CITY OF LOS ANGELES, Plaintiff-Appellee, v. WILLIAM P. BARR, Attorney General; ALAN R. HANSON, in his official capacity as Acting Assistant Attorney General of the Office of Justice Programs; RUSSELL WASHINGTON, in his official capacity as Acting Director of the Office of Community Oriented Policing Services; UNITED STATES DEPARTMENT OF JUSTICE, Defendants-Appellants.
No. 18-55599
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
July 12, 2019
D.C. No. 2:17-cv-07215-R-JC
Manuel L. Real, District Judge, Presiding
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the Central District of California
Argued and Submitted August 30, 2018 Pasadena, California
Filed July 12, 2019
Before: Kim McLane Wardlaw, Jay S. Bybee, and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta; Dissent by Judge Wardlaw
SUMMARY*
Federal Spending / Immigration
The panel reversed the district court‘s summary judgment in favor of the City of Los Angeles in an action challenging the U.S. Department of Justice (“DOJ“)‘s use of certain factors in determining scores for applicants to a competitive grant program — the Community Oriented Policing Services (COPS) grant program — that allocates a limited pool of funds to state and local applicants under the Public Safety Partnership and Community Policing Act (the “Act“), enacted as part of the Violent Crime Control and Law Enforcement Act.
DOJ gave additional points to an applicant that chose to focus on the illegal immigration area (instead of other focus areas), and gave additional points to an applicant who agreed to the Certification of Illegal Immigration Cooperation — in which the applicant agreed to ensure Department of Homeland Security personnel had access to the applicant‘s detention facilities to meet with an alien, and to provide notice to DHS regarding scheduled release of an alien in custody. Los Angeles submitted an application under the Act but was not awarded any funding; it chose “building trust and respect” as its focus area and declined to submit the Certification.
As initial matters, the panel held that the appeal was not moot because although there was no longer a live controversy regarding the 2017 grant program, the situation was capable of repetition yet evading review. The panel also held that Los Angeles had Article III standing to bring the appeal. The panel concluded that Los Angeles‘s slight competitive disadvantage due to its policy of not assisting the federal government on immigration-related issues was sufficient to give Los Angeles standing in this action.
The panel rejected Los Angeles‘s argument that DOJ‘s practice of giving additional consideration to applicants that choose to further the two specified federal goals violated the Constitution‘s Spending Clause. Because DOJ‘s scoring factors encouraged, but did not coerce, an applicant to cooperate on immigration matters, the panel also rejected Los Angeles‘s claims that DOJ‘s use of the factors infringed on state autonomy in a manner that raised Tenth Amendment concerns.
The panel held that DOJ did not exceed its statutory authority in awarding bonus points to applicants that selected the illegal immigration focus area or that agreed to the Certification. Specifically, the panel first held that DOJ‘s understanding that illegal immigration presents a public safety issue has been acknowledged by the Supreme Court. Second, DOJ‘s determination that the techniques of community policing may be used to address this public safety issue was entirely reasonable. Finally, because Congress did not directly address the precise question at issue, the panel must defer to DOJ‘s interpretation as long as it is reasonable.
The panel held that DOJ did not act arbitrarily and capriciously under the Administrative Procedure Act when it decided to give points for adopting the illegal immigration focus and submitting the Certification.
Judge Wardlaw dissented from the majority‘s holding that DOJ‘s diversion of COPS grant funding from community policing to civil immigration enforcement was lawful. Judge Wardlaw would hold that DOJ exceeded its delegated powers to administer the COPS grant program, and she would, therefore, affirm the district court‘s order permanently enjoining DOJ from including the illegal immigration focus area and Cooperation Certification on its COPS grаnt applications and from using these considerations as preferences in awarding COPS grants.
COUNSEL
Jesse Panuccio (argued), Brad Hinshelwood, Katherine Twomey Allen, Daniel Tenny, and Mark B. Stern, Appellate Staff; Nicola T. Hanna, United States Attorney; Civil Division, United States Department of Justice, Washington, D.C.; for
Matthew J. Piers, Caryn C. Lederer, and Chirag G. Badlani, Hughes Socol Piers Resnick & Dym Ltd., Chicago, Illinois; Daniel B. Rice, Joshua A. Geltzer, and Mary B. McCord, Institute for Constitutional Advocacy and Protection, Georgetown University Law Center, Washington, D.C.; for Amici Curiae Current and Former Prosecutors and Law Enforcement Leaders.
OPINION
IKUTA, Circuit Judge:
In 1994, Congress enacted the Violent Crime Control and Law Enforcement Act (VCCLEA),
In 2017, Los Angeles applied for a grant, but failed to score highly enough to earn one. It challenges the use of two of the many factors DOJ uses in determining the scores for each applicant. Because DOJ‘s use of these two factors in evaluating applicants for a competitive grant program did not violate the Spending Clause of the U.S. Constitution,
I
The Act‘s grant program, codified at
Congress has regularly made appropriations for grants administered under this statute. DOJ has determined that Congress intended these appropriations to be used for two of the twenty-three purposes set forth in
DOJ has exercised its broad discretion under the Act by developing a combined guidelines and application form for parties that wish to apply for a grant to hire or rehire officers for community-oriented policing. See COPS Office Application Attachment to SF-424 (referred to hereafter as “Application Guidelines“). The Application Guidelines define “community policing” as “a philosophy that promotes organizational strategies that support the systematic use of partnerships and problem-solving techniques to proactively address the immediate conditions that give rise to public safety issues such as crime, social disorder, and fear of crime.” Community policing strategies may include “ongoing collaborative relationships” with local and federal agencies, as well as “systematically tailor[ing] responses to crime and disorder problems to address their underlying conditions.”
The Application Guidelines set out a series of questions and instructions that allow an applicant to explain why it is seeking a grant and why it is best qualified to receive one. Among other things, an applicant must explain its need for federal assistance, provide information about its fiscal health, agree to comply with various provisions of federal law, and provide additional information and assurances of various kinds. An applicant must also specify its law enforcement and community policing strategy, including a “crime and disorder problem/focus area.” The Application Guidelines direct the applicant to choose one of eight focus areas: “illegal immigrations,” “child and youth safety focus,”
DOJ evaluates, scores, and ranks the submitted applications, then awards grant funds to the highest scoring applicants.5 The scoring process is designed to allocate
federal assistance to programs, focuses, or conduct that DOJ deems to best further statutory purposes and federal goals. Consistent with the statutory criteria, DOJ gives points to applicants that best demonstrate “a specific public safety need” and show an “inability to address the need without Federal assistance,”
As usual, in the 2017 grant cycle, DOJ received more requests for funding than it was able to grant. Congress allocated roughly $98.5 million for grants, but applicants requested almost $410 million. From a total applicant pool of 90 large jurisdictions and 1,029 small jurisdictions, DOJ awarded grant funds to 30 of the large jurisdictions and 149 of the small jurisdictions. An applicant did not need to select the illegal immigration focus or submit the Certification to receive funds. Of the seven applicants that chose illegal immigration as a focus area, only one large jurisdiction and one small jurisdiction received an award. Of the successful applicants, only 19 of the 30 large jurisdictions and 124 of the 149 small jurisdictions received bonus points for submitting the Certification. Los Angeles submitted an application but wаs not awarded any funding. It chose “building trust and respect” as its focus area and declined to submit the Certification.
In September 2017, Los Angeles filed a complaint seeking to enjoin DOJ‘s practice of awarding points to applicants that selected the illegal immigration focus area and to applicants that completed a Certification related to illegal immigration. Los Angeles argues that these two elements of DOJ‘s scoring system are unlawful because they (1) violate constitutional principles of separation of powers and exceed DOJ‘s lawful authority, (2) violate the Spending Clause, and (3) are arbitrary and capricious under the Administrative Procedure Act. The district court agreed with Los Angeles on each of these claims. The court entered a permanent injunction against the challenged practices, and DOJ appealed.
II
Although Los Angeles claims it was injured by DOJ‘s use of two scoring elements in its 2017 grant cycle, that cycle has long since been completed. Therefore, we must determine whether this appeal is moot, and if not, whether Los Angeles has standing to bring its claims.
We first conclude that the appeal is not moot. Article III limits the jurisdiction of federal courts to actual cases and controversies.
We also conclude that Los Angeles has standing to bring this appeal. Los Angeles states it “has made a longstanding decision that it can best protect public safety by not participating in federal civil immigration enforcement.” It also states that its police department has a longstanding policy that “restricts an officer from initiating a police action with the objective of discovering a person‘s immigration status, and also prohibits arrests based solely on civil immigration status.” As a result of these policies, Los Angeles declined to select the illegal immigration focus and declined to submit the Certification. Accordingly, Los Angeles claims that when it applied for a grant, it was disadvantaged relative to other applicants that were able to choose the illegal immigration focus area or complete the Certification, and this inability to compete on an even playing field constitutes a concrete and particularized injury. See Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 506 (9th Cir. 1988); Preston v. Heckler, 734 F.2d 1359, 1365 (9th Cir. 1984) (“[W]hen challenged agency conduct allegedly renders a person unable to fairly compete for some benefit, that person has suffered a sufficient ‘injury in fact.‘” (quoting Glacier Park Found. v. Watt, 663 F.2d 882, 885 (9th Cir. 1981))); cf. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 280 n.14 (1978) (holding that plaintiff suffered an injury when he could not compete for all places in his entering medical school class). While DOJ states that Los Angeles would not have received funding regardless of whether DOJ awarded bonus points for the illegal immigration focus area or the Certification, Los Angeles need not prove that it would have received funding absent the challenged considerations. See Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993). Further, Los Angeles argues that such injury is directly traceable to DOJ‘s use of the challenged scoring elements. Should a court bar DOJ from using these scoring factors, Los Angeles contends, applicants that are willing to choose the illegal immigration focus area or to sign the Certification would no longer have that advantage over Los Angeles. See Bullfrog Films, 847 F.2d at 507-08.
Los Angeles‘s claim of injury is thin. Los Angeles does not argue it was prevented by law from selecting an illegal immigration focus or from agreeing to the Certification; it merely chose not to do so. Moreover, Los Angeles‘s decision not to select the illegal immigration focus did not itself put it at a competitive disadvantage. An applicant can choose only one focus area, and Los Angeles could have equalized the focus area bonus points by choosing the homeland security or violent crime focus area, both of which also received additional points, rather than choosing the “building trust and respect” focus area. (DOJ did not offer applicants equal points for conduct comparable to agreeing to the Certification, however.)
Despite the weakness of Los Angeles‘s argument, a plaintiff need show only a
III
Before turning to the merits of Los Angeles‘s claims, we first note the limited nature of the dispute. As noted above, in administering a federal grant program and scoring the applications it receives, DOJ gives additional points to an applicant that chooses to focus on the illegal immigration area (instead of other focus areas) and gives additional points to an applicant who agrees to the Certification. Choosing the illegal immigration area and submitting the Certification are not conditions of receiving a grant, and numerous applicants received grants without doing so. Likewise, numerous applicants who chose the illegal immigration focus area or submitted the Certification did not receive a grant. The question before us, therefore, is whether DOJ‘s scoring practice of giving these additional points is unconstitutional or exceeds DOJ‘s authority in administering the grant program.
A
We begin with Los Angeles‘s argument that DOJ‘s practice of giving additional consideration to applicants that choose to further the two specified federal goals violates the Spending Clause. The Spending Clause provides that Congress has the power “to pay the Debts and provide for the common Defence and general Welfare of the United States.”
Although Congress has broad power to attach conditions to the receipt of federal funds, the power is not unlimited. South Dakota v. Dole, 483 U.S. 203, 207 (1987). First, “the exercise of the spending power must be in pursuit of the general welfare.” Id. (internal quotation marks omitted). “In considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Cоngress.” Id.
Moreover, if Congress decides to impose conditions on the allocation of funds to the states, it “must do so unambiguously . . . , enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.” Id. (alteration in original) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). In Pennhurst, the plaintiffs argued that a federal-state grant program should be reinterpreted as retroactively imposing significant costs on states that received those funds. Pennhurst, 451 U.S. at 20. In rejecting that reinterpretation, the Court held that legislation allocating funds to states in return for states accepting specified conditions is analogous to a contract between Congress and the states. Id. at 17. “The legitimacy of Congress‘[s] power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.‘” Id. Congress goes too far when it
Nor can the federal government attach conditions to the receipt of federal funds if “the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion,” Dole, 483 U.S. at 211 (internal quotation marks omitted). In South Dakota v. Dole, Congress attempted to induce states to adopt a minimum drinking age of twenty-one years by threatening to cut five percent of federal highway funding to those states that failed to do so. Id. at 211. The Court held this was only “relatively mild encouragement to the States,” and therefore “a valid use of the spending power.” Id. at 211-12. By contrast, the threat to eliminate all of a state‘s existing Medicaid funding if the state opted out of the Affordable Care Act‘s expansion in health care coverage was “much more than ‘relatively mild encouragement‘—it [was] a gun to the head,” and therefore was an impermissible use of Congress‘s spending power. NFIB, 567 U.S. at 581. Acсordingly, Congress may offer conditional funding only if the “State has a legitimate choice whether to accept the federal conditions in exchange for federal funds.” Id. at 578.
Further, Congress may not impose conditions on federal grants that “are unrelated ‘to the federal interest in particular national projects or programs.‘” Dole, 483 U.S. at 207-08 (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978) (plurality opinion)). This standard is not demanding—the conditions need only “bear some relationship to the purpose of the federal spending.” Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002) (quoting New York v. United States, 505 U.S. 144, 167 (1992)). In Dole, for instance, the requirement that states adopt a minimum drinking age was sufficiently related to the payment of federal highway funds. Rejecting the dissent‘s argument that the restriction had too “attenuated or tangential [a] relationship to highway use or safety,” Dole, 483 U.S. at 215 (O‘Connor, J., dissenting), the Court held that the age restriction was “directly related to one of the main purposes for which highway funds are expended—safe interstate travel,” id. at 208 (majority opinion). Indeed, the Court has never struck down a condition on federal grants based on this relatedness prong.
Finally, Congress may not require states to engage in actions that are themselves unconstitutional. Id. at 210-11.
As even this brief description of the limitations on Congress‘s spending power makes clear, the applicable Spending Clause principles do not readily apply to an allocation of grant funds through a competitive grant process, such as the program in this case.6 As a threshold matter, DOJ does not propose to withdraw significant
Certification. Nor did DOJ impose surprise or ambiguous conditions on recipients of the funds, cf. Pennhurst, 451 U.S. at 25; the immigration-related conditions were clearly presented in the Application Guidelines and Certification.
At most, DOJ‘s decision to give additional points to applicants that select an illegal immigration focus or that agree to the Certification encourages applicants to focus on these federal priorities. Because an applicant is free to select other prioritized focus areas or not to apply for a grant at all, such a subtle incentive offered by DOJ‘s scoring method is far less than the coercion in Dole, which directly reduced the amount of funds allocated to a state, and which the Court held was consistent with Spending Clause principles.7
Finally, cooperation relating to enforcement of federal immigration law is in pursuit of the general welfare, and meets the low bar of being germane to the federal interest in providing the funding to “address crime and disorder problems, and otherwise . . . enhance public safety,” VCCLEA § 1701(a), “one of the main purposes for which” the grant is intended, Dole, 483 U.S. at 208. As explained in more detail below, DOJ has reasonably determined that cooperation on illegal immigration matters furthers the
purposes of the Act. See infra at 22-27. Accordingly, we reject Los Angeles‘s Spending Clause argument.
B
Because DOJ‘s scoring factors encourage, but do not coerce, an applicant to cooperate on immigration matters, we also reject Los Angeles‘s claims that DOJ‘s use of the factors infringes on state autonomy in a manner that raises Tenth Amendment concerns. Los Angeles‘s reliance on Gregory v. Ashcroft, 501 U.S. 452 (1991), and Virginia Department of Education v. Riley, 106 F.3d 559 (4th Cir. 1997) (en banc) (per curiam), is meritless. Gregory held that the federal Age Discrimination in Employment Act did not prohibit Missouri from enforcing its law requiring state judges to retire at age 70. 501 U.S. at 473. According to the Court, while Congress has the power to override а state age requirement, it would have to use unmistakably clear statutory language to do so, because such a question “is a decision of the most fundamental sort for a sovereign entity.” Id. at 460. The
IV
We now turn to Los Angeles‘s argument that DOJ exceeded its statutory authority in awarding bonus points to applicants that selected the illegal immigration focus area or that agreed to the Certification.
When Congress has “explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984). “Such legislative regulations are given controlling weight unless they are arbitrary, capricious or manifestly contrary to the statute.” Id. at 844. This standard is “deferential and narrow“; there is a “‘high threshold’ for setting aside agency action.” Alaska Oil & Gas Ass‘n v. Jewell, 815 F.3d 544, 554 (9th Cir. 2016) (quoting River Runners for Wilderness v. Martin, 593 F.3d 1064, 1067, 1070 (9th Cir. 2010)). As long as a “reasonable basis exists for the decision“—meaning the agency “considered the relevant factors and articulated a rational connection between the facts found and the choices made“—we presume the action is valid. Id. (internal quotation marks omitted). Moreover, when Cоngress has explicitly given an agency the substantive authority to prescribe standards, the agency‘s promulgations are “entitled to more than mere deference or weight“; rather, they are entitled to “legislative effect.” Schweiker v. Gray Panthers, 453 U.S. 34, 44 (1981) (quoting Batterton v. Francis, 432 U.S. 416, 425-26 (1977)).
This highly deferential standard is applicable here. As noted above, the Act gives DOJ broad authority to “promulgate regulations and guidelines to carry out” the Public Safety and Community Policing subchapter,
DOJ‘s inclusion of immigration-related scoring factors as a component of its implementation of its grant program is well within DOJ‘s broad authority to carry out the Act. At the threshold, the Application Guidelines’ inclusion of the illegal immigration
Rather, DOJ‘s determination “that illegal immigration enforcement is a public safety issue and that this issue can be addressed most effectively through the principles of community policing that [DOJ] promotes—including through partnerships and problem-solving techniques,” is entirely consistent with the broad scope of the Act. First, DOJ‘s understanding that illegal immigration presents a public safety issue has been acknowledged by the Supreme Court. See Arizona v. United States, 567 U.S. 387, 397-98 (2012). While “it is not a crime for a removable alien to remain present in the United States,” id. at 407, the Court has recognized that in some jurisdictions, such as Arizona‘s “most populous county,” aliens who have entered the country illegally “are reported to be responsible for a disproportionate share of serious crime,” id. at 397-98. The Court has noted that “[a]ccounts in the record suggest there is an ‘epidemic of crime, safety risks, serious property damage, and environmental problems’ associated with the influx of illegal migration across private land near the Mexican border.” Id. at 398. Congress has likewise expressed concern about “increasing rates of criminal activity by aliens.” Demore v. Kim, 538 U.S. 510, 518 (2003).
Second, DOJ‘s determination that the techniques of community policing may be used to address this public safety issue is entirely reasonable. As DOJ explains, community policing is an important crime-fighting technique that officers use along with others to address various law-enforcement and community safety goals. The public safety issues that arise from illegal immigration can be addressed through collaborative interactions and information flow between law enforcement and the community, just as with any other sort of public safety issue, such as those arising from “violent crime problems” and other focus areas. If a jurisdiction selects an illegal immigration focus due to community concerns, it is reasonable to consider that officers may be more effective in addressing such issues if they act pursuant to § 287(g) partnerships, which allow state or local officers to perform immigration officer functions, see
Nor does the Act‘s community-policing focus limit DOJ to considering only those factors directly related to interaction with the community. Obviously, an officer‘s responsibilities involve a broad array of tasks, including administrative tasks like sharing information with relevant federal agencies or honoring detainers. Just as DOJ considers a jurisdiction‘s fiscal health and crime rate, as well as a jurisdiction‘s attention to other federal priorities like the mental health of officers, giving work to military veterans, and responding to catastrophic events like school shootings, it can also consider a jurisdiction‘s attention to the federal priority of illegal immigration through the Certification. A jurisdiction‘s willingness to provide notice that a detained removable alien will be released from custody, or to provide facility access so that federal officials can interview removable aliens while in custody, is consistent with the Act‘s purpose to enhance public safety, see VCCLEA § 1701(a), through means including both community-oriented policing and attention to intelligence, anti-terror, or homeland security duties. See
Finally, DOJ‘s broad definition of community-oriented policing in the Application Guidelines as “a philosophy that promotes organizational strategies that support the systematic use of partnerships and problem-solving techniques to proactively address the immediate conditions that give rise to public safety issues such as crime, social disorder, and fear of crime,” clearly encompasses all DOJ‘s scoring factors, including partnering with federal law enforcement to address illegal immigration for information sharing, [§] 287(g) partnerships, task forces, and honoring detainers. The Act does not define “community-oriented policing” or delineate what sorts of strategies are sufficiently “community-оriented.” See Brand X, 545 U.S. at 980-81.
Therefore, because Congress has not “directly spoken to the precise question at issue,” we must defer to DOJ‘s interpretation so long as it is reasonable, that is, so long as it “reflects a plausible construction of the plain language of the statute and does not otherwise conflict with Congress‘[s] expressed intent.” Glacier Fish, 832 F.3d at 1120-21 (first quoting Chevron, 467 U.S. at 842; then quoting Rust v. Sullivan, 500 U.S. 173, 184 (1991)).10 This is true even if
Here, DOJ‘s interpretation is permissible, because it reasonably construes the statutory language (“community-oriented” and “policing“) and is consistent with the statute‘s purposes, which go far beyond interactions between law enforcement and the community. The general purpose of the Act is to enhance the crime prevention functions of state and local law enforcement and to enhance public safety through interacting with and working with the community. See
The dissent argues that DOJ‘s interpretation and implementation of the Act may reflect the administration‘s policy goals, and these goals may change from time to time. Dissent at 59 & n.48. We agree that an administration‘s policy goals may influence the selection of factors warranting additional consideration for awarding competitive grants. But Congress contemplated such a result when it enacted a statute that left substantial gaps for the implementing agency to fill. Where Congress affords an agency such discretion, we ask only whether the agency‘s interpretation was reasonable. See Glacier Fish, 832 F.3d at 1120. Whethеr an interpretation serves an administration‘s policy goals has no bearing on that inquiry. See Dep‘t of Commerce v. New York, No. 18-966, slip op. at 24 (U.S. June 27, 2019) (“[A] court may not set aside an agency‘s policymaking decision solely because it might have been influenced by political considerations or prompted by an Administration‘s priorities.“).
Los Angeles and the dissent also contend that DOJ exceeded its authority by
This argument lacks any support in the text or history of the Act. First, it is based on Los Angeles‘s baseless assumptions that (1) preferring applicants who focus on illegal immigration is the same as preferring states that have enacted specified human trafficking laws, and (2) DOJ could not prefer either without specific authorization from Congress. Nothing in the Act supports these assumptions. First, as we have explained, an award of grant funds to states or localities that intend to focus on illegal immigration is well within the statute‘s scope, and DOJ has broad discretion to adopt such a focus area. Second, while
We conclude that DOJ did not exceed its statutory authority in including two scoring factors related to illegal immigration as part of its implementation of the grant program.
V
Finally, Los Angeles argues that DOJ violated the APA because it failed to engage in reasoned decisionmaking and because its explanation for its policy is contrary to the evidence before it when it decided to give points for adopting the illegal immigration focus and submitting the Certification.
“One of the basic procedural requirements of administrative rulemaking is that an agency must give adequate reasons for its decisions.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016). The agency satisfies this requirement “when the agency‘s explanation is clear enough that its ‘path may reasonably be discerned.‘” Id. (quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)). The agency need provide only a “minimal level of analysis” to avoid its action being deemed arbitrary and capricious. Id. Although a reviewing court “must not rubber-stamp administrative decisions,” it also “must not substitute its judgment for that of the agency.” Alaska Oil, 815 F.3d at 554 (internal quotation marks omitted). Agency action may also be deemed arbitrary and capricious if the agency has “offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that
According to Los Angeles, DOJ‘s action was not based on empirical evidence establishing that cooperation between state and local authorities and federal authorities on illegal immigration addresses crime or public safety issues. Los Angeles points to studies it claims show that recidivism rates for illegal aliens are not disproportionate relative to the general population and to news articles describing studies that it claims show that sanctuary policies do not lead to increased crime rates. According to Los Angeles, DOJ ignored these studies and articles, and also failed to make a careful study of how community policing relates to civil immigration enforcement. Because DOJ adopted its two scoring factors without reviewing relevant evidence, Los Angeles argues, DOJ‘s scoring factors are arbitrary and capricious, and thus invalid under the APA.
We disagree. Under the APA, an agency must give adequate reasons for its decision, and DOJ has done so here. DOJ has reasonably determined that “illegal immigration enforcement is a public safety issue [that] can be addressed most effectively through the principles of community policing.” And because the Certification “relate[s] to non-citizens who are being detained and who have committed crimes or are suspected of having committed crimes,” DOJ reasonably concluded that “[w]orking with the federal government to enforce the federal immigration laws against aliens who have committed crimes or are suspected of having committed crimes makes communities safer.” As the Supreme Court has noted, “increasing rates of criminal activity by aliens” and federal immigration authorities’ failure to remove “deportable criminal aliens” have been the subject of congressional concern. Demore, 538 U.S. at 518.
Moreover, the studies and articles cited by Los Angeles do not undercut DOJ‘s conclusion that removing aliens who are convicted or suspected of crimes makes communities safer. At most, the studies and articles provide some evidence that the recidivism rate for removable aliens who engaged in criminal activities is comparable to the recidivism rate for U.S. citizens and aliens who are not removable; such studies do not bear on whether addressing illegal immigration enforcement through community-oriented policing can make communities safer.12
Accordingly, there is no basis for Los Angeles‘s argument that DOJ acted counter to the evidence before it.
Los Angeles may believe that addressing illegal immigration is not the most effective way to improve public safety, but the wisdom of DOJ‘s policy is not an element of our arbitrary and capricious review. We may not “substitute [our] judgment for that of the agency.” State Farm, 463 U.S. at 43. And DOJ “need not demonstrate to [our] satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better[.]” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (emphasis in original).
We conclude that DOJ‘s policy decision has a “rational connection” to the goal of enhancing public safety and was not counter to the evidence before the agency, and therefore is not arbitrary and capricious. Alaska Oil, 815 F.3d at 554.
***
In sum, DOJ‘s use of the two scoring factors is well within its statutory discretion, is not arbitrary and capricious, and complies with the constitutional restrictions imposed on congressional action under principles of federalism and the Spending Clause.
REVERSED.
WARDLAW, Circuit Judge, dissenting:
A quarter of a century ago, in 1994, the United States Congress passed the Public Safety Partnership and Community Policing Act (the Act), which established the Community Oriented Policing Services (COPS) grant program. Congress‘s purpose was to increase the number of “cops on the beat” and to enhance officers’ interaction within their communities to improve communication and cooperation; that is, to create “community partnerships” between police officers and the communities they serve. Congress specified twenty-three “purposes for which grants may be made” but to date has appropriated funds for only two of those purposes: (1) to rehire officers who were laid off due to budgetary concerns for deployment in community-oriented policing, and (2) to hire and train new additional officers for deployment in community-oriented policing. Thus, since authorizing grants for community-oriented policing, a term well understood by Congress in 1994 to connote partnering with the community, Congress‘s sole appropriations have been to fund deployment of more officers on the streets.1
Congress funds states and localities that deploy community-oriented policing through the COPS grant program. It delegated the administration of the COPS grant program to the Department of Justice (DOJ). In 1994, Attorney General Janet Reno created the COPS Office within DOJ to handle applications and the awards of grants to cities and states for community-oriented policing. Through its entire existence, the COPS grant program has been administered with this congressional purpose in mind.
That is, until 2017, when DOJ decided to usurp the COPS funds for its own immigration policy directives. As part of a broader effort to divert federal funds from congressionally authorized purposes to the Trump Administration‘s efforts to press state and local police into federal immigration enforcement, Attorney General Jefferson B. Sessions III imposed new preferences for obtaining COPS grant awards that effectively substitute “federal law enforcement” for “community” in the “community partnerships” Congress sought to fund through the Act. Congress did not contemplate general policing when devoting funds for community-oriented policing, and it certainly did not contemplate federal immigration enforcement when it attempted to reduce crime by adding “cops on the beat.”
Because the term “community-oriented policing” had in 1994 and has through today a commonly understood meaning that excludes federal immigration еnforcement functions, the new federal immigration preferences are, as the district court held,
I.
A. History of Community-Oriented Policing in the United States
To comprehend just how antithetical to the concept of community-oriented policing DOJ‘s new federal immigration considerations are, one must have an understanding of what community partnership means, the history and development of the principles it embraces, and the history of the COPS grant program itself. Community-oriented policing is “a collaboration between the police and the community that identifies and solves community problems.”3 This policing strategy, which emerged in the 1970s, is rooted in the principle that “the police are the public and the public are the police.”4 In the 1960s and 1970s, unstable social conditions, scandals, and recessions led to cuts in the ranks of police departments across the country, driving the need for policing reform.5 Despite tactical use of automobiles for crime-preventive patrol and rapid response to calls for service, the 1960s had ushered in an era of rising crime and fear.6 The civil rights and antiwar movements further challenged the legitimacy of police and police tactics.7 Police were inadequately equipped to serve their socially and culturally diverse communities.8 The public‘s “erosion of confidence” in the police translated into a significant loss of political and financial support.9
Recognizing the inability of existing police practices to curb rising civil disorder and crime, police administrators, civic leaders, and politicians sought to remedy frayed police-community relations and reform how law enforcement related to the communities it served.10 These reforms emphasized community contribution аnd support to legitimize police activity—and to create a partnership between the community and the police to meet public safety goals.11
The hallmark of community-oriented policing is a return to a historical policing
The foundations of a successful community policing strategy are the close, mutually beneficial ties between police and community members. Community policing consists of two complementary core components, community partnership and problem solving. To develop community partnership, police must develop positive relationships with the community, must involve the community in the quest for better crime control and prevention, and must pool their resources with those of the community to address the most urgent concerns of community members. Problem solving is the process through which the specific concerns of communities are identified and through which the most appropriate remedies to abate these problems are found.14
More “cops on the beat” proved enormously politically popular and, more importantly, measurably contributed to public safety.15 Studies conducted throughout the 1970s suggest that foot patrol “reduced fear, increased citizen satisfaction with police, improved police attitudes toward citizens, and increased the morale and job satisfaction of police.”16 Significantly, the foot patrol experiments of this decade suggested that the more information police learned directly from community members, the better police could effectively combat crime.17
By the 1980s, most law enforcement agencies had adopted community-oriented policing practices.18 Around 1980, DOJ began to support community-oriented policing efforts through various implementation and research grants.19 Many police departments participated in “demonstration projects” in the early 1980s, “reflecting an innovative period for the development of practical application of the community policing paradigm.”20
Over the 1980s and early 1990s, community-oriented policing continued to gain momentum and wider acceptance by law enforcement agencies.21 It is estimated that by 1992, 50% of police departments in cities with populations of 50,000 or more had adopted some form of community policing.22 A 1994 survey found that 80% of police chiefs and over 50% of sheriffs questioned stated that their departments had already adopted community policing or desired to adopt it in the future.23
B. The Public Safety Partnership and Community Policing Act of 1994
Against this backdrop, Congress passed the Act to establish the COPS grant program.
The Act rested on Congress‘s findings that community-oriented policing would enhance public safety: “community-oriented policing (‘cops on the beat‘) enhances communication and cooperation between law enforcement and members of the community; such communication and cooperation between law enforcement and members of the community significantly assists in preventing and controlling crime and violence, thus enhancing public safety.” 103 Cong. Rec. 23,376, 23,475 (1994). Similarly, the House Judiciary Committee Report noted three purposes for the COPS grants: “to increase police presence, to enhance police-community cooperation in addressing crime and disorder, and otherwise to enhance public safety.” H.R. Rep. No. 103-324, at 9 (emphasis added).
Consistent with the Act‘s statutory purposes, Congress authorized the Attorney General to “make grants . . . to increase police presence, to expand and improve cooperative efforts between law enforcement agencies and membеrs of the community to address crime and disorder problems, and otherwise to enhance public safety.”
Nothing in the congressional record nor the Act itself remotely mentions immigration or immigration enforcement as a goal. And nothing in the Act discusses “federal partnerships” for civil immigration enforcement. In the quarter-century of the Act‘s existence, Congress has not once denoted civil immigration enforcement as a proper purpose for COPS grants.
C. COPS Hiring Program Grants
The Act, codified at
For COPS Hiring Program grants, Congress has appropriated funds to solicit applications and award grants for hiring or rehiring “law enforcement officers for deployment in community-oriented policing.”
As Congress directed, jurisdictions must apply to the Attorney General to receive COPS funding.
Each year, the COPS Office scores and ranks each submitted application to determine which applications to fund. The electronic COPS Hiring Program application system assigns a specific (and undisclosed) number of points for each answer an applicant jurisdiction provides. The Office categorizes each question on the application as falling into the “fiscal health,” “crime,” or “community policing” categories; generally, answers in the “fiscal health” category account for 20% of the final score, answers to “crime” questions for 30%, and answers to “community policing” questions for 50%.
COPS grants are competitive; congressional appropriations have been historically inadequate to fund the amount of grant requests. Accordingly, since the fiscal year 2011 application cycle, the COPS Office has determined priority focus areas for the COPS Hiring Program and awarded bonus points to applications that focus on that year‘s priority areas. The bonus points give a competitive advantage to the applicant. Jurisdictions also receive bonus points if catastrophic events have affected their law enforcement agencies. Furthermore, Congress permitted the Attorney General to “give preferential consideration, where feasible” specifically to applications that commit to contributing more than 25% of the grant to hiring and rehiring officers.
D. Federal Funding in the Trump Administration
The Trump Administration was openly determined to deprive jurisdictions with so-called “sanctuary” policies of federal funds. Five days after his inauguration, President Trump attempted to withhold federal funding from “sanctuary” jurisdictions by executive order in an effort to deliver on his campaign promise to “end the sanctuary cities that have resulted in so many needless deaths.”31 See Exec. Order
In March 2017, Attorney General Jefferson B. Sessions III ordered a review of all DOJ activities, including all grant programs such as the COPS grant program. Memorandum from Jefferson B. Sessions III, U.S. Attorney Gen., to Heads of Dep‘t Components & U.S. Attorneys, Supporting Federal, State, Local and Tribal Law Enforcement (Mar. 31, 2017).32 According to the March 2017 memorandum, this review would ensure that all DOJ activities “fully and effectively promote[d]” several “principles” to advance the DOJ mission statement. Id. at 2. One principle declared that “[c]ollaboration between federal and local law enforcement is important, and jurisdictions whose law enforcement agencies accept funding from the Department are expected to adhere to the Department‘s grant conditions as well as to all federal laws.” Id.
This review resulted in major changes to COPS Office programs. For example, Attorney General Sessions‘s directive reduced the COPS Collaborative Reform Initiative for Technical Assistance, which DOJ created to help reform beleaguered police departments, from a program that investigated and suggested reforms to police departments to a mere grant-making body. See Press Release, U.S. Dep‘t of Justice, Department of Justice Announces Changes to the Collaborative Reform Initiative (Sep. 15, 2017).33 And, in July 2017, Attorney General Sessions limited the award of grants under the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) Program, which awards funding for local criminal justice efforts through a statutory formula, see
Byrne JAG grants has soundly rejected them as unconstitutionally exceeding DOJ‘s statutory authority.35
Turning to the COPS Hiring Program grants, DOJ decided, for the first time in the fiscal year 2017 application cycle, to award bonus points to jurisdictions that committed to “partnering with the federal law enforcement to address illegal immigration.” Aрplicants could earn these bonus points by partnering with the federal government in two ways. First, they could select “illegal immigration” as the focus area on their applications.36 This focus area required jurisdictions to detail how newly hired officers would cooperate with federal immigration authorities through “information sharing, 287(g) partnerships, task forces and honoring detainers.”
These means of “partnering with the federal law enforcement” were well understood methods of federal deployment of local police officers in civil immigration enforcement. With “information sharing,” state and local police share arrest data with the Federal Bureau of Investigation (FBI). See Cristina Rodríguez, Enforcement, Integration, and the Future of Immigration Federalism, 5 J. on Migration & Hum. Security 509, 519 (2017). Pursuant to
Second, two months after the 2017 applications were due, DOJ announced a bonus consideration: applicants could submit a “Certification of Illegal Immigration Cooperation” (Cooperation Certification), which required a jurisdiction‘s highest-ranking law enforcement official and government
In fiscal year 2017, the COPS Office received 1142 applications requesting $409,028,743 in funding. Los Angeles requested $3.125 million to hire 25 officers for the city‘s Community Safety Partnership Program. It neither selected “illegal immigration” as its focus area nor submitted a signed Cooperation Certification. One out of the 90 large applicant jurisdictions and 6 out of the 1029 small applicant jurisdictions selected “illegal immigration” as a focus area. Approximately 39% of the large jurisdictions and 47% of the small jurisdictions submitted the Cooperation Certification.
The COPS Office denied Los Angeles‘s application on November 28, 2017. The week before, on November 20, 2017, the COPS Office awarded $98,503,539 to 179 jurisdictions for the fiscal year 2017 application cycle. Attorney General Sessions personally announced the 2017 awards. He recognized that eighty percent of the grantees “have agreed to cooperate with federal immigration authorities in their detention facilities” and “applaud[ed grantees‘] commitment to the rule of law and to ending violent crime, including violent crime stemming from illegal immigration.”
Aside from abstract allusions to public safety, DOJ has never articulated how the federal immigration preferences relate to community-oriented policing. This is no doubt because enforcement of federal immigration policy is entirely unrelated to community-oriented policing, as amici current and former prosecutors and law enforcement leaders38 point out. And this is why DOJ‘s imposition of the illegal immigration focus area and Cooperation Certification was enjoined by the district court: by imposing conditions that are unrelated—indeed, antithetical—to the goals of community-oriented policing, DOJ exceeded its delegated powers to administer the COPS grant program.
II.
DOJ exceeded its statutory authority specifically by giving preference to jurisdictions willing to partner with federal immigration enforcement authorities. Its decision to implement both the illegal immigration focus area and the Cooperation Certification is foreclosed by the text,
immigration authorities. See
Congress did not authorize COPS grants for anything other than placing additional state and local cops on the beat to promote community partnerships.
urges, the agency has unfettered discretion to impоse additional preferences, subsection (c) has no meaning. See Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 965–66 (9th Cir. 2013).
The illegal immigration focus area impermissibly extends preferences to partnerships between local police and federal immigration authorities, contravening the Act‘s identified purpose of “law enforcement officers interacting directly with members of the community.”
Congress never contemplated that COPS funds would be used to finance state or local police officers performing the function of federal immigration officers, as certifying “section 287(g) partnerships” would suggest. See
The required focus on “honoring detainers” is no less problematic. Detainers, federal immigration enforcement requests for local jurisdictions to use their own funds to detain individuals in their custody after the individuals’ scheduled release, foist upon local police federal policy priorities that have nothing to do with community-oriented policing. See
The Cooperation Certification is likewise ultra vires. DOJ argues that the federal immigration preferences are a permissible exercise of DOJ‘s authority under
Angeles of sexual assault among Latinos dropped 25% and reports of domestic violence by 10% compared to the year prior.43 Chief of the Los Angeles Police Department Charlie Beck explained that these downturns were likely due to fear of the federal government.44 Unreported and therefore unpunished crimes lead to “greater numbers of perpetrators at large,” posing a clear threat to community safety.45 In fact, a 2012 COPS Office study identified federal immigration enforcement as detrimental to “local trust-building” because immigrant communities “may attribute immigration raids or other federal immigrant enforcement activities to local police and, therefore, mistrust community policing efforts.”46
[P]ersons who are here unlawfully—or who have friends or family members here unlawfully—might avoid contacting local police to report crimes as a witness or a victim if they fear that reporting will bring the scrutiny of the federal immigration authorities to their home. . . . [T]he reluctance to report . . . could be magnified in communities where reporting could turn a misdemeanor into a deportation. And the failure to obtain . . . cooperation could both hinder law enforcement efforts and allow criminals to freely target communities with a large undocumented population, knowing that their crimes will be less likely to be reported.
City of Chicago, 888 F.3d at 280.
All policing is ultimately designed with public safety in mind. But, all policing is not community-oriented policing, which fosters partnership between thе police and their communities, not the partnerships between police and federal immigration enforcement that the federal immigration preferences require. Because such a focus is directly at odds with, and arguably undermines the very purpose of, the Act and the COPS grant program, the Attorney General exceeded his authority by adding them as preferences for grant awards.47
III.
The COPS grant program was enacted to increase the number of “cops on the beat” who would enter into partnership with their communities, furthering trust and respect, with the ultimate goal of public safety. DOJ may have imposed the federal immigration preferences because it shares that goal of public safety, but that is where the mutuality between the
Cooperation between local police and federal immigration enforcement oppugns the police-community partnership the COPS Hiring Program was created to promote. I would therefore affirm the district court‘s order permanently enjoining DOJ from including the illegal immigration focus area and Cooperation Certification on its COPS grant applications and