No. 18A-_______
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
IN RE UNITED STATES DEPARTMENT OF COMMERCE, ET AL.
_______________
APPLICATION FOR A STAY PENDING DISPOSITION
OF A PETITION FOR A WRIT OF MANDAMUS
TO THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
AND REQUEST FOR AN IMMEDIATE ADMINISTRATIVE STAY
_______________
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

________________________________________________________________
________________________________________________________________

 PARTIES TO THE PROCEEDING
Applicants (defendants in the district court, and mandamus
petitioners

in

the

court

of

appeals)

are

the

United

States

Department of Commerce; Wilbur L. Ross, Jr., in his official
capacity as Secretary of Commerce; the United States Census Bureau,
an agency within the United States Department of Commerce; and Ron
S. Jarmin, in his capacity performing the non-exclusive functions
and duties of the Director of the United States Census Bureau
(referred to as the “Acting Director” in this brief).
Respondent in this Court is the United States District Court
for the Southern District of New York.

Respondents also include

the State of New York; the State of Connecticut; the State of
Delaware; the District of Columbia; the State of Illinois; the
State

of

Iowa;

the

State

of

Maryland;

the

Commonwealth

of

Massachusetts; the State of Minnesota; the State of New Jersey;
the State of New Mexico; the State of North Carolina; the State of
Oregon; the Commonwealth of Pennsylvania; the State of Rhode
Island; the Commonwealth of Virginia; the State of Vermont; the
State of Washington; the City of Chicago, Illinois; the City of
New York; the City of Philadelphia; the City of Providence; the
City and County of San Francisco, California; the United States
Conference of Mayors; the City of Seattle, Washington; the City of
Pittsburgh; the County of Cameron; the State of Colorado; the City
of Central Falls; the City of Columbus; the County of El Paso; the
County

of

Monterey;

and

the

County

of

Hidalgo

(collectively

 ii
plaintiffs in the district court in No. 18-cv-2921, and real
parties in interest in the court of appeals in Nos. 18-2652 and
18-2856).

Respondents further include the New York Immigration

Coalition;

Casa

de

Maryland,

Inc.;

the

American-Arab

Anti-

Discrimination Committee; ADC Research Institute; and Make the
Road New York (collectively plaintiffs in the district court in
No. 18-cv-5025, and real parties in interest in the court of
appeals in Nos. 18-2659 and 18-2857).

 IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 18A-_______
IN RE UNITED STATES DEPARTMENT OF COMMERCE, ET AL.
_______________
APPLICATION FOR A STAY PENDING DISPOSITION
OF A PETITION FOR A WRIT OF MANDAMUS
TO THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
AND REQUEST FOR AN IMMEDIATE ADMINISTRATIVE STAY
_______________
Pursuant to Rule 23 of the Rules of this Court and the All
Writs Act, 28 U.S.C. 1651, the Solicitor General, on behalf of the
United States Department of Commerce, the Secretary of Commerce,
the United States Census Bureau, and the Acting Director of the
United States Census Bureau, respectfully applies for a stay of
written orders and an oral ruling entered by the United States
District Court for the Southern District of New York on September
21, 2018 (App., infra, 5a-16a), August 17, 2018 (id. at 17a-19a),
and July 3, 2018 (id. at 95a-107a).

Together, these orders

specifically compel the depositions of two high-ranking Executive
Branch officials

--

the Secretary of Commerce, Wilbur L. Ross,

Jr., and the Acting Assistant Attorney General (AAG) of the Justice
Department’s Civil Rights Division, John M. Gore

--

and more

generally expand discovery beyond the administrative record in
this suit under the Administrative Procedure Act (APA), 5 U.S.C.
701 et seq.

 2
This application arises from a pair of consolidated cases
challenging

the

decision

by

Secretary

Ross

citizenship question on the decennial census.

to

reinstate

a

Questions seeking

citizenship or birthplace information were part of every decennial
census from 1820 to 1950 (except in 1840); and from 1960 through
2000 the decennial census continued to elicit such information
from a sample of the population.
has

included

detailed

questions

annual

about

surveys

sent

Since 2005, the Census Bureau
citizenship

to

samples

and
of

birthplace
the

in

population.

Respondents here challenge Secretary Ross’s decision to reinstate
a citizenship question on the 2020 decennial census, alleging that
adding the question might cause an undercount because, among other
things, some households containing individuals who are unlawfully
present will be deterred from responding (despite their legal duty
to

respond).

decision

Therefore,

was

arbitrary

respondents

and

claim,

capricious,

and

the

Secretary’s

violates

various

regulatory, statutory, and constitutional provisions.
The immediate dispute here is about whether respondents are
entitled to probe Secretary Ross’s mental state -- his subjective
motivations
question.
Census

--

when he decided to reinstate the citizenship

Secretary Ross consulted with many parties, including

Bureau,

Commerce

Department,

and

Justice

Department

officials, before announcing his decision, and he set forth his
reasons

in

a

detailed

memorandum

backed

by

a

voluminous

 3
administrative record.

See App., infra, 117a-124a.

Those reasons

include the Justice Department’s view that citizenship data from
the decennial census would be helpful to its enforcement duties
under the Voting Rights Act of 1965 (VRA), 52 U.S.C. 10301 et seq.
App., infra, 125a-127a.

Not content to evaluate the legality of

the

based

Secretary’s

respondents

order

assert

that

on

the

Secretary

administrative

Ross’s

stated

record,

reasons

are

pretextual, and that his decision was driven by secret motives,
including animus against racial minorities.
the district court agreed to compel

--

They seek

--

and

wide-ranging discovery to

probe the Secretary’s mental state, including by deposing him and
other high-ranking government officials.
This Court has long recognized that an agency decisionmaker’s
mental state is generally irrelevant to evaluating the legality of
agency action.

See Morgan v. United States, 304 U.S. 1, 18 (1938).

So too has this Court recognized that compelling the testimony of
a high-ranking government official
President’s Cabinet

--

--

especially a member of the

is rarely if ever justified.

States v. Morgan, 313 U.S. 409, 422 (1941).
forth

the

reasons

supporting

his

decision

See United

Secretary Ross set
to

reinstate

a

citizenship question in a detailed memorandum, and the government
has provided an extensive administrative record in support of that
determination.

The

validity

of

the

Secretary’s

decision

is

properly judged on that objective “administrative record already

 4
in existence, not some new record made initially in the reviewing
court.”

Camp v. Pitts, 411 U.S. 138, 142 (1973) (per curiam).

The district court nevertheless concluded that compelling a
Cabinet

Secretary’s

and

Acting

AAG’s

testimony

was

justified

because respondents made a “strong showing of bad faith” on the
part of Secretary Ross.

App., infra, 13a (citation omitted).

the district court’s stated reasons
have

subjectively

desired

to

--

Yet

that Secretary Ross might

reinstate

the

question

before

soliciting the views of the Justice Department; that he overruled
subordinates who opposed reintroducing the citizenship question;
that the citizenship question was not “well tested”; and that the
Justice Department had not previously requested citizenship data
for its VRA enforcement duties

--

all are legally immaterial,

and some are factually incorrect as well.
Nor

does

circumstances”
scrutiny.

the

district

warrant

court’s

Secretary

App., infra, 12a.

finding
Ross’s

that

“exceptional

deposition

survive

The court thought Secretary Ross’s

testimony uniquely vital because he was personally involved in the
decision to reinstate a citizenship question and the decision is
of great importance to the public.

The Secretary’s personal

involvement in a significant policy decision is not exceptional,
and the importance of the Secretary’s decision in this case does
not distinguish it from many other decisions of national importance
that Cabinet Secretaries make.

 5
Compounding its error, the district court did not adequately
consider whether the information respondents hope to obtain from
Secretary Ross could be obtained elsewhere.

Respondents already

have received extensive materials through discovery, including
documents and testimony from the Secretary’s closest aides.
Secretary

Ross’s

testimony,

much

of

which

likely

And

will

be

privileged, is unlikely to add anything material to respondents’
understanding of those events.

Moreover, to the extent extra-

record discovery is appropriate, the government offered to supply
the

information

respondents

seek

from

Secretary

Ross

through

interrogatories, requests for admission, or a deposition of the
Commerce

Department

30(b)(6).

under

Federal

See App., infra, 13a.

Rule

of

Civil

Procedure

At a minimum, the court should

have ordered the parties to undertake these alternatives before it
took the extraordinary and disfavored step of ordering a Cabinet
Secretary’s deposition.
Similar

infirmities

beset

the

compelling Acting AAG Gore’s deposition.

district

court’s

order

Neither respondents nor

the district court explained how Acting AAG Gore could provide
information about Secretary Ross’s mental state or alleged hidden
animus.

And of course Acting AAG Gore’s testimony on these topics

would likely be privileged as well.
The standards for granting a stay are thus readily met in
this case. The district court’s orders mandating discovery outside

 6
the administrative record, including by compelling the depositions
of Secretary Ross and Acting AAG Gore, were in excess of the
court’s authority under the APA and violate fundamental principles
of administrative law.

As with similar administrative-record-

related orders this Court has recently considered, the orders here
“constitute[] ‘a clear abuse of discretion’” and present a “classic
case [for] mandamus relief.”
1211,

1213

(9th

Cir.)

In re United States, 875 F.3d 1200,

(Watford,

J.,

dissenting)

(citation

omitted), vacated and remanded, 138 S. Ct. 443 (2017) (per curiam).
The balance of harms weighs strongly in favor of an immediate
stay.

Respondents have stated their intent to depose Acting AAG

Gore and Secretary Ross on October 10 and 11, respectively. Absent
a stay, these high-level Executive Branch officials will be forced
to prepare for and attend these depositions, and those harms cannot
be undone by an eventual victory on the merits.
respondents
immediately.

have

no

pressing

need

to

depose

By contrast,

these

officials

To be sure, the district court has set a trial date

of November 5, and the government also desires an expeditious
resolution of the ultimate legality of Secretary Ross’s order in
time to finalize the 2020 decennial census questionnaire.
inquiry into Secretary Ross’s mental state
matter, a trial

--

--

But

or, for that

is unnecessary to resolve that question under

bedrock principles of administrative law.

Rather, the district

court must decide this challenge on “the administrative record

 7
already in existence, not some new record made initially in the
reviewing court.”

Camp v. Pitts, 411 U.S. 138, 142 (1973) (per

curiam).
In light of the looming depositions and the government’s clear
right to relief, the government seeks an immediate stay of all
three orders pending completion of all further proceedings in this
Court.

The Second Circuit already has denied mandamus relief to

quash Acting AAG Gore’s deposition and to halt further discovery,
and on October 2 denied the government’s request to stay those
orders.

App.,

infra,

3a-4a,

129a.

The

Second

Circuit

has

temporarily stayed Secretary Ross’s deposition until at least
October 9, when it will consider the government’s mandamus petition
to quash that deposition.

Id. at 1a-2a.

If the Second Circuit

denies mandamus relief and lifts the stay on or after that date,
however, it would leave little or no time for the parties and this
Court to act before Secretary Ross’s October 11 deposition.
avoid

a

needlessly

rushed

schedule,

the

government

in

To
this

application seeks a stay of Secretary Ross’s deposition as well.
After the Second Circuit resolves the dispute over Secretary
Ross’s deposition, the government intends to file a petition for
a writ of mandamus or certiorari in this Court.

The forthcoming

petition will challenge, at a minimum, the orders compelling Acting
AAG

Gore’s

deposition

and

the

extra-record

discovery

into

Secretary Ross’s mental state; and if the Second Circuit ultimately

 8
declines

to

quash

the

order

compelling

Secretary

Ross’s

deposition, the government’s forthcoming petition will challenge
that order too.
In the alternative, the Court could construe this application
either as a petition for a writ of mandamus to the district court
or as a petition for a writ of certiorari to the Second Circuit.
(In the case of Secretary Ross’s deposition, which the Second
Circuit will consider on October 9, the Court could construe this
application as a petition for a writ of mandamus or certiorari
before

judgment.)

Either

way,

the

government

respectfully

requests an immediate administrative stay of all three discovery
orders while the Court considers this application.
STATEMENT
1.

The Constitution requires that an “actual Enumeration”

of the population be conducted every ten years in order to allocate
representatives in Congress among the States, and vests Congress
with the authority to conduct that census “in such Manner as they
shall by Law direct.”

U.S. Const. Art. I § 2, Cl. 3.

The Census

Act, 13 U.S.C. 1 et seq., delegates to the Secretary of Commerce
the responsibility to conduct the decennial census “in such form
and content as he may determine,” and “authorize[s] [him] to obtain
such other census information as necessary.”

13 U.S.C. 141(a).

The Census Bureau assists the Secretary in the performance of this
responsibility.

See 13 U.S.C. 2, 4.

The Act directs that the

 9
Secretary “shall prepare questionnaires, and shall determine the
inquiries, and the number, form, and subdivisions thereof, for the
statistics, surveys, and censuses provided for in this title.”
U.S.C. 5.

13

Nothing in the Act directs the content of the questions

that are to be included on the decennial census.
2.

With the exception of 1840, decennial censuses from 1820

to 1880 asked for citizenship or birthplace in some form, and
decennial censuses from 1890 through 1950 specifically requested
citizenship information.

18-cv-2921 Docket entry No. 215, at 8-

10 (S.D.N.Y. July 26, 2018) (MTD Order).
Citizenship-related questions continued to be asked of some
respondents after the 1950 Census.

In 1960, the Census Bureau

asked 25% of the population for the respondent’s birthplace and
that of his or her parents.

Id. at 10-11.

Between 1970 and 2000,

the Census Bureau distributed a detailed questionnaire, known as
the “long-form questionnaire,” to a sample of the population (one
in five households in 1970, one in six thereafter) in lieu of the
“short-form questionnaire” sent to the majority of households.
Id. at 11-12. The long-form questionnaire included questions about
the respondent’s citizenship or birthplace, while the short form
did not.

Ibid.

Beginning in 2005, the Census Bureau began collecting the
more extensive long-form data

--

including citizenship data

--

through the American Community Survey (ACS), which is sent yearly

 10
to about one in 38 households.

Ibid.

The replacement of the long-

form questionnaire with the yearly ACS enabled the 2010 census to
be a “short-form-only” census.
“short-form-only” census.

The 2020 census will also be a

The ACS will continue to be distributed

each year, as usual, to collect additional data, and will continue
to include a citizenship question.
Because the ACS collects information from only a small sample
of the population, it produces annual estimates only for “census
tracts” and “census-block groups.”

The decennial census attempts

a full count of the people in each State and produces population
counts as well as counts of other, limited information down to the
smallest geographic level, known as the “census block.”

As in

past years, the 2020 census questionnaire will pose a number of
questions beyond the total number of individuals residing at a
location,

including

questions

regarding

sex,

Hispanic

origin,

race, and relationship status.
3.

On March 26, 2018, the Secretary of Commerce issued a

memorandum reinstating a citizenship question on the 2020 Census
questionnaire.

App., infra, 117a-124a.

The Secretary’s reasoning

and the procedural background are set out in that memorandum and
in a supplemental memorandum issued on June 21, 2018.
116a.

The

Secretary

explained

that,

“[s]oon

See id. at

after

[his]

appointment,” he “began considering various fundamental issues”
regarding

the

2020

Census,

including

whether

to

reinstate

a

 11
citizenship

question.

Ibid.

As

part

of

the

Secretary’s

deliberative process, he and his staff “consulted with Federal
governmental components and inquired whether the Department of
Justice (DOJ) would support, and if so would request, inclusion of
a citizenship question as consistent with and useful for the
enforcement of [the] Voting Rights Act.”

Ibid.

In a December 12, 2017 letter (Gary Letter), DOJ responded
that citizenship data is important to the Department’s enforcement
of Section 2 of the VRA for several reasons, including that the
decennial

census

questionnaire

would

provide

more

granular

citizenship voting age population (CVAP) data than the ACS surveys
can.

App., infra, at 125a-127a.

Accordingly, DOJ “formally

request[ed] that the Census Bureau reinstate into the 2020 Census
a question regarding citizenship.”
After
“initiated

receiving
a

DOJ’s

comprehensive

Id. at 127a.

formal
review

request,

process

led

the
by

Secretary
the

Census

Bureau,” App., infra, 117a, and asked the Census Bureau to evaluate
the best means of providing the data identified in the letter.
The Census Bureau initially presented three alternatives.
118a-120a.

Id. at

After reviewing those alternatives, the Secretary

asked the Census Bureau to consider a fourth option too.

Id. at

120a. Ultimately, the Secretary concluded that this fourth option,
reinstating a citizenship question on the decennial census, would

 12
provide DOJ with the most complete and accurate CVAP data.

Id. at

121a.
The Secretary also observed that collecting citizenship data
in the decennial census has a long history and that the ACS has
included a citizenship question since 2005.

App., infra, 118a.

The Secretary therefore found, and the Census Bureau confirmed,
that “the citizenship question has been well tested.”

Ibid.

He

further confirmed with the Census Bureau that census-block-level
citizenship data are not available from the ACS.
The

Secretary

considered

but

Ibid.

rejected

concerns

that

reinstating a citizenship question would negatively impact the
response rate for non-citizens.

App., infra, 119a-122a.

While

the Secretary agreed that a “significantly lower response rate by
non-citizens could reduce the accuracy of the decennial census and
increase costs for non-response follow up
concluded

that

“neither

the

Census

* * *

Bureau

operations,” he

nor

the

concerned

stakeholders could document that the response rate would in fact
decline materially” as a result of reinstatement of a citizenship
question.

Id. at 119a.

Based on his discussions with outside

parties, Census Bureau leadership, and others within the Commerce
Department,

the

Secretary

determined

that,

to

the

best

of

everyone’s knowledge, there is limited empirical data on how
reinstating a citizenship question might affect response rates.
Id. at 119a, 121a.

 13
The

Secretary

also

emphasized

that

“[c]ompleting

and

returning decennial census questionnaires is required by Federal
law,” meaning that concerns regarding a reduction in response rates
were premised on speculation that some will “violat[e] [a] legal
duty to respond.”

App., infra, 123a.

So despite the hypothesis

“that adding a citizenship question could reduce response rates,
the Census Bureau’s analysis did not provide definitive, empirical
support for that belief.”

Id. at 120a.

The Secretary further

explained that the Census Bureau intends to take steps to conduct
respondent and stakeholder outreach in an effort to mitigate any
impact on response rates of including a citizenship question.

Id.

at 121a. In light of these considerations, the Secretary concluded
that “even if there is some impact on responses, the value of more
complete and accurate [citizenship] data derived from surveying
the entire population outweighs such concerns.”
4.

Plaintiffs

below

(respondents

in

Id. at 123a.
this

Court)

are

governmental entities (including States, cities, and counties) and
non-profit organizations.
the

Secretary’s

action

The operative complaints allege that
violates

the

Enumeration

Clause;

is

arbitrary and capricious under the Administrative Procedure Act;
and

denies

minorities.

equal

protection

by

discriminating

against

racial

See 18-cv-5025 Compl. ¶¶ 193-212 (S.D.N.Y. June 6,

2018); 18-cv-2921 Second Am. Compl. ¶¶ 178-197 (S.D.N.Y. July 25,

 14
2018). 1

All of the claims rest on the speculative premise that

reinstating a citizenship question will reduce the self-response
rate to the census because, notwithstanding the legal duty to
answer the census, 13 U.S.C. 221, some households containing at
least one noncitizen may be deterred from doing so (and those
households will disproportionately contain racial minorities).
Respondents maintain that Secretary Ross’s stated reasons in his
memorandum are pretextual, and that his decision was driven by
secret reasons, including animus against minorities.
Respondents announced their intention to seek extra-record
discovery before the administrative record had been filed.

At a

May 9, 2018 hearing, respondents asserted that “an exploration of
the decision-makers’ mental state” was necessary and that extrarecord discovery on that issue, including deposition discovery,
was thus justified, “prefatory to” the government’s production of
the administrative record.
5.

At

respondents’

a

July

request

3

18-cv-2921 Docket entry No. 150, at 9.
hearing,

for

the

district

extra-record

government’s strong objections.

court

discovery

App., infra, 95a-104a.

granted

over

the

The court

Challenges to the Secretary’s decision have also been
brought in district courts in Maryland and California. See Kravitz
v. United States Dep’t of Commerce, No. 18-cv-1041-GJH (D. Md.
filed Apr. 11, 2018); La Union del Pueblo Entero v. Ross, No. 18cv-1570 (D. Md. filed May 31, 2018); California v. Ross, No. 18cv-1865 (N.D. Cal. filed Mar. 26, 2018); City of San Jose v. Ross,
No. 18-cv-2279 (N.D. Cal. filed Mar. 17, 2018).
1

 15
concluded that respondents had made a sufficiently strong showing
of bad faith to warrant extra-record discovery.

Id. at 101a.

court offered four reasons to support this determination.

The

First,

the Secretary’s supplemental memorandum “could be read to suggest
that the Secretary had already decided to add the citizenship
question before he reached out to the Justice Department; that is,
that the decision preceded the stated rationale.”

Ibid.

Second,

the record submitted by the Department “reveals that Secretary
Ross overruled senior Census Bureau career staff,” who recommended
against adding a question.

Ibid.

Third, the Secretary used an

abbreviated decisionmaking process in deciding to reinstate a
citizenship question, as compared to other instances in which
questions had been added to the census.

Id. at 102a.

Fourth,

respondents had made “a prima facie showing” that the Secretary’s
stated justification for reinstating a citizenship question
that it would aid DOJ in enforcing the VRA

--

--

was “pretextual”

because DOJ had not previously suggested that citizenship data
collected through the decennial census was needed to enforce the
VRA.

Id. at 102a-103a.
Following

administrative

that
record

order,

the

with

over

government
12,000

supplemented

pages

of

the

documents,

including materials reviewed and created by direct advisors to the
Secretary.

The government also produced additional documents in

response to discovery requests, including nearly 11,000 pages from

 16
the

Department

of

Commerce

and

over

14,000

pages

from

DOJ.

Respondents have also deposed several senior Census Bureau and
Commerce Department officials, including the Acting Director of
the

Census

Bureau

and

the

Chief

of

Staff

to

the

Secretary.

Although the government strongly objected to the bad-faith finding
and subsequent discovery, it initially chose to comply rather than
seek the extraordinary relief of mandamus.
6.

On July 26, the district court granted the government’s

motion to dismiss respondents’ Enumeration Clause claims.

See MTD

Order.

dismiss

The

district

court

denied

the

motion

to

respondents’ APA and equal protection claims, concluding that
respondents had alleged sufficient facts to demonstrate standing
at the motion to dismiss stage, id. at 16-32; that respondents’
claims were not barred by the political question doctrine, id. at
32-37; that the conduct of the census was not committed to the
Secretary’s discretion by law, id. at 38-45; and that respondents’
allegations,

accepted

as

true,

stated

a

plausible

claim

of

intentional discrimination, id. at 60-68.
7.
compelling

On

August

the

17,

the

deposition

district

testimony

court
of

the

entered
Acting

an

order

Assistant

Attorney General for the Department of Justice’s Civil Rights
Division, John M. Gore. App., infra, 17a-19a. The court concluded
that Acting AAG Gore’s testimony was “plainly ‘relevant’” to
respondents’ case in light of his “apparent role” in drafting the

 17
Gary Letter, and concluded that he “possesses relevant information
that cannot be obtained from another source.”

Id. at 18a.

On

August 31, the government moved to stay discovery, including Acting
AAG Gore’s deposition, pending a mandamus petition in the Second
Circuit.

18-cv-2921 Docket entry No. 292.

On September 4, the

district court denied an administrative stay, and three days later
denied a stay altogether.

18-cv-2921 Docket entry Nos. 297, 308.

On September 7, the government filed a petition for a writ of
mandamus (and request for an interim stay) with the Second Circuit,
asking to quash Acting AAG Gore’s deposition.
for Writ of Mandamus.

See 18-2652 Pet.

The government also sought to halt further

extra-record discovery because that discovery also was based on
the same erroneous bad-faith finding.

On September 25, the court

of appeals denied the petition, explaining that it could not “say
that the district court clearly abused its discretion in concluding
that

respondents

made

a

sufficient

showing

of

‘bad

faith

or

improper behavior’ to warrant limited extra-record discovery.”
App., infra, 4a.

The Second Circuit also found no clear abuse of

discretion in the district court’s determination that Acting AAG
Gore’s deposition was warranted

because he possessed unique

information “related to plaintiffs’ allegations that the Secretary
used the December 2017 Department of Justice letter as a pretextual
legal justification for adding the citizenship question.”

Ibid.

 18
8.

Meanwhile, respondents moved for an order compelling the

deposition of Secretary Ross, and, on September 21, the district
court entered an order compelling the deposition and denying a
stay pending mandamus.
that

court-ordered

App., infra, 5a-16a.
depositions

of

The court recognized

high-ranking

government

officials are highly disfavored, but nonetheless concluded that
“exceptional

circumstances”

existed

that

“compel[led]

the

conclusion that a deposition of Secretary Ross is appropriate.”
Id. at 6a.

The court reasoned that exceptional circumstances were

present because, in the court’s view, “the intent and credibility
of Secretary Ross” were “central” to respondents’ claims, and
Secretary

Ross

has

“‘unique

first-hand

knowledge’”

about

his

reasons for reinstating a citizenship question that cannot “‘be
obtained through other, less burdensome or intrusive means.’”

Id.

at 10a-12a (citation omitted).
In concluding that Secretary Ross’s deposition was necessary,
the district court rejected the government’s contention that the
information

respondents

sought

could

be

obtained

from

other

sources, including a Rule 30(b)(6) deposition, interrogatories, or
requests for admission.

App., infra, 13a.

The court found these

alternatives unacceptable because they would not allow respondents
to assess Secretary Ross’s credibility or to ask him follow-up
questions.

Ibid.

The court also believed that a deposition would

be a more efficient use of the Secretary’s time, because additional

 19
interrogatories, depositions, or requests for admissions would
also burden the Secretary.

Ibid.

On September 27, the government filed a petition for writ of
mandamus (and request for an interim stay) with the Second Circuit,
asking to quash Secretary Ross’s deposition.
Writ of Mandamus.

See 18-2856 Pet. for

The government also sought a stay to preclude

the depositions of Secretary Ross and Acting AAG Gore and to
preclude

further

extra-record

discovery

pending

this

Court’s

review.

On September 28, the Second Circuit temporarily stayed

Secretary Ross’s deposition until at least October 9, when it will
consider the mandamus petition.

App., infra, 2a.

On October 2,

the Second Circuit declined to stay Acting AAG Gore’s deposition
or other discovery.
9.

Id. at 129a.

Although the district court had denied the government’s

earlier stay request, the government once again moved for a stay
pending review in this Court, in an abundance of caution under
this Court’s Rule 23.3.

The court denied that motion on September

30, and reconfirmed a trial date of November 5, 2018.
ARGUMENT
The government respectfully requests that this Court grant a
stay of the district court’s orders pending completion of further
proceedings in this Court.

The government intends to file a

petition for a writ of mandamus or certiorari challenging all three
orders once the Second Circuit resolves the dispute over Secretary

 20
Ross’s deposition.

In the alternative, the government asks that

this application be construed as a petition for a writ of mandamus
(or, in the alternative, certiorari) to direct the district court
to quash the depositions of Secretary Ross and Acting AAG Gore and
to halt discovery beyond the administrative record.

The district

court should be directed to confine its review of Secretary Ross’s
decision

to

the

administrative

record.

The

government

also

requests an immediate administrative stay, including of the order
compelling Secretary Ross’s deposition, while the Court considers
this application. 2
A stay pending the disposition of a petition for a writ of
mandamus is warranted if there is (1) “a fair prospect that a
majority of the Court will vote to grant mandamus” and (2) “a
likelihood that irreparable harm will result from the denial of a
stay.”
curiam).
of

Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per
A stay pending the disposition of a petition for a writ

certiorari

is

appropriate

probability

that

four

sufficiently

meritorious

if

there

Justices
to

grant

will

is

(1)

“a

consider

certiorari”;

reasonable
the

(2)

“a

issue
fair

prospect that a majority of the Court will conclude that the
Under this Court’s Rule 23 and the All Writs Act, 28
U.S.C. 1651, a single Justice or the Court has authority to enter
a stay pending proceedings in a court of appeals. See, e.g., Trump
v. International Refugee Assistance Project, 138 S. Ct. 542 (2017);
West Virginia v. EPA, 136 S. Ct. 1000 (2016); Stephen M. Shapiro
et al., Supreme Court Practice § 17.6, at 881-884 (10th ed. 2013).
2

 21
decision

below

was

erroneous”;

and

(3)

“a

likelihood

that

irreparable harm will result from the denial of a stay.” Conkright
v. Frommert, 556 U.S. 1401, 1402 (2009) (Ginsburg, J., in chambers)
(citation, brackets, and internal quotation marks omitted).

All

of these requirements are met here.
I.

THERE IS A REASONABLE PROBABILITY THAT THIS COURT WOULD GRANT
CERTIORARI
As explained more fully below, the district court’s orders

allow respondents to go beyond the administrative record to probe
the Secretary’s mental state in this APA challenge, contrary to
this Court’s precedents and bedrock principles of judicial review
of agency action.

The court’s orders compelling the deposition of

a Cabinet Secretary and an Assistant Attorney General also raise
serious separation-of-powers issues.
“important

federal

question[s]

in

The court thus resolved

a

way

that

conflicts

with

relevant decisions of this Court,” Sup. Ct. R. 10(c), and “has so
far

departed

proceedings

from

the

* * *

accepted

and

usual

course

of

judicial

to call for an exercise of this Court’s

supervisory power,” Sup. Ct. R. 10(a). This Court recently granted
certiorari in similar circumstances.
States,

138

S.

Ct.

443,

445

(2017)

See, e.g., In re United
(per

curiam)

(granting

certiorari and vacating the court of appeals’ judgment denying
mandamus relief to halt discovery to supplement the administrative
record).

The issue here is all the more pressing because it

implicates foundational tenets of separation of powers.

 II.

22
THERE IS A FAIR PROSPECT THAT THE COURT WOULD GRANT MANDAMUS
RELIEF DIRECTLY OR REVERSE THE LOWER COURT’S JUDGMENT DENYING
MANDAMUS RELIEF
The traditional use of mandamus has been “to confine the court

against which mandamus is sought to a lawful exercise of its
prescribed jurisdiction.”
542

U.S.

367,

380

Cheney v. United States Dist. Court,

(2004)

(brackets

and

citation

omitted).

Moreover, mandamus may also be justified by errors “amounting to
a judicial ‘usurpation of power’” or a “clear abuse of discretion.”
Ibid. (citation omitted).

A court may issue a writ of mandamus

when (1) the petitioner’s “right to issuance of the writ is ‘clear
and indisputable’”; (2) “no other adequate means [exist] to attain
the relief he desires”; and (3) “the writ is appropriate under the
circumstances.”

Perry, 558 U.S. at 190 (quoting Cheney, 542 U.S.

at 380-381) (brackets in original).

Each of those prerequisites

for mandamus relief is met here.
A.

The Government’s Right To Mandamus Relief Is Clear And
Indisputable

1.

The district court erred at the threshold by allowing

discovery

beyond

the

Secretary’s mental state.

administrative

record

to

probe

the

“This Court has recognized, ever since

Fletcher v. Peck, 6 Cranch 87, 130-131 (1810), that judicial
inquiries into legislative or executive motivation represent a
substantial intrusion into the workings of other branches of
government.”

Village of Arlington Heights v. Metropolitan Hous.

Dev. Corp., 429 U.S. 252, 268 n.18 (1977).

In part for that

 23
reason, “[t]he APA specifically contemplates judicial review” only
on the basis of “the record the agency presents to the reviewing
court.”

Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744

(1985); see Camp v. Pitts, 411 U.S. 138, 143 (1973) (per curiam).
This Court has “made it abundantly clear” that APA review focuses
on the “contemporaneous explanation of the agency decision” that
the agency rests upon. Vermont Yankee Nuclear Power Corp. v. NRDC,
Inc., 435 U.S. 519, 549 (1978) (citing Camp, 411 U.S. at 143).
Accordingly, courts must “confin[e]

* * *

review to a

judgment upon the validity of the grounds upon which the [agency]
itself based its action.”
(1943).

SEC v. Chenery Corp. 318 U.S. 80, 88

The agency decision must be upheld if the record reveals

a “rational” basis supporting it.

Motor Vehicle Mfrs. Ass’n of

the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 4243 (1983).

Conversely, if the record supplied by the agency is

inadequate to support the agency’s decision, “the proper course,
except in rare circumstances, is to remand to the agency for
additional investigation or explanation.”
Co., 470 U.S. at 744.

Florida Power & Light

Either way, “the focal point for judicial

review should be the administrative record already in existence,
not some new record made initially in the reviewing court.”

Camp,

411 U.S. at 142. 3
As the district court recognized, respondents cannot evade
these principles by pointing to their constitutional claims
because the APA governs those claims too. App., infra, 104a; see
3

 24
2.

The Court has recognized a narrow exception:

if there

is “a strong showing of bad faith or improper behavior.”

Citizens

to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971).
Respondents

did

not

make

this

“strong

showing”

here.

In

nevertheless allowing extra-record discovery into the Secretary’s
mental state, the district court made two critical errors.
a.

The district court improperly “assum[ed] the truth of

the allegations in [respondents’] complaints,” App., infra, 104a,
and drew disputed inferences in respondents’ favor.
is deeply misguided.

That approach

It is inconsistent with the requirement that

plaintiffs make a “strong showing”

--

not just an allegation

that passes some minimum threshold of plausibility
taking

the

extraordinary

step

of

piercing

the

401

U.S.

at

420.

It

is

also

before

administrative

record to examine a decisionmaker’s mental processes.
Park,

--

See Overton

inconsistent

with

the

presumption of regularity, which requires courts to presume that
executive officers act in good faith.

See United States v.

Armstrong, 517 U.S. 456, 464 (1996); cf. Harlow v. Fitzgerald, 457
U.S. 800, 807 (1982).

And it is inconsistent with principles of

inter-branch comity, which caution against imputing bad faith to
officials of a coordinate branch

--

particularly a Senate-

5 U.S.C. 706(2)(B) (providing cause of action to “set aside agency
action” “contrary to constitutional right”); FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 516 (2009).

 25
confirmed, Cabinet-level constitutional officer.

See Cheney, 542

U.S. at 381.
b.

The district court also fundamentally misunderstood what

“bad faith” requires in this context.

It is not bad faith for an

agency decisionmaker to favor a particular outcome before fully
considering and deciding an issue.

Were that enough to constitute

“bad faith,” extra-record review would be the rule rather than the
rare exception.

As long as the decisionmaker sincerely believes

the ground on which he ultimately bases his decision, and does not
act on a legally forbidden basis, additional subjective reasons do
not constitute bad faith or improper bias.

See Jagers v. Federal

Crop Ins. Corp., 758 F.3d 1179, 1185 (10th Cir. 2014) (“subjective
hope” that factfinding would support a desired outcome does not
“demonstrate improper bias on the part of agency decisionmakers”).
The court relied on four findings, none of which, individually or
together, constitutes a “strong showing” of bad faith to entitle
respondents to probe the Secretary’s mental state.
i.

The

supplemental

district
memorandum

court

concluded

“could

be

read

that
to

Secretary
suggest”

Ross’s

that

the

Secretary had already decided to add the citizenship question
before he reached out to the Justice Department.
101a.

But

the

memorandum,

fairly

read,

says

App., infra,
only

that

the

Secretary “thought reinstating a citizenship question could be
warranted,” and so reached out to DOJ and other officials to ask

 26
if they would support it.

App., infra, 116a (emphases added).

That does not indicate prejudgment; it simply shows that the
Secretary was leaning in favor of adding the question at the time.
As the D.C. Circuit has explained in a related context, it “would
eviscerate

the

proper

evolution

of

policymaking

were

we

to

disqualify every administrator who has opinions on the correct
course of his agency’s future actions.”

Air Transport Ass’n of

Am., Inc. v. National Meditation Bd., 663 F.3d 476, 488 (2011)
(citation omitted); see Jagers, 758 F.3d at 1185.
Rather, to make a strong showing of prejudgment, respondents
should

have

‘unalterably

to

show

closed

that

mind’”

the
or

rationally consider arguments.”

Secretary

was

“act[ed]

“‘unwilling

or

with

an

unable’

to

Mississippi Comm’n on Envtl.

Quality v. EPA., 790 F.3d 138, 183 (D.C. Cir. 2015) (citation
omitted).

The district court did not apply that test.

done so, it could not have found prejudgment here.

Had it

Nothing in

Secretary Ross’s memoranda (or any other document) suggests that
Secretary Ross would have asserted the VRA-enforcement rationale
had DOJ disagreed or, conversely, that DOJ’s request made the
Secretary’s decision a fait accompli.

To the contrary, after the

Secretary received the Gary Letter, he “initiated a comprehensive
review process led by the Census Bureau.”

App., infra, 117a.

There is no basis to conclude that this process was somehow a sham

 27
or that Secretary Ross had an unalterably closed mind and could
not or would not consider new evidence and arguments.
ii.

The

district

court

also

relied

on

the

fact

that

“Secretary Ross overruled senior Census Bureau career staff,” who
recommended against reintroducing a citizenship question.

App.,

infra, 101a-102a. But “the mere fact that the Secretary’s decision
overruled the views of some of his subordinates is by itself of no
moment in any judicial review of his decision.”
of New York, 517 U.S. 1, 23 (1996).

Wisconsin v. City

That is particularly true

where, as here, the Secretary explained why he disagreed with the
proposals favored by the staff.
one of policy

--

whether the benefits of reinstating the question

outweigh the potential costs

--

staff,

has

“to

whom

Besides, the ultimate issue is

Congress

authority over the census.”

and it is the Secretary, not his
delegated

Ibid.

its

constitutional

It was thus clear legal error

to treat overruling career staff as an indicium of bad faith.
iii. The district court further concluded that “plaintiffs’
allegations suggest that defendants deviated significantly from
standard operating procedures in adding the citizenship question”
because they did not conduct “any testing at all.”
102a.

App., infra,

But, as Secretary Ross explained, the citizenship question

“has already undergone the

* * *

testing required for new

questions” because the question “is already included on the ACS.”
Id. at 123a.

Therefore, “the citizenship question has been well

 28
tested.”

Id. at 118a (emphasis added).

The court’s crediting

respondents’ allegations was thus clearly erroneous.
iv.

Finally, the district court concluded that respondents

had made “a prima facie showing” of pretext because DOJ had never
previously “suggested that citizenship data collected as part of
the decennial census

* * *

would be helpful let alone necessary

to litigating [VRA] claims.”

App., infra, 102a-103a.

But from

1970 to 2000 DOJ did rely on such data from the decennial census
(from the long-form questionnaire) to enforce the VRA.
126a.

Id. at

And the court never engaged with the reasons set forth in

the Gary Letter for why census citizenship data would be more
appropriate for VRA enforcement than ACS data.

Contemporaneous

emails produced in response to the district court’s discovery order
only reinforce the conclusion that Commerce officials sincerely
believed “that DOJ has a legitimate need for the question to be
included.”

Id. at 128a.

The bare fact that respondents alleged that “the current
Department of Justice has shown little interest in enforcing the
[VRA],” App., infra, 103a, neither establishes a prima facie case
of

Secretary

Ross’s

pretext

commitment to enforce the VRA.

nor

calls

into

question

DOJ’s

Cf. Armstrong, 517 U.S. at 464

(presumption of good faith applies to Executive Branch officials).
As DOJ explained in the Gary Letter, citizenship data is useful in
enforcing Section 2 of the VRA, which prohibits “vote dilution” by

 29
state and local officials engaged in redistricting.
125a.

App., infra,

Because redistricting cycles are tied to the census and the

next cycle of redistricting will not begin until after the census
is taken, there is little Section 2 enforcement to be undertaken
at this time.

Besides, DOJ’s conclusion that citizenship data

would be useful in enforcing Section 2 remains true regardless of
whether the current administration will have the opportunity to
use the information collected.
3.

Beyond improperly finding that respondents had made a

“strong showing of bad faith,” Overton Park, 401 U.S. at 420

--

thereby opening the doors to discovery into Secretary Ross’s mental
state

--

the district court exacerbated its error by compelling

the deposition of Secretary Ross himself.
a.

“[A] district court should rarely, if ever, compel the

attendance of a high-ranking official in a judicial proceeding.”
In re USA, 624 F.3d 1368, 1376 (11th Cir. 2010).

So said this

Court in United States v. Morgan, 313 U.S. 409, 421-422 (1941)
(Morgan II).

Instead, as this Court and lower courts applying

Morgan II and its predecessor, Morgan v. United States, 304 U.S.
1 (1938) (Morgan I), have recognized, compelling the testimony of
high-ranking

government

officials

“extraordinary instances.”
accord,

e.g.,

Lederman

v.

is

justified

only

in

Arlington Heights, 429 U.S. at 268;
New

York

City

Dep’t

of

Parks

&

Recreation, 731 F.3d 199, 203 (2d Cir. 2013), cert. denied, 571

 30
U.S. 1237 (2014); In re United States, 624 F.3d at 1376; Bogan v.
City of Boston, 489 F.3d 417, 423 (1st Cir. 2007); Simplex Time
Recorder Co. v. Sec’y of Labor, 766 F.2d 575, 586 (D.C. Cir. 1985);
In re USA, 542 Fed. Appx. 944, 948 (Fed. Cir. 2013).

That strict

limitation on the compelled testimony of high-ranking officials is
necessary because such orders raise significant “separation of
powers concerns.”

In re USA, 624 F.3d at 1372; see Arlington

Heights, 429 U.S. at 268 & n.18.

As Morgan II emphasized,

administrative

judicial

decisionmaking

and

processes

are

“collaborative instrumentalities of justice and the appropriate
independence of each should be respected by the other.”
at 422.

313 U.S.

“Just as a judge cannot be subjected to such a scrutiny,

so the integrity of the administrative process must be equally
respected.”

Ibid. (citation omitted).

As a practical matter, requiring high-ranking officials to
appear for depositions also threatens to “disrupt the functioning
of the Executive Branch.”

Cheney, 542 U.S. at 386.

High-ranking

government officials “have ‘greater duties and time constraints
than other witnesses.’”
omitted).

As

depositions

[of

spend

inordinate

‘an

litigation.’”

a

Lederman, 731 F.3d at 203 (citation

result,

“[i]f

high-ranking

courts

officials],

amount

of

time

Ibid. (citation omitted).

did
such

not

limit

the[]

officials

would

tending

to

pending

The threat to inter-

branch comity is particularly acute where, as here, the district

 31
court orders a Cabinet Secretary’s deposition expressly to test
the Secretary’s credibility and to probe his deliberations with
other Executive Branch officials.

See App., infra, 8a-12a; see

also 18-cv-2921 Docket entry No. 363 (S.D.N.Y. Sept. 30, 2018)
(“[T]he Court remains firmly convinced that

* * *

there is a

need to make credibility determinations[.]”).
b.

The district court clearly erred in concluding that

“exceptional circumstances” justify Secretary Ross’s deposition.
App.,

infra,

12a.

The

district

court’s

“exceptional

circumstances” finding was based on its conclusion that “the intent
and

credibility

respondents’

of

claims.

Secretary
Id.

at

Ross

himself”

10a-11a.

erroneous for the reasons above:

are

That

“central”

conclusion

to
was

in a challenge to an agency

decision, it is “not the function of the court to probe the mental
processes of the Secretary.”

Morgan II, 313 U.S. at 422 (quoting

Morgan I, 304 U.S. at 18); see pp. 29-31, supra.
The district court purported to find an exception to this
rule in National Association of Home Builders v. Defenders of
Wildlife, 551 U.S. 644 (2007). The court reasoned that, to prevail
on their APA claims, “Plaintiffs must show that Secretary Ross
‘relied

on

factors

which

Congress

had

not

intended

[him]

to

consider, . . . [or] offered an explanation for [his] decision
that runs counter to the evidence before the agency.’”

App.,

infra, 6a (quoting Home Builders, 551 U.S. at 658) (brackets and

 32
ellipsis in original).

The court then concluded that, because

Secretary Ross was the decisionmaker, his deposition would aid
respondents in making that showing.

Id. at 8a.

But Home Builders

does not suggest that plaintiffs may look beyond the administrative
record to prove their APA claims, let alone that plaintiffs should
be permitted to depose a Cabinet Secretary to probe his mental
processes.

To the contrary, the Court emphasized that courts must

“uphold a decision of less than ideal clarity if the agency’s path
may reasonably be discerned.”

551 U.S. at 658 (citation omitted).

Here, the path Secretary Ross took to his decision to reinstate a
citizenship question can readily be discerned from his decision
memorandum, his supplemental memorandum, and from the extensive
administrative record.
c.

Nor did the district court properly evaluate whether

respondents could obtain the information they sought by other
means.

“The duties of high-ranking executive officers should not

be interrupted by judicial demands for information that could be
obtained elsewhere.”

In re Cheney, 544 F.3d 311, 314 (D.C. Cir.

2008) (per curiam).

To date, the Commerce Department has given

respondents thousands of pages of materials, including materials
reviewed and created by the Secretary’s most senior advisers.

And

respondents have deposed a number of senior Census Bureau and
Commerce Department officials.
the

circumstances

that

led

Respondents are now well aware of
to

the

decision

to

reinstate

a

 33
citizenship question.

Secretary Ross’s deposition is unlikely to

add any material details, all the more so because much of his
testimony will likely be privileged.
The district court barely paused to consider whether these
materials satisfied respondents’ informational demands.

Nor did

the court ask whether “the Secretary can prepare formal findings
* * *

that will provide an adequate explanation for his action”

as an alternative to direct testimony.
420.

Overton Park, 401 U.S. at

The court refused to consider any alternative to deposing

the Secretary -- such as interrogatories, requests for admission,
or a Rule 30(b)(6) deposition, all of which the government offered
--

because none would allow respondents to probe the Secretary’s

credibility or ask follow-up questions.
d.

See App., infra, 13a.

Instead, the district court jumped straight to ordering

a deposition on the ground that Secretary Ross had “unique firsthand knowledge” about his intent in reinstating a citizenship
question.

App., infra, 6a.

But none of the court’s rationales

withstands scrutiny.
i.

The district court asserted that Secretary Ross was

“personally and directly involved” in the decision to reinstate a
citizenship question “to an unusual degree.”
Yet

the

court

did

not

explain

how

App., infra, 8a.

Secretary

Ross’s

direct

participation in the decision to reinstate a citizenship question
was “unusual.”

It is not at all exceptional for an agency head to

 34
participate actively in an agency’s consideration of a significant
policy decision
district

court

--

particularly one that concerns, as the

described

important dut[ies],”

it,

one

Id. at 15a.

of

the

agency

head’s

“most

Nor is it “unusual” that

Secretary Ross informally consulted with staff and the Justice
Department before DOJ sent its formal request.

For these reasons,

courts have rejected the notion that a decisionmaker’s personal
involvement

in

the

decision

circumstance in this context.

qualifies

as

an

exceptional

In re USA, 542 Fed. Appx. at 946

(rejecting plaintiffs’ assertion that a high-ranking official’s
“personal involvement in the decision-making process” provided a
basis for deposing that official); In re FDIC, 58 F.3d 1055, 1061
(5th Cir. 1995) (that three directors of the FDIC were the only
“persons responsible for making the [challenged] decision” did not
justify their depositions).
ii.

The district court likewise erred in concluding that

Secretary Ross’s testimony was needed “to fill critical blanks in
the current record.” App., infra, 11a. The court identified those
“blanks” as “the substance and details of Secretary Ross’s early
conversations”

with

“the

Attorney

General,”

“interested

third

parties such as Kansas Secretary of State Kris Kobach,” and “other
senior Administration officials.” Id. at 11a-12a. But the details
of Secretary Ross’s consultations with other people have no bearing
on the legality of his decision to reinstate the citizenship

 35
question. “[T]he fact that agency heads considered the preferences
(even political ones) of other government officials concerning how
th[eir] discretion should be exercised does not establish the
required degree of bad faith or improper behavior.”

In re FDIC,

58 F.3d at 1062; see Sierra Club v. Costle, 657 F.2d 298, 408-409
(D.C. Cir. 1981).

The proper focus of a court’s review of

Secretary Ross’s decision is on the reasons the Secretary gave for
making that decision.
differing

reasons

That some stakeholders might have had

for

supporting

the

reinstatement

of

a

citizenship question that they shared with the Secretary is of no
consequence.
substantive

In any event, the administrative record reflects the
views

of

the

stakeholders

who

communicated

with

Secretary Ross and the Commerce Department, including Secretary
Kobach and DOJ.

See, e.g., App., infra, 125a-127a (Gary Letter);

Administrative Record 763-764 (emails from Secretary Kobach); id.
at 765-1276 (additional communications). 4

And

to the extent

respondents seek information about the Secretary’s deliberations
with other government officials, those discussions likely are
privileged, rendering the Secretary’s deposition both improper and
futile.

See Arlington Heights, 429 U.S. at 268 (decisionmaker’s

testimony “frequently will be barred by privilege”).

The administrative record is available at www.osec.doc.gov/
opog/FOIA/Documents/AR%20-%20FINAL%20FILED%20-%20ALL%20DOCS%20
%5bCERTIFICATION-INDEX-DOCUMENTS%5d%206.8.18.pdf.
4

 36
iii. Nor is there any legitimate basis for the district
court’s conclusion that statements Secretary Ross made in his
decision memoranda and in sworn testimony to Congress placed his
credibility “squarely at issue in these cases.”

App., infra, 10a.

The court was troubled by statements that, in its view, suggested
the Secretary had never considered the citizenship question until
DOJ sent the Gary Letter.

Ibid.

But none of the statements in

fact says that, and the court’s uncharitable inferences to the
contrary ignore the context of these statements and violate the
presumption of regularity.

Armstrong, 517 U.S. at 464.

For

example, the Secretary in his March 2018 memorandum did not say he
“‘set out to take a hard look’ at adding the citizenship question
‘following receipt’” of the Gary Letter, App., infra, 10a (emphasis
modified, citation and brackets omitted); the Secretary actually
said he “set out to take a hard look at the request” following
receipt of DOJ’s request, id. at 117a (emphasis added).

The

Secretary never said that he had not previously considered whether
to reinstate a citizenship question, or that he had not had
discussions with other agencies or government officials before he
received DOJ’s formal request.

Nor would it have made sense for

the Secretary to take a formal “hard look” at DOJ’s request before
receiving that request.
Similarly, the Secretary’s March 20 statement to Congress
that he was “‘responding solely to the Department of Justice’s

 37
request,’” App., infra, 10a (quoting March 20 testimony, available
at 2018 WLNR 8815056), was actually in answer to a question asking
whether he was also responding to requests from third parties, see
2018 WLNR 8815056.

And the Secretary’s admittedly imprecise March

22 statement that DOJ “‘initiated the request for inclusion of the
citizenship

question,’”

App.,

infra,

10a

(quoting

March

22

testimony, available at 2018 WLNR 8951469), was in response to a
question about whether Commerce planned to include a citizenship
question on the 2020 census, not a question about the Secretary’s
decision-making

process.

And

the

statement

was

immediately

followed by an acknowledgment that he had been communicating with
“quite a lot of parties on both sides of the question” and that he
“ha[d] not made a final decision, as yet” on this “very important
and

very

ignoring

complicated
the

context

question,”
of

these

2018

WLNR

statements

8951469.
and

Only

eliding

by
the

presumption of regularity could the court find that the Secretary’s
credibility was “squarely at issue.”
4.

App., infra, 10a.

For largely the same reasons, the district court also

erred in compelling the deposition of Acting AAG Gore.
infra, 17a-19a.

See App.,

The court concluded that deposing Acting AAG Gore

was justified in light of his “apparent role in drafting the
Department of Justice’s December 12, 2017 letter requesting that
a citizenship question be added to the decennial census.”

Id. at

18a. For this reason, the court stated, his testimony was “plainly

 38
‘relevant,’ within the broad definition of that term for purposes
of discovery.”
testimony

of

exceptional

Ibid.
a

--

But were that the rule, compelling the

high-ranking

would

be

routine,

not

in contravention of this Court’s decisions in

Morgan II and other cases.
Moreover,

official

deposing

legitimate purpose.

See pp. 29-31, supra.
Acting

AAG

Gore

would

achieve

no

After all, respondents’ stated purpose of the

extra-record discovery is to probe Secretary Ross’s mental state,
not Acting AAG Gore’s.

There has been no plausible suggestion

that DOJ acted in bad faith; nor have respondents provided any
basis to believe that the reasons DOJ gave for reinstating the
citizenship question in the Gary Letter did not represent DOJ’s
views.

For that reason, there is no basis for the district court

and Second Circuit’s assertion that deposing Acting AAG Gore would
yield information about DOJ’s position “that cannot be obtained
from another source,” App., infra, 4a (quoting id. at 18a).
Acting

AAG

Gore’s

testimony

on

such

topics

is

likely

to

And
be

protected by privilege, rendering a deposition focused on these
topics improper and futile.
B.

Arlington Heights, 429 U.S. at 268.

No Other Adequate Means Exist To Attain Relief

Absent review on mandamus, the district court’s orders will
be

effectively

unreviewable

on

appeal

from

final

judgment.

Secretary Ross’s deposition is set for October 11, 2018, and Acting
AAG Gore’s for October 10.

If the Second Circuit denies mandamus

 39
relief

and

refuses

government

to

stay

indisputably

the

has

district

“no

other

court’s

orders, the

adequate

means”

protecting its interests aside from this petition.

of

Perry, 558

U.S. at 190 (citation omitted).
C.

Mandamus Is Appropriate Under The Circumstances

As this Court has recognized, “mandamus standards are broad
enough to allow a court of appeals to prevent a lower court from
interfering with a coequal branch’s ability to discharge its
constitutional responsibilities.”

Cheney, 542 U.S. at 382.

high-ranking officials in two agencies
Secretary

--

depositions,

will

which

be

will

forced

to

indisputably

--

Here,

including a Cabinet

prepare

for

“interfer[e]

and

attend

with”

their

“ability to discharge [their] constitutional responsibilities.”
Ibid.

And document discovery

--

especially into the Secretary’s

mental state

--

also is intrusive and disruptive to an agency’s

functioning.

Cf. In re United States, 138 S. Ct. at 445.

III. THERE IS A LIKELIHOOD THAT IRREPARABLE HARM WILL RESULT FROM
THE DENIAL OF A STAY
In contrast to the harms to the government articulated above,
which are plainly irreparable, respondents will suffer relatively
little

harm

from

an

immediate

stay.

Unlike

the

impending

depositions next week, trial is still more than a month away.
under

the

bedrock

principles

of

administrative

law

And

discussed

above, respondents can and must litigate their APA claims on “the

 40
administrative record already in existence, not some new record
made initially in the reviewing court.”

Camp, 411 U.S. at 142.

CONCLUSION
For the foregoing reasons, this Court should stay the district
court’s orders to the extent they compel (1) the deposition of
Commerce Secretary Ross; (2) the deposition of Acting AAG Gore;
and (3) discovery beyond the administrative record.
should

remain

proceedings

in

in

effect

this

Court

pending
over

the
the

completion
government’s

petition for a writ of mandamus or certiorari.

The stay
of

further

forthcoming

Alternatively, the

government requests the Court to construe this application as that
petition for a writ of mandamus or certiorari.

The government

further requests an immediate administrative stay pending the
Court’s consideration of this application.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
OCTOBER 2018

 APPENDIX
Court of appeals order temporarily staying deposition
of Secretary of Commerce Wilbur L. Ross, Jr., until
Oct. 9, 2018 (2d Cir. Sept. 28, 2018) .......................1a
Court of appeals order denying a writ of mandamus and
lifting stay for deposition of Acting Assistant
Attorney General John M. Gore (2d Cir. Sept. 25, 2018) ......3a
District court order compelling deposition of Secretary of
Commerce Wilbur L. Ross, Jr. (S.D.N.Y. Sept. 21, 2018) ......5a
District court order compelling deposition of
Acting Assistant Attorney General John M. Gore
(S.D.N.Y. Aug. 17, 2018) ...................................17a
District court oral order expanding discovery
(S.D.N.Y. July 3, 2018) ....................................20a
Supplemental memorandum by Secretary of Commerce Wilbur
L. Ross, Jr. regarding the administrative record in
census litigation (June 21, 2018) .........................116a
Memorandum from Wilbur L. Ross, Jr., Secretary of Commerce,
to Karen Dunn Kelley, Under Secretary for Economic
Affairs (Mar. 26, 2018) ...................................117a
Letter from Arthur E. Gary, General Counsel,
Justice Management Division, to Dr. Ron Jarmin,
Director, U.S. Census Bureau (Dec. 12, 2017) ..............125a
Email from Earl Comstock to Wilbur L. Ross, Jr., Secretary
of Commerce (May 2, 2017) .................................128a
Court of appeals order denying stay of further discovery,
including deposition of Acting Assistant Attorney General
John M. Gore (2d Cir. Oct. 2, 2018) .......................129a

 Case 18-2857, Document 16, 09/28/2018, 2399767, Page1 of 2

UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT
At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
28th day of September, two thousand and eighteen.
Before:

Peter W. Hall,
Circuit Judge.
_________________________________________
In Re: United States Department of Commerce, Wilbur L.
Ross, in his official capacity as Secretary of Commerce,
United States Census Bureau, an agency within the United
States Department of Commerce, Ron S. Jarmin, in his
capacity as the Director of the U.S. Census Bureau,
Petitioners.
************************************************
United States Department of Commerce, Wilbur L. Ross, in
his official capacity as Secretary of Commerce, United
States Census Bureau, an agency within the United States
Department of Commerce, Ron S. Jarmin, in his capacity as
the Director of the U.S. Census Bureau,
Petitioners,
v.
State of New York, State of Connecticut, State of
Delaware, District of Columbia, State of Illinois, State of
Iowa, State of Maryland, Commonwealth of Massachusetts,
State of Minnesota, State of New Jersey, State of New
Mexico, State of North Carolina, State of Oregon,
Commonwealth of Pennsylvania, State of Rhode Island,
Commonwealth of Virginia, State of Vermont, State of
Washington, City of Chicago, Illinois, City of New York,
City of Philadelphia, City of Providence, City and County
of San Francisco, California, United States Conference of
Mayors, City of Seattle, Washington, City of Pittsburgh,
County of Cameron, State of Colorado, City of Central
Falls, City of Columbus, County of El Paso, County of
Monterey, County of Hidalgo,
Respondents.
_____________________________________

(1a)

CERTIFIED COPY ISSUED ON 09/28/2018

ORDER

Docket No. 18-2856

 Case 18-2857, Document 16, 0972872018, 2399767, Page2 of 2
2a

In Re: United States Department of Commerce, Wilbur L. Ross,

in his official capacity as Secretary of Commerce, United States

Census Bureau, an agency within the United States Department of

Commerce, Ron S. Jarmin, in his capacity as the Director of the

U.S. Census Bureau, Docket No- 18?2857

 

Petitioners.



United States Department of ommerce, Wilbur L. Ross, in his

of?cial capacity as Secretary of Commerce, United States Census
Bureau, an agency within the United States Department of Commerce,
Ron S- armin, in his capacity as the Director of the U-S. Census Bureau,

Petitioners,
v.
New York Immigration Coalition, ASA de Maryland, Inc.,
American-Arab Anti?Discrimination Committee, ADC Research Institute,
Make the Road New York,

Respondents.

 

As pan of its petitions for writ of mandamus, the Government seeks an administrative
stay of the depositions of Secretary of Commerce Wilbru? Ross and John Gore, the Acting
Assistant Attorney General of the Department of Justice?s Civil Rights Division.

IT IS HEREBY ORDERED that the deposition of Secretaiy Ross is stayed pending
determination of the petitions. Answers to the petitions must be filed by October 4, 2018 at
noon. The petitions, as they pertain to Secretary Ross, are REFERRED to the motions panel
sitting on Tuesday, October 9, 2018. To the extent the Government seeks a stay of Acting
Attorney General Gore?s deposition, that request is REFERRED to the panel that determined the
petitions in docket numbers 13-2652 and 18-2659.

For the Coult:
Catherine O?Hagan Wolfe,
Clerk of ornt

 

A True Copy
Catherine O?Hagan W5. .

United States Cong

    

Case 18-2659, Document 50, 09/25/2018, 2396989, Page1 of 2
3a
S.D.N.Y.-N.Y.C.
18-cv-2921
18-cv-5025
Furman, J.

United States Court of Appeals
FOR THE

SECOND CIRCUIT
_________________

At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,
in the City of New York, on the 25th day of September, two thousand eighteen.
Present:

Pierre N. Leval,
Rosemary S. Pooler,
Richard C. Wesley,
Circuit Judges.

In Re: United States Department of Commerce, Wilbur L. Ross,
in his official capacity as Secretary of Commerce, United States
Census Bureau, an agency within the United States Department
of Commerce, Ron S. Jarmin, in his capacity as the Director of
the U.S. Census Bureau,
Petitioners.

18-2652
18-2659

Petitioners seek a writ of mandamus directing the halt of discovery in two consolidated district
court cases. Upon due consideration, it is hereby ORDERED that the mandamus petitions are
DENIED, and the stay of the district court’s order compelling the deposition of Acting Assistant
Attorney General John Gore is LIFTED.
Mandamus is “a drastic and extraordinary remedy reserved for really extraordinary causes.”
Balintulo v. Daimler AG, 727 F.3d 174, 186 (2d Cir. 2013) (quoting Cheney v. U.S. Dist. Ct. for
D.C., 542 U.S. 367, 380 (2004)). “We issue the writ only in ‘exceptional circumstances
amounting to a judicial usurpation of power or a clear abuse of discretion.’” In re Roman Catholic
Diocese of Albany, N.Y., Inc., 745 F.3d 30, 35 (2d Cir. 2014) (quoting Cheney, 542 U.S. at 380).
To obtain mandamus relief, a petitioner must show that (1) it has “no other adequate means to
attain the relief [it] desires,” (2) “the writ is appropriate under the circumstances,” and (3) “the
‘right to issuance of the writ is clear and indisputable.’” Id. (alteration in original) (quoting
Cheney, 542 U.S. at 380–81). “Because the writ of mandamus is such an extraordinary remedy,
our analysis of whether the petitioning party has a ‘clear and indisputable’ right to the writ is

 Case 18-2659, Document 50, 09/25/2018, 2396989, Page2 of 2
4a
necessarily more deferential to the district court than our review on direct appeal.” Linde v. Arab
Bank, PLC, 706 F.3d 92, 108–09 (2d Cir. 2013).
We assume without deciding that Petitioners do not have another “adequate means to attain the
relief” they seek, and that the writ would be “appropriate under the circumstances” if Petitioners
were entitled to it. See Cheney, 542 U.S. at 380–81 (internal quotation marks omitted).
However, mandamus is not warranted here because Petitioners have not persuaded us that their
“right to issuance of the writ is clear and indisputable.” Id. at 381 (internal quotation marks
omitted). The district court’s discovery orders do not amount to “a judicial usurpation of power
or a clear abuse of discretion.” In re Roman Catholic Diocese of Albany, N.Y., Inc., 745 F.3d at
35 (quoting Cheney, 542 U.S. at 380).
The district court applied controlling case law and made careful factual findings supporting its
conclusion that the initial administrative record was incomplete and that limited extra-record
discovery was warranted. See Nat’l Audubon Soc’y v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997)
(stating that, “[d]espite the general ‘record rule,’” extra-record discovery “may be appropriate
when there has been a strong showing in support of a claim of bad faith or improper behavior on
the part of agency decisionmakers or where the absence of formal administrative findings makes
such investigation necessary in order to determine the reasons for the agency’s choice”). We
cannot say that the district court clearly abused its discretion in concluding that plaintiffs made a
sufficient showing of “bad faith or improper behavior” to warrant limited extra-record discovery.
See id.
Nor did the district court clearly abuse its discretion in ordering the deposition of Acting Assistant
Attorney General Gore given his apparent authorship of the December 2017 Department of Justice
letter. See Lederman v. New York City Dep’t of Parks & Recreation, 731 F.3d 199, 203 (2d Cir.
2013) (holding that, “to depose a high-ranking government official, a party must demonstrate
exceptional circumstances justifying the deposition—for example, that the official has unique
first-hand knowledge related to the litigated claims or that the necessary information cannot be
obtained through other, less burdensome or intrusive means”). We find no clear abuse of
discretion in the district court’s determination that Acting Assistant Attorney General Gore’s
deposition is warranted because he “possesses relevant information that cannot be obtained from
another source” related to plaintiffs’ allegations that the Secretary used the December 2017
Department of Justice letter as a pretextual legal justification for adding the citizenship question.
Addendum at 2; New York v. U.S. Dep’t of Commerce, 18-CV-2921 (JMF), 18-CV-5025 (JMF),
2018 WL 4279467, at *4 (S.D.N.Y. Sept. 7, 2018).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court

2

 Case Document 345 Filed 09:21:18 Page 1 of 12

 

 

 

 

 

 

 

 

551

UNITED STATES DISTRICT COURT USDC 51""

SOUTHERN DISTRICT OF YORK It NT
ELECTRONICALLY FILED
STATE OF NEW YORK 1 I DOC i?

a DATE ?9f21f2018
Plaintiffs,
(IMF)


OPINION AND ORDER

 

UNITED STATES DEPARTMENT OF CONIMERCE, et al.,

Defendants.
j;
JESSE M. United States District Judge:

In these consolidated cases, familiarity with which is assumed, Plaintiffs bring claims
under the Administrative Procedure Act 5 U.S.C. 7'01 at 56.37., and the Due Process
Clause of the Fifth Amendment challenging the decision Of Secretary Of Commerce Wilbtu? L-
Ross, Jr. to reinstate a question concerning citizenship status on the 2020 census questionnaire.
See gensml?t: New York US. Bap ofComntarce, 315 F. Supp. 3d 7'66 (S.D.N.Y. 2018). Now
pending is a question that has loomed large since July 3, 2018, when the Court authorized extra-
record discovery on the ground that Plaintiffs had ?made a strong preliminary or prfmafacte
showing that they will ?nd material beyond the Administrative Record indicative of bad faith.?
(Docket NO. 205 (?July 3rd at 85). That question, which is the subject of competing letter
briefs, is whether Secretary Ross himself must sit for a deposition. (Sea Docket No. 314 
Letter?); Docket No. 320 (?Defs? Letter?); Docket No. 325 Reply?)). Applying well-
established principles to the unusual facts of these cases, the Court concludes that the question is
not a close one: Secretary Ross must sit for a deposition because, among other things, his intent

and credibility are directly at issue in these cases.

Case 1:18-cv-02921-JMF Document 345 Filed 09/21/18 Page 2 of 12
6a
The Second Circuit established the standards relevant to the present dispute in Lederman
v. New York City Department of Parks & Recreation, 731 F.3d 199 (2d Cir. 2013). In that case,
the Circuit observed that courts had long held “that a high-ranking government official should
not — absent exceptional circumstances — be deposed or called to testify regarding the reasons
for taking official action, ‘including the manner and extent of his study of the record and his
consultation with subordinates.’” Id. at 203 (quoting United States v. Morgan, 313 U.S. 409, 422
(1941)). “High-ranking government officials,” the Court explained, “are generally shielded from
depositions because they have greater duties and time constraints than other witnesses. If courts
did not limit these depositions, such officials would spend an inordinate amount of time tending
to pending litigation.” Id. (internal quotation marks and citation omitted). Joining several other
courts of appeals, the Circuit thus held that “to depose a high-ranking government official, a
party must demonstrate exceptional circumstances justifying the deposition.” Id. The Court then
proffered two alternative examples of showings that would satisfy the “exceptional
circumstances” standard: “that the official has unique first-hand knowledge related to the
litigated claims or that the necessary information cannot be obtained through other, less
burdensome or intrusive means.” Id. (emphasis added).1
Those standards compel the conclusion that a deposition of Secretary Ross is appropriate.
First, Secretary Ross plainly has “unique first-hand knowledge related to the litigated claims.”
731 F.3d at 203. To prevail on their claims under the APA, Plaintiffs must show that Secretary
Ross “relied on factors which Congress had not intended [him] to consider, . . . [or] offered an
explanation for [his] decision that runs counter to the evidence before the agency.” Nat’l Ass’n

1

Defendants argue that where, as here, the high-ranking official in question is a member of
the President’s Cabinet, the “hurdle is exceptionally high.” (Defs.’ Letter at 1). That argument,
however, finds no support in Lederman. In any event, even if an “exceptionally high” standard
did apply here, the result would be the same given the Court’s findings below.
2

 Case 1:18-cv-02921-JMF Document 345 Filed 09/21/18 Page 3 of 12
7a
of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658 (2007) (quoting Motor Vehicle Mfrs.
Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). As Defendants
themselves have conceded (see Docket No. 150, at 15), one way Plaintiffs can do so is by
showing that the stated rationale for Secretary Ross’s decision was not his actual rationale.
Indeed, the Supreme Court has long held that the APA requires an agency decisionmaker to
“disclose the basis of its” decision, Burlington Truck Lines, Inc. v. United States, 371 U.S. 156,
168 (1962) (internal quotation marks omitted), a requirement that would be for naught if the
agency could conceal the actual basis for its decision, see also FTC v. Sperry & Hutchinson Co,
405 U.S. 233, 248-49 (1972). To prevail on their other claim — under the Due Process clause —
Plaintiffs must show that an “invidious discriminatory purpose” was a “motivating factor” in
Secretary Ross’s decision. Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.
252, 266 (1977). That analysis “demands a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available,” including “[t]he specific sequence of events leading up
the challenged decision,” the “administrative history [including] . . . contemporary statements by
members of the decisionmaking body,” and even direct testimony from decisionmakers
“concerning the purpose of the official action.” Id. at 266-68. If that evidence establishes that
the stated reason for Secretary Ross’s decision was not the real one, a reasonable factfinder may
be able to infer from that and other evidence that he was “dissembling to cover up a
discriminatory purpose.” New York, 315 F. Supp. 3d at 809 (quoting Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 147 (2000)).
Notably, in litigating earlier discovery disputes, Defendants all but admitted that
Plaintiffs’ claims turn on the intent of Secretary Ross himself. For instance, in litigating the
propriety of Defendants’ invocation of the deliberative process privilege, Defendants contended
that Plaintiffs should not receive materials prepared by Secretary Ross’s subordinates because

3

 Case 1:18-cv-02921-JMF Document 345 Filed 09/21/18 Page 4 of 12
8a
such materials would not shed light on Plaintiffs’ “claims that the ultimate decisionmaker’s
decision” — that is, Secretary Ross’s decision — “was based on pretext.” (Docket No. 315, at
3). And in seeking to preclude a deposition of the Acting Assistant Attorney General for Civil
Rights — the purported ghostwriter of the DOJ letter — Defendants argued vigorously that
“[t]he relevant question” in these cases “is whether Commerce’s stated reasons for reinstating the
citizenship question were pretextual.” (Docket No. 255, at 2 (emphasis in original)). As
Defendants put it: “Commerce was the decision-maker, not DOJ. . . . [T]herefore, Commerce’s
intent is at issue not DOJ’s.” (Id. (emphases added)). In a footnote, Defendants went even
further, asserting that “[t]he sole inquiry should be whether Commerce actually believed the
articulated basis for adopting the policy.” (Id. at 2 n.1 (emphasis added)). Undoubtedly,
Defendants deliberately substituted the word “Commerce” for “Secretary Ross” knowing full
well that Plaintiffs’ request to depose him was coming down the pike. But given that Secretary
Ross himself “was the decision-maker” and that it was he who “articulated” the “basis for
adopting the policy,” the significance of Defendants’ own prior concessions about the centrality
of the “decision-maker’s” intent cannot be understated.
Indeed, in the unusual circumstances presented here, the concededly relevant inquiry into
“Commerce’s intent” could not possibly be conducted without the testimony of Secretary Ross
himself. Critically, that is not the case merely because Secretary Ross made the decision that
Plaintiffs are challenging — indeed, that could justify the deposition of a high-ranking
government official in almost every APA case, contrary to the teachings of Lederman. Instead, it
is the case because Secretary Ross was personally and directly involved in the decision, and the
unusual process leading to it, to an unusual degree. See, e.g., United States v. City of New York,
No. 07-CV-2067 (NGG) (RLM), 2009 WL 2423307, at *2-3 (E.D.N.Y. Aug. 5, 2009)
(authorizing the Mayor’s deposition where his congressional testimony “suggest[ed] his direct

4

 Case 1:18-cv-02921-JMF Document 345 Filed 09/21/18 Page 5 of 12
9a
involvement in the events at issue”). By his own admission, Secretary Ross “began considering
. . . whether to reinstate a citizenship question” shortly after his appointment in February 2017
and well before December 12, 2017, when the Department of Justice (“DOJ”) made a formal
request to do so. (Docket No. 189-1). In connection with that early consideration, Secretary
Ross consulted with various “other governmental officials” — although precisely with whom
and when remains less than crystal clear. (Id.; see also Docket Nos. 313, 319). Additionally,
Secretary Ross manifested an unusually strong personal interest in the matter, demanding to
know as early as May 2017 — seven months before the DOJ request — why no action had been
taken on his “months old request that we include the citizenship question.” (Docket No. 212, at
3699).2 And he personally lobbied the Attorney General to submit the request that he “then later
relied on to justify his decision,” New York v. U.S. Dep’t of Commerce, No. 18-CV-2921 (JMF),
2018 WL 4279467, at *4 (S.D.N.Y. Sept. 7, 2018) (see also Docket Nos. 314-4, 314-5), and he
did so despite being told that DOJ “did not want to raise the question,” (Docket No. 325-1).
Finally, as the Court has noted elsewhere, see New York, 315 F. Supp. 3d at 808, he did all this
— and ultimately mandated the addition of the citizenship question — over the strong and
continuing opposition of subject-matter experts at the Census Bureau. (See Docket No. 325-2, at
5; Docket No. 173, at 1277-85, 1308-12).3
The foregoing record is enough to justify the relief Plaintiffs seek, but a deposition is also
warranted because Defendants — and Secretary Ross himself — have placed the credibility of
2

Docket No. 212 is Defendants’ notice of the filing of supplemental materials. Given the
volume of those materials, Defendants did not file them directly on the docket, but made them
available at http://www.osec.doc.gov/opog/FOIA/Documents/CensusProd001.zip.
3

Docket No. 173 is Defendants’ filing of (the first part of) the Administrative Record.
Given the volume of those materials, Defendants did not file them directly on the docket, but
made them available at http://www.osec.doc.gov/opog/FOIA/Documents/AR%20%20FINAL%20FILED%20-%20ALL%20DOCS%20[CERTIFICATION-INDEXDOCUMENTS]%206.8.18.pdf.
5

 Case 1:18-cv-02921-JMF Document 345 Filed 09/21/18 Page 6 of 12
10a
Secretary Ross squarely at issue in these cases. In his March 2018 decision memorandum, for
example, Secretary Ross stated that he “set out to take a hard look” at adding the citizenship
question “[f]ollowing receipt” of the December 2017 request from DOJ. (A.R. 1313 (emphases
added)). Additionally, in sworn testimony before the House of Representatives, Secretary Ross
claimed that DOJ had “initiated the request for inclusion of the citizenship question,” Hearing on
Recent Trade Actions, Including Section 232 Determinations on Steel & Aluminum: Hearing
Before the H. Ways & Means Comm., 115th Cong. 24 (2018), at 2018 WLNR 8951469, and that
he was “responding solely to the Department of Justice’s request,” Hearing on F.Y. 2019 Dep’t
of Commerce Budget: Hearing Before the Subcomm. on Commerce, Justice, Sci., & Related
Agencies of the H. Comm. on Appropriations, 115th Cong. 9 (2018), at 2018 WLNR 8815056
(“Mar. 20, 2018 Hearing”) (emphases added). The record developed thus far, however, casts
grave doubt on those claims. (See, e.g., Docket No. 189-1 (conceding that Secretary Ross and
his staff “inquired whether the Department of Justice . . . would support, and if so would request,
inclusion of a citizenship question” (emphasis added)); see July 3rd Tr. 79-80, 82-83). See also
New York, 315 F. Supp. 3d at 808-09. Equally significant, Secretary Ross testified under oath
that he was “not aware” of any discussions between him and “anyone in the White House”
regarding the addition of the citizenship question. Mar. 20, 2018 Hearing at 21 (“Q: Has the
President or anyone in the White House discussed with you or anyone on your team about adding
this citizenship question? A: I’m not aware of any such.”). But there is now reason to believe
that Steve Bannon, then a senior advisor in the White House, was among the “other government
officials” whom Secretary Ross consulted about the citizenship question. (See Docket Nos. 3141, 314-3).
In short, it is indisputable — and in other (perhaps less guarded) moments, Defendants
themselves have not disputed — that the intent and credibility of Secretary Ross himself are not

6

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merely relevant, but central, to Plaintiffs claims in this case. It nearly goes without saying that
Plaintiffs cannot meaningfully probe or test, and the Court cannot meaningfully evaluate,
Secretary Ross’s intent and credibility without granting Plaintiffs an opportunity to confront and
cross-examine him. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 269 (1970) (“In almost every
setting where important decisions turn on questions of fact, due process requires an opportunity
to confront and cross-examine adverse witnesses.”). Indeed, the Supreme Court and the Second
Circuit have observed in other contexts that “where motive and intent play leading roles” and
“the proof is largely in [Defendants’] hands,” as are the case here, it is critical that the relevant
witnesses be “present and subject to cross-examination” so “that their credibility and the weight
to be given their testimony can be appraised.” Poller v. Columbia Broad. Sys., Inc., 368 U.S.
464, 473 (1962); see DiRienzo v. Philip Servs. Corp., 294 F.3d 21, 30 (2d Cir. 2002) (“Live
testimony is especially important . . . where the factfinder’s evaluation of witnesses’ credibility is
central to the resolution of the issues.”); cf. Goldberg, 397 U.S. at 269 (“[W]here credibility and
veracity are at issue, . . . written submissions are a wholly unsatisfactory basis for decision.”).
Separate and apart from that, Plaintiffs have demonstrated that taking a deposition of
Secretary Ross may be the only way to fill in critical blanks in the current record. Notably,
Secretary Ross’s three closest and most senior advisors who advised on the citizenship question
— his Chief of Staff, the Acting Deputy Secretary, and the Policy Director/Deputy Chief of Staff
— testified repeatedly that Secretary Ross was the only person who could provide certain
information central to Plaintiffs claims. (See, e.g., Pls.’ Letter, Ex. 6, at 85 (“You would have to
ask [Secretary Ross].”), 101 (same), 209 (same), 210 (same); id. Ex. 8, at 111-13 (same)).
Among other things, no witness has been able to — or presumably could — testify to the
substance and details of Secretary Ross’s early conversations regarding the citizenship question
with the Attorney General or with interested third parties such as Kansas Secretary of State Kris

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Kobach. (See Pls.’ Letter, Ex. 6, at 82-86, 119-20, 167-68; id. Ex. 7 at 57-58; id. Ex. 8 at 20507). No witness has been able to identify to whom Secretary Ross was referring when he
admitted that “other senior Administration officials . . . raised” the idea of the citizenship
question before he began considering it. (See Pls.’ Letter, Ex. 6 at 101; id. Ex. 7 at 71-73; id. Ex.
8 at 111-13). And despite an allegedly diligent investigation — including “consultation” of an
unknown nature and extent with Secretary Ross himself (Sept. 14, 2018 Conf. Tr. 16) —
Defendants have not been able to identify precisely to whom Secretary Ross spoke about the
citizenship question, let alone when, in the critical months before DOJ’s December 2017 letter,
(see id.). At a minimum, Plaintiffs are entitled to make good-faith efforts to refresh Secretary
Ross’s recollections of these critical facts and to test the credibility of any claimed lack of
memory in a deposition. Indeed, there is no other way they could do so.
In sum, for the foregoing reasons, it is plain that “exceptional circumstances” are present
here, both because Secretary Ross has “unique first-hand knowledge related to the litigated
claims” and because “the necessary information cannot be obtained through other, less
burdensome or intrusive means.” Lederman, 731 F.3d at 203. In arguing otherwise, Defendants
contend that this Court’s review of Secretary Ross’s decision must be limited to the
administrative record. (Defs.’ Letter 2). But that assertion ignores Plaintiffs’ due process claim,
in which they plausibly allege that an invidious discriminatory purpose was a motivating factor
in the challenged decision. See New York, 315 F. Supp. 3d at 808-11. Evaluation of that claim
requires “a sensitive inquiry into such circumstantial and direct evidence of intent as may be
available,” including, in appropriate circumstances, “the testimony of decisionmakers.” Id. at
807, 808 (internal quotation marks omitted). Defendants’ assertion also overlooks that the
testimony of decisionmakers can be required even under the APA. In Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971), for example, the Supreme Court made clear

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that the APA requires a “thorough, probing, in-depth review” of agency action, including a
“searching and careful” inquiry into the facts. Id. at 415-16. And where there is “a strong
showing of bad faith or improper behavior,” that permits a court to “require the administrative
officials who participated in the decision to give testimony explaining their action.” Id. As the
Court held on July 3rd, that is the case here. (See July 3rd Tr. 82-84). “If anything, the basis for
that conclusion appears even stronger today.” New York, 2018 WL 4279467, at *3.
Defendants also contend that the information Plaintiffs seek can be obtained from other
sources, such as a Rule 30(b)(6) deposition of the Department of Commerce, interrogatories, or
requests for admission. (Defs.’ Letter 3). But that contention is unpersuasive for several
reasons. First, none of those means are adequate to test or evaluate Secretary Ross’s credibility.
Second, none allows Plaintiffs the opportunity to try to refresh Secretary Ross’s recollection if
that proves to be necessary (as seems likely, see Sept. 14, 2018 Conf. Tr. 16) or to ask follow-up
questions. See Fish v. Kobach, 320 F.R.D. 566, 579 (D. Kan. 2017) (authorizing the deposition
of a high-ranking official, in lieu of further written discovery, in part because a deposition “has
the advantage of allowing for immediate follow-up questions by plaintiffs’ counsel”). Third,
Plaintiffs have already pursued several of these options, yet gaps in the record remain. (See
Docket Nos. 313, 319; Sept. 14, 2018 Conf. Tr. 14-16). And finally, to adequately respond to
additional interrogatories, prepare a Rule 30(b)(6) witness, or respond to requests for admission,
Defendants would have to burden Secretary Ross anyway. “Ordering a deposition at this time is
a more efficient means” of resolving Plaintiffs’ claims “than burdening the parties and the
[Secretary] with further rounds of interrogatories, and, possibly, further court rulings and
appeals.” City of New York, 2009 WL 2423307, at *3.
Two final points warrant emphasis. First, the Court’s conclusion that Plaintiffs are
entitled to depose Secretary Ross is not quite as unprecedented as Defendants suggest. To be

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sure, depositions of agency heads are rare — and for good reasons. But courts have not hesitated
to take testimony from federal agency heads (whether voluntarily or, if necessary, by order)
where, as here, the circumstances warranted them. See, e.g., Cobell v. Babbitt, 91 F. Supp. 2d 1,
6 & n.1 (D.D.C. 1999) (reaching a decision after a trial at which the Secretary of the Interior
testified — shortly after being held in civil contempt for violating the Court’s discovery order);
D.C. Fed’n of Civic Ass’ns v. Volpe, 316 F. Supp. 754, 760 nn.12 & 36 (D.D.C. 1970)
(deposition and trial testimony required from the Secretary of Transportation), rev’d on other
grounds sub nom. D.C. Fed’n of Civic Ass’ns v. Volpe, 459 F.2d 1231 (D.C. Cir. 1971); Am.
Broad. Cos. v. U.S. Info. Agency, 599 F. Supp. 765, 768-69 (D.D.C. 1984) (requiring a
deposition of the head of the United States Information Agency); Union Sav. Bank of Patchogue,
N.Y. v. Saxon, 209 F. Supp. 319, 319-20 (D.D.C. 1962) (compelling a deposition of the
Comptroller of the Currency); see also Volpe, 459 F.2d at 1237-38 (approving of the district
court’s decision to require the Secretary’s testimony).
Courts have also permitted testimony from former agency heads about the reasons for
official actions taken while they were still in office. See, e.g., Starr Int’l Co. v. United States,
121 Fed. Cl. 428, 431 (2015) (Secretary of the Treasury and Chair of the Federal
Reserve), vacated in part on other grounds, 856 F.3d 953 (Fed. Cir. 2017); McDonnell Douglas
Corp. v. United States, 35 Fed. Cl. 358, 372 (1996) (Secretary of Defense). And, contrary to
Defendants’ suggestion that authorizing a deposition of Secretary Ross “would have serious
repercussions for the relationship between two coequal branches of government” (Defs.’ Letter 1
(internal quotation marks omitted)), the Supreme Court has made clear that “interactions
between the Judicial Branch and the Executive, even quite burdensome interactions,” do not
“necessarily rise to the level of constitutionally forbidden impairment of the Executive’s ability
to perform its constitutionally mandated functions.” Clinton v. Jones, 520 U.S. 681, 702 (1997).

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If separation-of-powers principles do not call for a federal court to refrain from exercising “its
traditional Article III jurisdiction” even where exercising that jurisdiction may “significantly
burden the time and attention” of the President, see id. at 703, they surely do not call for
refraining from the exercise of this Court’s jurisdiction here.4
Second, in the final analysis, there is something surprising, if not unsettling, about
Defendants’ aggressive efforts to shield Secretary Ross from having to answer questions about
his conduct in adding the citizenship question to the census questionnaire. At bottom, limitations
on depositions of high-ranking officials are rooted in the notion that it would be contrary to the
public interest to allow litigants to interfere too easily with their important duties. See
Lederman, 731 F.3d at 203. The fair and orderly administration of the census, however, is
arguably the Secretary of Commerce’s most important duty, and it is critically important that the
public have “confidence in the integrity of the process” underlying “this mainstay of our
democracy.” Franklin v. Massachusetts, 505 U.S. 788, 818 (1992) (Stevens, J., concurring in
part and concurring in the judgment). In light of that, and the unusual circumstances presented in
these cases, the public interest weighs heavily in favor of both transparency and ensuring the
development of a comprehensive record to evaluate the propriety of Secretary Ross’s decision.
In short, the public interest weighs heavily in favor of granting Plaintiffs’ application for an order
requiring Secretary Ross to sit for a deposition.

4

It bears mentioning that Secretary Ross has testified several times on the subject of this
litigation before Congress — a co-equal branch not only of the Executive, but also of the
Judiciary. (See Pls.’ Reply 3 n.6). Although congressional testimony, and preparation for the
same, undoubtedly impose serious burdens on Executive Branch officials, even high-ranking
Executive Branch officials must comply with subpoenas to testify before Congress. See Comm.
on Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53, 106-07 (D.D.C. 2008).
The obligation to give testimony in proceedings pending before an Article III court, where
necessary, is of no lesser importance.
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That said, mindful of the burdens that a deposition will impose on Secretary Ross and the
scope of the existing record (including the fact that Secretary Ross has already testified before
Congress about his decision to add the citizenship question), the Court limits the deposition to
four hours in length, see, e.g., Arista Records LLC v. Lime Grp. LLC, No. 06-CV-5936 (GEL),
2008 WL 1752254, at *1 (S.D.N.Y. Apr. 16, 2008) (“A district court has broad discretion to set
the length of depositions appropriate to the circumstances of the case.”), and mandates that it be
conducted at the Department of Commerce or another location convenient for Secretary Ross.
The Court, however, rejects Defendants’ contention that the deposition “should be held only
after all other discovery is concluded,” (Defs.’ Letter 3), in no small part because the smaller the
window, the harder it will undoubtedly be to schedule the deposition. Finally, the Court declines
Defendants’ request to “stay its order for 14 days or until Defendants’ anticipated mandamus
petition is resolved, whichever is later.” (Id.). Putting aside the fact that Defendants do not even
attempt to establish that the circumstances warranting a stay are present, see New York, 2018 WL
4279467, at *1 (discussing the standards for a stay pending a mandamus petition), the October
12, 2018 discovery deadline is rapidly approaching and Defendants themselves have
acknowledged that time is of the essence, see id. at *3. Moreover, the deposition will not take
place immediately; instead, Plaintiffs will need to notice it and counsel will presumably need to
confer about scheduling and other logistics. In the meantime, Defendants will have ample time
to seek mandamus review and a stay pending such review from the Circuit.
The Clerk of Court is directed to terminate Docket No. 314.
SO ORDERED.
Dated: September 21, 2018
New York, New York

__________________________________
JESSE M. FURMAN
United States District Judge

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 Case Document 261 Filed OBI1TI18 Page 1 of 3

 

 

 

 

 

 

 

 

 

 

7 a .
USDC SDNY

El . ECTRONICALLY 
DOC 
STATE OF NEW YORK, et al., DATE FILED: 08(171'2018
Plaintiff,

UNITED STATES DEPARTMENT OF CONTMERCE, et al.,
Defendants.
NEW YORK MIGRATION COALITION, et al.,
Plaintiff,

UNITED STATES DEPARTMENT OF COWERCE, et al.,
Defendants.


 

JESSE M. United States District Judge:

Two discovery-related letter motions ?led by Plaintiffs in these actio
in whole or in part: one ?led on August 10, 2018, seeking an order compellii
make John Gore, Acting Assistant Attorney General for Civil Rights, availal
Docket No. 236); and another ?led on August 13, 2018, seekii
compelling Defendants to produce ?materials erroneously withheld? from the
Record, Docket No. 237).1 Defendants responded in letters da

2013. Docket Nos. 250, 255', see also 18-CV-2921, Docket NIL

 

1 Plaintiffs? August 13th letter also sought other relief, which the Court .

Order entered on August 14, 2018. Docket No. 241).

Case 1:18-cv-02921-JMF Document 261 Filed 08/17/18 Page 2 of 3
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Upon review of the parties’ letters and applicable case law, the Court sees no need for a
conference at this time. First, the Court grants Plaintiffs’ letter motion for an order compelling
Defendants to make Acting Assistant Attorney General Gore available for deposition. Given the
combination of AAG Gore’s apparent role in drafting the Department of Justice’s December 12,
2017 letter requesting that a citizenship question be added to the decennial census and the
Court’s prior rulings — namely, its oral ruling of July 3rd concerning discovery, (18-CV-2921,
Docket No. 207), and its Opinion of July 26th concerning Defendants’ motions to dismiss (18CV-2921, Docket No. 215, at 60-68) — his testimony is plainly “relevant,” within the broad
definition of that term for purposes of discovery. See, e.g., Alaska Elec. Pension Fund v. Bank of
Am. Corp., No. 14-CV-7126 (JMF), 2016 WL 6779901, at *2 (S.D.N.Y. Nov. 16, 2016)
(“Although not unlimited, relevance, for purposes of discovery, is an extremely broad concept.”
(internal quotation marks omitted)). Moreover, given Plaintiffs’ claim that AAG Gore
“ghostwrote DOJ’s December 12, 2017 letter requesting addition of the citizenship question,”
(Docket No. 236, at 1), the Court concludes that AAG Gore possesses relevant information that
cannot be obtained from another source. See Marisol A. v. Giuliani, No. 95-CV-10533 (RJW),
1998 WL 132810, at *2 (S.D.N.Y. Mar. 23, 1998).
Further, the Court is unpersuaded that compelling AAG Gore to sit for a single deposition
would meaningfully “hinder” him “from performing his numerous important duties,” let alone
“unduly burden” him or the Department of Justice (18-CV-2921, Docket No. 255, at 3), which is
the relevant standard under Rule 45 of the Federal Rules of Civil Procedure. See, e.g., Pisani v.
Westchester Cty. Health Care Corp., No. 05-CV-7113 (WCC), 2007 WL 107747, at *2
(S.D.N.Y. Jan. 16, 2007) (denying a Rule 45 motion to quash subpoena, but recognizing that
“special considerations arise when a party attempts to depose a high level government official”).
2

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And finally, any applicable privileges can be protected through objections to particular questions
at a deposition; they do not call for precluding a deposition altogether. See, e.g., In re
Application of Chevron Corp., 749 F. Supp. 2d 135, 141 (S.D.N.Y. 2010) (denying motion to
quash subpoenas and directing parties to make their specific objections during the deposition).
Second, Plaintiffs’ request for an order compelling “production of materials erroneously
withheld” is denied without prejudice. (18-CV-2921, Docket No. 237). Although the Court
previously characterized Plaintiffs’ allegations as “troubling” (18-CV-2921, Docket No. 241), it
accepts Defendants’ representations (backed by declarations from two relevant officials at the
Department of Commerce) that they have now “taken all proper and reasonable steps to ensure
that the administrative record and supplemental materials are complete,” (18-CV-2921, Docket
No. 250, at 2). If or when Plaintiffs have reason to believe otherwise, they may renew their letter
motion in accordance with the Court’s Individual Rules and Practices for Civil Cases and its
Order of July 5th. (18-CV-2921, Docket No. 199). But there is no basis for relief now.
For the foregoing reasons, Plaintiffs’ letter motion of August 10th is GRANTED to the
extent it seeks an order compelling Defendants to make AAG Gore available for a deposition,
and their letter motion of August 13th is DENIED to the extent it seeks an order compelling
Defendants to produce “materials erroneously withheld.” The Clerk of Court is directed to
terminate 18-CV-2921, Docket Nos. 236 and 237, and 18-CV-5025, Docket Nos. 81 and 82.
SO ORDERED.
Dated: August 17, 2018
New York, New York

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------x

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STATE OF NEW YORK, et al.,

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Plaintiffs,
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v.

18 Civ. 2921 (JMF)

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UNITED STATES DEPARTMENT OF
COMMERCE, et al.,
Argument

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Defendants.
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------------------------------x

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NEW YORK IMMIGRATION
COALITION,et al.,

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Plaintiffs,
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v.

18 Civ. 5025 (JMF)

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15

UNITED STATES DEPARTMENT OF
COMMERCE, et al.,
Argument

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Defendants.
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------------------------------x

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New York, N.Y.
July 3, 2018
9:30 a.m.

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Before:
HON. JESSE M. FURMAN,
District Judge

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SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300

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APPEARANCES
NEW YORK STATE OFFICE OF THE ATTORNEY GENERAL
Attorneys for Plaintiffs
BY: MATTHEW COLANGELO
AJAY P. SAINI
ELENA S. GOLDSTEIN
- and ARNOLD & PORTER KAYE SCHOLER
BY: JOHN A. FREEDMAN
- and LAW OFFICE OF ROLANDO L. RIOS
BY: ROLANDO L. RIOS
United States Department of Justice
Civil Division, Federal Programs Branch
Attorneys for Defendants
BY: BRETT SHUMATE
KATE BAILEY
JEANNETTE VARGAS
STEPHEN EHRLICH

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(Case called)

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MR. COLANGELO:

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Matthew Colangelo from New York for the state and

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Good morning, your Honor.

local government plaintiffs.

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One housekeeping matter, your Honor, if I may.

The

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plaintiffs intended to have two lawyers oppose the Justice

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Department's motion to dismiss; Mr. Saini argue the standing

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argue and Ms. Goldstein argue the remaining 12(b)(1) and

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12(b)(6) arguments; and then I will argue the discovery aspect

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of today's proceedings.

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Hidalgo County, Texas, Mr. Rios, to weigh in briefly on one

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particular aspect of expert discovery that we intend to

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proffer.

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in and out between those arguments.

So with the Court's indulgence, we may swap counsel

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THE COURT:

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MS. GOLDSTEIN:

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And I may ask my cocounsel from

Understood.

Thank you.

Elena Goldstein also from New York for

the plaintiffs.
MR. SAINI:

Ajay Saini also from New York for the

plaintiffs.

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MR. FREEDMAN:

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John Freedman from Arnold & Porter for the New York

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Good morning, your Honor.

Immigration Coalition plaintiffs.
MR. RIOS:

Rolando Rios for the Cameron and Hidalgo

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County plaintiffs, your Honor.

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MR. SHUMATE:

Good morning, your Honor.

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Brett Shumate from the Department of Justice on behalf

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of the United States.

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augment today.

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discovery argument.

I'll be handling the motion to dismiss

My colleague, Ms. Vargas, will be handling the

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MS. VARGAS:

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Jeannette Vargas with the U.S. Attorney's Office for

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Good morning, your Honor.

the Southern District of New York.
MS. BAILEY:

Kate Bailey with the Department of

Justice on behalf of the United States.
MR. EHRLICH:

Stephen Ehrlich from the Department of

Justice on behalf of defendants.

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THE COURT:

Good morning to everybody.

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Just a reminder and request that everybody should

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speak into the microphones.

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this courtroom are a little bit subpar.

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both on CourtCall so counsel who are not local can listen in

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and also, I don't know if there are folks in the overflow room,

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but in order for all of them to hear it's important that

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everybody speak loudly, clearly, into the microphone.

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First of all, the acoustics in
Second of all we're

Before we get to the oral argument a couple

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housekeeping matters on my end.

First, I did talk to judge

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Seeborg following his conference I think it was last Thursday

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in the California case.

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cases since the initial conference in this matter, perhaps in

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Maryland.

He mentioned that there is some new

Does somebody want to update me about that and tell
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me what the status of those cases may be.
MS. BAILEY:

There is an additional case that's been

filed in Maryland, Lupe v. Ross.

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THE COURT:

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MS. BAILEY:

What was the plaintiff's name?
Lupe.

L-U-P-E.

That case has just been

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filed and a schedule has not been set yet but it is before

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Judge Hazel, same as the case that was already filed in

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Maryland.

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THE COURT:
challenge?

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MS. BAILEY:

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THE COURT:

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MS. BAILEY:

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THE COURT:

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And that raises a citizenship question

Yes, your Honor.
Are there any other cases aside from that?
No, your Honor.
All right.

Any objection to my

potentially at some point reaching out to Judge Hazel?

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MS. BAILEY:

No, your Honor.

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THE COURT:

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I have one minor disclosure, which is that there were

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a number of amicus briefs filed in this case, one of which was

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filed on behalf of several or a number of members of Congress,

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one of whom was Congresswoman Maloney.

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happened to intern for her primary campaign for about a week

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and two days earlier this month.

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should either reject the amicus brief or if it would warrant

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anything beyond that, and I did not -- I decidedly did not;

All right.

My 14-year-old daughter

I did consider whether I

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that disclosing it would suffice.
I should mention that my high school son is going to

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be starting as a Senate Page next week.

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affiliated with any particular senator but since several

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senators were on that brief as well I figured I'd mention it,

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but suffice it to say that their responsibilities are

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commensurate with their ages.

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They did not do anything in the census and will not.

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All right.

I don't think that's

Don't tell them I said that.

Finally, briefing in the New York

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Immigration Coalition case is obviously continuing.

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government filed its brief last Friday.

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filing their opposition by July 9.

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The

Plaintiffs will be

And reply is due July 13.

Per my order of the 27th, June 27th that is, and

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the plaintiffs' letter of June 29, I take it everybody's

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understanding is that that briefing is going to focus on

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arguments and issues specific to that case, and essentially the

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government has already incorporated by reference its arguments,

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to the extent they're applicable, from the states case and the

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plaintiffs will not be responding separately to that.

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MR. FREEDMAN:

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THE COURT:

That's correct, your Honor.

And suffice it to say that my ruling in

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the states case will apply to that case to the extent that

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there are common issues.

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Any other preliminary matters?

Otherwise, I'm

prepared to jump into oral argument and we'll go from there.
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All right.

So let's do it then.

I think the best way

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to proceed is I'm inclined to start with standing, then go

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to -- folks should not be using that rear door but I'll let my

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deputy take care of that.

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Start with standing and then I'll hear first from

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defendants as the moving parties and then plaintiffs can

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respond.

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doctrine and the APA justiciability together.

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there are discrete issues and arguments but, nevertheless,

And then I want to take both the political question
I recognize that

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there is some thematic overlap.

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take up the failure to state a claim under the enumeration

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clause.

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that regard I may move you a little quickly through the first

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preliminary arguments.

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And then, finally, I want to

Candidly, I want to focus primarily on that.

So Mr. Shumate, let me start with you and focus on
standing in the first instance.

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Use this microphone actually.

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MR. SHUMATE:

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So in

Good morning, your Honor.

May it please

the Court, Brett Shumate for the United States.
Congress directed the Secretary of Commerce to conduct

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the census in such form and content as he may determine.

For

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the 2020 census, Commerce decided to reinstate the question

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about citizenship on the census questionnaire.

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questionnaire already asks a number of demographic questions

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about race, Hispanic origin, and sex.

That

As far back as 1820 and

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as most recently as 2000 Commerce asked a question about

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citizenship on the census questionnaire.
THE COURT:

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Let me just make you cut to the chase

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because I got the preliminaries, I've read the briefs, I'm

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certainly familiar with the history, I'm familiar with your

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overall argument.

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On the question of standing, let me put it to you

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bluntly, why is your argument not foreclosed by the Second

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Circuit's decision in Carey v. Klutznick?

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MR. SHUMATE:

It's not foreclosed by Carey, your

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Honor, because the injury in this case, the alleged injury is

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not fairly traceable to the government.

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that's alleged here is the result of the independent action of

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third parties to make a choice not to respond to the census in

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violation of a legal duty to do so.

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the Carey case.

That was not at issue in

The Carey case is also distinguishable on --

THE COURT:

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Instead, the injury

So you make two distinct arguments with

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respect to standing.

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fact; and the second is that there is no traceability.
Is the injury in fact argument foreclosed by Carey v.

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The first is that there is no injury in

Klutznick?
MR. SHUMATE:

22

No, it's not, your Honor, for two

Carey was a post-census case.

So the injury there

23

reasons.

24

was far more concrete than it is here.

25

out from the census and the injuries that are alleged here are

Here, we're two years

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quit speculative.

They depend on a number of speculative links

2

in the chain of causation that he we didn't have in Carey v.

3

Klutznick.
First we have to speculate first about why people

4
5

might not respond to the census.

They might not respond for a

6

number of reasons.

7

complaint point to a number of different reasons:

8

the government, political climate, a number of different

9

things.

Paragraphs 47 to 53 of the plaintiffs'
Distress to

But even assuming there is an increase in the -- a

10

decrease in the initial response rate, it's speculative whether

11

the Census Bureau's extensive efforts to follow up, what they

12

call nonresponse follow-up operations, will fail.

13

THE COURT:

Can I consider those efforts in deciding

14

this question?

15

to the allegations in the complaint?

16

Are those in the complaint?

Am I not limited

It seems to me that you're relying pretty heavily on

17

records and issues outside of the complaint.

18

appropriate at summary judgment and, as many of the cases

19

you've cited are, in fact, on summary judgment.

20

appropriate for me to look at and consider at this stage?

21

MR. SHUMATE:

That may well be

So why is that

Your Honor, on a 12(b)(1) motion to

22

dismiss the Court can consider evidence outside the pleadings

23

for purposes of establishing its jurisdiction.

24
25

Even if you limit the allegations to the complaint,
paragraph 53 makes no allegation that the Census Bureau's
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extensive efforts that they intend to implement to follow up

2

with individuals who may not respond to the census initially

3

will fail.

4

And then, finally, the third element of that

5

speculative chain of causation is that it's speculative whether

6

any undercount that results will be material in a way that will

7

ultimately affect the plaintiffs.

8

are very complex formulas to determine apportionment and

9

federal funding.

As they acknowledge, there

And we just don't know at this point whether

10

any undercount will be sufficient to cause them to have an

11

injury in 2020.
In Carey it was very different.

12

It was in the census

13

year.

14

figures were inaccurate because the Census Bureau was including

15

or using inaccurate address lists in New York City.

16

was -- there was a far stronger and tighter causal nexus

17

between the alleged injury and the government's action in that

18

case.

19

citizenship -- a question on the census form.

20

There were already preliminary estimates that the census

So it

And that case also didn't involve a question on the

THE COURT:

You seem to reject the substantial risk

21

standard, citing the footnote in Clapper and suggest that it's

22

limited to Food and Drug Administration type cases.

23

What's your authority for that proposition and don't

24

the cases that are cited in the Clapper footnote stand for the

25

proposition that it's not so limited?
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MR. SHUMATE:

Your Honor, I think under either

2

standard the plaintiffs' claims will fail.

3

substantial risk test involves -- the cases that I have seen it

4

will have involved cases involving risk of Food and Drug

5

enforcement, or cases where there's a risk that the government

6

may institute prosecution, something like that.

7

I think the

The far more accepted test is certainly impending

8

injury.

Either test, the plaintiffs can't show that there's a

9

substantial risk that their injuries will ultimately occur

10

because of these speculative chain of inferences that they have

11

to rely on to tie the addition of a question on a form to their

12

ultimate injury here, which is a loss of federal funding.

13

THE COURT:

Are not they basing that inference on

14

statements of the government itself and former and current

15

government officials?

16

In other words, the government itself has said that

17

adding a citizenship question will depress response rates.

18

They've alleged in the complaint that there are states and

19

counties and cities that have a high incidence of immigrants

20

and it, therefore, would seem to follow that it would be

21

particularly depressed in those states.

22

At this stage in the proceedings, doesn't it demand

23

too much to expect them to be able to prove concretely what the

24

actual differential response rate is going to be and what the

25

concrete implications of that are going to be?
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MR. SHUMATE:

Your Honor, they don't have to prove it

2

concretely.

3

only go to the initial response rate.

4

But those allegations that they're pointing to

There's always been an undercount in the census in

5

terms of the initial response rate.

I think in the 2010 census

6

it was 63 percent of the individuals responded to the initial

7

census questioning.

8

the Census Bureau are referring to, that there may be a drop in

9

the initial response rate.

So I think that's what the individuals --

But there are no allegations that

10

the Census Bureau's follow-up operations, which are quite

11

extensive, that those will fail.

12

pointed to, I think it is paragraph 53 of the complaint that

13

says because of the reduced initial response rate, the Census

14

Bureau will have to hire additional enumerators to follow up

15

with those individuals.

But it is entirely speculative whether

16

those efforts will fail.

It's also speculative, even assuming

17

those efforts fail, whether the undercount will be material in

18

a way that ultimately affects the plaintiffs.

19

a pre-census case, it's not like Carey where there, like I said

20

earlier, there were already preliminary figures suggesting that

21

the Census Bureau had an inaccurate count in New York City.

22

THE COURT:

The only allegation that they

Because this is

Let me ask you about traceability.

Why is

23

that argument not foreclosed by the Circuit's decision last

24

Friday in the NRDC v. NHTSA case.

25

it, but the Court held that -- rejected an argument by the

I don't know if you've seen

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government that the connection between the potential industry

2

compliance and the agency's imposition of coercive penalties

3

intended to induce compliances too indirect to establish

4

causation and proceeds to say:

5

is well settled that for standing purposes petitioners need not

6

prove a cause-and-effect relationship with absolute certainty.

7

Substantial likelihood of the alleged commonality meets the

8

test.

9

the reactions of the third parties to the agency's conduct.

10

As the case law recognizes, it

This is true even in cases where the injury hinges on

MR. SHUMATE:

I think the key is the language that you

11

read about coercive effect.

12

by the government.

13

coerce people to respond to the census.

14

requires individuals to respond to the census.

15

There is no coercive effect here

In fact, the government is attempting to
There's a statute that

At the most what the plaintiffs have alleged is that

16

the government's addition of the citizenship question will

17

encouraged people not to respond to the census, even though

18

there may be a small segment of the population who would

19

otherwise respond not for -- putting aside the citizenship

20

question.

21

which involved hospitals -- the IRS revenue ruling that granted

22

favorable tax treatment to hospitals.

23

case was that the government's decision was encouraging the

24

hospitals to deny access to indigents to hospital services.

25

And the Court said no, the injury in that case is not fairly

This is a lot more like the Simon case from 1976,

The allegation in that

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traceable to the government's action, even though it may have

2

encouraged the hospitals to deny access, because it was fairly

3

traceable to the independent decisions of third parties, the

4

hospitals themselves.
That's exactly what we have here.

5

We have an

6

independent decision by individuals not to respond to the

7

census.

8

because there's a statute that makes individuals -- it requires

9

individuals to respond to the census.

10

Moreover, that independent decision is unlawful

THE COURT:

Why does that matter?

I think you made an

11

effort to distinguish Rothstein on that ground, or at least the

12

ground that the defendant's conduct in that case was allegedly

13

unlawful and it's not here.

14

purposes that that's more a merits consideration than a

15

standing question.

16

question of whether plaintiffs can establish injury that

17

resulted from some conduct of the defendants, in other words,

18

injury and causation.

19

unlawful, unlawful, or not?

20

I would think for standing

For standing purposes, it's really just a

MR. SHUMATE:

What does it matter if conduct is

It matters, your Honor, because the test

21

is that the injury must be fairly traceable to the government's

22

conduct; not the independent actions of third parties.

23

is not fair to attribute to the government the unlawful

24

decisions of third parties not to respond to a lawful question.

25

You mentioned the Rothstein case.

And it

That case was

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fundamentally different.

That involved funding terror.

That

2

is fundamentally different than adding a question to the census

3

questionnaire.

4

causal relationship between giving money to terrorists and the

5

terrorists' acts themselves.

6

THE COURT:

And it's fair to assume that there would be a

But the question is simply whether the

7

independent acts of third parties intervening break the chain

8

of causation such that it's no longer fairly traceable.

9

think in that -- just looking at it from that perspective, what

I

10

does it matter whether the conduct on either side is legal or

11

not legal?

12

injury and whether it's fairly traceable.

It's just a simple question of whether it causes

13

I mean, in other words where -- can you point me to

14

any Supreme Court case or Second Circuit case that says that

15

whether -- that the standing inquiry turns on whether the acts

16

of either the defendant or the intervening third parties are

17

lawful or unlawful?

18

MR. SHUMATE:

There are cases.

I believe it's the

19

O'Shea case from the Supreme Court that says in the context of

20

mootness, which is another related judicial review doctrine,

21

that we assume that parties follow the law.

22

should assume that individuals would respond to the census

23

consistent with their legal duty.

24
25

Let me put it this way.

And so here we

If everybody in America

responded to the census consistent with their legal duty, would
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the plaintiffs have any reason to complain about the

2

citizenship question?

3

undercount at all.

4

They would have no reason to complain about the citizenship

5

question or any fear of an undercount or loss of federal

6

funding or apportionment.

7

Of course not because there would be no

Every person in America would be counted.

Put it another way, as the Court did in Simon.

If the

8

Court were to strike the citizenship question from the census

9

questionnaire, would that address or redress all the

10

plaintiffs' fear of an injury?

11

acknowledge, there's always an undercount in a census and

12

individuals will not respond to the census questionnaire for a

13

variety of reasons.

14

THE COURT:

15
16

Probably not because, as they

Well it would redress the injury to the

extent that it is fairly traceable to the citizenship question.
MR. SHUMATE:

But it is not fairly traceable to the

And the Simon Court talked about the chain,

17

citizen question.

18

the speculative chain of inferences that you had to reach in

19

that case to trace the injury from the government's action to

20

the ultimate injury.

21

in the chain of causation.

22

don't need to repeat them.

23
24
25

THE COURT:

And here there are at least three steps
I've talked about them already.

I

Let me ask you one final question on that

front and then I'll hear from the plaintiffs on standing.
You rely pretty heavily on the Supreme Court's
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decision in Clapper and the chain of causation or the chain of

2

inferences that the Court found inadequate there.

3

a fundamental difference between that setting and this in the

4

sense that the plaintiffs there were individuals and

5

essentially needed to prove that they themselves had been

6

subjected to surveillance and it was that inquiry that required

7

the multiple levels of inferences that the Court found

8

inadequate?

9

Isn't there

Here, particularly in the states case where the

10

plaintiffs are states and cities and counties and the like,

11

we're talking about an aggregate plaintiff.

12

need to prove that a particular person didn't respond or is not

13

likely to respond to the census in light of question.

14

question is just, on an aggregate level, will it depress the

15

rates and on that presumably one can look at the Census

16

Bureau's own history and studies and the like.

17

fundamentally different and make it a different inquiry than

18

the one that was made in Clapper?
MR. SHUMATE:

19

So there is no

The

Why is that not

Certainly the injuries alleged in

20

Clapper and this case are different but the standing principles

21

are not.

22

speculative, that is concrete certainly, or at least

23

substantial risk that that injury will occur.

24

in a different context, to be sure, but still they have alleged

25

an injury that is speculative at this point, and it is not

They still have to allege an injury that is not

Now this arises

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fairly traceable to the government because of the independent

2

action of the third parties that are necessary for that action

3

to occur.

4

government actions of third parties that violate a statute that

5

the government is attempting to coerce people to respond to the

6

census.

7

failure to respond when the government is merely adding a

8

question to the form itself.

9

THE COURT:

As I said earlier, it's not fair to attribute to the

So it is not fair to attribute to the government their

Let me hear from the plaintiffs on the

10

standing, please.

If you could just for the record make sure

11

your repeat your names.

12

MR. SAINI:

Your Honor, Ajay Saini from the State of

13

New York for the plaintiffs.

14

THE COURT:

Proceed.

15

MR. SAINI:

Your Honor, the plaintiffs intend to make

16

two points here today.

17

alleged are not speculative and, in fact, the plaintiffs'

18

action here, the inclusion of citizenship question on the 2020

19

census, creates a substantial risk of an undercount and poses a

20

serious threat to plaintiffs' funding levels as well as

21

apportionment and representational interests; and our second

22

point that the plaintiffs' injuries are in fact fairly

23

traceable to the defendants' actions.

24
25

THE COURT:

First, that the injuries that they have

Does your argument depend on my accepting

that the substantial risk standard is still alive and not
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inconsistent with certainly impending.
MR. SAINI:

No, your Honor.

We believe that there are

3

immediate injuries that have occurred here.

We have alleged

4

that at paragraph 53 and -- 52 and 53 in which we state that

5

the announcement of the citizenship question has an immediate

6

deterrent effect and is already causing individuals to choose

7

not to, in anticipation of the census, not cooperate.

8

said, the substantial risk standard was affirmed just two years

9

ago in Susan B. Anthony List v. Driehaus and as a result -- by

But that

10

the Supreme Court, and as a result the substantial risk

11

standard is available here.

12

Your Honor the plaintiffs' injuries here are not

13

speculative.

14

that there is a substantial risk that an undercount will occur

15

and the statements by the defendants over the last 40 years,

16

the repeated determination by the Census Bureau that a

17

citizenship question will, in fact, increase nonresponse, and

18

not only increase nonresponse, but those determinations also

19

include in the statements that a citizenship question would

20

deter cooperation with enumerators going door to door seeking

21

to count nonresponsive households is sufficient to find that

22

there is a substantial risk of undercounting here.

23

First and foremost, the plaintiffs have shown

The defendants have mischaracterized paragraph 53 of

24

our complaint.

We have, in fact, alleged that typical forms of

25

nonresponse follow-up will be ineffective at capturing
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individuals who are intimidated by the citizenship question.

2

And the typical form of nonresponse follow-up there is the use

3

of enumerators going door to door.

4

longstanding determinations on this serve as sufficient proof

5

to show that, in fact, the nonresponse follow-up operations --

6

that there is a substantial risk that they will be effective.

7

In addition, your Honor this is -- we are still at the

8

beginning stage of this litigation and to the extent that we

9

need to determine whether or not some unspecified nonresponse

10

follow-up operations will somehow reduce potential undercount,

11

that would require further factual development at later stages

12

of the litigation.

13

THE COURT:

And, again, Census Bureau's

Your view is that, therefore, I cannot or

14

should not consider the government's announced procedures and

15

plans on that front?

16

MR. SAINI:

You need not consider it, your Honor, but

17

even if you were to consider it these unspecified allegations

18

regarding nonresponse follow-up would not be enough to defeat

19

the plaintiffs' claim that there is, in fact, a substantial

20

risk of an undercount here.

21

THE COURT:

What's your answer to the argument that

22

there are multiple other steps in the chain of inferences that

23

are required for you to intervene including, for example, that

24

it will affect the counts in your geographic jurisdiction

25

disproportionately given the complex formulas at issue here for
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apportionment, for funding, etc., essentially it's too

2

speculative to know whether and to what extent it will have an

3

effect and that ultimately you also need to prove that it has a

4

material effect on those?

5

MR. SAINI:

Your Honor, first we would note that we

6

are at the pleading stage here so we do not need to determine

7

with certainty the exact level of injury that we expect to

8

suffer, if we do intend to provide further factual development

9

in the form of expert and fact discovery to help further

10
11

elucidate the injuries that we expect to result.
But more importantly, your Honor, there is plenty of

12

case law relating to -- from here in the Second Circuit

13

relating to the viability of funding harms from undercounts

14

such as in Carey v. Klutznick, for instance, the Court

15

recognized that funding harms were sufficient to establish

16

Article III standing on the basis of plaintiffs' State and City

17

of New York's claims that an undercount would affect their

18

federal formula grants.

19

found in the City of Detroit v. Franklin that undercounting

20

would affect potential funding under the Community Development

21

Block Grant Program which we also have alleged in our

22

complaint.

And, similarly, the Sixth Circuit

23

The last thing to note here --

24

THE COURT:

25

Can I ask you a question.

Mr. Shumate's

argument is that Carey is different because it's a post-census
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case and not a pre-census case and in that regard it didn't

2

involve the same degree of speculation with respect to there

3

being an undercount.

4

MR. SAINI:

What's your answer to that?
Our answer to that, your Honor, is, again,

5

plaintiffs here -- the defendants here have repeatedly

6

recognized that a citizenship question will impair the accuracy

7

of the census both by driving down response rates but also by

8

deterring cooperation with enumerators.

9

government acknowledgment that this causal connection exists

10

and that there's a substantial likelihood that a citizenship

11

question will result in undercounts is significant here.

That specific fact of

12

In addition, we have also pointed to, in the complaint

13

at paragraphs 50 and 51, the results of pretesting conducted by

14

the Census Bureau which shows unprecedented levels of immigrant

15

anxiety.

16

households, noncitizen households are increasingly breaking off

17

interviews with Census Bureau officials.

18

pretesting show that not only is there a substantial likelihood

19

of an undercount here but there's a substantial likelihood of a

20

serious undercount here.

21

plaintiffs to meet their burden.

22

That pretesting also reveals that immigrant

THE COURT:

The results of that

That's more than enough for

And presumably those allegations are

23

relevant to the question of whether the in-person enumerator

24

follow-up would suffice to address any disparity; is that

25

correct?
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MR. SAINI:

Yes, your Honor.

2

THE COURT:

Can you turn to the question of

3

traceability and address that.

4

suggest that the intervening acts of third parties don't

5

necessarily break the chain of causation if there is a coercive

6

or determinative effect.

7

here is that there is no coercive effect.

8

extent that the government coerces anything, it coerces people

9

to respond to the census because it's their lawful obligation

10

The language in the cases

I think the government's argument
In fact, to the

to do so.

11

So why is that not compelling argument?

12

MR. SAINI:

Your Honor, the courts have repeatedly

13

acknowledged, including the Second Circuit just last week in

14

NRDC v. NHTSA that the government's acknowledgment of a causal

15

connection between their action and the plaintiffs' injury is

16

sufficient to find that the defendants' injury -- the

17

plaintiffs' injury is fairly traceable to the defendants'

18

conduct and that case law is sufficient to address this

19

particular point.

20

With respect to the illegality point that the

21

defendants have brought up here, we would point first to

22

Rothstein which shows that the illegal intervening actions of a

23

third party do not break the line of causation.

24
25

In addition, your Honor, while we haven't cited this
in our papers because this point was first brought up and
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explored in a reply brief, there are a line of cases relating

2

to data breaches, including in the D.C. Circuit, Attias v.

3

CareFirst, in which plaintiffs' injuries related to identity

4

theft, were fairly traceable to a company's lack of consumer

5

information data security policies in spite of the intervening

6

illegal action of the third parties, namely the hackers

7

stealing that confidential information.

8

THE COURT:

Can you give me that citation?

9

MR. SAINI:

I can give that to you -- it's in my bag,

10
11

so I will give that to you shortly.
THE COURT:

All right.

Apologize about that.

Very good.

Why don't you wrap

12

up on standing and we'll turn to the political question and APA

13

question.

14

MR. SAINI:

One last note on standing, your Honor.

15

The plaintiff need only show that one city, state, or county

16

within their coalition has Article III standing to satisfy the

17

Article III requirement for the entire coalition.

18

it's more than plausible to include that at least one of the

19

cities, states and counties that we have alleged harms for

20

related to funding and apportionment are likely and

21

substantial -- at a substantial risk of harm here.

22

THE COURT:

All right.

23

MR. SAINI:

Thank you, your Honor.

24

THE COURT:

Mr. Shumate, back to you.

25

As a result,

Thank you.

Mr. Saini can

look for that cite in the meantime.
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Talk to me about political question and the APA and,

2

once again, my question to you is why are those arguments not

3

foreclosed by Carey v. Klutznick?

4

MR. SHUMATE:

Your Honor, even assuming the plaintiffs

5

have standing the case is not reviewable for two reasons:

6

the political question doctrine, the second --

7

THE COURT:

8

MR. SHUMATE:

9
10

You have to slow down a little bit.
The APA is not reviewable because this

matter is committed to the agency's discretion.
With respect to Carey, again, that case did not

11

involve the addition of the question on the census

12

questionnaire.

13

question doctrine in that case.

14

as foreclosing the arguments we're making here.

15

One,

There was very little analysis of the political

THE COURT:

So it's hard to view that case

But I don't understand you to be arguing

16

that the decision with respect to the questions on the

17

questionnaire is a political question and other aspects of the

18

census are not political questions, or is that your argument?

19

And to the extent that is your argument, where do you find

20

support for that in the text of the enumeration clause?

21

MR. SHUMATE:

So our argument is that the manner of

22

conducting the census is committed to Congress, and Congress

23

has committed that to the Secretary of Commerce.

24

there have been cases reviewing census decisions but those have

25

been decisions involving how to count, who to count, things
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like that, should we use imputation --

2
3

THE COURT:

Isn't that the manner in which the census

is conducted?

4

MR. SHUMATE:

No.

Those go squarely to the question

5

of whether there's going to be a person-by-person headcount of

6

every individual in America.

7

So in those cases there was law to apply.

8

meaningful standard.

9

enumeration?

10

That is the actual enumeration.
There was a

Is there going to be an actual

This case is fundamentally different.

This doesn't

11

implicate those issues how to count, who to count.

12

implicates the Secretary's information gathering functions that

13

are pre-census itself.

14

addresses that question or decides -- or says that it's not a

15

political question.

16

THE COURT:

17

It

And there is simply no case that

Can you cite any case that has projected

challenges to the census on the political question grounds?

18

MR. SHUMATE:

No, there haven't been any cases like

19

this one where a plaintiff is challenging the addition of a

20

question to the census questionnaire itself.

21

cases --

22

THE COURT:

There have been

You're telling me in the two hundred plus

23

years of the census and the pretty much every ten-year cycle of

24

litigation arising over it there has never been a challenge to

25

the manner in which the census has been conducted; this is the
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first one?

2

MR. SHUMATE:

There has never been a challenge like

3

this one to the addition of a question on the census

4

questionnaire.
THE COURT:

5
6

question then.
MR. SHUMATE:

7
8
9

So it is specific to the addition of a

Right.

Right.

So there have been

cases -THE COURT:

In other words, that's the level on which

10

I should look at whether it's a political question and the

11

question -- literally adding the question is itself a political

12

question.

13

That's your argument?

MR. SHUMATE:

Right.

You don't need to go any further

14

than that.

15

choice, or Congress's choice of which questions to ask on the

16

census questionnaire is a political question.

17

judgment and a policy judgment about what statistical

18

information the government should collect.

19

judicially manageable standards that the court can apply to

20

decide whether that's a reasonable choice or not.

21

Because our argument is that the Secretary's

THE COURT:

It is a value

And there are no

Why isn't the standard, and this becomes

22

relevant to the issues we'll discuss later, why isn't the

23

standard the one from the Supreme Court's decision in Wisconsin

24

v. City of New York that it has to be reasonably related to the

25

accomplishment of an actual enumeration?

Why is that not the

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standard and why is that not judicially manageable?

2

MR. SHUMATE:

3

enumeration question.

4

whether the Secretary's actions are intended to count every

5

person in America.

6
7
8

THE COURT:

Because that case implicated the actual
So there is a standard as to decide

But that's not this case.
Isn't that the ultimate purpose of the

census?
MR. SHUMATE:

That is the ultimate purpose of the

9

census, but the manner of conducting the census itself, the

10

information-gathering function in particular is a political

11

question.

12

the Constitution to decide whether the government should

13

collect this type of information or that type of information.

14

There is simply no law that the Court can find in

THE COURT:

So is it your argument that if the

15

Secretary decided to add a question to the questionnaire that

16

asks who you voted for in the last presidential election, that

17

that would be unreviewable by a court?

18

MR. SHUMATE:

It would be reviewable by Congress but

19

not a court.

20

question, because Congress has reserved for itself the right to

21

review the questions.

22

That demonstrates why this is a political

Two years before the census the Secretary has to

23

submit the questions to Congress.

If Congress doesn't like the

24

questions, the Congress can call the Secretary to the Hill and

25

berate him over that; or they can pass a statute and say no,
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we're going to ask these questions.

2

to be conducted.

3

which questions to ask on the census.

4

delegated that discretion to the Secretary.

5

is still a political question about the manner of conducting

6

the census that is committed to the political branches.

7

That's how the census used

It used to be that statutory decision about

THE COURT:

But Congress has now
But ultimately it

What if the Secretary added a question

8

that was specifically designed to depress the count in states

9

that -- we live in a world of red states and blue states.

10

Let's assume for the sake of argument that the White House and

11

Congress are both controlled by the same party.

12

blue for now.

13

question that is intended to and will have the predictable

14

effect of depressing the count in red states and red states

15

only.

16

that that's reviewable only by Congress and even if Congress,

17

even if there's a political breakdown and basically Congress is

18

not prepared to do anything about that question, that question

19

is not reviewable by a court?

20

MR. SHUMATE:

Let's call it

And let's assume that the Secretary adds a

Again, don't resist the hypothetical.

Correct.

Your argument is

Because it is a decision about

21

which question to ask.

It wouldn't matter what the intent was

22

behind the addition of the question.

23

different than a question, like the courts have reviewed in

24

other cases, about who to count, how to count, things like

25

that, should we count overseas federal employees.

It's fundamentally

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judicially manageable question.

We can decide whether those

2

individuals should be counted or not.

3

whether sampling procedures should be allowed because it

4

implicates the count itself.

5

information-gathering function that is committed to the

6

political branches.

7

THE COURT:

It's different than

This is the pre-count

A lot of your argument turns on accepting

8

that the plaintiffs' challenges to the manner in which the

9

census is conducted as opposed to the enumeration component of

10

the clause.

11

that by virtue of adding the question it will depress the count

12

and therefore interfere with the actual enumeration required by

13

the clause?

14

Isn't the gravamen of the plaintiffs' claim here

MR. SHUMATE:

They're trying to make an actual

15

enumeration claim, but their factual allegations don't

16

implicate that clause of the Constitution at all because what

17

they're challenge is the manner in which the Secretary conducts

18

the information-gathering function delegated to him by

19

Congress.

20

So there is no allegation in the complaint, for

21

example, that the Secretary had not put in place procedures to

22

count every person in America.

23

concede that the Secretary has those procedures in place and

24

intends to count every person in America.

25

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they argue that the question will depress the count itself.

2

But that would lead down a road where they can -- plaintiffs

3

could challenge the font of the form itself, the size of the

4

form, whether it should be put on the internet, or the other

5

questions on the form itself:

6

These are matters that are committed to the Secretary's

7

discretion for himself.

8
9
10
11

THE COURT:

Race, sex, Hispanic origin.

That may be committed to his discretion

but that's a different question than whether they're completely
unreviewable by a court, correct?
In other words, it may well be that there's a place

12

for courts to review the decisions of the Secretary but giving

13

appropriate deference to those decisions?

14

fundamental distinction?

15

MR. SHUMATE:

Isn't that a

That is correct, your Honor.

Even if

16

you assume that it is not a political question, the court would

17

still -- should grant significant deference to the Secretary if

18

the court gets to the enumeration clause claim.

19

THE COURT:

Let's talk about the APA argument and

20

whether it's committed to the discretion of the agency by law.

21

Can you cite any authority for the proposition that a

22

census decision is so committed or is your point that this case

23

has never -- this is an issue of first impression effectively?

24

MR. SHUMATE:

The later point, your Honor.

25

question of first impression.

This is a

However, Webster v. Doe, a

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Supreme Court case, involved similar statutory language.

2

read that language.

3

THE COURT:

I'll

It said -How do you square that with Justice

4

Stevens' concurring opinion in Franklin where he essentially

5

distinguished Webster on several grounds?

6
7

MR. SHUMATE:

your Honor, so it wouldn't be controlling.

8
9
10

He did not get a majority of the Court,

THE COURT:
it.

I understand that.

I'm not controlled by

But on the merits, tell me why he is not right.
In other words, the language in Webster was deemed

11

advisable.

12

Act at issue in Webster and the purpose of the Act, namely

13

national security, implicated fairly significant considerations

14

that are absent here.

15

transparency and the like that was absent or the exact opposite

16

in Webster.

17

That's not the language here.

MR. SHUMATE:

The structure of the

Here, there's an interest in

I respectfully disagree.

To be sure,

18

Webster involved national security where the courts have

19

historically deferred significantly to the political branches.

20

But so have courts also deferred to political branches when it

21

comes to the census.

22

makes that quite clear.

The Wisconsin case from the Supreme Court

23

THE COURT:

24

MR. SHUMATE:

25

But holds that it's reviewable.
A case involving the actual enumeration

question, not a case involving the Secretary's
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information-gathering function.
And I think we need to focus on the specific language

2
3

of the statute itself, which was not involved -- not at issue

4

in Franklin, did not involve a question about what questions to

5

ask on the form.

6

The statute here says:

Congress has delegated to the

7

Commerce the responsibility to conduct a census, quote, in such

8

form and content as he may determine.

9

THE COURT:

10

Slow down.

MR. SHUMATE:

Such form and content as he may

11

determine.

12

language in Webster, that he deems advisable.

As he may determine.

That is very similar to the

13

So there is simply nothing in the statute itself that

14

a court can point to, to decide whether it's reasonable to ask

15

one question or another because the statute says he has -- the

16

Secretary himself has the discretion to decide the form and

17

content of the census questionnaire itself.
THE COURT:

18

I take it that language was added to the

19

statute in 1976; is that right?

20

MR. SHUMATE:

21

THE COURT:

22
23

I'm sorry.

I don't understand.

That language was added to the statute in

1976?
MR. SHUMATE:

I think the statute I'm pointing to is a

24

1980 statute, Section 141 of the census, because it says the

25

Secretary shall conduct the census in 1980 and years -- so
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perhaps --

2

THE COURT:

Probably passed before 1980.

3

MR. SHUMATE:

4

THE COURT:

Right.

Right.

Is there anything in the legislative

5

history that you're aware of that suggests that Congress

6

intended to render the Secretary's decisions on that score

7

totally unreviewable?

8

MR. SHUMATE:

9

I'm not aware of any legislative

history, your Honor, on this question about whether courts

10

should be permitted to review the Secretary's choice of which

11

questions to ask on the census.

12
13

THE COURT:
these two points?

All right.

Very good.

Anything else on

Otherwise I'll hear from plaintiffs.

14

MR. SHUMATE:

I don't think so, your Honor.

15

THE COURT:

16

Good morning.

17

MS. GOLDSTEIN:

18

Elena Goldstein for the plaintiffs.

19

your Honor, I do have that citation that my colleague

20

referenced.

All right.

Thank you.

Good morning, your Honor.

Attias v. CareFirst, Inc.

Before I begin,

That is 865 F.3d 620.

21

THE COURT:

Thank you.

22

MS. GOLDSTEIN:

23

THE COURT:

24

MS. GOLDSTEIN:

25

Before I get to the heart of defendants' arguments, I

That was from 2017.

You may proceed.
Thank you, your Honor.

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want to address this decision that they've made to get very

2

granular with respect to the question, with respect to the

3

exact conduct of the Secretary here.

4

The defendants contend repeatedly that this is a case

5

of first impression and that no case has ever challenged a

6

question on the census.

7

outlandish nature of defendants' conduct here.

8
9

That fact highlights the extreme and

If you look at the wide number of census cases that
are out there, that I know we've all been looking at, there's a

10

common theme.

11

and the Secretary aim for accuracy.

12

And the common theme is that the Census Bureau

If you look at the Wisconsin case, there the Secretary

13

determined not to adjust the census using a post-enumeration

14

survey had some science on his side.

15

Secretary is trying to be more accurate, has some science, we

16

will defer.

17

use a type of statistic known as hot-deck imputation, the

18

Secretary says we're trying to be more accurate, we will defer.

19

This case turns that factual predicate on its head and

The Court says the

Utah v. Evans is similar.

The determination to

20

in a most unusual way.

21

accuracy, the Secretary here has acknowledged that he's

22

actually moving in the opposite direction.

23

THE COURT:

Instead of the Secretary aiming for

So let's say I agree with you.

Why under

24

the language of the clause and the language of the statute is

25

that not a matter for Congress to deal with?
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Congress has required the Secretary to report to

2

Congress the questions that he intends to ask sufficiently in

3

advance of the census that Congress could act, that the

4

democratic process could run its course.

5

answer instead of having a court intervene?

6

MS. GOLDSTEIN:

Why is that not the

Your Honor, defendants confuse the

7

grant of authority to Congress for a grant of sole and

8

unreviewable authority.

9

number of cases out there that are holding, as the Court has

They draw this -- there's a vast

10

noted, that these census cases are not, in fact, political

11

questions.

12

cases and this one case that defendants argue is not

13

justiciable defendants proffer this novel distinction between

14

the manner of the headcount and the headcount itself.

15

distinction is a false dichotomy that collapses on further

16

review.

17

headcount absolutely impacts the obligation to count to begin

18

with.

19

defendants' decision to demand citizenship information from all

20

persons will reduce the accuracy of the enumeration.

21

in defendant's effective parlance, a counting violating.

22

it's easy to think of many other examples in which the manner

23

of the headcount is absolutely bound up in the headcount

24

obligation itself.

25

point out, between Times New Roman and Garamond font, likely

So in order to distinguish between all of those

But that

In many cases, including this one, the manner of the

In this case plaintiffs have specifically alleged that

That is,
And

For example, the decision, as defendants

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within the government's discretion.

2

the questionnaire in size two Garamond font that's unreadable,

3

for example, on the questionnaire, that would be certainly a

4

decision that would impact the accuracy of the enumeration.

5

The decision to send out all the questionnaires in French would

6

impact the accuracy of the enumeration.

7

THE COURT:

Right.

But the decision to put

But not every problem warrants or

8

even allows for a judicial solution, right.

Indeed the Supreme

9

Court said as much last week in some cases, like why is the

10

remedy there not Congress stepping in and taking care of that

11

problem, mandating that it be distributed in 17 languages

12

instead of one, mandating that it be in twelve-point font, etc.

13

Why is a court to supervise, at that level of

14

granularity, the Secretary's conduct that is committed to him

15

by statute?

16

MS. GOLDSTEIN:

Your Honor, defendants' political

17

question argument depends on this manner versus headcount

18

distinction.

19

review, not review on that granular level but review under

20

Wisconsin to affirm that the Secretary's decision bears a

21

reasonable relationship to the accomplishment of an

22

enumeration.

23

They acknowledge that everything else courts can

Courts do not analyze cases in this fashion.

The

24

starting point, as the Court has recognized, is Carey.

25

a case that is, I think by any fair reading, a manner case.
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This is
It

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involved the adequacy of address registers.

It involved the

2

adequacy of enumerators going out.

3

squarely that this is not a political question.

The Court there holds

And looking at even Wisconsin, your Honor, the Court

4
5

there recognized that the Secretary's discretion to not adjust

6

the census in that case arises out of the manner language of

7

the statute.

8
9
10

Virtually every court to consider this issue has held
the fact that Congress has authority over the census does not
mean that that is sole or unreviewable authority.

11
12
13

THE COURT:

What is the judicially manageable standard

to use?
The defendants throw out some hypotheticals as to

14

whether it would constitute a violation of the -- let me put it

15

differently.

16

Is the standard the pursuing accuracy standard that

17

you articulate in your brief and to some extent you've

18

articulated here?

19

MS. GOLDSTEIN:

20

I think that the baseline standard is the standard in

Yes, your Honor.

21

Wisconsin, that defendants are obligated to take decisions that

22

bear a reasonable relationship to the accomplishment of an

23

actual enumeration, and accomplishing an actual enumeration

24

means trying to get that count done, which means pursuing

25

accuracy.

Whatever the outer limits of that decision may be,
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your Honor, it is not taking decisions that affirmatively

2

undermine that enumeration.

3

THE COURT:

So defendants cite a number of

4

hypotheticals in their reply brief, for example, the question

5

of whether to hire 550 as opposed to 600,000 in-person

6

enumerators; the question of whether to put it in 12 languages

7

versus 13 languages.

8
9
10

Is it your position that those aren't reviewable but
presumably acceptable on the merits or -- I mean what's your
position on those?

11

MS. GOLDSTEIN:

Yes, your Honor.

12

The vast majority of those kinds of decisions made by

13

the Secretary are well within the bound of the discretion

14

that's laid out in Wisconsin.

15

further, the decision to send 500 enumerators versus 450,

16

clearly within the Secretary's discretion.

17

actual enumeration and are calculated to do so.

18

But as you push those examples

Both accomplish an

But the decision to send no enumerators or no

19

enumerators to a particular state, that begins to look more

20

questionable as to whether or not that decision would bear a

21

reasonable relationship to accomplish an enumeration and, under

22

defendants', theory would be entirely unreviewable.

23

THE COURT:

Turning to the APA question, I think you

24

rely in part on the mandatory language in some places in the

25

census act.

There is no question that the Act mandates that
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the Secretary do X, Y, and Z but the relevant clause here would

2

seem to be the permissive one, namely, in such form and content

3

as he may determine.

4

So why are the mandatory aspects of the Act even

5

relevant to the question of whether it's committed to agency

6

discretion?

7

MS. GOLDSTEIN:

Your Honor, with respect to the plain

8

language of the Census Act, I would argue that Section 5 which

9

directs the Secretary to determine the question -- the

10

mandatory language directs the Secretary to determine the

11

questions and inquiries on the census is more specific than the

12

form and content language that even arguably is permissive in

13

Section 141.

14

In addition, as plaintiffs have noted in that their

15

papers, there are multiple sources for law to apply in this

16

case, both from those mandatory requirements of the Census Act

17

from the constitutional purposes undergirding the census, the

18

Constitution and the Census Act, and the wide array of

19

administrative guidance out there dictating specifically how

20

the Census Bureau has and does add questions to the decennial

21

questionnaire.

22

question that the vast majority of courts to consider this

23

question have concluded that challenges to the census are

24

reviewable, that there is law to apply.

25

In light of that mosaic of law, there is no

THE COURT:

And to the extent that you rely on the

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Census Bureau's own guidance, don't those policy statements

2

have to be binding in order to provide law to apply?
MS. GOLDSTEIN:

3

No, your Honor.

The starting point

4

here -- so defendants are arguing that there is no law to apply

5

at all.

6

clear that the Court can look to informal agency guidance to

7

determine whether or not there is law to apply.
In Salazar the Court was looking to dear-colleague

8
9

And the Second Circuit in the Salazar case makes very

letters that no one alleged gave rise to a finding of a private

10

right of action.

But at the same time those dear-colleague

11

letters, in conjunction with other law out there, formed the

12

basis for agency practices and procedures that departures

13

therefrom could be judged to be arbitrary or capricious.
So, too, in this case.

14

Plaintiffs have identified a

15

wide arrange of policies and practices and procedural guidance

16

dictating the many testing requirements that questions are

17

typically held to and required to go through prior to being

18

added to the decennial census the defendants have entirely

19

ignored here.

20

defendants have cited if the Court would like me to continue on

21

this.

22
23

I'm happy to distinguish the cases that

THE COURT:

No.

I think I'd like to turn to the

enumeration clause issue at this point.

24

Mr. Shumate, you're back up.

25

MR. SHUMATE:

Thank you, your Honor.

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THE COURT:

Do you agree that the relevant standard

2

comes from Wisconsin is the reasonably related or reasonable

3

relationship to the accomplishment of an actual enumeration

4

that that is the guiding standard here?

5

MR. SHUMATE:

I think that would be the guiding

6

standard in a case involving a question over whether the

7

Secretary has procedures in place to conduct an actual

8

enumeration, but that is not this case.

9

involving the information-gathering function that takes place

10
11

during the census.
THE COURT:

This is a case

And there is no standard to apply.
What is the authority -- Ms. Goldstein

12

just argued that it's a false dichotomy and a false distinction

13

that you're trying to draw between the manner and the

14

enumeration.

15

hard to draw that -- a clear distinction in the sense that

16

clearly the manner in which the Secretary conducts the census

17

will determine, in many instances, whether it actually is an

18

accurate actual enumeration.

19

I mean it seems to me that there is some -- it's

So are there cases that you can point to that draw

20

that distinction and indicate that it is as bright line as

21

you're suggesting?

22

MR. SHUMATE:

I can't, your Honor, because frankly

23

there hasn't been a case like this one involving the facial

24

challenge to the addition of a question itself.

25

assuming that is the standard, there's nothing in the
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But even

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Constitution that forecloses the Secretary from asking this

2

questions on the census questionnaire.

3

that the Secretary doesn't have procedures in place to conduct

4

person-by-person headcount in the United States.

5

Secretary said in his memo at pages one and eight, he intends,

6

again, procedures in place to make every effort to conduct a

7

complete and accurate census.

8

procedures themselves.

9

operations.

10
11

There is no allegation

And as the

So they're not challenging the

They're not challenging the follow-up

They're just challenging the addition of a

question itself.
THE COURT:

What about the hypothetical that the

12

Secretary decides to send in-person enumerators only to states

13

in certain regions of the country.

14

violation of the enumeration clause?

15

MR. SHUMATE:

Why would that not be a

I think that would be, first of all, a

16

very different case, but there may be a valid claim there if

17

the Secretary had not put in place procedures to count every

18

person in the United States.

19

THE COURT:

Procedures sounds an awful lot like

20

manner, no?

21

well that ultimately goes to the enumeration?

22

In other words, why is that not a manner case as

MR. SHUMATE:

Because it implicates the count itself.

23

It's not the questions on the form itself that are used to

24

collect the information to count itself.

25

fundamentally different situation.

So it's a

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But, again, they don't have those allegations in the

1
2

complaint here that the number of enumerators are insufficient.

3

The only challenge here is to the addition of a question

4

itself.

5

We can't ignore the fact that this question has been

6

asked repeatedly throughout our history, as early as 1820 and

7

as most recently as the 2000 census.

8

Court made clear, history is fundamentally important in a

9

census case because the government has been doing this since

10
11

And as the Wisconsin

1790.
THE COURT:

I take it your view is I can consider that

12

history on a 12(b)(6) motion because there are undisputed

13

facts, essentially historical facts.

14

MR. SHUMATE:

Historical facts that take judicial

15

notice of the fact that the question has been asked repeatedly

16

throughout history.

17

THE COURT:

Why does history not cut in both

18

directions in the sense that the question was abandoned from

19

the short-form census since 1950; in other words, for the last

20

68 years it has not been a part of the census.

21

MR. SHUMATE:

It has been part of the long-form census

22

which went to one in six households, and those households

23

didn't get the short form.

24

unconstitutional for the government to send the long-form

25

census to one in six houses, it was unconstitutional for the

So under their view it was

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government to ask this question in 1950 and in 1820, and that

2

cannot possibly be right.

3

Let me address their point about the standard is

4

accuracy, the Secretary has to do everything to pursue

5

accuracy.

That can't possibly be the standard.

6

standard.

It doesn't come from the cases.

7

unworkable.

8
9

It's a made-up

And it's simply

On this question of the font on the form itself.
There's nothing for the court to evaluate to decide whether

10

that would be a permissible choice or not.

11

to courts second guessing everything that the Secretary does to

12

collect the information for the census.

13

simply not a case where the allegations implicate the

14

procedures that are in place to count every person in America;

15

instead this is case implicating the information-gathering

16

function.

17

THE COURT:

It would give rise

And that's -- it's

Now in United States v. Rickenbacker,

18

Justice Marshall, for whom this courthouse is named, wrote

19

that, "The authority to gather reliable statistical data

20

reasonably related to governmental purposes and functions is a

21

necessity if modern government is to legislate intelligently

22

and effectively.

23

questionnaire related to important federal concerns such as

24

housing, labor and health and were not unduly broad or sweeping

25

in their scope."

The questions contained in the household

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Now admittedly that was in the context of a Fourth

2

Amendment challenge to a criminal prosecution of someone who

3

refused to respond to the census.

4

relevant standard here?

5

But why is that not the

It seems to me that the census's dual purpose, I

6

think, has always been about getting an accurate count for

7

purposes of allocating seats in the House of Representatives,

8

but from time immemorial it seems that it also was used to

9

collect data on those living in this country and that that has

10

been deemed an acceptable, indeed, important function of it.

11

So why is that not a sensible standard to apply here?

12

MR. SHUMATE:

Your Honor, it may be.

But if that's

13

the standard, there is no reason that the addition of a

14

citizenship question would run afoul of that standard.

15

Again, the question has been asked repeatedly.

16

THE COURT:

First of all, two questions.

One is

17

doesn't that provide a judicially manageable standard?

18

recognizing the deference of it to the Secretary on his

19

judgments with respect to it, but at least it is a standard

20

against which the Secretary's judgments can be measured, no?

21
22

MR. SHUMATE:
from, your Honor.

I don't know where that standard comes

It certainly doesn't come from --

23

THE COURT:

24

MR. SHUMATE:

25

Again,

Thurgood Marshall.
That doesn't come from the Constitution,

because the Constitution simply says the manner of conducting
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the census.

2

that the plaintiffs are pressing.

3

standard that the Secretary has to do everything to pursue

4

accuracy.

5

that the questions about race and sex and Hispanic origin are

6

also unconstitutional.

7
8
9

The plaintiffs are right.

That's not the standard

They're pressing the

And if that's right, then the plaintiff can claim

THE COURT:

But you don't make the argument that

that's the relevant standard to apply in your brief?
MR. SHUMATE:

No, your Honor.

The standard to apply,

10

if there is one, is actual enumeration.

11

haven't made any allegations that the Secretary does not have

12

procedures in place to conduct an actual enumeration.

13

THE COURT:

And the plaintiffs

And the purposes for which the question

14

was added, obviously in the Administrative Record the stated

15

purpose was to enforce -- help enforce the Voting Rights Act.

16

Are there additional purposes that would justify addition of

17

the question and, relatedly, are those purposes somewhere in

18

the record?

19

MR. SHUMATE:

Your Honor, the standard rationale was

20

the one provided by the Secretary in his memorandum.

21

ever get to the APA claim, that would be the basis on which the

22

Court would review the reasonableness of his decision.

23

If we

But in terms of the constitutional claim, plaintiffs

24

have to show, notwithstanding all the significant deference

25

that the Secretary is entitled to, that the addition of this
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question violates the Constitution.

2

suggestion here that the Secretary does not have procedures in

3

place to count every person in America, and it can't be the

4

standard that anything that might cause an undercount would be

5

somehow unconstitutional, because that would call into question

6

many other questions on the form, and it would ignore the long

7

history that this question has been asked on the census.

8
9

THE COURT:

But, again, there is no

And I guess -- what if the political

climate in our country was such that the administration was

10

thought to be very anti gun, let's say, and there were

11

perceived threats to gun ownership, thoughts that the

12

administration and the federal government would seize people's

13

guns, and that administration proposed adding a question to the

14

census about whether and how many guns people owned.

15

think that would not violate the enumeration clause?

16

MR. SHUMATE:

Do you

It would not violate the clause, and

17

Congress could provide a remedy and pass a statute and say this

18

is not a question that should be asked on the census.

19

wouldn't be for a court to decide this question is bad, this

20

one is good.

21

the political branches to decide.

It

That is something that is squarely committed to

22

THE COURT:

23

Ms. Goldstein again.

24

Tell me why the Thurgood Marshall standard shouldn't

25

Who is handling this for the plaintiffs?
All right.

apply here.
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MS. GOLDSTEIN:

Your Honor, even if the Thurgood

2

Marshall standard would apply, as I can address in a moment,

3

this question would still violate it.

4

Wisconsin, a more recent case, has made clear the standards

5

that the Court uses to assess the Secretary's decisionmaking

6

authority with respect to the census and that is whether or not

7

the Secretary's decisions bear a reasonable relationship to the

8

accomplishment of an actual immigration keeping in mind the

9

constitutional purposes of the census.

10

THE COURT:

But the Supreme Court in

Tell me, measured against that standard,

11

why asking any demographic questions on the census would pass

12

muster, in other words, presumably asking about race, about

13

sex, about all sorts of questions that have long been on the

14

census, I mean they certainly don't -- they're not reasonably

15

related to getting an accurate count because they don't do

16

anything to advance that purpose and they presumably, to the

17

extent they have any effect, it is to depress the count if only

18

because people view filling out the form as more of a pain.

19
20
21
22
23

So how would any of those questions pass muster under
that test?
MS. GOLDSTEIN:

Your Honor, this is not an ordinary

demographic question.
THE COURT:

That's not my question though.

In other

24

words, based on the test that you are articulating wouldn't any

25

demographic question on the questionnaire fail?
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MS. GOLDSTEIN:

Absolutely not, your Honor.

Ordinary

2

questions which are subject to extensive testing procedures

3

that are precisely designed in order to assess and minimize and

4

deal with any impacts to accuracy likely do, when they emerge

5

from the end point of that testing, bear a reasonable

6

relationship to the accomplishment of an actual enumeration.

7

The Secretary is permitted under Wisconsin to privileged

8

distributional accuracy over numerical accuracy.

9

a gender question or a race question brings down the count a

So if adding

10

certain percent, there is no suggestion that that is

11

disproportionately impacting certain groups as defendant Jarmin

12

has acknowledged with respect to this situation.

13

THE COURT:

What about sexuality?

Could the Secretary

14

ask about sexuality in the interests of getting public health

15

information, perhaps?

16

MS. GOLDSTEIN:

Your Honor, I think to answer that

17

question we would need to wait and see the procedures that the

18

Census Bureau puts that question to, for example, with respect

19

to the race and ethnicity question that the Secretary looked at

20

for nearly a decade subjecting it to focus group testing

21

cognitive testing, all sorts of testing to assess the impact on

22

accuracy.

23

Now to the extent that a sexuality question had a

24

disproportionate impact that the Secretary acknowledged and

25

recognized and decided to take an action to reduce the accuracy
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of the census nonetheless, that may well state a claim.

2

the vast majority of decisions that the Secretary may make will

3

not.

4
5

But

Now in this case -- there may be hard cases out there,
your Honor, but this case is an easy case.

6

THE COURT:

And is the standard an objective one, I

7

assume?

8

the government in adding the question, presumably it's an

9

objective test of whether it's reasonably related to the goal

10

If one doesn't like at the intent of the Secretary or

of an actual enumeration.

11

MS. GOLDSTEIN:

12

However, defendants acknowledged recognition of the

13

deterrent effect of this question certainly is good evidence

14

that this will, in fact, undermine the enumeration and does not

15

reasonably relate it to accomplishing enumeration.

16

THE COURT:

That is correct, your Honor.

But because it's objective evidence.

In

17

other words, let's assume for the sake of argument that the

18

question was added by the Secretary to suppress the count in

19

certain jurisdictions -- I'm not suggesting that that is the

20

case but let's assume -- is that relevant to whether it states

21

a claim under the enumeration clause.

22
23
24
25

MS. GOLDSTEIN:

No, your Honor, but it may be well

relevant to the claim under the APA.
THE COURT:

Go back to the Thurgood Marshall standard

and tell me why that should not be the relevant standard here.
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It seems to me, as I mentioned to Mr. Shumate, that the census

2

has long had essentially a dual purpose.

3

is intended to get an actual enumeration and count the number

4

of people in our country for purposes of representation.

5

the other hand, it has long been accepted that it's a means by

6

which the government can collect data on residents of the

7

country.

8

questionnaire are more tethered to that later purpose and if

9

that's the case there is a little bit of a mismatch in

On the one hand, it

On

So why is -- it seems to me that the questions on the

10

measuring the acceptability of a question against whether it's

11

reasonably related to the first goal.

12

MS. GOLDSTEIN:

Your Honor, plaintiffs are to some

13

extent hampered on this because defendants have not proffered

14

the standard or argued it.

15
16
17

THE COURT:

They say there is no standard which is why

it's a political question.
MS. GOLDSTEIN:

But the end of that sentence that you

18

read by Justice Marshall made clear that even on that standard

19

of gathering additional demographic data that there are

20

questions that are unduly broad in scope.

21

Now here what we are alleging, that the Secretary of

22

Commerce has made a decision that reverses decades of settled

23

position that the Census Bureau recognizes that this specific

24

question will reduce the accuracy of the enumeration; in their

25

words from 1980, will inevitably jeopardize the accuracy of the
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count, where defendants themselves have recognized that this

2

may have, as defendant Jarmin indicated, important impacts in

3

immigrant and Hispanic communities against this particular

4

historical and cultural moment where this administration's

5

anti immigration policy --

6

THE COURT:

Let me ask you a question about that and

7

try and get at what role that plays in the argument.

Let's

8

assume for the sake of that argument that the prior

9

administration had added the citizenship question in a

10

different climate.

11

this one or some other one, that is perceived to be very

12

anti immigrant.

13

become unconstitutional because the political climate has

14

changed?

15

New administration comes in, whether it's

Does the existence of the question suddenly

MS. GOLDSTEIN:

I think that the starting point in

16

this case is significant.

17

decades of the settled position.

18

a single test or even explanation as to why that position is

19

being changed.

20

will impair accuracy.

21

question, this has been on the census, that might be a

22

different situation.

23

The starting point is a reversal of
The starting point is without

The starting point is a recognition that it
I think if this is a long-standing

Just to address defendants' contention that the

24

historical practice weighs in favor of them, I think setting

25

aside that I do think that this is a merits question, this gets
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the merits wrong.

2

respondents since 1950.

3

longer form instrument where the citizenship demand is one of

4

many questions.

5

Failure to answer does not bring a federal employee to your

6

door, knocking on it, demanding to know if you are a citizen.

7

This question has not been asked of all
It, instead, has been relegated to the

On the ACS it can be statistically adjusted.

THE COURT:

How can it be constitutional to include it

8

on a long-form questionnaire and not on a short-form

9

questionnaire?

In other words, how can the constitutionality

10

of whether the question is proffered or asked turn on the

11

length of the questionnaire?

12

MS. GOLDSTEIN:

The question before the Court is

13

whether or not the decision that was made several months ago to

14

add this question to the long-form questionnaire that goes to

15

all households, whether or not that question is constitutional.

16

The question of whether or not it was constitutional in 1970 I

17

believe when it was -- when the world was different, when it

18

was originally on the long form is not before the court.

19

question has not been -- has been asked on the ACS since 2005.

20

Now defendants' allegations that the ACS is

21

effectively the same thing as the census I think really belie

22

or ignore the allegations in plaintiffs' complaint.

23

Bureau has for decades repeatedly resisted calls to move the

24

question from the ACS to the census precisely because while the

25

question may perform on the ACS it does not perform on the
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census because it undermines the accuracy of that instrument.

2

THE COURT:

Why, measured against the reasonable

3

relation standard that you're pressing, would the mere use of

4

the long-form questionnaire, why wouldn't that be

5

unconstitutional?

6

In other words, I think that the response rate of

7

those who receive the long-form questionnaire is significantly

8

lower than the response rate of those who receive the

9

short-form questionnaire.

10

On your argument wouldn't that be

unconstitutional under the enumeration clause?

11

MS. GOLDSTEIN:

Your Honor, I think that just the lack

12

of testing and the conduct with respect to this decision alone

13

makes this decision distinguishable.

14

change in the long-form questionnaire, with respect to the ACS,

15

with respect to those other demographic questions, they went

16

through considered detailed procedures designed to assess and

17

to minimize impacts on accuracy.

18

were entirely ignored here.

19

Secretary's conduct.

With respect to the

Those tests, those procedures

And that alone distinguishes the

20

THE COURT:

All right.

Thank you very much.

21

That concludes the argument on the motion to dismiss.

22

Let me check with the court reporter whether we need a break or

23

not.

24

She is willing to proceed so I am as well.

25

Why don't we hear from plaintiffs on discovery since
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they're the moving parties on that front.

I think the papers

2

are fairly adequate for me to address most of the issues on

3

this front.

4

oral argument but I don't want to deprive you of your moment in

5

the sun, Mr. Colangelo.

6

MR. COLANGELO:

7

Good morning.

In that regard I don't intend to have a lengthy

Thank you, your Honor.
Matthew Colangelo from New York for the

8

state and local government plaintiffs.

9

points regarding the record.

I'll make two key

First is that the record the

10

United States has prepared here is deficient on its face and

11

should be completed.

12

to review the whole record as it's obligated to do under

13

Section 706 of the APA.

14

make is that the plaintiffs have, even once the record is

15

completed, we anticipate the need for extra record discovery in

16

light of the evidence of bad faith, the complicated issues

17

involved in this case and, of course, the constitutional claim.

18

It deprives the Court of the opportunity

And the second broad argument I'll

So turning to the first argument, as I've mentioned,

19

the APA requires the Court to review the whole record.

20

Dopico v. Goldschmidt the Second Circuit --

21

THE COURT:

In

Can I ask you a threshold question, which

22

is why I shouldn't hold off until I've decided the motion to

23

dismiss in light of the Supreme Court's decision in the DACA

24

litigation arising out of California.

25

MR. COLANGELO:

The circumstances in the DACA

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litigation, your Honor, were extremely different and

2

distinguishable from the circumstances here.

3

case pointed out that the United States had made an extremely

4

strong showing of the overbroad nature of the discovery

5

request.

6

the Supreme Court mentioned that they would be obligated to

7

review and produce 1.6 million records.

8

backdrop of that extremely broad production request that the

9

Court said that it might make -- the Court directed the

The Court in that

I believe the solicitor general's reply on cert to

So it was against the

10

district court to stay its discovery order until it resolved

11

the threshold questions.

12

records here, your Honor.

13
14
15

THE COURT:

Nobody is requesting 1.6 million

How do I know that since the question of

what you're requesting is not yet before me.
MR. COLANGELO:

I think, among other reasons, your

16

Honor, you know that because the United States hasn't made any

17

contention at all that there's anything near the size of that

18

record that's being withheld in this case as they did in the

19

DACA litigation.

20

There are, to use the language from Dopico, there are

21

a number of conspicuous absences from the record presented here

22

and we would draw your attention to four in particular.

23

The first is that with the exception of background

24

materials, there is essentially nothing in the record that

25

predates the December 2017 request from the Justice Department.
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There is no record at all of communications with other federal

2

government components.

3

Secretary added to the record just twelve days ago now

4

discloses for the first time that over the course of 2017 the

5

Secretary and his senior staff had a series of conversations

6

with other federal government components.

7

records are anywhere in the Administrative Record that the

8

United States produced.

9

The new supplemental memo that the

None of those

Second, again with the exception of the December 2017

10

memo, the United States hasn't produced anything at all

11

reflecting the Justice Department's decision where, as here,

12

the heart of the Secretary's rationale for asking about

13

citizenship, according to his March decision memo, was the

14

supposed need to better enforce sections of the Voting Rights

15

Act.

16

other records that he directly or indirectly considered in the

17

course of reaching his decision.

18

testified to Congress under oath that we had a lot of

19

conversations with the Justice Department.

20

those conversations ought to be included in the record.

21

It's just not reasonable to believe that there are no

In fact, the Secretary

If that's the case,

The third key category of materials that are

22

conspicuously omitted include records of the stakeholder

23

outreach that the Secretary did conduct over the course of --

24

earlier this year.

25

reached out to about two dozen stakeholders.

The Secretary's decision memo says he
Other than what

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appear to be undated, after-the-fact post hoc summaries that

2

somebody somewhere prepared of those calls, there is no

3

information at all about how those 24 stakeholders were

4

selected; why, for example, was the National Association of

5

Home Builders one of the stakeholders that the Secretary

6

elected to reach out to here.

7

Secretary's briefing materials.

8

records that are necessary to help understand the government's

9

decision.

10

The government has omitted the
All of these records are

And then the final category of materials conspicuously

11

omitted are the materials that support Dr. Abowd's conclusion

12

that adding this question would be costly and undermine the

13

accuracy of the count.

14

scientist.

15

that adverse conclusion are materials that the Secretary

16

indirectly considered and that body of evidence should be

17

included in the record as well.

18

Dr. Abowd is the Census Bureau's chief

Obviously materials that he relied on in reaching

THE COURT:

Why don't you briefly speak to the bad

19

faith argument and then I want to address the question of scope

20

and what should and shouldn't be permitted if I allow

21

discovery.

22

planning to address that.

23

I don't know if that's you or Mr. Rios who is

MR. COLANGELO:

I can address scope and then I will

24

turn to Mr. Rios to address one aspect of our anticipated

25

expert discovery, your Honor.
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On bad faith, your Honor, we think there are at least

2

five indicia of bad faith here, more than enough -- more than

3

enough certainly singularly to justify expanding the record but

4

in collection we think they make an overwhelming case.

5

THE COURT:

List them quickly if you don't mind.

6

MR. COLANGELO:

Why don't I focus on two.

First is

7

the tremendous political pressure that was brought to bear on

8

the Commerce Department and the Census Bureau.

9

the Justice Department presented discloses what appear to be

The record that

10

four telephone calls between Kris Kobach and the Commerce

11

Secretary or his senior staff on this question at a time that

12

the Commerce Secretary now admits he was considering how to

13

proceed on this question.

14

response in the paper they filed with the Court is that that

15

appears to be isolated or unsolicited and quite frankly, your

16

Honor, that's just not credible.

17

the senior staff had four telephone calls with an adviser to

18

the President and Vice-President on election law issues on the

19

exact question that the Secretary now acknowledges he was then

20

considering.

21

language to this question that matches nearly verbatim the

22

language that the Secretary ultimately decided to add to the

23

census questionnaire and yet the only conclusion one can draw

24

is that it was isolated, incidental and immaterial contact.

25

That's just not a reasonable position to take without exploring

The Justice Department's only

The Commerce Secretary and

Mr. Kobach presented to the Secretary proposed

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more of the record.
The second argument that I'll mention briefly, that

3

the shifting chronology here that the Commerce Department has

4

presented we think also presents a strong case of bad faith.

5

The March decision memo explicitly describes the Commerce

6

Department's consideration of this question as being in

7

response to the requests they received from the Justice

8

Department.

9

testimony to Congress repeats that point several times.

The Secretary's more or less contemporaneous sworn
In at

10

least three different congressional hearings he uses language

11

like we are responding only to the Justice Department; as you

12

know, Congressperson, the Justice Department initiated this

13

request; and then just twelve days ago the Commerce Secretary

14

supplemented the record and disclosed that, in fact, the

15

Commerce Department recruited the Justice Department to request

16

this question, which certainly suggests that the Commerce

17

Department knew where it wanted to go and was trying to build a

18

record to support it.

19

our papers, your Honor.

20

THE COURT:

The rest of the arguments are set out in

So talk to me about what the scope of

21

discovery that you're seeking is and why I shouldn't, if I

22

authorize it at all, severely constrain it.

23

MR. COLANGELO:

Well, your Honor, I think we're

24

actually looking for quite tailored discovery here and I think

25

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THE COURT:

It's grown from three or four depositions

at the initial conference to twenty.
MR. COLANGELO:

Fair enough, your Honor.

But at the

4

initial conference we didn't have the Administrative Record

5

that disclosed the role of Mr. Kobach at the instruction of

6

Steve Bannon.

7

Secretary's chief of staff, had a series of e-mails and several

8

phonecalls with Mr. Kobach at the exact same time they were now

9

considering this question.

We didn't known that Wendy Teramoto, the

10

So, respectfully, our blindfolded assessment of what

11

we might need has expanded slightly, but I still think it's a

12

reasonable and reasonably tailored request.

13

a couple of things.

And so I would say

14

First, I think the Justice Department ought to

15

complete the record by including the materials that are

16

conspicuously omitted and that they acknowledge exist and they

17

ought to do that in short order and at the same time ought to

18

present a privilege log so that we can assess, without

19

guessing, what their claims of privilege are and why those

20

claims are or are not defensible.

21

I think once we have completed the administrative

22

record, I think there is additional discovery, particularly in

23

the nature of testimonial evidence, some third-party discovery,

24

of course, Mr. Kobach, the campaign, Mr. Bannon, potentially

25

some others.

I think it's critical that we get evidence from
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the Department of Justice because the Department of Justice

2

ostensibly was the basis for the Secretary's decision, and then

3

expert testimony, which we can turn to in a moment.

4

THE COURT:

And then talk to me about Mr. Kobach,

5

Mr. Bannon.

First of all, wouldn't it suffice, if I authorize

6

discovery, to allow you to seek that discovery from the

7

Commerce Department and/or the Justice Department alone?

8

other words, the relevance of whatever input they gave is what

9

impact it had on the decision-makers at Commerce and that can

In

10

be answered by discovery through Commerce alone.

11

it warrants or necessitates expanding to third parties and

12

then, second to that, Mr. Bannon is a former White House

13

adviser and that implicates a whole set of separate and rather

14

more significant issues, namely separation of powers issues,

15

and executive privilege issues, and so forth.

16

allow you to go there?

17

MR. COLANGELO:

I'm not sure

Why should I

A couple of reasons, your Honor.

18

First of all I do think we can table the question.

I'm not

19

prepared to concede that he we don't need third-party

20

discovery.

21

the basis for the Secretary's decision.

22

table it to see, especially if we can do it quickly, what the

23

actual completed record looks like and what other documents and

24

potentially other testimonial evidence may disclose.

25

certainly wouldn't be seeking to take third-party depositions

It may well be the only way that we can understand
But I do think we can

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2

next week.
And I appreciate the concerns, obviously, about

3

executive privilege.

4

separate issues here.

5

to Congress that he was not aware at all of any communications

6

from anyone in the White House to anyone on his team.

7

now turns out that that congressional testimony may have

8

omitted input from Mr. Bannon, I think we would want to discuss

9

the opportunity to seek further explication of what exactly

10
11

But we do have the separate -- two
One is that the Secretary has testified

So if it

happened.
And then the final reason why I'm not prepared to

12

concede that this additional evidence may not be necessary is

13

the involvement of political access here is problematic for the

14

Commerce Department's decision in a way that might not arise in

15

an ordinary policy judgment case for two reasons.

16

not consistent with the Secretary's presentation of his

17

decision in his decision memo; but second, the Census Bureau is

18

a statistical agency that is governed by the White House's own

19

procedures that govern how statistical agencies ought to

20

operate and among the core tenets of those procedures is

21

independence and autonomy from political actors.

22

extent that there was undue political involvement in the

23

decision here, we think that it probably does bear somewhat

24

heavily on the Court's ability to assess the record.

25

First, it's

So to the

But I don't disagree that we can stagger it.
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not prepared to concede now that we won't need it.

2
3

THE COURT:

Let me hear from Mr. Rios briefly and then

I'll here from Mr. Shumate -- excuse me, not Mr. Shumate.

4

Go ahead.

5

MR. RIOS:

May it please the Court, your Honor,

6

Rolando Rios on behalf of the plaintiffs.

My brief comments,

7

your Honor, are addressed to the need for discovery on an

8

Article I claim.

9

on the southernmost Texas border between Mexico and the United

My clients, Hidalgo and Cameron Counties, are

10

States.

11

rhetoric from the federal government.

12

are the county seats.

13

is going on across the country in the Latino community.

14

frankly, the minority community across the country is

15

traumatized by the federal government's actions.

16

It is the epicenter of the hysterical anti immigrant

THE COURT:

McAllen and Brownsville

It is a microcosm, your Honor, of what
Quite

Mr. Rios, I don't mean to cut you off but

17

if you could get to the expert discovery point that you want to

18

make.

19

MR. RIOS:

Yes, your Honor.

The general comments that

20

I have is that based on their own expert's testimony that the

21

citizenship question will increase the nonresponsiveness I feel

22

it's important that expert testimony to update that data based

23

on the present environment is essential.

24

importance of census data is lost sometimes here.

25

practicing voting rights law for 30 years.

Your Honor, the
I've been

And, quite frankly,

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census data is the gold standard that the federal courts use to

2

adjudicate the allocation of judicial power -- I mean

3

electorial power and political power and federal resources.

4

this citizenship question is designed to tarnish that gold

5

standard and basically deny our clients the political power

6

that they're entitled to and also federal funds.

7
8

THE COURT:

Thank you very much.

MR. FREEDMAN:

Your Honor, do you want to hear from us

10

before the defendants or --

11

THE COURT:

I didn't realize that you wished to have a

word.

13

MR. FREEDMAN:

14

THE COURT:

15
16

Let me hear from

Ms. Vargas I think it is.

9

12

Sorry, your Honor.

Sure.

That makes more sense, that order.

Go ahead.
MR. FREEDMAN:

Your Honor, John Freedman for the NYIC

17

plaintiffs.

18

did on why the record needs to be supplemented.

19

to additional gaps.

20

I could point to additional evidence why expansion of the

21

record is appropriate and layout bad faith.

22

again, I think that's covered in the letter.

I could add additional points to what the state
I could point

A lot of those are covered in our letter.

23

THE COURT:

24

MR. FREEDMAN:

25

So

But I think,

OK.
I do think it is worth emphasizing that

we have an additional constitutional claim, equal protection
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claim, that we believe entitles us to discovery.

2

that is Rule 26 to start with, which says that we have the

3

right to conduct discovery to any issue that's relevant.

4

Certainly, the equal protection claim has elements that are not

5

and do not overlap with the APA claim, including intent and

6

impact and the history into the decision.

7

the Supreme Court precedence, Webster v. Doe, we are entitled

8

to conduct discovery and that there is a parallel APA claim.

9

THE COURT:

The basis for

We think that under

It strikes me that the Supreme Court's

10

decision In re United States, the DACA litigation, counsel is

11

cautioned in allowing discovery before a court has considered

12

threshold issues.

13

different in the sense that I have heard oral argument and have

14

already gotten full briefing on those issues and in that regard

15

can weigh that in the balance.

16

your case is not yet fully submitted.

I think the state's case is a little

17

MR. FREEDMAN:

18

THE COURT:

19

MR. FREEDMAN:

But obviously the motion in

It will be soon.

It will be soon.

That is true.

I think with respect to our case we can

20

argue it now, you can take it under advisement until there is a

21

ruling.

22

way the DACA case was handled in terms of supplementing the

23

administrative record and that can be going on while the

24

government has already put forward a record that is manifestly

25

deficient.

I also think there's an important distinction in the

Their work you can provide guidance to them to how
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they supplement it while the motion is under consideration.

2

think that that's permitted under how the Supreme Court ruled

3

in the DACA case.

4

THE COURT:

5

MR. FREEDMAN:

I

Anything else?
I do want -- just on scope.

Obviously,

6

you were asking questions about scope and how to control it.

I

7

think that the constitutional precedence we would cite Webster

8

v. Doe on intent of decision-makers.

9

involvement of the court in making sure discovery is tailored.

All counsel have active

10

We do have tailored discovery in mind.

11

May 4 conference obviously.

12

as, because we have additional elements on our intentional

13

discrimination claim, that we have additional things that we'd

14

like to be able to prove, that under Arlington Heights we are

15

entitled to prove.

16

deposition list is a little bit longer.

17

We weren't here at the

We've always been approaching this

That's part of the reason why the

I also do think it would be helpful to get guidance

18

from the Court on the question of the supplementation of

19

Administrative Record.

20

letter spelling out that it's the obligation of the Agency, not

21

just merely the Secretary, to produce records that are under

22

consideration.

23

that the whole record should include materials prior to

24

December 12 and the pre-decisional determination to reach out

25

to other agencies and have them sponsor the question.

In particular, we cited cases in our

We think that the Court should provide guidance

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ways looking at that prehistory, there's a parallel between

2

this case and what happened in Overton Park which is the

3

seminal Supreme Court case here where the Court was hamstrung

4

by its ability to review the case because all that the

5

Department of Transportation had produced was effectively a

6

post-litigation record.

7

Department has done here as a similar or analogous circumstance

8

that they made a decision that they wanted to have this

9

question.

And I think you could look at what the

They had a response, then they said we're now on the

10

clock, it's now time to start building our record, and that's

11

what we're going to produce, and we don't have the real record

12

before us.

13

THE COURT:

Thank you.

14

Let me hear from Ms. Vargas and then we'll proceed.

15

Ms. Vargas, tell me why the supplemental memo or

16

addition to the Administrative Record alone doesn't give rise

17

to the need for discovery here.

18

shifted quite dramatically; that initially in both the

19

Administrative Record and in testimony the Secretary's position

20

was that this was requested by the Department of Justice and lo

21

and behold in a supplemental memo of half a page without

22

explanation it turns out that that's not entirely the case.

23

doesn't that point to the need for discovery?

24
25

MS. VARGAS:

It seems that the ground has

So

Your Honor, there is nothing inconsistent

between the supplemental memo and the original memo.
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original memo addresses a particular point in time.

2

receipt of the DOJ letter.

3

received on a particular date.

4

said in his original memo, we gave a hard look, after we

5

received the formal request from the Department of Justice, and

6

then he details the procedures and the analysis that he started

7

at that point in time.

8

THE COURT:

There is a

It's uncontested that it was
At that point, as the Secretary

First of all, isn't it material to know

9

that that letter was generated by a request from the Secretary

10

himself as opposed to at least the misleading suggestion that

11

it was from the Department of Justice without invitation?

12
13

MS. VARGAS:

Your Honor, I resist the suggestion that

it was misleading as an initial matter.

14

THE COURT:

That's my question.

Isn't it misleading

15

or at least isn't there a basis to conclude that it's

16

misleading and therefore an entitlement for the plaintiffs to

17

probe that?

18

MS. VARGAS:

No, your Honor.

It's not misleading.

It

19

simply starts at a particular point in time and it goes

20

forward.

21

preceded the receipt of the DOJ memo and that's because the

22

Administrative Record does not include internal deliberations,

23

the consultative process, or the internal discussions that

24

happen inter-agency or intra-agency.

25

It's black letter administrative law that what is put on the

It doesn't speak whatsoever to the process that

That's very settled law.

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administrative record is the decisional document and the

2

informational basis for that decision but not the discussions

3

that precede that or that go along with it.

4

decisions of the Second Circuit, the D.C. Circuit en banc in

5

San Luis Obispo.

6

the internal conversations, the process documents, are not part

7

of the administrative record and so, therefore, they wouldn't

8

normally be disclosed.

9

internally, the processes, the discussions, none of that would

That has been the

All of those courts speak to the fact that

All the things that precede a decision

10

normally be part of an administrative record and it wouldn't

11

normally be part of a decisional document.

12

agency issues a decision it doesn't go through:

13

had this discussion, and then there was this discussion and

14

they arrive at --

15

THE COURT:

Normally when an
And then we

But it does include the underlying data

16

that the decision-maker considered or that those advising the

17

decision-maker considered and how can it possibly be that the

18

Secretary began conversations about this shortly after he was

19

confirmed and there is literally virtually nothing in the

20

record between that date and December 12 or whatever the date

21

is that the letter arrives from the Department of Justice?

22

just -- doesn't that --

23

MS. VARGAS:

It

Data is a different matter, your Honor.

24

The underlying information and data we believe is included and

25

there is -- there is some allegation that the data that the
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Census Bureau relied upon in generating analyses of the DOJ

2

request was not included in the Administrative Record.
Now the summary of that analysis, in fact, is included

3
4

in the Administrative Record.

5

different Abowd memos that are part of the Administrative

6

Record.

7

It is in the Abowd -- two

Raw data itself, the raw census data from which that

8

analysis is generated is protected by law.

9

confidential --

10

THE COURT:

It's

I don't mean the data but the analyses of

11

those who are advising the Secretary on whether this is a good

12

idea or bad idea.

13

MS. VARGAS:

Well to the extent they are discussing

14

pros and cons, analysis, recommendations, all of that would

15

fall within the deliberative process privilege.

16

THE COURT:

17

MS. VARGAS:

Why should that not be on a privilege log?
Because, your Honor, courts have

18

routinely held that privilege logs are not required in APA

19

cases precisely because these documents are not part --

20
21
22

THE COURT:

Didn't the Second Circuit say exactly the

opposite in the DACA litigation out of the Eastern District?
MS. VARGAS:

Respectfully no, your Honor, it did not.

23

I believe you're talking about the Nielsen slip order in which

24

they denied a writ of mandamus.

25

talking about a denial of a writ of mandamus which, of course,

So, first of all, we're

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is reviewing the district court decision under an exceedingly

2

high standard, whether or not there are extreme circumstances

3

warranting overturning the district court's decision.

4

Obviously, of course, it's also not a published opinion but an

5

order of the court, it's nonbinding.

6

not believe that the Second Circuit stated that privilege logs

7

are required.

8

being reviewed in that case, the District Court had decided

9

that on the facts of that case a privilege log was required

But on the merits I do

If you look at the district court order that's

10

because it had found that the government had acted in bad

11

faith.

12

case privilege logs are required.

13

that in constructing the administrative record the agency had

14

not included all of the documents that were directly or

15

indirectly before the decision-maker.

16

circumstance where there had been that history, it said that we

17

are not affording the normal presumption of regularity to the

18

government and it was going to require a privilege log.

19

the Second Circuit did not grant writ of mandamus to overturn

20

that decision.

21

So there was -- it wasn't binding that in every APA
The District Court had said

And in that specific

And

But it doesn't stand for a broader proposition that in

22

all APA cases privilege logs are required.

The vast weight of

23

authority is, in fact, to the contrary.

24

documents are not part of an administrative record in the first

25

place, you don't log them; just as in civil discovery, if a

Because these

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document is not responsive to a document request, you don't put

2

it on a privilege log.

3

case.

4

THE COURT:

5

MS. VARGAS:

The same principle applies in this

All right.

Anything else you want to say?

Yes, your Honor.

I did want to address a

6

couple of points on the scope of discovery, particularly expert

7

discovery.

8

that doesn't really apply to have broad expert discovery in a

9

case when the Second Circuit in Sierra Club has specifically

10

said it is error for a district court in an APA case to allow

11

experts to opine and to challenge the propriety of an agency

12

decision.

13

They are trying to take advantage of an exception

THE COURT:

Well, the way I read Sierra Club it

14

doesn't speak to whether expert discovery should be authorized

15

in the first instance.

16

agency and whether a court can rely on an expert -- expert

17

evidence in order to supplant or disregard the agency's

18

opinion.

19

pertaining to discovery.

20

It speaks to the deference owed to the

But that's a merits question.

MS. VARGAS:

It's not a question

I disagree, your Honor.

I think what the

21

Second Circuit said is that expert discovery -- extra record,

22

expert discovery for the purposes of challenging the agency's

23

expert analysis is absolutely error and should not be allowed

24

because of the fact that record review in an APA case under

25

Supreme Court precedent, Camp v. Pitts, it must be confined to
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the record.

2

THE COURT:

3

MS. VARGAS:

4

What if the bad faith exception applies?
Well the bad faith exception, of course,

is a separate exception.

5

THE COURT:

Specific to the expert point.

But my question is that if I find that the

6

presumption of regularity has been rebutted and the bad faith

7

exception applies, does that not open the door to expert

8

discovery, putting aside the ultimate question of whether and

9

to what extent I could rely on that expert discovery or

10

evidence in terms of evaluating the Secretary's decision?

11

MS. VARGAS:

No, your Honor.

Because the exceptions

12

for the record review rule are to be narrowly construed.

So to

13

the extent that your Honor found that there was bad faith,

14

which we obviously contest and don't believe extra record

15

discovery is appropriate here, but if the Court were to find

16

that, then the discovery had to be narrowly tailored to the

17

points on which you found that there was some allegation of bad

18

faith.

19

that your Honor thought needed to be developed that perhaps

20

could be ordered but it wouldn't open the door up to make this

21

just a regular civil litigation under Rule 26 with broad

22

discovery allowed on all claims on all issues and any expert

23

discovery they wanted.

24

just has to be narrowed to the specific point on which you

25

find.

So, for example, if there was a very specific issue

It doesn't open the door that wide.

It

But, of course, the government does not concede, it does
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not believe that discovery would be appropriate in this case.

2

THE COURT:

3

MS. VARGAS:

4

THE COURT:

I understand.
Thank you, your Honor.
All right.

I was largely prepared to rule

5

on the discovery question based on the papers and nothing I've

6

heard from counsel has altered my view so I am prepared to give

7

you my ruling on that front.

8

In doing so, I am of course mindful of the Supreme

9

Court's decision In re United States, 138 S. Ct. 443 (2017)

10

(per curiam), holding in connection with lawsuits challenging

11

the rescission of DACA that the district court should have

12

resolved the government's threshold arguments before deciding

13

whether to authorize discovery -- on the theory that the

14

threshold arguments, "if accepted, likely would eliminate the

15

need for the district court to examine a complete

16

Administrative Record."

17

decision.

18

of the broad discretion that district courts usually have in

19

deciding whether and when to authorize discovery despite a

20

pending motion to dismiss; indeed, the Supreme Court's decision

21

was expressly limited to "the specific facts" of the case

22

before it.

23

several considerations warrant a different approach here.

24

First, unlike the DACA litigation, this case does not arise in

25

the immigration and national security context, where the

That is from page 445 of that

I do not read that decision, however, to deprive me

That's from the same page.

More to the point,

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Executive Branch enjoys broad, indeed arguably broadest

2

authority.

3

clock is running on census preparations.

4

resolved with enough time to seek appellate review, whether

5

interlocutory or otherwise, it is essential to proceed on

6

parallel tracks.

7

DACA litigation, defendants' threshold argument here are fully

8

briefed, at least in the states' case.

9

University of California v. U.S. Department of Homeland

10

Security, 279 F.Supp. 3d 1011, at 1028 (N.D. Cal. 2018)

11

discussing the procedural history of the DACA litigation and

12

making clear that the motion to dismiss was not filed at the

13

time that discovery was authorized.

14

judgment on those threshold arguments, and I should make clear

15

that I am reserving judgment on the motion to dismiss at this

16

time, I am sufficiently confident, having read the parties'

17

briefs and heard the oral argument today that the state and

18

city plaintiffs' claims will survive, at least in part, to

19

warrant proceeding on the discovery front.

20

issue a decision on the threshold issues in short order.

21

the unlikely event that I do end up dismissing plaintiffs' case

22

in its entirety, it is unlikely that defendants will have been

23

heavily burdened in the interim.

Second, time is of the essence here given that the
If this case is to be

Third, and most substantially, unlike the

See Regents of

Although I reserve

Moreover, I hope to
So in

24

With that, let me turn to the three broad categories

25

of additional discovery that plaintiffs in the two cases have
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sought in their letters of June 26, namely, a privilege log for

2

all materials withheld from the record on the basis of

3

privilege; completion of the previously filed Administrative

4

Record; and extra record discovery.

5

states' case, that is plaintiffs' letter in that case.

6

reasons I will explain, I find that plaintiffs have the better

7

of the argument on all three fronts.

8

turn and then turn to the scope and timing of discovery that I

9

will allow.

10

See docket no. 193 in the
For

I will address each in

The first issue whether defendants need to produce a

11

privilege log is easily resolved.

Put simply, defendants'

12

arguments are, in my view, squarely foreclosed by the Second

13

Circuit's December 17, 2017 rejection of similar arguments In

14

re Nielsen.

15

17, I think, 2017).

16

Eastern District of New York.

17

that was -- it arises in a mandamus petition and it is

18

unpublished, but I think the reasons articulated by the Court

19

of Appeals counsel for the production of a privilege log here.

20

If anything, the justifications for requiring production of a

21

privilege log are stronger here as the underlying documents do

22

not implicate matters of immigration or national security and

23

the burdens would appear to be substantially less significant

24

or at least defendants have not articulated a particularly

25

onerous burden.

That is docket no. 17-3345 (2d Cir. December 27 or
That is the DACA litigation pending in the
I recognize, of course, that

Moreover, whereas the defendants in Nielsen

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had at least identified some basis for asserting privilege,

2

namely the deliberative process privilege, defendants here, at

3

least until the argument a moment ago, did not provide any such

4

basis.

5

Accordingly, defendants must produce a privilege log

6

identifying with specificity the documents that have been

7

withheld from the Administrative Record and, for each document,

8

the asserted privilege or privileges.

9

See the states' letter at page two, note three.

Second, plaintiffs seek an order directing the

10

government to complete the Administrative Record.

Although an

11

agency's designation of the Administrative Record is generally

12

afforded a presumption of regularity, that presumption can be

13

rebutted where the seeking party shows that "materials exist

14

that were actually considered by the agency decision-makers but

15

are not in the record as filed."

16

Development Corp. v. Sebelius, 890 F.Supp. 2d 305, 309

17

(S.D.N.Y. 2012).

Comprehensive Community

Plaintiffs have done precisely that here.

18

In his March 2018 decision memorandum produced in the

19

Administrative Record at page 1313, Secretary Ross stated that

20

he "set out to take a hard look" at adding the citizenship

21

question "following receipt" of a request from the Department

22

of Justice on December 12, 2017.

23

testimony before the House Ways and Means Committee, of which I

24

can take judicial notice, see, for example, Ault v. J. M.

25

Smucker Company, 2014 WL 1998235 at page 2 (S.D.N.Y. May 15,

Additionally, in sworn

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2014), Secretary Ross testified under oath that the Department

2

of Justice had "initiated the request for inclusion of the

3

citizenship question."

4

It now appears that those statements were potentially untrue.

5

On June 21, this year, without explanation, defendants filed a

6

supplement to the Administrative Record, namely a half-page

7

memorandum from Secretary Ross, also dated June 21, 2018.

8

appears at docket no. 189 in the states' case.

9

memorandum, Secretary Ross stated that "soon after" his

See the states' letter at page four.

That

In this

10

appointment as Secretary, which occurred in February of 2017,

11

almost ten months before the request from the Department of

12

Justice, he "began considering" whether to add the citizenship

13

question and that "as part of that deliberative process," he

14

and his staff "inquired whether the department of justice would

15

support, and if so would request, inclusion of a citizenship

16

question."

17

adding the citizenship question originated with Secretary Ross,

18

not the Department of Justice and that its origins long

19

predated the December 2017 letter from the Justice Department.

20

Even without that significant change in the timeline, the

21

absence of virtually any documents predating DOJ's

22

December 2017 letter was hard to fathom.

23

inconceivable to me that there aren't additional documents from

24

earlier in 2017 that should be made part of the Administrative

25

Record.

In other words, it now appears that the idea of

But with it, it is

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That alone would warrant an order to complete the

2

Administrative Record.

But, compounding matters, the current

3

record expressly references documents that Secretary Ross

4

claims to have considered but which are not themselves a part

5

of the Administrative Record.

6

claims that "additional empirical evidence about the impact of

7

sensitive questions on the survey response rates came from the

8

Senior Vice-President of Data Science at Nielsen."

9

1318 of the record.

For example, Secretary Ross

That's page

But the record contains no empirical

10

evidence from Nielsen.

Additionally, the record does not

11

include documents relied upon by subordinates, upon whose

12

advice Secretary Ross plainly relied in turn.

13

Secretary Ross's memo references "the department's review" of

14

inclusion of the citizenship question, and advice of "Census

15

Bureau staff."

16

record is nearly devoid of materials from key personnel at the

17

Census Bureau or Department of Commerce -- apart from two

18

memoranda from the Census Bureau's chief scientist which

19

strongly recommend that the Secretary not add a citizenship

20

question.

21

supposed to include "materials that the agency decision-maker

22

indirectly or constructively considered."

23

Duke, 2017 WL 4737280 at page 5 (E.D.N.Y. October 19, 2017).

For example,

That's pages 1314, 1317, and 1319.

Pages 1277 and 1308.

Yet the

The Administrative Record is

Batalla Vidal v.

24

Here, for the reasons that I've stated, I conclude

25

that the current Administrative Record does not include the
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full scope of such materials.

2

for an order directing defendants to complete the

3

Administrative Record is well founded.

4

Accordingly, plaintiffs' request

Finally, I agree with the plaintiffs that there is a

5

solid basis to permit discovery of extra-record evidence in

6

this case.

7

discovery beyond the record where "there has been a strong

8

showing in support of a claim of bad faith or improper behavior

9

on the part of agency decision-makers."

To the extent relevant here, a court may allow

National Audubon

10

Society v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997).

11

intimating any view on the ultimate issues in this case, I

12

conclude that plaintiffs have made such a showing here for

13

several reasons.

14

Without

First, Secretary Ross's supplemental memorandum of

15

June 21, which I've already discussed, could be read to suggest

16

that the Secretary had already decided to add the citizenship

17

question before he reached out to the Justice Department; that

18

is, that the decision preceded the stated rationale.

19

example, Tummino v. von Eschenbach, 427 F.Supp. 2d 212, 233

20

(E.D.N.Y. 2006) authorizing extra-record discovery where there

21

was evidence that the agency decision-makers had made a

22

decision and, only thereafter took steps "to find acceptable

23

rationales for the decision."

24

Record reveals that Secretary Ross overruled senior Census

25

Bureau career staff, who had concluded -- and this is at page

See, for

Second, the Administrative

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1277 of the record -- that reinstating the citizenship question

2

would be "very costly" and "harm the quality of the census

3

count."

4

holding that the plaintiffs had made a sufficient showing of

5

bad faith where "senior level personnel overruled the

6

professional staff."

7

that defendants deviated significantly from standard operating

8

procedures in adding the citizenship question.

9

plaintiffs allege that, before adopting changes to the

Once again, see Tummino, 427 F.Supp. 2d at 231-32,

Third, plaintiffs' allegations suggest

Specifically,

10

questionnaire, the Census Bureau typically spends considerable

11

resources and time -- in some instances up to ten years --

12

testing the proposed changes.

13

is docket no. 85 in the states' case at paragraph 59.

14

defendants' own admission -- see the amended complaint at

15

paragraph 62 and page 1313 of the Administrative Record --

16

defendants added an entirely new question after substantially

17

less consideration and without any testing at all.

18

Tummino is instructive.

19

"unusual" decision-making process as a basis for extra-record

20

discovery.

21

See the amended complaint which
Here, by

Yet again

See 427 F.Supp. 2d at 233, citing an

Finally, plaintiffs have made at least a prima facie

22

showing that Secretary Ross's stated justification for

23

reinstating the citizenship question -- namely, that it is

24

necessary to enforce Section 2 of the Voting Rights Act -- was

25

pretextual.

To my knowledge, the Department of Justice and
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civil rights groups have never, in 53 years of enforcing

2

Section 2, suggested that citizenship data collected as part of

3

the decennial census, data that is by definition quickly out of

4

date, would be helpful let alone necessary to litigating such

5

claims.

6

paragraph 97 of the amended complaint.

7

plaintiffs' allegations that the current Department of Justice

8

has shown little interest in enforcing the Voting Rights Act

9

casts further doubt on the stated rationale.

See the states case docket no. 187-1 at 14; see also
On top of that,

See paragraph 184

10

of the complaint which is docket no. 1 in the Immigration

11

Coalition case.

12

allegations are "meaningless absent a comparison of the

13

frequency with which past actions have been brought or data on

14

the number of investigations currently being undertaken," and

15

that plaintiffs may fail "to recognize the possibility that the

16

DOJ's voting-rights investigations might be hindered by a lack

17

of citizenship data."

18

letter which is docket no. 194 in the states case.

19

arguments merely point to and underscore the need to look

20

beyond the Administrative Record.

21

Defendants may well be right that those

That is page 5 of the government's
But those

To be clear, I am not today making a finding that

22

Secretary Ross's stated rationale was pretextual -- whether it

23

was or wasn't is a question that I may have to answer if or

24

when I reach the ultimate merits of the issues in these cases.

25

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assuming the truth of the allegations in their complaints --

2

plaintiffs have made a strong preliminary or prima facie

3

showing that they will find material beyond the Administrative

4

Record indicative of bad faith.

5

Pompeo, 2018 WL 2058152 at page 4 (E.D.N.Y. May 2, 2018).

6

the reasons I've just summarized, I conclude that the

7

plaintiffs have done so.

See, for example, Ali v.
For

8

That brings me to the question of scope.

9

score, I am mindful that discovery in an APA action, when

10

permitted, "should not transform the litigation into one

11

involving all the liberal discovery available under the federal

12

rules.

13

necessary to effectuate the Court's judicial review; i.e.,

14

review the decision of the agency under Section 706."

15

from Ali v. Pompeo at page 4, citing cases.

16

course, that plaintiffs argue that they are independently

17

entitled to discovery in connection with their constitutional

18

claims.

19

provides for judicial review of agency action that is "contrary

20

to" the Constitution.

21

F.Supp. 3d 160 at 161-62 (D.D.C. 2017).

22

plaintiffs are correct on that score, it is well within my

23

authority under Rule 26 to limit the scope of discovery.

24
25

On that

Rather, the Court must permit only that discovery

That is

I recognize, of

I'm inclined to disagree given that the APA itself

See, for example, Chang v. USCIS, 254
But, even if

Mindful of those admonitions, not to mention the
separation of powers principles at stake here, I am not
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inclined to allows as much or as broad discovery as the

2

plaintiffs seek, at least in the first instance.

3

agreement of defendants or leave of Court, of me, I will limit

4

plaintiffs to ten fact depositions.

5

plaintiffs seek to take more than that, they will have to make

6

a detailed showing in the form of a letter motion, after

7

conferring with defendants, that the additional deposition or

8

depositions are necessary.

9

the defendants or leave of Court, I will limit discovery to the

First, absent

To the extent that

Second, again absent agreement of

10

Departments of Commerce and Justice.

As defendants' own

11

arguments make clear, materials from the Department of Justice

12

are likely to shed light on the motivations for Secretary

13

Ross's decision -- and were arguably constructively considered

14

by him insofar as he has cited the December 2017 letter as the

15

basis for his decision.

16

persuaded that discovery from other third parties would be

17

necessary or appropriate; to the extent that third parties may

18

have influenced Secretary Ross's decision, one would assume

19

that that influence would be evidenced in Commerce Department

20

materials and witnesses themselves.

21

that plaintiffs would seek discovery from the White House,

22

including from current and former White House officials, it

23

would create "possible separation of powers issues."

That is

24

from page 4 of the slip opinion in the Nielsen order.

Third,

25

although I suspect there will be a strong case for allowing a

At this stage, however, I am not

Further, to the extent

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deposition of Secretary Ross himself, I will defer that

2

question to another day.

3

the subject of briefing in and of itself.

4

of thorny issues.

5

plaintiffs should take other depositions before deciding

6

whether they need or want to go down that road and bite off

7

that issue recognizing, among other things, that defendants

8

have raised the specter of appellate review in the event that I

9

did allow it.

For one thing, I think it should be
It raises a number

For another, I'm inclined to think that

At the same time, I want to make sure that I

10

have enough time to decide the issue and to allow for the

11

possibility of appellate review without interfering with an

12

expeditious schedule.

13

and confer with one another and discuss a timeline and a way of

14

raising the issue, that is to say, when it is both ripe but

15

also timely and would allow for an orderly resolution.

16

So on that issue I'd like you to meet

So with those limitations, I will allow plaintiffs to

17

engage in discovery beyond the record.

Further, I will allow

18

for expert discovery.

19

commonplace in cases of this sort.

20

Baldrige, 674 F.Supp. 1089 (S.D.N.Y. 1987).

21

in my colloquy with Ms. Vargas, I do not read Sierra v. United

22

States Army Corps of Engineers, 772 F.2d 1043 (2d Cir. 1985),

23

to "prohibit" expert discovery as defendants suggestion.

24

case, in my view, speaks the deference that a court ultimately

25

owes the agency's own expert analyses, but it does not speak to

Expert testimony would seem to be
See, for example, Cuomo v.
And as I indicated

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the propriety of expert discovery, let alone clearly prohibit

2

such discovery, let alone do so in a case where, as I have just

3

done so, a finding of bad faith and a rebuttal of the

4

presumption of regularity are at issue.

5

That leaves only the question of timing.

I recognize

6

that you proposed schedules without knowing the scope of

7

discovery that I would permit.

8

today.

9

respect to the schedule.

I would like to set a schedule

In that regard, would briefly hear from both sides with
Alternatively, I could allow you to

10

meet and confer and propose a schedule in writing if you think

11

that that would be more helpful.

12

discussion by throwing out a proposed schedule which is based

13

in part on your letters and modifications that I've made to the

14

scope of discovery.

15

Let me facilitate the

First, by July 16, I think defendants should produce

16

the complete record as well as a privilege log and initial

17

disclosures.

18

initial disclosure "an action for review on an administrative

19

record" but in light of my decision allowing extra-record

20

discovery I do not read that exception to apply.

21
22
23
24
25

I recognize that Rule 26(a)(1)(B)(i) exempts from

Then I would propose that by September 7, plaintiffs
will disclose their expert reports.
By September 21, defendants will disclose their expert
reports, if any.
By October 1, plaintiffs will disclose any rebuttal
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expert reports.
And fact an expert discovery would close by

2
3

October 12, 2018.
Plaintiffs also propose that the parties would then be

4
5

ready for trial on October 31.

My view is it's premature to

6

talk about having a trial.

7

making sense to proceed by way of summary judgment rather than

8

trial.

9

time for Daubert motions or other pretrial motions that would

For one thing, it may well end up

For another thing, I don't know if we need to build in

10

require more than 19 days to brief and for me to decide.

11

would be inclined, instead, to schedule a status conference for

12

sometime in September to check in on where things stand, making

13

sure that things are proceeding apace and get a sense of what

14

is coming down the pike and decide how best to proceed.

15

said that, I think it would make sense for you guys to block

16

time in late October and November in the event that I do decide

17

a trial is warranted.

18

likely to be the final one here and I want to make sure that

19

all sides have an adequate opportunity to seek whatever review

20

they would need to seek after a final decision.

21

schedule.

23

need additional time.

24
25

Having

Again, I am mindful that my word is not

So that's my ruling.

22

I

You can respond to my proposed

I'd be inclined to set it today but if you think you

MR. FREEDMAN:
clarification.

Your Honor, John Freedman.

Just one

I think it was clear from what you said but in
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terms of the number of depositions you meant ten collectively

2

between the two cases, not ten per case?

3
4

THE COURT:

Correct.

And they would be

cross-designated or cross-referenced in both cases.

5

MR. FREEDMAN:

6

THE COURT:

Correct.

Understood, your Honor.

And, again, I don't mean to suggest that

7

you will get more, but that's not -- I did invite you to make a

8

showing with specificity for why additional depositions would

9

be needed.

If it turns out that it is warranted, I'm prepared

10

to allow it but, mindful of the various principles at stake and

11

the limited scope of review under the APA, I think that it

12

makes sense to rein discovery in in a way that it wouldn't be a

13

standard civil action.

14

So, thoughts?

15

MR. COLANGELO:

16

Your Honor, for the state and local

government plaintiffs, we have no concerns at all.

17

THE COURT:

Microphone, please.

18

MR. COLANGELO:

For the state and local government

19

plaintiffs, we have no concerns at all with the various

20

deadlines that the Court has set out.

21

MR. FREEDMAN:

Thank you.

Your Honor, for the NYIC plaintiffs we

22

concur.

We think that it sets an appropriately expedited

23

schedule that will resolve the issues in time and we appreciate

24

the expedited consideration.

25

THE COURT:

All right.

Defendants.

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MS. BAILEY:

Your Honor, I have a couple clarifying

2

questions.

As far as the proposed July 16 deadline, you say

3

completing the record would that be the same deadline you

4

envision for the privilege log?

5

THE COURT:

6

MS. BAILEY:

Yes.
We would ask that the schedule we have

7

already set in other actions, that we have a little bit more

8

time for that initial deadline.

9

an argument coming up that same week.

10
11

We have a number of briefs and
Could we push that back

until a bit later in July?
THE COURT:

And when you say "that," meaning the

12

deadline for initial disclosures, completing the record, and

13

the log or only a part of those?

14

Yes, your Honor.

All -- it would make

15

sense I think to do them all together.

But it would -- we'd

16

like to move that a little later in July.

17

MS. BAILEY:

THE COURT:

Well I don't want to move it too much

18

later in July because it will backup everything else.

Why

19

don't I give you until July 23.

20

would not materially affect the remainder of the schedule and

21

would give you an extra week.

22

MS. BAILEY:

23

One other point.

I would imagine that that

Next.

Thank you, your Honor.
In the conference before Judge

24

Seeborg, Judge Seeborg, as your Honor is aware, he reserved the

25

issue of deciding whether discovery was warranted.
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But as I

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understand it, he strongly indicated that he thought that -- if

2

discovery is warranted in different actions, that the

3

plaintiffs should coordinate between those actions and asked

4

for the views of the parties on how that coordination should

5

take place.

6

that coordinate between parties, if discovery is ordered in the

7

other cases, is warranted.

8
9

So he didn't ultimately rule on that but we agree

THE COURT:

I agree wholeheartedly.

And Judge Seeborg

knows as well, I did talk to him, as I mentioned.

He indicated

10

that he had reserved judgment but indicated that he, I think,

11

would probably be ruling on or before August 10, I think; and

12

that it was his view that if discovery were to go forward, it

13

should be coordinated with discovery here if I were to allow

14

it.

15

I agree.

Ultimately I don't see why any of the folks

16

who would be subjected to a deposition should be deposed twice

17

in multiple actions.

18

settled idea on at the moment, but I would think that either

19

you all should go back to Judge Seeborg and say in light of

20

Judge Furman's decision we're prepared to proceed here or at

21

least enter some sort of stipulation in that action that would

22

allow for participation of counsel in the depositions -- I'm

23

open to suggestions.

24

these cases having a conversation and figuring out an orderly

25

way to proceed is probably sensible.

How to accomplish that, I don't have a

I mean I think that counsel in all of

I will call Judge Hazel

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but I imagine that all of the judges involved will be of the

2

view that depositions should only be taken once and certainly

3

if they are depositions of upper level officials those are

4

definitely only going to happen once.

5

is going to be necessary.

6

So I think coordination

Another component of that is that I imagine there may

7

be discovery disputes in this case, and I don't have a

8

brilliant idea for how those get resolved, whether they get

9

resolved by me, by Judge Seeborg, or by Judge Hazel if

10

discovery is allowed there.

I think for now they should come

11

to me because I'm the one and only judge who has ruled on the

12

issue.

13

discovery, we probably need an orderly system to resolve those

14

issues.

15

doesn't get the answer that he wants and then goes to dad for

16

reconsideration.

17

to that.

18

now because Judge Seeborg has reserved judgment on it, but I

19

will give it some thought, as I imagine he will, and we'll talk

20

about it.

But in the event that the other judges do authorize

I don't want it to be like a child who goes to mom and

So I think you all should give some thought

Again, I don't think it needs to be resolved right

21

Anything you all want to say on that score?

22

MR. COLANGELO:

Your Honor, for the state and local

23

government plaintiffs, I would just add that we have no

24

objection to coordinating with plaintiffs in other cases on the

25

timing of depositions or on their participation, if warranted.
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Our key concern was in not having the latest decided case be

2

the right limiting step.

3

the one you've taken.

4

your Honor has proposed, we have no objection to other -- to

5

coordinating with other plaintiffs on deposition schedules in

6

particular.

7

THE COURT:

We think the appropriate course is

So assuming it's on the schedule that

I don't intend to wait for the other

8

courts.

I'm sure that they will be proceeding expeditiously in

9

their own cases, but I am trying to get this case resolved in a

10

timely fashion and in that regard don't plan to wait.

11

behooves all of you to get on the phone with one another and

12

figure out some sort of means of coordinating.

13

I have a coordination order in the GM MDL that might provide a

14

model and that allows for counsel in different cases to

15

participation in depositions.

16

some similarities.

17

there are other contexts in which these issues have arisen and

18

you may want to look at models.

19

So it

You can look --

This is not an MDL but there are

You may want to consider that.

I'm sure

What I propose is why don't you submit a joint letter

20

to me from all counsel in these cases, let's say within two

21

weeks after you've had an opportunity to both confer with one

22

another and confer with counsel in the other cases, and submit

23

a joint letter to me with some sort of proposal.

24

can agree upon an order that would apply and ensure smooth

25

coordination, all the better; and if not, you can tell me what
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your counterproposals are and I'll consider it at that time.

2

All right.

3

MS. BAILEY:

Thank you, your Honor.

4

THE COURT:

5

MR. COLANGELO:

6

THE COURT:

Very good.

Anything else?

Nothing for us, your Honor.

I wanted to just give you one heads-up.

I

7

noted from the states and local governments' letter there is an

8

attachment which is a letter with respect to the Touhy issues

9

in the case.

As it happens, I have another case where that or

10

some of the issues raised in that letter are actually fully

11

submitted before me in an APA action case called Koopman v.

12

U.S. Department of Transportation, 18 CV 3460.

13

fully submitted.

14

with respect to when I will issue a decision in it but it may

15

speak to some of the issues raised in the states and local

16

governments' letter.

17

it.

That matter is

I can't and won't make any promises to you

So you may want to keep an eye out for

18

With that --

19

MS. VARGAS:

Your Honor, I do believe that we have --

20

we are not going to be resting on a former employee issue which

21

I believe is the issue in the Koopman litigation.

22

believe that will implicate the issues that are at play in that

23

case.

24
25

THE COURT:
letting me know.

Good.

Good to know.

So I don't

Thank you for

Then you don't need to look for it unless you

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have some strange desire to read Judge Furman decisions.

2

On that score let me say I will try to issue a

3

decision on the motion to dismiss in short order.

4

to give myself a deadline.

5

my job.

6

weeks.

7

was very helpful, and counsel did an excellent job and your

8

briefing is quite good as well as the amicus briefing.

9

appreciate that.

10
11

I don't want

That's one prerogative of being in

But I do hope that I'll get it out in the next couple
And it's been very helpful, the argument this morning

I will reserve judgment.

very happy Fourth of July.

So I

I wish everybody a

We are adjourned.

(Adjourned)

12
13
14
15
16
17
18
19
20
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SOUTHERN DISTRICT REPORTERS, P.C.
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OF
UNITED STATES DEPARTMENT OF COMMERCE
. Egg The Secretary of Commerce
a?f Washington, DC. 20230
some?

Supplemental Memorandum by Secretary of Commerce Wilbur Ross
Regarding the Administrative Record in Census Litigation

This memorandum is intended to provide further background and context
regarding my March 26, 2013, memorandum concerning the reinstatement of a
citizenship question to the decennial census. Soon after my appointment as Secretary of
Conunerce, I began considering various ?indamental issues regarding the upcoming 2020
Census, including funding and content. Part of these considerations included whether to
reinstate a citizenship question, which other senior Administration officials had
previously raised. My staff and I thought reinstating a citizenship question could be
warranted, and we had various discussions with other governmental officials about
reinstating a citizenship question to the Census. As part of that deliberative process, my
staff and I consulted with Federal governmental components and inquired whether the
Department of Justice (DOJ) would support, and if so would request, inclusion of a
citizenship question as consistent with and useful for enforcement of the Voting
Rights Act.

Ultimately, on December 12, 2017, sent a letter formally requesting that the
Census Bureau reinstate on the 2020 Census questionnaire a question regarding
citizenship. My March 26, 2013, memorandum described the thorough assessment
process that the Department of Commerce conducted following receipt of the letter,
the evidence and arguments I considered, and the factors I weighed in making my
decision to include the citizenship question on the 2020 Census.

wm?a

Wilbur Ross
June 21, 2013

001321

lla

UNITED STATES DEPARTMENT OF COMMERCE
The Secretary of Commerce
Washington. DC. 20230

 

To: Karen Dunn Kelley, Under Secretary for Economic Affairs

From: Secretary Wilbur Ross (A) (?2.941;

Date: March 26, 2018

Re: Reinstatement of a Citizenship Question on the 2020 Decennial Census Questionnaire

Dear Under Secretary Kelley:

As you know, on December 12, 2017, the Department of Justice requested that the
Census Bureau reinstate a citizenship question on the decennial census to provide census block
level citizenship voting age population data that are not currently available from
government survey data request?). DOJ and the courts use CVAP data for determining
violations of Section 2 of the Voting Rights Act and having these data at the census
block level will permit more effective enforcement of the Act. Section 2 protects minority
population voting rights.

Following receipt of the DOJ request, I set out to take a hard look at the request and ensure that
I considered all facts and data relevant to the question so that I could make an informed decision
on how to respond. To that end, the Department of Commerce (?Department?) immediately
initiated a comprehensive review process led by the Census Bureau.

The Department and Census Bureau?s review of the DOJ request as with all signi?cant Census
assessments prioritized the goal of obtaining complete and accurate data. The decennial
census is mandated in the Constitution and its data are relied on for a myriad of important
government decisions, including apportionment of Congressional seats among states,
enforcement of voting rights laws, and allocation of federal funds. These are foundational
elements of our democracy, and it is therefore incumbent upon the Department and the Census
Bureau to make every effort to provide a complete and accurate decennial census.

At my direction, the Census Bureau and the Department?s Of?ce of the Secretary began a
thorough assessment that included legal, program, and policy considerations. As part of the
process, I also met with Census Bureau leadership on multiple occasions to discuss their process
for reviewing the DOJ request, their data analysis, my questions about accuracy and response
rates, and their recommendations. At present, the Census Bureau leadership are all career civil
servants. In addition, my staff and I reviewed over 50 incoming letters from stakeholders,
interest groups, Members of Congress, and state and local of?cials regarding reinstatement of a
citizenship question on the 2020 decennial census, and I personally had speci?c conversations on

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the citizenship question with over 24 diverse, well informed and interested parties representing a
broad range of views. My staff and I have also monitored press coverage of this issue.

Congress has delegated to me the authority to determine which questions should be asked on the
decennial census, and I may exercise my discretion to reinstate the citizenship question on the
2020 decennial census, especially based on request for improved CVAP data to enforce
the VRA. By law, the list of decennial census questions is to be submitted two years prior to the
decennial census in this case, no later than March 31, 2018.

The Department?s review demonstrated that collection of citizenship data by the Census has been
a longstanding historical practice. Prior decennial census surveys of the entire United States
population consistently asked citizenship questions up until 1950, and Census Bureau surveys of
sample populations continue to ask citizenship questions to this day. In 2000, the decennial
census ?long form? survey, which was distributed to one in six people in the U.S., included a
question on citizenship. Following the 2000 decennial census, the ?long form? sample was
replaced by the American Community Survey which has included a citizenship
question since 2005. Therefore, the citizenship question has been well tested.

DOJ seeks to obtain CVAP data for census blocks, block groups, counties, towns, and other
locations where potential Section 2 violations are alleged or suspected, and DOJ states that the
current data collected under the ACS are insuf?cient in scope, detail, and certainty to meet its
purpose under the VRA. The Census Bureau has advised me that the census-block?level
citizenship data requested by DOJ are not available using the armual ACS, which as noted earlier
does ask a citizenship question and is the present method used to provide DOJ and the courts
with data used to enforce Section 2. of the VRA. The ACS is sent on an annual basis to a sample
of approximately 2.6 percent of the population.

To provide the data requested by DOJ, the Census Bureau initially analyzed three alternatives:
Option A was to continue the status quo and use ACS responses; Option was placing the ACS
citizenship question on the decennial census, which goes to every American household; and
Option was not placing a question on the decennial census and instead providing DOJ with a
citizenship analysis for the entire population using federal administrative record data that Census
has agreements with other agencies to access for statistical purposes.

Option A contemplates rejection of the DOJ request and represents the status quo baseline.
Under Option A, the 2020 decennial census would not include the question on citizenship that
DOJ requested and therefore would not provide DOJ with improved CVAP data. Additionally,
the block-group level CVAP data currently obtained through the ACS has associated margins of
error because the ACS is extrapolated based on sample surveys of the population. Providing
more precise block?level data would require sophisticated statistical modeling, and if Option A is
selected, the Census Bureau advised that it would need to deploy a team of experts to develop
model-based methods that attempt to better facilitate request for more speci?c data. But
the Census Bureau did not assert and could not con?rm that such data modeling is possible for
census-block-level data with a suf?cient degree of accuracy. Regardless, DOJ ?3 request is based
at least in part on the fact that existing ACS citizenship data?sets lack speci?city and

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completeness. Any future modeling from these incomplete data would only compound that
problem.

Option A would provide no improved citizenship count, as the existing ACS sampling would
still fail to obtain actual, complete number counts, especially for certain lower population areas
or voting districts, and there is no guarantee that data could be improved using small-area
modeling methods. Therefore, I have concluded that Option A is not a suitable option.

The Census Bureau and many stakeholders expressed concern that Option B, which would add a
citizenship question to the decennial census, would negatively impact the response rate for non-
citizens. A signi?cantly lower response rate by non-citizens could reduce the accuracy of the
decennial census and increase costs for non-response follow up operations. However,
neither the Census Bureau nor the concerned stakeholders could document that the response rate
would in fact decline materially. In discussing the question with the national survey agency
Nielsen, it stated that it had added questions from the ACS on sensitive topics such as place of
birth and immigration status to certain short survey forms without any appreciable decrease in
response rates. Further, the former director of the Census Bureau during the last decennial
census told me that, while he wished there were data to answer the question, none existed to his
knowledge. Nielsen?s Senior Vice President for Data Science and the former Deputy Director
and Chief Operating Of?cer of the Census Bureau under President George W. Bush also
con?rmed that, to the best of their knowledge, no empirical data existed on the impact of a
citizenship question on responses.

When analyzing Option B, the Census Bureau attempted to assess the impact that reinstatement
of a citizenship question on the decennial census would have on response rates by drawing
comparisons to ACS responses. However, such comparative analysis was challenging, as
response rates generally vary between decennial censuses and other census sample surveys. For
example, ACS self-response rates were 3.1 percentage points less than self-response rates for the
2010 decennial census. The Bureau attributed this difference to the greater outreach and follow?
up associated with the Constitutionally-mandated decennial census. Further, the decennial
census has differed signi?cantly in nature from the sample surveys. For example, the 2000
decennial census survey contained only eight questions. Conversely, the 2000 ?long form?
sample survey contained over 50 questions, and the Census Bureau estimated it took an average
of over 30 minutes to complete. ACS surveys include over 45 questions on numerous topics,
including the number of hours worked, income information, and housing characteristics.

The Census Bureau determined that, for 2013-2016 ACS surveys, nonresponses to the
citizenship question for non-Hispanic whites ranged from 6.0 to 6.3 percent, for non-Hispanic
blacks ranged from 12.0 to 12.6 percent, and for Hispanics ranged from 11.6 to 12.3 percent.
However, these rates were comparable to nonresponse rates for other questions on the 2013 and
2016 ACS. Census Bureau estimates showed similar nonresponse rate ranges occurred for
questions on the ACS asking the number times the respondent was married, 4.7 to 6.9 percent;
educational attainment, 5.6 to 8.5 percent; gas costs, 9.6 to 9.9 percent; weeks worked
in the past 12 months, 6.9 to 10.6 percent; wagesl'salary income, 8.1 to 13.4 percent; and yearly
property insurance, 23.9 to 25.6 percent.

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The Census Bureau also compared the self?response rate differences between citizen and non-
citizen households1 response rates for the 2000 decennial census short form (which did not
include a citizenship question) and the 2000 decennial census long form survey (the long form
survey, distributed to only one in six households, included a citizenship question in 2000).
Census found the decline in self-response rates for non-citizens to be 3.3 percent greater than fer
citizen households. However, Census was not able to isolate what percentage of decline was
caused by the inclusion of a citizenship question rather than some other aspect of the long form
survey (it contained over six times as many questions covering a range of topics). Indeed, the
Census Bureau analysis showed that for the 2000 decennial census there was a signi?cant drop
in self response rates overall between the short and long form; the mail response rate was 66 .4
percent for the short form and only 53.9 percent for the long form survey. So while there is
widespread belief among many parties that adding a citizenship question could reduce response
rates, the Census Bureau?s analysis did not provide de?nitive, empirical support for that belief.

Option C, the use of administrative records rather than placing a citizenship question on the
decennial census, was a potentially appealing solution to the DOJ request. The use of
administrative records is increasingly part of the fabric and design of modern censuses, and the
Census Bureau has been using administrative record data to improve the accuracy and reduce the
cost of censuses since the early 20th century. A Census Bureau analysis matching administrative
records with the 2010 decennial census and ACS responses over several more recent years
showed that using administrative records could be more accurate than self-responses in the case
of non-citizens. That Census Bureau analysis showed that between 23 and 34 percent of the
citizenship self?responses for persons that administrative records show are non-citizens were
inaccurate. In other words, when non-citizens respond to long form or ACS questions on
citizenship, they inaccurately mark ?citizen? about 30 percent of the time. However, the Census
Bureau is still evolving its use of administrative records, and the Bureau does not yet have a
complete administrative records data set for the entire population. Thus, using administrative
records alone to provide DOJ with CVAP data would provide an incomplete picture. In the 2010
decennial census, the Census Bureau was able to match 83.6 percent of the population with what
the Bureau considers credible administrative record data. While impressive, this means that
more than 10 percent of the American population some 25 million voting age people would
need to have their citizenship imputed by the Census Bureau. Given the scale of this number, it
was imperative that another option be developed to provide a greater level of accuracy than
either self-response alone or use of administrative rec0rds alone would presently provide.

I therefore asked the Census Bureau to deveIOp a fourth alternative, Option D, which would
combine Options and C. Under Option D, the ACS citizenship question would be asked on the
decennial census, and the Census Bureau would use the two years remaining until the 2020
decennial census to ?irther enhance its administrative record data sets, protocols, and statistical
models to provide more complete and accurate data. This approach would maximize the Census
Bureau?s ability to match the decennial census responses with administrative records.
Accordingly, at my direction the Census Bureau is working to obtain as many additional Federal
and state administrative records as possible to provide more comprehensive information for the
population.

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It is my judgment that Option will provide DOJ with the most complete and accurate CVAP
data in response to its request. Asking the citizenship question of 100 percent of the population
gives each respondent the opportunity to provide an answer. This may eliminate the need for the
Census Bureau to have to impute an answer for millions of people. For the approximately 90
percent of the population who are citizens, this question is no additional imposition. And for the
approximately 70 percent of non-citizens who already answer this question accurately on the
ACS, the question is no additional imposition since census responses by law may only be used
anonymously and for statistical purposes. Finally, placing the question on the decennial census
and directing the Census Bureau to determine the best means to compare the decennial census
responses with administrative records will permit the Census Bureau to determine the inaccurate
response rate for citizens and non?citizens alike using the entire population. This will enable the
Census Bureau to establish, to the best of its ability, the accurate ratio of citizen to non?citizen
responses to impute for that small percentage of cases where it is necessary to do so.

Consideration of Impacts I have carefully considered the argument that the reinstatement of
the citizenship question on the decennial census would depress response rate. Because a lower
response rate would lead to increased non-response follow?up costs and less accurate responses,
this factor was an important consideration in the decision?making process. I ?nd that the need
for accurate citizenship data and the limited burden that the reinstatement of the citizenship
question would impose outweigh fears about a potentially lower response rate.

Importantly, the Department?s review found that limited empirical evidence exists about whether
adding a citizenship question would decrease response rates materially. Concerns about
decreased response rates generally fell into the following two categories distrust of government
and increased burden. First, stakeholders, particularly those who represented immigrant
constituencies, noted that members of their respective communities generally distrusted the
government and especially distrusted efforts by government agencies to obtain information about
them. Stakeholders from California referenced the dif?culty that government agencies faced
obtaining any information from immigrants as part of the relief efforts after the California
wild?res. These government agencies were not seeking to ascertain the citizenship status of
these wild?re victims. Other stakeholders referenced the political climate generally and fears
that Census responses could be used for law enforcement purposes. But no one provided
evidence that reinstating a citizenship question on the decennial census would materially
decrease response rates among those who generally distrusted government and government
information collection efforts, disliked the current administration, or feared law

enforcement. Rather, stakeholders merely identi?ed residents who made the decision not to
participate regardless of whether the Census includes a citizenship question. The reinstatement
of a citizenship question will not decrease the response rate of residents who already decided not
to respond. And no one provided evidence that there are residents who would respond accurately
to a decennial census that did not contain a citizenship question but would not respond if it did
(although many believed that such residents had to exist). While it is possible this belief is true,
there is no information available to determine the number of people who would in fact not
respond due to a citizenship question being added, and no one has identified any mechanism for
making such a determination.

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A second concern that stakeholders advanced is that recipients are generally less likely to
reSpond to a survey that contained more questions than one that contained fewer. The former
Deputy Director and Chief Operating Officer of the Census Bureau during the George W. Bush
administration described the decennial census as particularly fragile and stated that any effort to
add questions risked lowering the response rate, especially a question about citizenship in the
current political environment. However, there is limited empirical evidence to support this view.
A former Census Bureau Director during the Obama Administration who oversaw the last
decennial census noted as much. He stated that, even though he believed that the reinstatement
of a citizenship question would decrease response rate, there is limited evidence to support this
conclusion. This same former director noted that, in the years preceding the decennial census,
certain interest groups consistently attack the census and discourage participation. While the
reinstatement of a citizenship question may be a data point on which these interest groups seize
in 2019, past experience demonstrates that it is likely efforts to undermine the decennial census
will occur again regardless of whether the decennial census includes a citizenship

question. There is no evidence that residents who are persuaded by these disruptive efforts are
more or less likely to make their respective decisions about participation based speci?cally on
the reinstatement of a citizenship question. And there are actions that the Census Bureau and
stakeholder groups are taking to mitigate the impact of these attacks on the decennial census.

Additional empirical evidence about the impact of sensitive questions on survey response rates
came from the SVP of Data Science at Nielsen. When Nielsen added questions on place of birth
and time of arrival in the United States (both of which were taken from the ACS) to a short
survey, the response rate was not materially different than it had been before these two questions
were added. Similarly, the former Deputy Director and COO of the Census during the George
W. Bush Administration shared an example of a citizenship?like question that he believed would
negatively impact response rates but did not. He cited to the Department of Homeland Security?s
2004 request to the Census Bureau to provide aggregate data on the number of Arab Americans
by zip code in certain areas of the country. The Census Bureau complied, and Census
employees, including the then-Deputy Director, believed that the resulting political ?restorm
would depress response rates for further Census Bureau surveys in the impacted communities.
But the response rate did not change materially.

Two other themes emerged from stakeholder calls that merit discussion. First, several
stakeholders who opposed reinstatement of the citizenship question did not appreciate that the
question had been asked in some form or another for nearly 200 years. Second, other
stakeholders who opposed reinstatement did so based on the assumption that the data on
citizenship that the Census Bureau collects through the ACS are accurate, thereby obviating the
need to ask the question on the decennial census. But as discussed above, the Census Bureau
estimates that between 23 and 34 percent of citizenship self-reSponses on the ACS for persons
that administrative records show are non-citizens were inaccurate. Because these stakeholder
concerns were based on incorrect premises, they are not suf?cient to change my decision.

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Finally, I have considered whether reinstating the citizenship question on the 2020 Census will
lead to any signi?cant monetary costs, programmatic or otherwise. The Census Bureau staff
have advised that the costs of preparing and adding the question would be minimal due in large
part to the fact that the citizenship question is already included on the ACS, and thus the
citizenship question has already undergone the cognitive research and questionnaire testing
required for new questions. Additionally, changes to the Internet Self-Response instrument,
revising the Census Questionnaire Assistance, and redesigning of the printed questionnaire can
be easily implemented for questions that are ?nalized prior to the submission of the list of
questions to Congress.

The Census Bureau also considered whether non-response follow-up increases resulting ?'om
inclusion of the citizenship question would lead to increased costs. As noted above, this estimate
was dif?cult to assess given the Census Bureau and Department?s inability to determine what
impact there will be on decennial census survey responses. The Bureau provided a rough
estimate that postulated that up to 630,000 additional households may require NRFU operations
if a citizenship question is added to the 2020 decennial census. However, even assuming that
estimate is correct, this additional percent increase in NRFU operations falls well within the
margin of error that the Department, with the support of the Census Bureau, provided to
Congress in the revised Lifecycle Cost Estimate this past fall. That LCE assumed that
NRFU operations might increase by 3 percent due to numerous factors, including a greater
increase in citizen mistrust of government, dif?culties in accessing the Internet to respond, and
other factors.

Inclusion of a citizenship question on this country?s decennial census is not new the decision to
collect citizenship information from Americans through the decennial census was first made
centuries ago. The decision to include a citizenship question on a national census is also not
uncommon. The United Nations recommends that its member countries ask census questions
identifying both an individual?s country of birth and the country of citizenship. Principoisnnd
Reoommendotionsfor Population and Housing Censuses (Revision 3), UNITED NATIONS 121
(2017). Additionally, for countries in which the population may include a large portion of
naturalized citizens, the United Nations notes that, ?it may be important to collect information on
the method of acquisition of citizenship.? Id. at 123. And it is important to note that other major
democracies inquire about citizenship on their census, including Australia, Canada, France,
Germany, Indonesia, Ireland, Mexico, Spain, and the United Kingdom, to name a few.

The Department of Commerce is not able to determine de?nitively how inclusion of a citizenship
question on the decennial census will impact responsiveness. However, even if there is some
impact on responses, the value of more complete and accurate data derived from surveying the
entire population outweighs such concerns. Completing and returning decennial census
questionnaires is required by Federal law, those responses are protected by law, and inclusion of
a citizenship question on the 2020 decennial census will provide more complete information for
those who respond. The citizenship data provided to will be more accurate with the
question than without it, which is of greater importance than any adverse effect that may result
from people violating their legal duty to respond.

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To conclude, after a thorough review of the legal, program, and policy considerations, as well as
numerous discussions with the Census Bureau leadership and interested stakeholders, I have
determined that reinstatement of a citizenship question on the 2020 decennial census is necessary
to provide complete and accurate data in response to the DOJ request. To minimize any impact
on decennial census response rates, I am directing the Census Bureau to place the citizenship
question last on the decennial census form.

Please make my decision known to Census Bureau personnel and Members of Congress prior to
March 31, 2018. I look forward to continuing to work with the Census Bureau as we strive for a
complete and accurate 2020 decennial census.

CC: Ron armin, performing the nonexclusive functions and duties of the Director of the
Census Bureau

Enrique Lamas, performing the nonexclusive functions and duties of the Deputy Director
of the Census Bureau

001320




*DEC-ic?aor? 17:51 125a

 

 

Ff. 22/34
11.5. Department of Justice
Justice Management Division
(265cc ofGenerol Coma!
Washington. no. 20530
DEC 1 2 2017
VIA
2014 2120 0000 8064 4964

Dr. Ron Jannin

Performing the Non-Exclusive Functions and Duties of the Director
1.1.3. Census Bureau

United States Department of Commerce

Washington, D.C. 20233-0001

Re: Request To Reinstate Citizenship Question On 2020 Census Questionnaire
Dear Dr. Jarmin:

The Department of Justice is committed to robust and evcnhandcd enforcement of the Nation?s
civil rights laws and to free and fair elections for all Americans. In furtherance of that
commitment, I write on behalf of the Departmentto formally request that the Census Bureau
reinstate on the 2020 Census questionnaire a question regarding citizenship, formerly included in
the so-called ?long form" census. This data is critical to the Deparunent's enforcement of
Section 2 of the Voting Rights Act and its important protections against racial discrimination in
voting To fully enforce those reqdremwts, the Department needs a reliable calculation of the
citizen voting-age population in localitim where voting rights violations are alleged or connected.
As demonstrated below, the decennial census questionnaire is the most vehicle for
collecting that data, and reinstating a question on citizenship will best enable the Department to
protect all American citizens" voting rights under Section 2.

The Supreme Court has held that Section 2 of the Voting Rights Act prohibits ?Wote dilution? by
state and local jtnisdicticus engaged in redistricting, which can occur when a racial group is
improperly deprived of a single-member district in which it could form a majority. See
Ming 9. (Singles. 478 US. 30, SO (1986). Multiple federal com-ts of appeals have held that,
where citizenship races are at issue in a vote-dilution case. citizen voting-age population is the
proper metric for determining whether a racial group could constitute a majority in a single?
mcmher district. See, Reyes v. City of Farmers Branch, 586 F.3ci 1019, 1023?24 (5th Cir.
2009); Ems-rt v. City of Chicago, 141 F.3d 699, 704 (7th Cir. 1998); Noam v. City oflidiomi
Beach, 113 F.3d 1563. 1567-69 (1 1d: Cir. 1997); Romero v. Gigi ofPomono, 883 P.2d 1418,
1426 (9th Cir. 1989), overrides! $11pr on other grounds by Townsend v. Hound" Consulting
914 F.2d 1136, 1141 (9th Cir. 1990); see also LIEAC v. Perry. 543 US. 399, 423?442
(2006) (analyzing 1rote-dilution claim by reference to citizen voting-age population).

UUDBES

 

 

 

'oEc?ra?aar? 17:52 126a Rat's/134+ 

 

The purpose of Section 2?s vote-dilution prohibition ?is to facilitate participation . .. in our
political process? by preventing unlawful dilution of ?re vote on the basis of race. Campos v. 
City of Houston, 113 F.3d 544, 543 (51h Cir. 1997). Importantly, ?[tJhe plain language of sectron
2 of the Voting Rights Act makes clear that its protections apply to United States citizens." Id.
Indeed, courts have reasoned that ?[t]he right to vote is one of the badges of citizenship" and that
?[t]he dignity and very concept of citizenship are diluted if noncitirens are allowed to vote.?
Barnett, 141 F.3d at 704. ?thus, it would be the wrong result for a legislature or a court to draw a
single-member district in which a numerical racial minority group in ajurisdiction was a
majority of the total voting-age population in that district but ?continued to be defeated at the
polls? because it was not a majority of the citizen voting-age population. Cams, 1 13 F.3d at
548.

These cases make clear that. in order to assess and enforce compliance with Section 2's
protection against discrimination in voting. the Department needs to be able to obtain citizen
voting-age population data for census blocks, block groups, counties, towns, and other locations
where potential Section 2 violations are alleged or suspected. From 1970 to 2000, the Census
Btueau included a citizenship question on the so-cailed ?long form? questionnaire that it sent to
approximately one in every six households during each decennial census. See, U.S. Census
Bureau, Summary File 3: 2000 Census of Population Housing?Appendix at 3?7 (July
2007), available or govfprodicenZODOIdccisz .pdf (last visited Nov. 22,
2017); U.S. Census Bureau, Index of Questions, available at 
(last visited Nov. 22, 2017). For years, the
Department used the data collected in response to that question in assessing compliance .with .
Section 2 and in litigation to enforce Section 2's protections against racial discrimination in
voting.

In the 2010 Census, however, no census questionnaire included a question regarding citizenship.
Rather, following the 2000 Census, the Census Bureau discontinued the "long form"
questionnaire and replaced it with the American Conn-nutty Survey (AC5). The ACS is a
sampling survey that is sent to only around one in every thirty-eight households each year and
asks a variety of questions regarding demographic information, including citizenship. See US.
Census Bureau, American Commit}- Survey Information Guide at 6, available at
Information
Guidepdf (last visited Nov. 22, 2017). The ACS is currently the Census Bureau?s only survey
that collects information regarding citizenship and estimates citizen voting?age population.

The 2010 redistricting cycle was the ?rst cycle in which the ACS estimates provided the Census
Bureau?s only citizen voting-age population data. The Departraent and state and local
jurisdictions therefore have used those AC8 estimates for this redistricting cycle. The ACS,
however, does not yield the ideal data for such purposes for several reasons:

- Jurisdictions conducting redistricting, and the Dcpa?mcnt in enforcing Section 2, already

use the total population data from the census to determine compliance with the Constiurtion?s

one-person, one-vote requirement, see Abbott, 136 S. Ct. 1120 (Apr. 4, 2016). As a

result. using the ACS citizenship estimates means relying on two different data sets. the scope

and level of detail of which vary quite .

UUDBB4

 *nEc-ta-sat'? 1?=52 12in 

. Because the ACS are rolling and aggregated into one?year, three-year, and ?ve
year estimatea, they donotalign intimewiththe decennial censusdata. Citizenship data?'om
the decennial census, by contrast, would align in time with the total and voting-age pepulatioa
data from the that jtn-isdiotions already use in redistricting.

. The ACS estimates are reported at a ninety percent con?dence level, and the margin of
error increases as a: sample size?and, thus, the geographic area?decreases. See US. Census
Bureau, Glossary: Con?dence interval {dimer-icon Comminr Survey). available at
census. 

Survey (last visited November 22, 2017'). By census data is a ?ll count of
the population.

Census data is reported to the census block level, while the smallest unit reported in the
ACS estimates is the census block group. See American (30mequ Data 3, 5, 10.
Accordingly, redistricting jtnisdictions and the Departmut are required to perfonn further
estimates and to interjeot further uncertainty in order to approximate citizen tram-age
population at the level of a census block, which is the ?mdanietnal building block of a
redistricting plan. Having all of the relevant population and citizenship data available in one data
set at the census block level would greatly assist the redisnicu'ng process.

For all of these reasons, the Department believes that decennial census qw?onnaire data
regarding citizenship, ifauailable, would be more for use in redistricting and in
Section 2 litigation than the ACS citizenship estimates.

Accordingly, the Department formally requests that the Census Bureau reinstate into the 2020
Census 3 question regarding citizenship. We also request that the Census Btn'eau release this
new data regarding citizenship at the same time as it releases the other redistricting data, by April
1 following the 2020 Census. At the same time, the Department requests ?rst the Bureau also
maintain the citizenship question on the A03, since such question is necessary, inter alto, to
yield information for the periodic deterun?nations made by the Bttreau under Section 203 of the
Voting Rights Act, 52 U.S.C. 10503.

Please let me know if you have any questions about this letter or wish to discuss this request. I
can he reached at (202) 514-3452, or at 

Sincerely yours,

ArthanGary :j

General Counsel
Justice Managemem Division

Wises-m

 

128a

From: Comstock, Earl {Federal}?

 

 

Sent: 2:19:11 PM

To: UUHburRoss

CC: Herbsti Eiienw
Subject: Re: Census

I agree Mr Secretary.

0n the citizenship question we wi11 get that in piace. The broad topics were what were sent to congress
earTier this year as required. It is next March in 2018 when the fine? 2020 decenniai Census
questions are submitted to Congress. we need to work with Justice to get them to request that citizenship
be added back as a census question. and we have the court cases to i11ustrate that has a 1egitimate
need For the question to be inc1uded. I wi11 arrange a meeting with 001 staff this week to discuss.

Ear1

Sent from my iPhone

On May 2, 2012I at 10:04 AM, wi1bur Ross <w1r?doc.gov> wrote:


at 1: 9y ave 55121: COHQFESS DH 1: 120 as 

done in res onse to months on re uest that we inciude the citizenshi

 

0003710

Case 18-2856, Document 30, 10/02/2018, 2401657, Page1 of 1
129a
S.D.N.Y.-N.Y.C.
18-cv-2921
18-cv-5025
Furman, J.

United States Court of Appeals
FOR THE

SECOND CIRCUIT
_________________

At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,
in the City of New York, on the 2nd day of October, two thousand eighteen.
Present:

Pierre N. Leval,
Rosemary S. Pooler,
Richard C. Wesley,
Circuit Judges.

In Re: United States Department of Commerce, Wilbur L. Ross,
in his official capacity as Secretary of Commerce, United States
Census Bureau, an agency within the United States Department
of Commerce, Ron S. Jarmin, in his capacity as the Director of
the U.S. Census Bureau,

18-2652
18-2659
18-2856
18-2857

Petitioners.
Petitioners request a stay of discovery in Nos. 18-2652 and 18-2659, including the deposition of
Acting Assistant Attorney General Gore, pending review by the Supreme Court. We have
considered the relevant factors and conclude that a stay in those cases is not warranted. See U.S.
S.E.C. v. Citigroup Glob. Mkts. Inc., 673 F.3d 158, 162 (2d Cir. 2012). Upon due consideration,
it is hereby ORDERED that the request for a stay is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court