City of Chi. v. Barr

513 F.Supp.3d 828

The CITY OF CHICAGO, Plaintiff,

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

Case No. 18 C 6859

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

Signed January 13, 2021

Harnaik Singh Kahlon, Matthew Charles Crowl, Ronald S. Safer, Riley Safer Holmes & Cancila, LLP, Scott Douglas Spears, Andrew W. Worseck, Justin Anthony Houppert, City of Chicago - Department of Law, Chicago, IL, Ari D. Evans, Pro Hac Vice, Ari Holtzblatt, Pro Hac Vice, Ari J. Savitzky, Pro Hac Vice, David W. Ogden, Justin Baxenberg, Pro Hac Vice, Molly Jennings, Pro Hac Vice, Jamie S. Gorelick, Pro Hac Vice, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, Debo P. Adegbile, Pro Hac Vice, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for Plaintiff.

Charles E.T. Roberts, Daniel Duane Mauler, U.S. Department of Justice, Civil Division, Federal Programs, Washington, DC, W. Scott Simpson, U.S. Department of Justice, Civil Division Springfield, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

Harry D. Leinenweber, Judge

For the following reasons, the Court withdraws its declaration that 8 U.S.C. §§ 1373 and 1644 are unconstitutional and declines the Attorney General's proposal to modify the nationwide scope of the injunction against the compliance conditions. (See 10/10/2019 Final Judgment and Order, Dkt. No. 86.) Considering this opinion and the Seventh Circuit's April 29, 2020 opinion, as amended on June 4, 2020, the parties shall submit either an agreed amended final judgment and order or competing final judgment and orders for the Court to consider on or before February 2, 2021.

I. PROCEDURAL POSTURE

The Court considers certain modifications to its October 10, 2019 final judgment and order as directed by the Seventh Circuit on remand. See City of Chi. v. Barr , 961 F.3d 882 (7th Cir. 2020). That appeal and this remand are the result of two consolidated cases where the Attorney General appealed preliminary and permanent injunction orders—one addressing the notice and access conditions on FY 2017 Byrne JAG grant applicants and the other addressing the conditions on FY 2018 Byrne JAG grant applicants. See, e.g., City of Chi. v. Barr , 405 F. Supp. 3d 748 (N.D. Ill. 2019) ; City of Chi. v. Sessions , 321 F. Supp. 3d 855 (N.D. Ill. 2018). For a detailed discussion of the case history, facts, and issues, the Court refers to its previous opinions and the recent opinion from the Seventh Circuit. City of Chi. , 961 F.3d 882 ; City of Chi. , 405 F. Supp. 3d 748 ; City of Chi. , 321 F. Supp. 3d 855.

On August 11, 2020, the Seventh Circuit returned its mandate. That mandate directed the Court to address the following two matters on remand: (1) whether "any other injunctive relief is appropriate in light of [its] determination that § 10153 cannot be used to incorporate laws unrelated to the grants or grantees" and (2) to "modify the injunction to require the Attorney General to calculate the City of Chicago's Byrne JAG grant as if the challenged conditions were universally inapplicable to all grantees." City of Chi. , 961 F.3d at 931–32.

The Court ordered the parties to meet and confer about the Seventh Circuit's decision and to submit a joint statement with their proposed modifications to the Court's final judgment and order. (8/14/2020 Minute Entry, Dkt. No. 117.) The parties submitted their joint statement and proposed further briefing on the two issues. (9/11/2020 Joint Statement, Dkt. No. 118.) The Court adopted that briefing schedule. Based on those briefs, the Court now determines whether additional relief concerning the compliance condition is appropriate and whether it will adopt any proposed modifications to the injunction.

A. Additional Relief Concerning the Compliance Condition

The Byrne JAG statute permits the Attorney General to require that an application for funding under the Byrne JAG program also include a certification that "the applicant will comply with all provisions of this part and all other applicable Federal laws." 34 U.S.C. § 10153(a)(5)(D). For FY 2018, the Attorney General's condition under this provision required certification of compliance with 8 U.S.C. §§ 1373 & 1644. The Attorney General previously defended this compliance condition on the basis that §§ 1373 & 1644 qualified as applicable federal laws. The Court found §§ 1373 & 1644 facially unconstitutional and thus unenforceable as part of the Attorney General's certificate of compliance with "applicable Federal laws." City of Chi. , 321 F. Supp. 3d at 875–76 ; City of Chi. , 405 F. Supp. 3d at 762–63.

The Seventh Circuit affirmed the Court's judgment that §§ 1373 & 1644 were not "applicable Federal laws" on different grounds. See City of Chi. , 961 F.3d at 898–99. Without reaching the constitutional question, the Seventh Circuit held that the phrase "applicable Federal laws" includes only those laws that "apply by their terms to the award itself." Id. at 899 ; see also id. at 909. The Attorney General lacks the authority to impose laws that do not specifically apply to the grant or grantees as compliance conditions. See id. at 901. Because § 1373 and § 1644 do not specifically apply to the grant or grantees, they cannot be imposed as compliance conditions. See id.

The Seventh Circuit then remanded "for the district court to consider whether any additional injunctive relief is appropriate as to the unlawful imposition of the compliance condition." Id. at 911. The Seventh Circuit concluded that there is "no doubt that the Attorney General intends to continue to interpret § 10153 as allowing the incorporation of federal laws unrelated to the grant or grantees" and that, as a result, "proper relief in this case could include an injunction preventing the Attorney General from incorporating federal law unrelated to grants or grantees as a condition of the grant under § 10153." Id. at 912.

In light of the Seventh Circuit's remand, the parties agree that the Court should modify the first paragraph under the header "Permanent Injunction" of its final judgment and order to reflect the Seventh Circuit's conclusion that § 10153 ’s reference to "all applicable Federal laws" only encompasses laws that expressly apply to federal grants or grant recipients. The parties do not agree, however, on whether and how to modify the first paragraph under the header "Declaratory Relief"—declaring "that 8 U.S.C. §§ 1373 and 1644 violate the Tenth Amendment's anticommandeering principles and are therefore facially unconstitutional."

Chicago contends the Court's declaration that §§ 1373 and 1644 are unconstitutional should remain in effect. Chicago argues that Count Four of the Amended Complaint challenges §§ 1373 and 1644 "on grounds beyond just their application as funding conditions" and that "relief narrowly limited to the Byrne JAG program is therefore not complete relief." (Chi. Br. at 6, Dkt. No. 121.) Chicago also argues that "the Attorney General's pattern of aggressively enforcing an expansive interpretation of Section 1373 casts a ‘continuing and brooding presence’ over Chicago's Welcoming City Ordinance." (Id. ) Chicago claims that only the Court's declaration that §§ 1373 and 1644 violate Tenth Amendment anticommandeering principles can "fully protect Chicago's right to set local law-enforcement priorities free from the threat of unlawful federal intervention." (Id. )

In response, the Attorney General argues the Court's declaration that §§ 1373 and 1644 are unconstitutional is unnecessary and moot. The Attorney General claims that, as framed in the Amended Complaint, Count Four ties §§ 1373 and 1644 ’s constitutionality to their use in Byrne JAG award conditions. Thus, complete relief is satisfied by the injunction, and declaratory relief is unnecessary and moot. The Attorney General also encourages the Court to practice constitutional avoidance. In doing so, he notes the Seventh Circuit's decision to practice constitutional avoidance in its remanding opinion, calling it "controlling precedent" that "determined that the proper scope of declaratory relief as to [§§] 1373 and 1644 is exactly none, because they are ‘inapplicable’ as related to Byrne JAG award conditions." (Gov. Resp. at 3 (citing City of Chi. , 961 F.3d at 911 ), Dkt. No. 124.) The Attorney General emphasizes that the Seventh Circuit limited remand to determining "whether any additional injunctive relief is appropriate as to the [ ] imposition of the compliance condition," and the district court's completion of that task does not involve revisiting declaratory relief that the "Seventh Circuit determined was unnecessary." (Gov. Resp. at 2 ( City of Chi. , 961 F.3d at 911 ).)

The Court withdraws its declaration that §§ 1373 and 1644 are unconstitutional. Although the Seventh Circuit's mandate does not order the Court to vacate its declaration, the remanding opinion indicates that the declaratory judgment is no longer necessary. See Guzman v. City of Chi. , No. 05 CV 6617, 2010 WL 11627264, at *1 (N.D. Ill. Feb. 25, 2010) (stating that a "court must carefully read the Seventh Circuit's opinion to determine what issues are law of the case because they were decided expressly or by necessary implication"). In reaching its conclusion, the Court considers the context surrounding the Seventh Circuit's directive. See Meds. Co. v. Mylan Inc. , 257 F. Supp. 3d 1023, 1029 (N.D. Ill. 2017) ("A mandate is to be construed by considering the context") (citation, quotations, and alterations omitted). The language at issue here is in the second paragraph of a sub-section about the proper scope of the permanent injunction. Before reaching the substance of the scope issue, the Seventh Circuit states:

At the outset, we note that a remand is necessary for the district court to consider whether any additional injunctive relief is appropriate as to the unlawful imposition of the compliance condition. The court imposed declaratory relief as to the

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