Commerce Dept. Must Cough Up Docs On Census Slash

By Andrew Westney
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Law360 (September 10, 2020, 7:51 PM EDT) -- A California federal judge on Thursday ordered the U.S. Department of Commerce and its Census Bureau to furnish documents showing why they decided to lop four months off the 2020 census, rejecting the Trump administration's bid to have the judge rule on a requested injunction based on a single declaration from an agency official.

The agency and the U.S. Department of Commerce had argued they didn't need to produce an administrative record for their census "replan," introduced in early August to compress about 8½ months of data collection and processing into just 4½ months, which is being challenged the National Urban League, Los Angeles, Chicago, the Navajo Nation, Gila River Indian Community and others.

In an order Thursday, U.S. District Judge Lucy H. Koh said she can't evaluate the plaintiffs' claims that the census cutback violated the Administrative Procedure Act based only on a declaration filed last week by Associate Director for Decennial Census Programs Albert E. Fontenot Jr., "because the declaration would be an impermissible post hoc rationalization that does not reveal the agency's reasons for acting at the time of the action."

In April, as the coronavirus pandemic spread across the country, the Census Bureau revised its operational plan for the 2020 census to account for both the difficulties of census-taking during a pandemic and the bureau's duty to take a fair and accurate count, according to the Aug. 18 complaint by municipalities in California, Texas and Washington as well as civil rights organizations and tribes.

Under the COVID-19 Plan from April, the bureau and the Commerce Department decided to delay the counting process, shift the time frame for conducting and completing the data collection operation, and increase the time for gathering data, according to the suit.

But on Aug. 3, the agencies reversed course and implemented their changed plan, which the plaintiffs say ignores the monthslong delay in census data collection caused by the pandemic and compels a final date for delivering the data that bureau officials have repeatedly said they can't meet, according to the suit.

Judge Koh ordered the agencies Thursday to provide any materials "comprising the replan and its various components for conducting the 2020 census in a shortened time period, including guidance, directives and communications regarding same," for the period from April 13, when the COVID-19 plan was announced, through the replan's announcement on Aug. 3.

Census Bureau Director Steven Dillingham and Secretary of Commerce Wilbur Ross must provide documents by Sunday and Fontenot by Wednesday, prior to a Sept. 17 hearing on the plaintiffs' request for a preliminary injunction against the new plan, according to the order.

The judge added that the record "cannot be artificially constrained in time," and "if the replan was informed by the Bureau's prior planning, then such documents must be included" in the complete record following the court's ruling on the preliminary injunction request.

Judge Koh issued a temporary restraining order on Sept. 5 preventing the federal agencies from putting the August plan into effect, including "winding down or altering any census field operations" before the Sept. 17 hearing.

The Census Bureau told the court on Tuesday that it was gearing up its operations again to comply with the court's decision.

The agency also asked the court to convert the TRO into a preliminary injunction right away "to afford adequate time for any appellate review" if the judge "intends to extend the TRO or otherwise believes that the effect of the TRO lasts beyond Sept. 17."

In Thursday's order, Judge Koh said that on several occasions the agencies had denied there was any administrative record for the replan, and while they said it was "codified," they added it was "not necessarily codified in one particular document."

But the judge said that based on U.S. Supreme Court and D.C. Circuit precedent, "the court must require the agency to file an administrative record on which it can review plaintiffs' APA claims."

The judge also rejected the agencies' arguments that the court can't review the suit's claims, pointing to the Supreme Court's June 2019 decision that blocked the Commerce Department from adding a citizenship question on the 2020 census.

While the agencies said the current case involves "a political question" with "no meaningful standard" for the court to use to weigh the agencies' actions, a similar argument was shot down in the high court's ruling last year, the judge said.

In the current case, "Congress has set forth more than just the Dec. 31, 2020, statutory deadline as a relevant aspect of the census," as the Census Act also "imposes 'a duty to conduct a census that is accurate and that fairly accounts for the crucial representational rights that depend on the census and the apportionment,'" the judge said.

And the plaintiffs have standing since they allege "the same injuries that the Supreme Court found supported standing in the citizenship question case," the judge said.

The replan is also a final agency action reviewable under the APA since it "marks the consummation of the agency's decisionmaking process" and determines legal rights and duties of both the Census Bureau and participants in the census, the judge said.

Latham & Watkins partner Sadik Huseny, whose firm represents the plaintiffs, said in a statement Thursday that the record "will help show what the replan was conceived to be, what it is and what was considered when making the decision to shorten census data collection and processing time frames."

"We look forward to addressing these issues in full at the upcoming hearing, and showing that a full and fair count is paramount in ensuring the accuracy of the 2020 census," Huseny said.

Representatives for the Commerce Department and the Census Bureau did not immediately respond to requests for comment Thursday.

The National Urban League; the League of Women Voters; the Black Alliance for Just Immigration; Harris County, Texas and Commissioners Rodney Ellis and Adrian Garcia; San Jose, California; King County, Washington; and the Navajo Nation are represented by Latham & Watkins LLP, the Lawyer's Committee for Civil Rights Under Law and the Brennan Center for Justice.

The Navajo Nation is also represented by Attorney General Doreen McPaul and Jason Searle of the Navajo Nation Department of Justice.

The Gila River Indian Community is represented by Donald R. Pongrace and Dario J. Frommer of Akin Gump Strauss Hauer & Feld LLP.

San Jose is additionally represented by Mark Rosenbaum of Public Counsel.

Los Angeles is represented by Michael N. Feuer, Kathleen Kenealy, Danielle Goldstein and Michael Dundas of the city attorney's office.

Chicago is represented by its own Rebecca Hirsch and Lily E. Hough and Rafey Sarkis Balabanian of Edelson PC.

Salinas, California, is represented by Christopher A. Callihan and Michael Mutalipassi of the city attorney's office.

The federal government is represented by Jeffrey Bossert Clark, David Morrell, Alexander K. Haas, Diane Kelleher, Brad P. Rosenberg and trial attorneys Alexander V. Sverdlov and M. Andrew Zee of the U.S. Department Of Justice, Civil Division, Federal Programs Branch.

The suit is National Urban League et al. v. Wilbur L. Ross Jr. et al., case number 5:20-cv-05799, in the U.S. District Court for the Northern District of California.

--Additional reporting by Suzanne Monyak and Lauren Berg. Editing by Philip Shea.

Correction: An earlier version of this story listed the wrong federal district court for the suit. The error has been corrected.

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Case Information

Case Title

National Urban League et al v. Ross et al

Case Number



California Northern

Nature of Suit

Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision


Lucy H. Koh

Date Filed

August 18, 2020

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