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. 18-56292
United States Court of Appeals, Ninth Circuit
Filed October 31, 2019
D.C. No. 2:17-cv-07215-R-JC
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted April 10, 2019
Pasadena, California
Before: Kim McLane Wardlaw, Jay S. Bybee, and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta;
Concurrence by Judge Wardlaw
SUMMARY*
Standing / Federal Grants
The panel affirmed the district court‘s preliminary injunction entered against the U.S. Department of Justice (“DOJ“)‘s use of the notice and access conditions imposed on recipients of Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG“) formula grants.
Byrne JAG authorized the U.S. Attorney General to make grants to state and local governments for criminal justice programs. The authorizing statute allowed the Attorney General to depart from the statutory formula award in certain circumstances. DOJ‘s Office of Justice Programs imposed two new conditions for Byrne JAG funding for fiscal year 2017: the “notice condition,” which required a recipient to honor the Department of Homeland Security‘s requests for advance notice of release times of detained aliens in the recipient‘s correctional facilities; and the “access condition,” which required a recipient to give federal agents access to correctional facilities to meet with detained aliens, or individuals believed to be aliens. The City of Los Angeles filed this suit against DOJ, seeking an injunction against implementation of the notice and access conditions.
DOJ first argued that the notice and access conditions were within the Assistant Attorney General‘s authority under a 2006 amendment to
The panel next rejected DOJ‘s argument that the propriety of the notice and access conditions were further supported by provisions in the Byrne JAG statute that authorize the Attorney General to obtain certain information and require coordination with agencies. See
The panel held that because none of DOJ‘s proffered bases for statutory authority gave the Attorney General or the Assistant Attorney General the power to impose the notice and access conditions, the conditions were ultra vires.
Judge Wardlaw concurred with the majority to the extent that it held that the challenged immigration conditions were not authorized by Congress, and were unlawful. Judge Wardlaw wrote that everything else that the majority wrote about
COUNSEL
Jesse Panuccio (argued), Associate Attorney General; Mark B. Stern, Daniel Tenny, Katherin Twomey Allen, Laura E. Myron, and Brad Hinshelwood, Appellate Staff; Hashim M. Mooppan, Deputy Assistant Attorney General; Nicola T. Hanna, United States Attorney; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.
Neema T. Sahni (argued), Mitchell A. Kamin, and Mónica Ramirez Almadani, Covington & Burling LLP, Los Angeles, California; David M. Zionts, Ivano M. Ventresca, and Benjamin L. Cavataro, Covington & Burling LLP, Washington, D.C.; Michael N. Feuer, City Attorney; James P. Clark, Chief Deputy City Attorney; Leela A. Kapur, Executive Assistant City Attorney; Valerie L. Flores, Managing Senior Assistant City Attorney; Michael Dundas, Deputy City Attorney; Office of the City Attorney, Los Angeles, California; for Plaintiff-Appellee.
Margaret L. Carter and Daniel R. Suvor, O‘Melveny & Myers LLP, Los Angeles, California, for Amici Curiae 20 Counties and Cities, Metropolitan Area Planning Council, and International Municipal Lawyers Association.
IKUTA, Circuit Judge:
This appeal raises the question whether the Department of Justice (DOJ) can require recipients of a formula grant under the Edward Byrne Memorial Justice Assistance Grant Program (Byrne JAG),
I
Congress established Byrne JAG in 2006 as part of the Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. No. 109-162, § 1111, 119 Stat. 2960, 3094 (2006); see also
Byrne JAG is administered by the Office of Justice Programs (OJP), a DOJ department headed by an Assistant Attorney General for OJP (referred to here as the “Assistant AG“) that administers a variety of grant programs. See id.
Byrne JAG is structured and administered as a formula grant program. In a formula grant program, Congress appropriates a set amount of funding and specifies “how the funds will be allocated among the eligible recipients, as well as the method by which an applicant must demonstrate its eligibility for that funding.” Office of Justice Programs, Grant Process Overview, http://go.usa.gov/xPmkA (last visited June 28, 2019). Byrne JAG‘s statutory formula awards fifty percent of allocated funds to states based on their populations relative to the population of the United States,
The statute authorizes the Attorney General to depart from this formula in certain circumstances. For example, the Attorney General can reserve up to five percent of Congress‘s total allocation if deemed necessary to address a significant increase in crime or to remedy “significant programmatic harm resulting from operation of the formula.” Id.
State and local governments must submit an application for Byrne JAG funding to the Attorney General, who has discretion to dictate the application‘s form. Id.
The Attorney General develops and issues rules to carry out the grant program, id.
II
OJP imposed two new conditions for Byrne JAG funding for fiscal year 2017, both of which were included in the grant award documents. The first new condition, referred to as the “notice condition,” required a recipient to honor DHS‘s requests for advance notice of the scheduled release date and time of any detained alien held in the recipient‘s correctional facilities.4 The
The grant award document stated that these conditions were “an authorized and priority purpose of” the Byrne JAG award and applied “[w]ith respect to the ‘program or activity’ that is funded” by the award.6 The document defined “program or activity” by reference to Title VI, a federal civil rights law prohibiting discrimination on the basis of race, color, or national origin in any federally assisted program or activity.
The City of Los Angeles applied for a Byrne JAG award for the 2017 fiscal year. Its application included a letter from its deputy mayor stating that Los Angeles “is withholding any commitment to, or confirmation of, its compliance with” the notice and access conditions. On September 29, 2017, Los Angeles filed suit against DOJ, seeking an injunction against implementation of the notice and access conditions. In connection with this lawsuit, Los Angeles stated it had a policy against cooperating with federal immigration enforcement on the ground that “being perceived as a ‘cooperating’ jurisdiction in the view of the current Administration would harm public safety in Los Angeles” because it would have a negative impact on police relationships with immigrant communities.
Following a brief stay pending the Seventh Circuit‘s affirmance and subsequent en banc vacatur of a nationwide injunction
III
We review the district court‘s grant of a preliminary injunction for an abuse of discretion, and we review its determination of the underlying legal principles de novo. See DISH Network Corp. v. FCC, 653 F.3d 771, 776 (9th Cir. 2011).7 When an agency is charged with administering a congressional statute, “both [its] power to act and how [it is] to act [are] authoritatively prescribed by Congress.” City of Arlington v. FCC, 569 U.S. 290, 297 (2013). An agency “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).
DOJ advances two possible bases for its statutory authority to introduce the notice and access conditions.
A
DOJ first argues that the notice and access conditions are within the Assistant AG‘s authority under a 2006 amendment to
From its enactment in 1984 and through 2005,
- publish and disseminate information on the conditions and progress of the criminal justice systems;
- maintain liaison with the executive and judicial branches of the Federal and State governments in matters relating to criminal justice;
- provide information to the President, the Congress, the judiciary, State and local governments, and the general public relating to criminal justice;
- maintain liaison with public and private educational and research institutions, State and local governments, and governments of other nations relating to criminal justice;
- coordinate and provide staff support to coordinate the activities of the Office and the Bureau of Justice Assistance, the National Institute of Justice, the Bureau of Justice Statistics, the Office for Victims of Crime, and the Office of Juvenile Justice and Delinquency Prevention; and
- exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.
34 U.S.C. § 10102(a) .
“including placing special conditions on all grants, and determining priority purposes for formula grants” at the end of the section. See Violence Against Women and Department of Justice Reauthorization Act of 2005, § 1152, 119 Stat. at 3113. Accordingly,
Before considering DOJ‘s claim, we first address Los Angeles‘s threshold argument that Congress‘s amendment to
affirmatively indicated its understanding that the Assistant AG‘s powers and functions could include “placing special conditions on all grants, and determining priority purposes for formula grants.”
On the other hand, we also disagree with DOJ‘s argument that its notice and access conditions place “special conditions”
begin with the language of the statute.” Wilderness Soc‘y v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1060 (9th Cir. 2003) (citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 56 (1987)). Where the statute does not define the relevant terms, we give them “their ordinary, contemporary, common meaning,” and “may consult dictionary definitions.” Transwestern Pipeline Co. v. 17.19 Acres of Prop. Located in Maricopa Cty., 627 F.3d 1268, 1270 (9th Cir. 2010) (internal quotation marks and citations omitted). In construing specific words in a statute, we must also look to the “language and design of the statute as a whole,” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988), and read the specific words “with a view to their place in the overall statutory scheme.” Wilderness Soc‘y, 353 F.3d at 1060 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)); see also United States v. Lewis, 67 F.3d 225, 228–29 (9th Cir. 1995) (“Particular phrases must be construed in light of the overall purpose and structure of the whole statutory scheme.“). In every case, “it is the intent of Congress that is the ultimate touchstone.” Arizona v. United States, 567 U.S. 387, 453 (2012) (Alito, J., concurring in part and dissenting in part) (internal quotation marks omitted).
The term “special conditions” is not defined in the statute. Under the dictionary definition, the term “special” means “unusual” or “extraordinary,” Special, Black‘s Law Dictionary (9th ed. 2009), or “assigned or provided to meet a particular need not covered under established procedures,” Special, Webster‘s New Int‘l Dictionary (3d ed. 2002). As this definition of “special” suggests, a “special condition”
would be applied “to meet a particular need” for carrying out a program that is not covered by established requirements.10
This interpretation of “special conditions” is consistent with the regulatory backdrop against which Congress enacted both
to obtain technical or management assistance; or (6) [e]stablishing additional prior approvals.” Id.
This regulatory meaning of “special conditions” is presumed to have informed Congress‘s use of the term in
indicates that “special conditions” were understood to be individualized requirements included in a specific grant, as set forth in
Under the “normal rule of statutory construction,” we presume that “identical words used in different parts of the same act are intended to have the same meaning.” Dep‘t of Revenue of Or. v. ACF Indus., 510 U.S. 332, 342 (1994) (internal quotation marks omitted). Accordingly, we may presume that Congress intended the use of “special conditions” in
We next consider the term “priority purposes.”
assistance, and information systems for criminal justice,” within various programs proposed by applicants.
In light of our interpretation of “special conditions” and “priority purposes,” it is clear that
was the case for high-risk grantees under
Because we interpret the terms “special conditions” and “priority purposes” narrowly, we agree with our sister circuits that
In opposition to our interpretation of
While the concurrence has an easy time battering its strawman, the concurrence fails to explain how our actual ruling, that DOJ has the limited authority to impose special conditions designed to meet needs for carrying out the Byrne JAG program, could abrogate or “subvert” Byrne JAG‘s funding scheme. Concurrence at 44. Nor does the concurrence explain how our actual ruling is contrary to our sister circuits, which did not need to consider the viability of a narrowing construction when considering challenges to DOJ‘s notice and access conditions. Rather, given the issues
raised by the appeals before them, our sister circuits merely rejected DOJ‘s argument-and the concurrence‘s strawman-that
B
We next consider DOJ‘s argument that the propriety of the notice and access conditions are further supported by provisions in the Byrne JAG statute that authorize the Attorney General to obtain certain information and require coordination with agencies. See
the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes law of the circuit, regardless of whether doing so is necessary in some strict logical sense.” Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir. 2004) (quoting United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc) (opinion of Kozinski, J.)). Only “statements made in passing, without analysis, are not binding precedent.” In re Magnacom Wireless, LLC, 503 F.3d 984, 993-94 (9th Cir. 2007). In order to resolve the issue on appeal here, we must construe
(5).16 According to DOJ, the notice condition is authorized by
We disagree. First,
term “programmatic” in
Moreover, the statute speaks of the maintenance and reporting of data, records, and information “for each fiscal year covered by an application,”
Second,
statutory language does not support DOJ‘s interpretation that a recipient must coordinate with DHS agents who are not part of a funded program. Nor does the statutory language (which requires an applicant to certify that “there has been appropriate coordination“) impose an ongoing obligation on the applicant to coordinate with DHS agents throughout the life of the grant, as required under the access condition.
* * *
Because none of DOJ‘s proffered bases for statutory authority gives the Attorney General or the Assistant AG the power to impose the notice and access conditions, the conditions are ultra vires. See City of Arlington, 569 U.S. at 297. We affirm the district court.18
AFFIRMED.
WARDLAW, Circuit Judge, concurring in the judgment:
We are faced once again with “the Trump Administration‘s efforts to press state and local police into federal immigration enforcement,” City of Los Angeles v. Barr, 929 F.3d 1163, 1183 (9th Cir. 2019) (Wardlaw, J., dissenting), this time via an ultra vires attempt to divert
Edward Byrne Memorial Justice Assistance Grant Program (Byrne JAG) funds from their congressionally authorized purposes. I concur with the majority to the extent it holds that the challenged immigration conditions were not authorized by Congress, and are thus unlawful. But once the majority concluded that the challenged notice and access conditions are not lawful “special conditions” or “priority purposes” and were thus beyond the powers granted by Congress to the Department of Justice, it should have stopped, as in full stop. Everything
As both the Third and Seventh Circuits have held, Congress did not grant the Assistant Attorney General for the Office of Justice Programs any authority independent of that already vested by a different statute or by delegation to the Attorney General to impose special conditions and determine priority purposes in
(7th Cir.), vacated in part on other grounds, No. 17-2991, 2018 WL 4268817 (7th Cir. June 4, 2018). The majority at best misperceives, and at worst, falsely characterizes, these holdings, describing them as rejecting only a “broad interpretation” of
As even the DOJ recognizes, “an agency 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). The DOJ “does not claim to possess inherent executive authority to impose the grant conditions, and instead recognizes that the authority must originate from Congress.” City of Chicago, 888 F.3d at 283. Both the Third and the Seventh Circuits rejected outright the argument that the DOJ makes here, that a residual clause of
(a) Specific, general and delegated powers
The Assistant Attorney General shall—
(1) publish and disseminate information on the conditions and progress of the criminal justice systems;
(2) maintain liaison with the executive and judicial branches of the Federal and State governments in matters relating to criminal justice;
(3) provide information to the President, the Congress, the judiciary, State and local governments, and the general public relating to criminal justice;
(4) maintain liaison with public and private educational and research institutions, State and local governments, and governments of other nations relating to criminal justice;
(5) coordinate and provide staff support to coordinate the activities of the Office and the Bureau of Justice Assistance, the National Institute of Justice, the Bureau of Justice Statistics, the Office for Victims of Crime, and the Office of
Juvenile Justice and Delinquency Prevention; and (6) exercise such other powers and functions as may be vested in the Assistant Attorney General pursuant to this chapter or by delegation of the Attorney General, including placing special conditions on all grants, and determining priority purposes for formula grants.
The DOJ‘s interpretation of
‘including’ is not one of all-embracing definition, but connotes simply an illustrative application of the general principle.“).3 Analyzing Congress‘s use of the word “including” in
The Seventh Circuit reasoned that the plain meaning of “including” in
is to set forth a subcategory of the types of powers and functions that the Assistant Attorney General may exercise when vested in the Assistant Attorney General either by the terms of this chapter or by delegation of the Attorney General. . . . [Because the DOJ] does not even claim that the power exercised here [to impose the notice and access conditions] is authorized anywhere in the chapter, nor that the Attorney General
possesses that authority and therefore can delegate it to the Assistant Attorney General . . . the [DOJ‘s] argument is that the “including” clause itself is a stand-alone grant of authority to the Assistant
Attorney General to attach any conditions to any grants in that subchapter or other subchapters even though that authority is not otherwise provided in the chapter and is not possessed by the Attorney General. Because that interpretation is so obviously belied by the plain meaning of the word “including,” the Attorney General‘s position is untenable.
City of Chicago, 888 F.3d at 285. The Third Circuit agreed that
“including” signifies that the Special Conditions Clause is part of “such other powers and functions as may be vested in the Assistant Attorney General pursuant 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 [Assistant Attorney General] 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.” . . . [T]he broad authority [the DOJ] urges has not been vested in the Attorney General or the [Assistant Attorney General] 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.
City of Philadelphia, 916 F.3d at 287-88. Here, nothing in the statute evinces a congressional intent to use the word
“including” to mean anything other than its ordinary definition.4 All other courts to consider
As all other courts have found, it is inconceivable that Congress implicitly intended to delegate any independent
(subsequent history omitted); City of Philadelphia v. Sessions, 309 F. Supp. 3d 289, 321 (E.D. Pa. 2018), aff‘d in part, vacated in part sub nom. City of Philadelphia v. Attorney Gen., 916 F.3d 276 (3d Cir. 2019); City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 616-17 (E.D. Pa. 2017) (subsequent history omitted).
powers in this residual clause. “A clause in a catch-all provision at the end of a list of explicit powers would be an odd place indeed to put a sweeping power to impose any conditions on any grants—a power much more significant than all of the duties and powers that precede it in the listing . . . .” Id. (emphasis in original); see City of Philadelphia, 916 F.3d at 288 (“Given the ministerial nature of the powers in the preceding five subsections, we would be hesitant to find such a sweeping grant of authority in the sixth subsection absent clear language to support that interpretation.“). Congress does not hide such broad powers in such ancillary provisions. See Whitman v. Am. Trucking Ass‘ns, 531 U.S. 457, 468 (2001) (“Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.“).
The DOJ‘s interpretation of
based on the Assistant Attorney General‘s decision to impose his or her own conditions-the putative authority for which is provided in a different statute.” City of Chicago, 888 F.3d at 286.6
“Congress knew how to grant such authority, and explicitly did so in another statute within the same Act that added the ‘including’ language” to
the Byrne JAG statute provides the Attorney General authority over a carefully delineated list of actions, with no such broad authority to impose reasonable conditions. If Congress had wanted to vest such authority in the Attorney General regarding the Byrne JAG grant, one would expect it to include explicit language in the grant statute itself, as it did in the Violence Against Women Act. The Attorney General‘s argument that such sweeping authority over the major source of funding for law enforcement agencies nationwide was provided to the Assistant Attorney General by merely adding a clause to a sentence in a list of otherwise-ministerial powers defies reason.
City of Chicago, 888 F.3d at 287.
Yet, in dicta, unnecessary to its holding, the majority seems to adopt the DOJ‘s “independent power” construction of
impose special conditions on all grants and determine priority purposes for formula grants, as those terms are properly circumscribed.” Majority Op. at 26; see
In its digression from the issue at hand, the majority places great weight on its contention that the “including” clause must have been intended as a grant of authority, or else the 2006 amendment adding the clause would have no meaning. Majority Op. at 16-17. The majority identifies no other support for its suggestion of a grant of independent powers. The majority‘s concern that a contrary reading of this residual clause would deprive it of meaning rings hollow,
given that the majority‘s interpretative dictum would render superfluous numerous statutes in which Congress expressly authorized the Attorney General to withhold a set percentage of Byrne JAG funds for a specified purpose. See
In contrast, interpreting the “including” clause to illustrate powers already vested in the Assistant Attorney General or the Attorney General is consistent with Congress‘s precise
grants of power over the Byrne JAG program to the Attorney General. And, as the City identified, various statutes in Chapter 101 of Title 34 authorize
administered grants. See Conn. Nat‘l Bank v. Germain, 503 U.S. 249, 253 (1992) (“Redundancies across statutes are not unusual events in drafting . . . .“). The majority fails to confront the ancillary nature of the “including” clause.
The majority‘s drift is pernicious because the distinction it seemingly draws is between special conditions imposed on individual Byrne JAG grantees, which it suggests are lawful, as opposed to conditions imposed on all grantees, which are not. See, e.g., Majority Op. at 22 (“[Section] 10102(a)(6) does not authorize DOJ to require all recipients of Byrne JAG funding to comply with the notice and access conditions.“). This sweeping characterization is far from a “narrowing construction.” Majority Op. at 24. It would subvert Congress‘s carefully crafted statutory scheme for federal law enforcement grants.
The majority protests that it is only recognizing the DOJ‘s “limited authority to impose special conditions designed to meet the needs for carrying out the Byrne JAG program.” Majority Op. at 24. But what are the limits of that authority? Beyond stating nebulously that “special conditions” refer to “individualized requirements” created in response to “certain risk factors” or “idiosyncratic issues,” the majority provides no further guidance.10 Majority Op. at 21, 26. It therefore opens the door for the Assistant Attorney General to lay down any number of conditions not contemplated or authorized by Congress, as long as they are imposed on an individual basis
and can somehow be said to be “designed
The Byrne JAG program is the primary provider of federal criminal justice funding to state and local governments.11 Congress‘s articulated goal for Byrne JAG grants was to provide States and localities with flexibility to address their local criminal justice needs, specifically through funds for “additional personnel, equipment, supplies, contractual support, training, technical assistance, and information systems for criminal justice.”
Justice Programs, worth upwards of $1.2 billion in fiscal year 2018.12
The enormous impact of such potential authority left our sister circuits firmly convinced that the plain language of
Notes
By contrast, in United States v. Flores, 901 F.3d 1150 (9th Cir. 2018), we considered a statute listing a number of aggravated felonies,With respect to the “program or activity” that is funded (in whole or in part) by this award, as of the date the recipient accepts this award, and throughout the remainder of the period of performance for the award . . . A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -rule, -regulation, -policy, or -practice) must be in place that is designed to ensure that, when a local-government (or local-government-contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and – as early as practicable . . . provide the requested notice to DHS.
See Oregon v. Trump, ——— F. Supp. 3d ———, 2019 WL 3716932, at *11, *13-15 (D. Or. Aug. 7, 2019), appeal docketed No. 19-35843 (9th Cir. Oct. 4, 2019); City of Providence v. Barr, 385 F. Supp. 3d 160, 163-64 (D.R.I. June 10, 2019), appeal docketed sub nom. City of Providence v. U.S. Dep‘t of Justice, No. 19-1802 (1st Cir. Aug. 19, 2019); City & County of San Francisco v. Sessions, 349 F. Supp. 3d 924, 947 (N.D. Cal. 2018) (“DOJ‘s interpretation that Section 10102 establishes an independent grant of authority to impose the challenged conditions contradicts the plain meaning of the statute.“), appeal docketed sub nom. City & County of San Francisco v. Whitaker, No. 18-17308 (9th Cir. Dec. 4, 2018); States of New York v. Dep‘t of Justice, 343 F. Supp. 3d 213, 228 (S.D.N.Y. 2018) (holding thatWith respect to the “program or activity” that is funded (in whole or in part) by this award, as of the date the recipient accepts this award, and throughout the remainder of the period of performance for the award – A local ordinance, -rule, -regulation, -policy, or -(or an applicable State statute, -rule, -regulation, -policy, or -practice) must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given access a local-government (or local-government-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals’ right to be or remain in the United States.
Indeed, the DOJ‘s interpretation ofCompliance with these requirements is an authorized and priority purpose of this award. To the extent that such costs are not reimbursed under any other federal program, award funds may be obligated (including for authorized reimbursements) for the reasonable, necessary, and allocable costs (if any) of – (1) developing and putting into place statutes, ordinances, rules, regulations, policies, and practices to satisfy this condition, (2) permitting access as described in [the access condition], and (3) honoring any request from DHS that is encompassed [in the notice condition].
The majority never identifies any language inThe Assistant Attorney General shall –
See Edward Byrne Memorial Justice Assistance Grant Program FY 2017 Local Solicitation, U.S. Dep‘t of Justice (Aug. 3, 2017).The purpose of the Office shall be to carry out and coordinate program assessments of, take actions to ensure compliance with the terms of, and manage information with respect to, grants under programs covered by subsection (b). The Director shall take special conditions of the grant into account and consult
(4) An assurance that, for each fiscal year covered by an application, the applicant shall maintain and report such data, records, and information (programmatic and financial) as the Attorney General may reasonably require.
(5) A certification, made in a form acceptable to the Attorney General and executed by the chief executive officer of the applicant ... that —
. . .
(C) there has been appropriate coordination with affected agencies.