction pursuant to 28 U.S.C.

§ 1291. We review the District Court’s findings of fact for

clear error, and we review its legal conclusions de novo. Black-

ledge v. Blackledge, 866 F.3d 169, 177 (3d Cir. 2017). We

review the scope of the District Court’s injunctive relief for

abuse of discretion. Allstate Settlement Corp. v. Rapid Settle-

ments, Ltd., 559 F.3d 164, 172 (3d Cir. 2009).

III. DISCUSSION

The District Court addressed each of the City’s contentions

and ruled that: the Attorney General did not have statutory au-

thority to promulgate the Challenged Conditions; he did so ar-

bitrarily and capriciously; the Challenged Conditions violate

the Spending Clause; the Certification Condition violates the

Tenth Amendment; and the City was in substantial compliance

with the Challenged Conditions. The Attorney General chal-

lenges these rulings and also argues that the District Court

abused its discretion in granting injunctive relief.

We begin with the threshold issue: whether the Attorney

General possessed the statutory authority to enact the Chal-

lenged Conditions. If the Attorney General did not have that

authority, then we needn’t reach the other claims.

A. Statutory Authorization for the Challenged Condi-

tions

Where, as here, the Executive Branch is not acting pursuant

to a constitutional power, it “literally has no power to act …

16

unless and until Congress confers power upon it.” La. Pub.

Serv. Comm’n, 476 U.S. at 374. An executive agency that acts

without statutory authority violates the Administrative Proce-

dure Act, see 5 U.S.C. § 706(2)(C), and may run afoul of the

constitutional separation of powers. Accordingly, we must de-

termine whether Congress empowered the Attorney General to

promulgate the Challenged Conditions. We consider three

sources of authority offered by the Attorney General: first, the

Byrne JAG statute, 34 U.S.C. §§ 10151–10158; second, the

provision defining the duties of the AAG for OJP, 34 U.S.C. §

10102(a); and third, for the Certification Condition only, Sec-

tion 10153(a)(5)(D) of the Byrne JAG statute.

In interpreting the meaning of these statutory provisions,

we rely on the rules of statutory interpretation articulated by

the Supreme Court and this Court. Our point of departure is

the text of the statute. See Gov’t of Virgin Islands v. Knight,

989 F.2d 619, 633 (3d Cir. 1993). But we are mindful not to

read provisions in isolation. Rather, we look to the text and

structure of the statute as a whole. See K Mart Corp. v. Cartier,

Inc., 486 U.S. 281, 291 (1988). We are also guided by any

relevant, well-established canons of statutory interpretation.

See Schaar v. Lehigh Valley Health Servs., Inc., 598 F.3d 156,

160 (3d Cir. 2010).

1. The Byrne JAG Statute

The Attorney General argues that authorization for the No-

tice Condition and the Access Condition is found in the Byrne

JAG statute itself. 6 See Att’y Gen. Br. 23. He pursues this

6

The Attorney General asserts that one provision of the Byrne

JAG statute, § 10153(a)(5)(D), authorizes the Certification

Condition but not the Notice and Access Conditions. We will

discuss that provision separately, infra III. A. 3.

17

argument in the least depth, however, and for good reason.

Such authorization is nowhere to be found in the text of the

statute. As other courts have noted, the statute delegates some

authority to the Attorney General, but it is exceptionally lim-

ited in nature. 7 See, e.g., San Francisco, 2018 WL 4859528,

at *10 (“[T]he Byrne JAG statute contains limited discretion-

ary authority for the Attorney General to carry out specific

parts of the grant program.”). Two aspects of the statute, how-

ever, deserve closer scrutiny. The first is cited by the Attorney

General as authorizing the Notice and Access Conditions, and

the second, although not relied on by the Attorney General,

highlights just how little discretionary authority the statute

confers on him.

First, the Attorney General has limited authority to monitor

and review grantees’ program and financial information. For

example, the statute directs him to require grantees to certify

that program funds “will not be used to supplant State or local

funds.” Id. § 10153(a)(1). He is directed to require “each pro-

gram funded under this part [to] contain a program assessment

component,” id. § 10152(c)(1), but he may waive that require-

ment if he deems that a program is “not of sufficient size to

justify a full program assessment,” id. § 10152(c)(2). He must

also direct applicants to report “data, records, and information

(programmatic and financial)” that he may “reasonably re-

quire,” id. § 10153(a)(4), and require that grantees certify that

7

For example, the Attorney General may determine the “form”

of the application, 34 U.S.C. § 10153(a); he may waive the pro-

hibition on using funds on vehicles, luxury items, real estate,

and construction projects, id. § 10152(d)(2); and he may pro-

vide “technical assistance” to jurisdictions that request it, id. §

10153(b)(1).

18

“there has been appropriate coordination with affected agen-

cies,” id. § 10153(a)(5).

The Attorney General argues that these latter two provi-

sions—regarding data reporting and coordination with affected

agencies—authorize the Notice and Access Conditions. See

Att’y Gen. Br. 26. His theory is that notice of an alien’s release

from custody constitutes “information” that the Attorney Gen-

eral may “reasonably require” and access to prison facilities

constitutes “appropriate coordination” with an affected agency.

But this interpretation stretches those provisions too far. The

data-reporting requirement is expressly limited to “program-

matic and financial” information—i.e., information regarding

the handling of federal funds and the programs to which those

funds are directed. It does not cover Department priorities un-

related to the grant program. Furthermore, the coordination

requirement asks for a certification that there “has been” ap-

propriate coordination. Given that “Congress’ use of a verb

tense is significant in construing statutes,” United States v. Wil-

son, 503 U.S. 329, 333 (1992), and this provision is housed in

a subsection containing several other certification require-

ments regarding a grantee’s application, we interpret it to re-

quire certification that there was appropriate coordination in

connection with the grantee’s application. This does not serve

as a basis to impose an ongoing requirement to coordinate on

matters unrelated to the use of grant funds.

Second, certain provisions of the statute, and other provi-

sions in the U.S. Code that expressly mention the Byrne JAG

statute, give the Attorney General narrow authority to withhold

19

or re-allocate funds under very limited circumstances. 8 For ex-

ample, he may re-allocate funds among grantees and withhold

a small percentage of funds from a particular grantee. The stat-

ute gives the Attorney General the authority to “reserve not

more than 5 percent” of total funds in order to “address … pre-

cipitous or extraordinary increases in crime” or to “mitigate

significant programmatic harm resulting from operation of the

formula” in one or more jurisdictions. 34 U.S.C. § 10157. This

provision, however, authorizes the Attorney General to re-al-

locate funds only in those two, narrow circumstances. And it

only allows the Attorney General to set aside five percent of

the total Byrne JAG funds, leaving the formula in place for dis-

tribution of the remainder of the funds. It does not authorize

the enactment of the Challenged Conditions or the withholding

of the entirety of a particular jurisdiction’s award.

There are also circumstances in which the Attorney General

may, or must, withhold Byrne JAG funds for a grantee’s failure

to comply with certain federal laws. For example, he may

withhold up to four percent of a jurisdiction’s Byrne JAG funds

if it fails to meet certain requirements of the National Instant

Criminal Background Check System. See 34 U.S.C. §

40914(b)(1). A mandatory reduction of five percent of Byrne

JAG funds will occur if there are egregious violations. See id.

§ 40914(b)(2). The Attorney General also has the discretion to

withhold “not more than [] 10-percent” of Byrne JAG funds if

a jurisdiction fails to comply with “death-in-custody” reporting

requirements. Id. § 60105(c)(2). All other delegations of this

8

The Attorney General does not rely on these provisions, but

we think that consideration of them is necessary to make our

analysis complete. The limited scope of authority granted by

these provisions stands in stark contrast to the broad authority

the Attorney General seeks.

20

sort are similarly circumscribed. See id. § 20927(a) (manda-

tory ten percent penalty for failure to comply with the Sex Of-

fender Registration and Notification Act); id. § 30307(e)(2)

(mandatory five percent penalty for failure to comply with the

Prison Rape Elimination Act).

We discuss these provisions primarily to highlight what

they do not authorize: the power to withhold all of a grantee’s

funds for any reason the Attorney General chooses. See Chi-

cago II, 888 F.3d at 284 (“None of those provisions grant the

Attorney General the authority to impose conditions that re-

quire states or local governments to assist in immigration en-

forcement, nor to deny funds to states or local governments for

the failure to comply with those conditions.”). Moreover, as

the District Court and the Seventh Circuit have observed, 9

Congress knows how to grant this sort of broad discretionary

authority when it wants. See 34 U.S.C. § 10446(e)(3) (Grants

to Combat Violent Crime Against Women) (“In disbursing

grants under this subchapter, the Attorney General may impose

reasonable conditions on grant awards….”). But it has not

done so here.

Such a grant of authority, if it existed, would also render

the aforementioned limited grants of authority superfluous. If

Congress had already given the Attorney General this sweep-

ing authority to withhold all funds for any reason, it would have

no need to delineate numerous, specific circumstances under

which the Attorney General may withhold limited amounts of

9

See City of Philadelphia I, 280 F. Supp. 3d at 616 (“Congress

delegated authority to impose conditions on other grants in the

same chapter, and did so clearly.”); Chicago II, 888 F.3d at 286

(“Congress knew how to grant such authority, and explicitly

did so in another statute within the same Act.”).

21

funds. Even if the statute were ambiguous—which it is not—

we generally would not interpret such a provision to render su-

perfluous more specific delegations of power. See, e.g., Gon-

zales v. Oregon, 546 U.S. 243, 262 (2006) (“It would be anom-

alous for Congress to have so painstakingly described the At-

torney General’s limited authority to deregister a single physi-

cian or schedule a single drug, but to have given him, just by

implication, authority to declare an entire class of activity out-

side ‘the course of professional practice,’ and therefore a crim-

inal violation of the CSA.”); see also Chicago II, 888 F.3d at

286 (“Against that backdrop, it is inconceivable that Congress

would have anticipated that the Assistant Attorney General

could abrogate the entire distribution scheme and deny all

funds to states and localities that would qualify under the

Byrne JAG statutory provisions, based on the Assistant Attor-

ney General’s decision to impose his or her own conditions—

the putative authority for which is provided in a different stat-

ute.”).

Finding no authority for the Challenged Conditions in the

Byrne JAG statute or other provisions that specifically mention

it, we turn to the Attorney General’s next suggested source of

authority.

2. The Duties and Functions of Assistant Attorney

General

The Attorney General also argues that all three conditions

are authorized by 34 U.S.C. § 10102, the provision establishing

the “Duties and Functions of Assistant Attorney General” for

the Office of Justice Programs. That provision provides, in rel-

evant part, that “[t]he Assistant Attorney General shall”:

22

exercise such other powers and functions as may

be vested in the Assistant Attorney General pur-

suant to this chapter or by delegation of the At-

torney General, including placing special condi-

tions on all grants, and determining priority pur-

poses for formula grants.

34 U.S.C. § 10102(a)(6) (emphasis added). The Attorney Gen-

eral argues that because this provision authorizes “placing spe-

cial conditions on all grants,” it authorizes placing the Chal-

lenged Conditions on the Byrne JAG grant.

But the Attorney General’s argument runs headlong into an

obstacle: the word “including.” 10 In the Attorney General’s

view, the Special Conditions Clause confers upon the AAG

new authority, not found elsewhere in the Code, to establish

conditions on grants. This clause, however, is preceded by the

word “including,” which is used to denote something that is

within a larger whole. See Webster’s Third New International

Dictionary of the English Language Unabridged, 1143 (3d ed.

1993) (defining “include” as “to place, list, or rate as a part or

component of a whole or of a larger group class or aggregate”).

10

Several other federal courts have identified this flaw in the

Attorney General’s reasoning. See, e.g., Chicago II, 888 F.3d

at 285 (“Because that interpretation is so obviously belied by

the plain meaning of the word ‘including,’ the Attorney Gen-

eral’s position is untenable.”); New York, et al., 2018 WL

6257693, at *7 (“The problem for Defendants is that the

[Clause] begins with the word ‘including.’”); San Francisco,

2018 WL 4859528, at *12 (“The clause begins with the word

‘including,’ conveying a reference to part of a whole.”).

23

In the case of this provision, “including” signifies that the Spe-

cial Conditions Clause is part of “such other powers and func-

tions as may be vested in the Assistant Attorney General pur-

suant to this chapter or by delegation of the Attorney General.”

34 U.S.C. § 10102(a)(6) (emphasis added). Therefore, under

the plain text of this provision, the AAG has the power to place

special conditions on grants only to the extent that such power

has been vested in him or her “pursuant to this chapter or by

delegation of the Attorney General.” As we discussed in the

previous section, the broad authority he urges has not been

vested in the Attorney General or the AAG in the Byrne JAG

statute or anywhere else in the United States Code. Therefore,

the Special Conditions Clause cannot authorize this power on

its own.

The structure of Section 10102 also casts serious doubt on

the Attorney General’s interpretation. The Special Conditions

Clause is housed in the sixth of six subsections delineating the

AAG’s power. The preceding five subsections all deal with

the AAG’s power to disseminate criminal justice information

and coordinate with various agencies and officials. See 34

U.S.C. § 10102(a)(1)-(5). The principle of noscitur a sociis—

“a word is known by the company it keeps”—is helpful here.

Yates v. United States, 135 S. Ct. 1074, 1085 (2015). Given

the ministerial nature of the powers in the preceding five sub-

sections, we would be hesitant to find such a sweeping grant of

authority in the sixth subsection absent clear language to sup-

port that interpretation. 11 Moreover, hiding such a broad

11

In stating this, we join the District Court and several other

federal courts. See Chicago II, 888 F.3d at 285 (Ҥ 10102(a)(6)

would be an unlikely place for Congress to place a power as

broad as the one the Attorney General asserts.”); Philadelphia

I, 280 F. Supp. 3d at 617 (“Congress is unlikely to ground the

24

power—the power to place any special conditions on all

grants—in a statute outlining ministerial duties for an Assistant

Attorney General would be akin to hiding an elephant in a

mousehole. And Congress “does not, one might say, hide ele-

phants in mouseholes.” Whitman v. Am. Trucking Ass’ns, 531

U.S. 457, 468 (2001).

Given its text and structure, 34 U.S.C. § 10102 does not

authorize the Attorney General’s imposition of the Challenged

Conditions. We turn, then, to the Attorney General’s final stat-

utory argument.

3. All Other Applicable Federal Laws

The Attorney General next argues that the Certification

Condition is authorized by 34 U.S.C. § 10153(a)(5)(D). This

section of the Byrne JAG statute requires applicants to certify

that they “will comply with all provisions of this part and all

other applicable Federal laws.” Id. § 10153(a)(5)(D) (empha-

sis added). The Attorney General argues that Section 1373—

discussed supra, I. B., prohibiting restrictions on the sharing of

information regarding immigration status—is an applicable

federal law, as it applies to local government entities. Accord-

ingly, he argues that he is authorized to require applicants to

Attorney General’s authority to impose substantive conditions

in a subsection dedicated to conferring power on the AAG.”);

New York, et al., 2018 WL 6257693, at *8 (“[Section 10102]

would be an odd place indeed to put a sweeping power to im-

pose any conditions on any grants—a power much more sig-

nificant than all of the duties and powers that precede it in the

listing, and a power granted to the Assistant Attorney General

that was not granted to the Attorney General.”) (quoting Chi-

cago II, 888 F.3d at 285).

25

certify their compliance with that law. The City responds,

however, that the Applicable Laws Clause only covers laws

that “expressly govern federal grants or grantees.” Philadel-

phia Br. 20. At first blush, both parties’ interpretations have

merit—the text does not explicitly indicate to whom, or to

what, the laws must be applicable. But closer scrutiny of the

text, structure, and history of the provision leads us to reject

the Attorney General’s expansive view.

Starting with the text, we observe that 34 U.S.C. §

10153(a)(5)(D) contains an initial specific phrase followed by

a general phrase: a grant applicant must certify that it “will

comply with [1] all provisions of this part and [2] all other ap-

plicable Federal laws.” In these situations, the principle of

ejusdem generis teaches that “the general term should be un-

derstood as a reference to subjects akin to the one with specific

enumeration.” Norfolk & W. Ry. Co. v. Am. Train Dispatchers

Ass’n, 499 U.S. 117, 129 (1991). But “[t]he absence of a list

of specific items undercuts the inference embodied in ejusdem

generis.” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 225

(2008) (emphasis added). If the general phrase (“all other ap-

plicable Federal laws”) were preceded by a list of specific fed-

eral laws, then our task would be much easier. But here we

find only “one specific and one general category.” Id. More-

over, the specific phrase (“all provisions of this part”) tells us

little about the meaning of the general phrase. In short,

ejusdem generis does not get us very far in interpreting “all

other applicable Federal laws.”

But several other considerations all suggest that Section

1373 is not an “applicable” law. First, the canon against sur-

plusage counsels us to read the term “applicable” in a way that

gives it some independent heft. See Paek v. Att’y Gen., 793

F.3d 330, 337 (3d Cir. 2015) (“The canon against surplusage

26

counsels us to give effect to every word of a statute.”). Here,

the term “applicable” avoids being redundant only by doing

some limiting work beyond delineating the set of all federal

laws that would “appl[y]” to an entity like Philadelphia. Oth-

erwise, Congress could have simply written that a grant appli-

cant must certify compliance with “all other Federal laws.” See

San Fransisco, 2018 WL 4859528 at *17 (“[I]t is superfluous

to interpret ‘all other applicable Federal laws’ as ‘all Federal

laws.’”). Thus, the word “applicable” must have a narrower

meaning than one that sweeps in all possible laws that inde-

pendently apply to a grant applicant.

Second, the noscitur a sociis canon—discussed supra, III.

A. 2.—provides further guidance. The Applicable Laws

Clause is located in the fourth of four subsections, all of which

require certifications that must be included in a Byrne JAG ap-

plication. These four requirements provide that an “application

shall include … [a] certification … that”:

(A) the programs to be funded by the grant meet

all the requirements of this part;

(B) all the information contained in the applica-

tion is correct;

(C) there has been appropriate coordination with

affected agencies; and

(D) the applicant will comply with all provisions

of this part and all other applicable Federal laws.

34 U.S.C. § 10153(a)(5). These requirements all relate to the

programs that will be funded under the grant. See San Fran-

cisco, 2018 WL 4859528, at *17 (“[A]ll the other conditions in

Section 10153(a) apply to the grant itself.”); New York, et al.,

2018 WL 6257693, at *9 (“The structure of § 10153, which

27

concerns requirements pertaining to the grant and the applica-

tion, points toward the [more narrow] reading.”). This is evi-

dent on the face of the first requirement. The second require-

ment necessarily deals with programs funded under the grant,

as the bulk of information contained in the application is re-

garding the use of grant funds. And we can infer that the re-

quirement that there “has been appropriate coordination with

affected agencies” relates to coordination that had occurred in

compiling a grantee’s application. Although not dispositive,

these narrow neighboring provisions counsel against a broad

interpretation of the Applicable Laws Clause. Thus, it would

be reasonable to view “all other applicable Federal laws” to

refer specifically to laws that apply to operations relating to the

grant, not to require the City to certify compliance with every

single law that might apply to it.

Third, the historical practice of the Justice Department is

also an important interpretive tool. See N.L.R.B. v. Noel Can-

ning, 134 S. Ct. 2550, 2560 (2014) (“[T]he longstanding ‘prac-

tice of the government’ can inform our determination of ‘what

the law is.’”) (quoting McCulloch v. Maryland, 4 Wheat. 316,

401 (1819), and Marbury v. Madison, 1 Cranch 137, 177

(1803)). Here, the Justice Department’s historical practice

does not comport with the broad interpretation that it urges in

this case. Every condition that is authorized by the Applicable

Laws Clause applies specifically to programs funded under the

grant, not more generally to the grantee. 12

12

While the Attorney General does not expressly state the

statutory authority for each condition, the City does. See

App. 391-400. The Attorney General does not take issue with

the City’s account.

28

The Attorney General points to several conditions—such as

compliance with laws regarding human research, body armor

purchases, and military equipment purchases—as establishing

a practice of conditioning Byrne JAG funds on certification of

compliance with broader categories of federal law. But these

conditions are not blanket requirements with which the grantee

must comply under all circumstances; rather, their applicability

is conditioned on whether federal funds are used in a particular

area. See, e.g., App. 379 (requiring compliance with 28 C.F.R.

§ 46, which sets out regulations for human research that is

“conducted or supported by a federal department or agency”).

For example, if a grantee uses funds to purchase body armor or

military style equipment, then it must comply with the applica-

ble federal regulations regarding those purchases. And if a

grantee uses funds to conduct research on human subjects, then

it must comply with the applicable federal regulations in that

area. The Certification Condition is written differently: regard-

less of how a grantee uses its funds, it must certify compliance

with this federal law. The Attorney General has not pointed to

any historical precedent for the kind of unconditional require-

ment it now seeks to impose.

Fourth, as we have noted, Congress structured the Byrne

JAG program as a “formula grant,” under which a jurisdic-

tion’s award is calculated through a formula that considers only

population and violent crime statistics. The Attorney General

asserts that the Applicable Laws Clause authorizes him to con-

dition Byrne JAG funds on compliance with any law in the

U.S. Code. But that reading of the Clause would destabilize

the formula nature of the grant. Allowing the Attorney General

to withhold all funds because a jurisdiction does not certify

compliance with any federal law of the Attorney General’s

choosing undermines the predictability and consistency em-

bedded in the program’s design, thus turning the formula grant

29

into a discretionary one. Moreover, if Byrne JAG were in-

tended to be a discretionary grant, one would think that Con-

gress would house it in the section of the U.S. Code containing

discretionary Justice Department grants, see 34 U.S.C. Subt. I,

Ch. 101, Subch. V, Part B (“Discretionary Grants”), not its

own, neighboring section, see 34 U.S.C. Subt. I, Ch. 101,

Subch. V., Part A (“Edward Byrne Memorial Justice Assis-

tance Grant Program”).

Finally, there is reason to doubt that even under a broad

reading of the Applicable Laws Clause, Section 1373 would

apply. In the “Administrative Provisions” section of the same

chapter of the code as the Applicable Laws Clause, Congress

provided:

Nothing in this chapter or any other Act shall be

construed to authorize any department, agency,

officer, or employee of the United States to exer-

cise any direction, supervision, or control over

any police force or any other criminal justice

agency of any State or any political subdivision

thereof.

34 U.S.C. § 10228. Under the plain terms of this provision, the

Applicable Laws Clause “shall” not be “construed” to author-

ize the Department to “exercise any direction, supervision, or

control” over Philadelphia Police. But under the Attorney

General’s reading of the Applicable Laws Clause, Section

1373 would authorize the Department to direct, supervise, or

control Philadelphia Police communications with ICE. Section

10228 may therefore be a statutory limit to which laws are “ap-

plicable” under the Applicable Laws Clause.

Accordingly, we find that Section 1373 is not an applicable

law for the purposes of Byrne JAG.

30

* * *

After reviewing the three sources of authority offered by

the Attorney General, we hold that Congress has not empow-

ered the Attorney General to enact the Challenged Conditions.

Because the Attorney General exceeded his statutory authority

in promulgating the Challenged Conditions, we needn’t reach

Philadelphia’s other arguments. Therefore, all that remains for

the purposes of our review is the District Court’s injunctive or-

der.

B. The Judicial Warrant Injunction

In its final judgment and decree, the District Court issued

injunctive relief establishing that a judicial warrant shall be

necessary to transfer a criminal alien to federal custody. The

order provides, in relevant part:

To the extent an agency of the United States

Government has probable cause to assert that an

individual in the custody of the City of Philadel-

phia is a criminal alien (as previously defined by

this Court in City of Philadelphia v. Sessions,

2018 WL 2725503, *19 n. 3 (E.D. Pa. June 6,

2018), and seeks transfer to federal custody of

such individual within a city facility, it shall se-

cure an order from a judicial officer of the United

States for further detention, as allowed by law.

App. 191. The Attorney General asks that, even if we find for

the City on the merits—which we have done—we vacate this

section of the order. In a memorandum accompanying the Or-

der, the District Court explained that the order was necessary

to shield the City from legal liability that might arise if it de-

tained an individual pursuant to an immigration detainer who

should have otherwise been released. App. 194. The Court

31

stated that, with this order, “[t]his risk can be easily elimi-

nated.” App. 194.

We do not doubt, as the District Court rightly decided, that

equitable relief was warranted in this case. See Philadelphia

II, 309 F. Supp. 3d at 338-43. The question before us, however,

is whether the Court’s order swept too broadly. 13 While there

are tried and true standards for determining when equitable re-

lief is warranted, see, e.g., Shields v. Zuccarini, 254 F.3d 476,

482 (3d Cir. 2001) (discussing the four-part test for determine

when a permanent injunction is warranted), there is less author-

ity regarding the scope of equitable relief. The Supreme Court

has instructed that the equity power of the federal courts is con-

fined to “the system of judicial remedies which had been de-

vised and was being administered by the English Court of

Chancery at the time of the separation of the two coun-

tries.” Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund,

Inc., 527 U.S. 308, 318 (1999). We have stated, consistent with

many of our sister circuits, that “injunctive relief should be ‘no

more burdensome to the defendant than necessary to provide

complete relief to plaintiffs.’” Novartis Consumer Health, Inc.

v. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d

578, 598 (3d Cir. 2002) (quoting Califano v. Yamasaki, 442

U.S. 682, 702 (1979)); see also Waldman Publ’g Corp. v. Lan-

doll, Inc., 43 F.3d 775, 785 (2d. Cir. 1994) (“Injunctive relief

should be narrowly tailored to fit specific legal violations.”);

Hayes v. N. State Law Enf’t Officers Ass’n, 10 F.3d 207, 217

(4th Cir. 1993) (“An injunction should be tailored to restrain

no more than what is reasonably required to accomplish its

ends.”) (internal quotation omitted). In short, equitable relief

13

“We review the terms of an injunction for abuse of discre-

tion.” Allstate Settlement Corp. v. Rapid Settlements, Ltd., 559

F.3d 164, 172 (3d Cir. 2009).

32

should be “dictated by the extent of the violation established.”

Califano, 442 U.S. at 702.

Our review of the scope of the District Court’s injunction,

then, has two aspects: first, we must determine “the extent of

the violation established,” id.; and second, we must determine

whether the injunction is “more burdensome to the defendant

than necessary to provide complete relief to plaintiffs.” No-

vartis, 290 F.3d at 598. On the first point, we have already

addressed the legal violation at length: the Attorney General

acted ultra vires in imposing the three Challenged Conditions

on Byrne JAG grants. Several aspects of the District Court’s

order are narrowly tailored to remedying this legal wrong, in-

cluding enjoining the Attorney General from enforcing the

Challenged Conditions on Philadelphia’s application and or-

dering the Attorney General to issue Philadelphia’s FY2017

award. Both of these orders speak directly to the dispute over

the Challenged Conditions.

The judicial warrant requirement, however, goes beyond

the bounds of the complaint. While the District Court’s con-

cerns regarding the legality of holding an alien pursuant to a

detainer may well be legitimate, they are not part of this case

and controversy. Nor, as we noted above, is the broader policy

dispute between the City and the Attorney General regarding

immigration enforcement. The order extends outside of this

particular case and controversy and into those disputes.

Moreover, the other aspects of the order entered by the Dis-

trict Court afford the City full and complete relief. The City

filed its complaint to enjoin the Attorney General from denying

its Byrne JAG award based on unlawfully imposed conditions.

The other aspects of the District Court’s order require that the

Attorney General distribute the City’s FY2017 award and re-

33

frain from ever enforcing the Challenged Conditions. A dis-

trict court has discretion to fashion equitable remedies, but

these aspects of the order left the City wanting nothing by way

of further remedies. The judicial warrant requirement was not

requested in the District Court and was not defended with any

vigor at oral argument. See Oral Argument Transcript, 52 (stat-

ing that the District Court’s order is “the hardest thing to de-

fend”).

Accordingly, we hold that the District Court abused its dis-

cretion as to the scope of the equitable relief and will vacate its

order to the extent it imposed a requirement that the federal

government obtain a judicial warrant before seeking custody

of aliens in City custody.

IV. CONCLUSION

For the aforementioned reasons, we hold that the Attorney

General did not have statutory authority to impose the Chal-

lenged Conditions. We also determine that the District Court

abused its discretion in granting broader injunctive relief than

was warranted. Accordingly, we will affirm the District

Court’s order to the extent it is supported by this opinion, and

we will vacate its order as it pertains to the judicial warrant

requirement.

34