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City of Los Angeles v. Barr

United States Court of Appeals, Ninth Circuit

July 12, 2019

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.

          Argued and Submitted August 30, 2018 Pasadena, California

          Appeal from the United States District Court for No. 2:17-cv-07215-R-JC the Central District of California Manuel L. Real, District Judge, Presiding

          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 Defendants-Appellants.

          David M. Zionts (argued), Benjamin L. Cavataro, and Ivano M. Ventresca, Covington & Burling LLP, Washington, D.C.; Neema T. Sahni, Mónica Ramirez Almadani, and Mitchell A. Kamin, Covington & Burling LLP, Los Angeles, California; Michael Dundas, Deputy City Attorney; Valerie L. Flores, Managing Senior Assistant City Attorney; Leela A. Kapur, Executive Assistant City Attorney; James P. Clark, Chief Deputy City Attorney; and Michael N. Feuer, City Attorney; Office of the City Attorney, Los Angeles, California; for Plaintiff-Appellee.

          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.

          Before: Kim McLane Wardlaw, Jay S. Bybee, and Sandra S. Ikuta, Circuit Judges.

         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 grant applications and from using these considerations as preferences in awarding COPS grants.

          OPINION

          IKUTA, CIRCUIT JUDGE.

         In 1994, Congress enacted the Violent Crime Control and Law Enforcement Act (VCCLEA), Pub. L. No. 103-322, 108 Stat. 1796, to provide a range of federal assistance to state and local law enforcement. The Public Safety Partnership and Community Policing Act of 1994, Pub. L. No. 103-322, 108 Stat. 1807 (the Act), which was enacted as part of the VCCLEA, authorizes the Department of Justice (DOJ) to administer a competitive grant program that allocates a limited pool of funds to state and local applicants whose applications are approved by the Attorney General.

         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, art. I, § 8, cl. 1, did not exceed DOJ's statutory authority, and did not violate the Administrative Procedure Act, we reverse the district court's grant of summary judgment in favor of Los Angeles.

         I

         The Act's grant program, codified at 34 U.S.C. §§ 10381 to 10389, gives broad discretion to DOJ to allocate grants and administer the grant program for the purposes set forth in § 10381(b). Section 10381(b) authorizes twenty-three different purposes, each generally linked to the goal of enhancing the crime prevention function of state and local law enforcement through working with the community. DOJ is authorized to "promulgate regulations and guidelines to carry out" the grant program, 34 U.S.C. § 10388, and may prescribe the required form and content of grant applications through regulations or guidelines, id. § 10382(b). By statute, the application must contain eleven broad categories of information, including an assessment of the impact of the proposed initiative on other aspects of the criminal justice system. See id. § 10382(c). Each application must also "identify related governmental and community initiatives which complement or will be coordinated with the proposal" and "explain how the grant will be utilized to reorient the affected law enforcement agency's mission toward community-oriented policing or enhance its involvement in or commitment to community-oriented policing." Id. § 10382(c)(4), (10).

         The statute permits DOJ to give "preferential consideration, where feasible," on specified grounds, including whether the application proposes hiring and rehiring additional career law enforcement officers, where a non-Federal contribution will cover more than the required 25 percent of the program cost. Id. § 10381(c)(1).[1] The statute was amended in 2015 to allow DOJ to give preferential treatment to a state that has enacted certain laws designed to combat human trafficking. See id. § 10381(c)(2), (3); Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22, §§ 601, 1002, 129 Stat. 227, 259- 60, 266-67.

         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 § 10381, namely "to rehire law enforcement officers who have been laid off as a result of State, tribal, or local budget reductions for deployment in community-oriented policing," 34 U.S.C. § 10381(b)(1), and "to hire and train new, additional career law enforcement officers for deployment in community-oriented policing across the Nation," id. § 10381(b)(2).[2]

         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," "drug abuse education, prevention and intervention," "homeland security problems," "nonviolent crime problems and quality of life policing," "building trust and respect," "traffic/pedestrian safety problems," and "violent crimes problems." The Application Guidelines provide examples of the type of problems included in each focus area. For the homeland security focus area, for instance, the Application Guidelines state, "Please specify your critical infrastructure problem; for example, addressing threats against facilities, developing and testing incident response plans, etc." For the illegal immigration focus area, the Application Guidelines state, "Please specify your focus on partnering with the federal law enforcement to address illegal immigration for information sharing, [§] 287(g) partnerships, [3] task forces and honoring detainers."[4]

         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," 34 U.S.C. §§ 10382(c)(2), (c)(3), and to applicants that best "explain how the grant will be utilized to reorient the affected law enforcement agency's mission toward community-oriented policing or enhance its involvement in or commitment to community-oriented policing," id. § 10382(c)(10). DOJ also gives points to applicants in jurisdictions with higher crime rates and comparatively lower fiscal health. Additionally, DOJ scores applicants on how their proposals relate to that year's federal goals. In various years, DOJ has awarded points for applicants that gave work to military veterans, that adopted specified management practices (such as making regular assessments of employee satisfaction, exercising flexibility in officer shift assignments, and operating an early intervention system to identify officers with specified personal risks), or that experienced certain catastrophic events, such as a terror attack or school shooting. In 2017, DOJ gave additional points to applicants that focused on the federal priority areas of violent crime, homeland security, and control of illegal immigration. Also in 2017, an applicant could elect to receive additional points by submitting a "Certification of Illegal Immigration Cooperation" (the "Certification") in which the applicant agrees that (1) the applicant will implement rules, regulations, or practices that ensure DHS personnel have access to the entity's correctional or detention facilities in order to meet with an alien, and (2) the applicant will implement rules, regulations, policies, or practices to ensure that the entity's correctional or detention facilities provide notice "as early as practicable (at least 48 hours, where possible) to DHS regarding the scheduled release" of an alien in custody.

         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 was 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. U.S. Const. art. III, § 2, cl. 1. Because there is no longer a live controversy regarding the 2017 grant program, the appeal would ordinarily be moot. Nevertheless, the Supreme Court has held that an appeal is not moot in "exceptional situations" when it is "capable of repetition, yet evading review." Kingdomware Techs., Inc. v. United States, 136 S.Ct. 1969, 1976 (2016) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)). Here, the case meets the requirements to avoid mootness. First, "the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration," id. (alteration in original) (quoting Spencer, 523 U.S. at 17), because any one grant cycle is too short to provide for meaningful review. In 2017, for instance, fewer than three months passed between DOJ's announcement of the scoring factors and the grant awards. Second, "there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again." Id. (alteration in original) (quoting Spencer, 523 U.S. at 17). Los Angeles is reasonably likely to apply for a DOJ grant in the future, and has done so in the previous two consecutive years. Los Angeles also submitted a declaration of its intent to apply for a grant in the 2018 cycle. Although DOJ states it has not yet determined "how immigration-related factors will be handled in the FY 2018 application," it has not agreed to stop giving bonus points for such factors in the future. Even if it had, voluntary cessation of the practice does not deprive us of power to hear the case "unless it can be said with assurance that there is no reasonable expectation . . . that the alleged violation will recur." Fikre v. FBI, 904 F.3d 1033, 1037 (9th Cir. 2018) (internal quotation marks and citation omitted). No such assurances are present here.

         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 slight injury for standing. See United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n.14 (1973). We conclude that Los Angeles's slight competitive disadvantage due to its policy of not assisting the federal government on immigration-related issues is sufficient to give Los Angeles standing in this action.

         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." U.S. Const. art. I, § 8, cl. 1. This power gives Congress the ability "to grant federal funds to the States, and [Congress] may condition such a grant upon the States' 'taking certain actions that Congress could not require them to take.'" Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 576 (2012) ("NFIB") (quoting Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 686 (1999)).

         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 Congress." 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. 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 surprises states with "post acceptance or 'retroactive' conditions." Id. at 25. Therefore, the Court declined to reinterpret the "contract" between Congress and the states as retroactively imposing such unexpected and burdensome conditions. Id.

         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. Accordingly, 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 federal funds from a state or local jurisdiction unless they comply with specified federal requirements. Cf. NFIB, 567 U.S. at 579-80; Dole, 483 U.S. at 205. Nor does DOJ propose to reinterpret the terms of a grant retroactively to impose costly new responsibilities on a recipient. Cf. Pennhurst, 451 U.S. at 25. Nor does DOJ offer a financial inducement for an applicant to cooperate on illegal immigration issues that is so coercive that it is tantamount to compulsion. Cf. NFIB, 567 U.S. at 579-80. Rather, an applicant is free to choose one of many focus areas, and numerous applicants obtained funding without selecting illegal immigration or signing the 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 a 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 Fourth Circuit applied a similar presumption in Riley, holding that the Individuals with Disabilities Education Act did not clearly establish that Congress intended to condition Virginia's receipt of federal funds on the state's provision of "private educational services to each of the State's 126 disabled students who had been expelled for reasons wholly unrelated to their disabilities." 106 F.3d at 560. Here, contrary to Los Angeles's argument, DOJ's decision to give points to applicants that submit the Certification and agree to give DHS personnel access to the applicant's correctional or detention facilities to meet with alien detainees, or to give DHS notice before an alien detainee is released, does not override state laws and therefore does not give rise to any Tenth Amendment concern.

         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 Congress 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, 34 U.S.C. § 10388, authorizing the creation and implementation of a competitive grant program, and to "prescribe by regulation or guidelines" the form of an application and the information it will require, id. § 10382(b). Because Congress authorized DOJ to fill gaps through its promulgation of the Application Guidelines and implementation of the grant program, we give DOJ's inclusion of an illegal immigration focus area and use of the Certification controlling weight unless they are manifestly inconsistent with the statute or lack any reasonable basis, "even if the agency's reading differs from what the court believes is the best statutory interpretation." Glacier Fish Co. v. Pritzker, 832 F.3d 1113, 1121 (9th Cir. 2016) (quoting Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005)).

         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 focus area, which asks an applicant to "specify your focus on partnering with federal law enforcement to address illegal immigration for information sharing, [§] 287(g) partnerships, task forces and honoring detainers," is not "manifestly contrary to the statute." Chevron, 467 U.S. at 844. Nothing in the Act precludes DOJ from allocating federal funds to state or local governments to focus on problems raised by the presence of illegal aliens within their jurisdictions.[8]

         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 8 U.S.C. § 1357(g)(1).[9]Nothing in the Act precludes such cooperation; rather, the Act requires applicants to "identify related governmental and community initiatives which complement or will be coordinated with the proposal," 34 U.S.C. § 10382(c)(4), and to explain how officers' use of community-oriented policing techniques will be coordinated with such initiatives.

         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 ...


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