In the July 2020 case of City & Cnty. of S.F. v. Barr,[1] the Ninth Circuit Court of Appeals upheld a permanent injunction barring the United States Department of Justice from imposing certain conditions for providing funding for state and local criminal justice programs through Edward Byrne Memorial Justice Assistance Grants.  However, the Court determined that the District Court abused its discretion in issuing an injunction that extended nationwide and vacated the nationwide reach of the permanent injunction and restricting its reach to California’s geographical boundaries.


Since 2006, the Edward Byrne Memorial Justice Assistance Grants program has provided federal grant dollars to support state and local criminal justice programs.  The United States Department of Justice disburses over $80 million in awards each year pursuant to a statutory formula based on population and violent crime rate.[2]  In Fiscal Year (“FY”) 2017, California expected to receive $28.3 million and allocate $10.6 million in sub-grants to its localities.  San Francisco expected to receive a sub-grant of $923,401, plus a direct award of $524,845 pursuant to its own FY 2017 application.  California has used prior Byrne awards to support programs focused on criminal drug enforcement, violent crime, and anti-gang activities.  The City and County of San Francisco has used them to support programs focused on reducing the drug trade and providing services to individuals with substance and mental health issues.

To receive a Byrne grant, a state or local government must submit an application that complies with the statutory requirements outlined in 34 U.S.C. section 10153, in a form set forth in annual solicitation documents that DOJ provides and in accordance with all lawful conditions stated therein.[3]

In FY 2017, the Attorney General of the United States and the Department of Justice announced three new conditions that state and local governments must satisfy to receive Byrne grants.  Two of these were the Access and Notice Conditions, “two new express conditions” related to “the ‘program or activity’ that would be funded by the FY 2017 award.”  These two conditions required recipient jurisdictions to:

(1) permit personnel of the U.S. Department of Homeland Security (“DHS”) to access any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United States (the “Access Condition”); and

(2) provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality Act (the “Notice Condition”).

The third condition requires jurisdictions to certify that their laws and policies comply with 8 U.S.C. section 1373, a federal statute prohibiting states and localities from restricting the flow of “information regarding [an individual’s] citizenship or immigration status” between state and local officials and DHS (the “Certification Condition”).

The City and County of San Francisco and the State of California (“Plaintiffs”) are “sanctuary” jurisdictions, which have enacted laws that limit their employees’ authority to assist in the enforcement of federal immigration laws.

In August 2017, Plaintiffs sued the Department of Justice, the Attorney General, and other DOJ officials (collectively, “DOJ”) to prevent DOJ from denying funding of Byrne grants for failure to comply with the Access, Notice, and Certification Conditions (collectively, the “Challenged Conditions”).  Plaintiffs asserted that the Challenged Conditions were not authorized by the Byrne statute and violated constitutional separation of powers, the Spending Clause, and the Administrative Procedure Act (“APA”).  Plaintiffs also argued that Section 1373 could not be enforced against them because it violated the Tenth Amendment.

Moreover, Plaintiffs maintained the Access and Notice Conditions were inconsistent with the sanctuary laws and policies that Plaintiffs had enacted.  Plaintiffs claimed, however, that they could comply with the Certification Condition if Section 1373 were appropriately construed.  Because DOJ threatened to withhold FY 2017 funds based on the assertion that Plaintiffs’ sanctuary laws violated Section 1373, Plaintiffs sought declaratory relief narrowly construing Section 1373 and holding that the statute as so construed did not conflict with Plaintiffs’ sanctuary laws.[4]

On summary judgment, the District Court entered declaratory relief in favor of Plaintiffs on all of their legal claims, holding the Challenged Conditions and Section 1373 unconstitutional and unenforceable against Plaintiffs and any other jurisdiction in the United States.  It also permanently enjoined DOJ, among other things, from “[u]sing the Section 1373 certification condition, and the access and notice conditions . . . as requirements for Byrne JAG grant funding.”  The District Court extended relief to the entire country by providing that the permanent injunction applied to “any California state entity, any California political subdivision, or any jurisdiction in the United States.”  DOJ appealed.


On appeal, DOJ argued, among other things, that the Challenged Conditions were imposed pursuant to lawful authority, and that the District Court misconstrued Section 1373 and erred in holding that Plaintiffs’ respective laws did not conflict with Section 1373.  DOJ also argued that the District Court abused its discretion by extending the scope of injunctive relief to non-parties nationwide.

The Ninth Circuit Court of Appeals observed that while the appeal here was pending, the Court had upheld a preliminary injunction obtained by the City of Los Angeles against DOJ’s enforcement of the Access and Notice Conditions, holding that DOJ lacked statutory authority to implement them.  See City of Los Angeles v. Barr, 941 F.3d 931, 945 (9th Cir. 2019).[5]  In City of Los Angeles, the United States Department of Justice had contended that Congress granted it independent authority to establish the Access and Notice Conditions under 34 U.S.C. section 10102(a)(6), which provides: “The Assistant Attorney General shall . . . 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.”  Although the Ninth Circuit there agreed with DOJ that it was given independent authority in Section 10102(a)(6), the Circuit Court held, however, that the Access and Notice Conditions did not constitute “special conditions” or “priority purposes.”[6]  City of Los Angeles also rejected the Department of Justice’s assertion that 34 U.S.C. Section 10153(a)(5)(C) or 34 U.S.C. Section 10153(a)(4) provided statutory authority; the Court determined that the Access and Notice Conditions requirements far exceeded what the statutory language of these provisions required.  Consistent with its analysis in City of Los Angeles, the Ninth Circuit here affirmed the District Court’s order declaring the Access and Notice Conditions unlawful and enjoining DOJ from enforcing them against Plaintiffs.

Turning to the Certification Condition, the Ninth Circuit noted that it had recently interpreted Section 1373 in United States v. California,[7] another decision that was rendered while the appeal in the instant case was pending.  Section 1373, in relevant part, prohibits states and local governments from restricting their officials from sharing “information regarding the citizenship or immigration status, lawful or unlawful, of any individual” with DHS.  In California, the Ninth Circuit held that Section 1373’s information-sharing requirements applied to “just immigration status” or “a person’s legal classification under federal law.”[8]  Consistent with its analysis in that case, the Ninth Circuit here held that the remaining California and San Francisco laws at issue also complied with Section 1373 and could not be cited in relation to the Certification Condition as a basis to deny Byrne funding.  The Ninth Circuit accordingly affirmed the District Court’s ruling holding that Plaintiffs’ respective sanctuary laws complied with Section 1373, and upheld the injunction barring DOJ from withholding or denying Byrne funds to Plaintiffs based on the assertion that these laws violated Section 1373 and/or the Certification Condition.

Nationwide Injunction

Regarding the District Court’s imposition of a nationwide injunction, the Ninth Circuit explained “[a]lthough ‘there is no bar against . . . nationwide relief in federal district court or circuit court,’ such broad relief must be ‘necessary to give prevailing parties the relief to which they are entitled.’”  California v. Azar, 911 F.3d 558, 582 (9th Cir. 2018) (quoting Bresgal v. Brock, 843 F.2d 1163, 1170-71 (9th Cir. 1987)).  The Court explained that “[o]nce a constitutional violation is found, a federal court is required to tailor the scope of the remedy to fit the nature and extent of the constitutional violation.”  City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1244 (9th Cir. 2018) (quoting Hills v. Gautreaux, 425 U.S. 284, 293-94 (1976)).

On appeal, Plaintiffs argued that they were entitled to nationwide relief due to the “far-reaching impact” of the Challenged Conditions upon “all types [of] grant recipients across the geographical spectrum,” pointing to declarations by grant recipients in the record.  Plaintiffs argued that the broad impact made this “one of the ‘exceptional cases’ in which program-wide relief is necessary.”  The District Court agreed, explaining that, before issuing a nationwide injunction, it must “undertake ‘careful consideration’ of a factual record evidencing ‘nationwide impact,’ or in other words, ‘specific findings underlying the nationwide application of the injunction.’”[9]

The Ninth Circuit explained that the District Court erred by considering only this rule, without addressing other forms of tailoring when issuing a remedy.  The Ninth Circuit noted that it had long held that an injunction “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs before the court.  ”Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)) (internal quotation marks omitted).  The Court explained that under this rule, the appropriate inquiry would be whether Plaintiffs themselves would continue to suffer their alleged injuries if DOJ were enjoined from enforcing the Challenged Conditions only in California.  The District Court had not made such a finding, and, stated the Court of Appeal, “it is not apparent how the record would support one.”

Plaintiffs argued that by imposing the Challenged Conditions, DOJ presented “an unacceptable choice:  either comply with [the Challenged Conditions] and abandon local policies that San Francisco has found to promote public safety and foster trust and cooperation between law enforcement and the public, or maintain these policies but forfeit critical funds that it relies on to provide essential services to San Francisco residents.”  San Francisco claimed that it faced “the immediate prospect of losing over $1.4 million” in program funds.  California claimed it was at risk of “losing $31.1 million,” which would require many State and local law enforcement agencies’ programs to be cut.

Considering these claimed injuries, the Ninth Circuit determined that an injunction barring DOJ from enforcing the Challenged Conditions within California’s geographical limits would resolve Plaintiffs’ injuries by returning Plaintiffs to the status quo.  The Court explained that extending this same relief to non-party jurisdictions beyond California’s geographical bounds would do nothing to remedy the specific harms alleged by Plaintiffs.  Because the municipal and State plaintiffs here “‘operate[d] in a fashion that permits neat geographic boundaries’”[10] and did not operate or suffer harm outside of their own borders, the Ninth Circuit determined that the geographical scope of an injunction could be “neatly drawn to provide no more or less relief than what is necessary to redress Plaintiffs’ injuries.”  The Court distinguished this case from one involving plaintiffs that operated and suffered harm in multiple jurisdictions, where the process of tailoring an injunction could be more complex.  The Court of Appeal concluded that a nationwide injunction was therefore unnecessary to provide complete relief, and that the District Court’s determination otherwise was overbroad and an abuse of discretion.

In sum, the Ninth Circuit Court of Appeals upheld the permanent injunction barring DOJ “from withholding, terminating, or clawing back Byrne funding based on the Challenged Conditions and statutes at issue.”  However, the Court vacated the nationwide reach of the permanent injunction and limited its reach to California’s geographical boundaries.  Moreover, the Court of Appeals did not remand to the District Court for further consideration because Plaintiffs had not established any nexus between their claimed injuries and the nationwide operation of the Challenged Conditions, nor proposed any reason why limiting the injunction along state boundaries would not grant them full relief.


Agencies should observe that, as the Ninth Circuit here noted, there is a circuit split regarding DOJ’s authority under 34 U.S.C. section 10102(a)(6) and the Byrne statute to impose the Access and Notice Conditions (discussed further in Client Alert Vol. 34, No. 35).  However, municipalities in California are bound by Ninth Circuit decisions.  Any circuit split would need to be resolved by the United States Supreme Court.  Here, the Court’s decision affirms that California municipalities cannot be denied grant funding based upon non-compliance with the Challenged Conditions that the Department of Justice sought to impose.

As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] 2020 U.S. App. LEXIS 21741 (9th Cir. July 13, 2020).

[2] See 34 U.S.C. section 10156(d)(2)(A).

[3] See Id., section 10153.

[4] The Ninth Circuit noted: “[T]he State of California sought similar relief related to a condition that DOJ placed on FY 2017 awards under the Community Oriented Policing Services (“COPS”) grant program and the COPS Anti-Methamphetamine Program (“CAMP”). See generally 34 U.S.C. [section] 10381 et seq. Like the Certification Condition attached to Byrne awards, the challenged condition attached to the COPS/CAMP awards requires applicants to certify their compliance with 8 U.S.C. [section] 1373. California’s Department of Justice submitted this certification when it applied for a FY 2017 CAMP award, and although it received $1 million in CAMP funding that year, it was told it could not “draw down” the funds pending an inquiry into its compliance with [Section] 1373.

The dispositive issue on appeal related to COPS/CAMP is whether California’s state laws render California ineligible for COPS/CAMP funding based on asserted non-compliance with [Section] 1373. This issue is identical to the issue regarding the Certification Condition attached to the Byrne program. See infra Part IV. For the sake of simplicity, the issue is discussed in the text of this opinion in terms of the Byrne program’s Certification Condition, but that discussion and our resolution of that challenge applies similarly to the [Section] 1373 certification condition under COPS/CAMP.”

[5] See also Client Alert Vol. 34, No. 35 for more details regarding the Ninth Circuit’s decision in City of Los Angeles v. Barr.

[6] The Ninth Circuit here noted that other circuits had reached differing conclusions regarding DOJ’s authority under Section 10102(a)(6) and the Byrne statute to impose the Access and Notice Conditions, resulting in a circuit split. The Ninth Circuit stated, “To date, only the Second Circuit has held that the Access and Notice Conditions were imposed pursuant to appropriate authority. New York v. Dep’t of Justice, 951 F.3d 84, 101-04, 116-22 (2d Cir. 2020). The First, Third, and Seventh Circuits have held to the contrary. City of Chicago v. Barr, 957 F.3d 772, 961 F.3d 882 (7th Cir. 2020); City of Chicago v. Sessions, 888 F.3d 272, 283-87 (7th Cir. 2018), reh’g en banc granted in part, opinion vacated in part, No. 17-2991, 2018 U.S. App. LEXIS 21801, 2018 WL 4268817 (7th Cir. June 4, 2018), vacated, No. 17-2991, 2018 U.S. App. LEXIS 25694, 2018 WL 4268814 (7th Cir. Aug. 10, 2018); City of Philadelphia v. Att’y Gen., 916 F.3d 276, 284-88 (3d Cir. 2019); City of Providence v. Barr, 954 F.3d 23, 45 (1st Cir. 2020).”

[7] 921 F.3d 865 (9th Cir. 2019), cert. denied, 590 U.S.  , 2020 U.S. LEXIS 3156 (U.S. Jun. 15, 2020) (No. 19-532).

[8] Id., at p. 891.

[9] City & Cty. of San Francisco v. Sessions, 349 F. Supp. 3d 924, 971 (N.D. Cal. 2018) (citing Trump, supra, at p. 1244), judgment entered sub nom. California ex rel. Becerra v. Sessions, 2018 U.S. Dist. LEXIS 199018 (N.D. Cal. Nov. 20, 2018).

[10] E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1282-83 (9th Cir. 2020) (quoting E. Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094, 1120-21 (N.D. Cal. 2018)).