Case 18-2856, Document 90, 11/21/2018, 2439731, Page1 of 4

STATE OF NEW YORK
OFFICE OF THE ATTORNEY GENERAL
BARBARA D. UNDERWOOD
ATTORNEY GENERAL

DIVISION OF APPEALS & OPINIONS
NEW YORK CITY BUREAU

November 21, 2018
Catherine O’Hagan Wolfe, Esq.
Clerk of Court, United States Court of Appeals for the Second Circuit
40 Foley Square
New York, NY 10007
Re: In re United States Department of Commerce, Nos. 18-2856, 18-2857
Dear Ms. Wolfe:
We write on behalf of plaintiffs-respondents in the above-captioned matters,
in which defendants-petitioners again seek a stay of trial-court proceedings in
lawsuits that challenge Secretary Ross’s decision to modify the decennial census
to include a question about citizenship status. The Court should again deny
defendants’ request for a stay for the reasons provided below and in the November
20 Order of the U.S. District Court for the Southern District of New York
(Furman, J) denying defendants’ stay request.
First, defendants’ request for a stay should be denied because both this
Court and the U.S. Supreme Court have already rejected nearly identical
requests. Indeed, on the same day that defendants filed their certiorari petition
in the Supreme Court, they sought a stay of all further trial proceedings from
that Court based on essentially the same contentions they are making now—i.e.,
that trial proceedings should be stayed because defendants are likely to succeed
in obtaining an order limiting the district court’s review to the administrative
record. The Supreme Court rejected that stay request and did not even grant an
administrative stay while it considered the petition for certiorari. Order, No.
18A455 (Nov. 2, 2018). There is no reason for this Court to reach any different
result now.
Second, defendants fail to make a strong showing that they are likely to
succeed on the merits of any question that would justify a stay. Defendants’
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Re: In re United States Department of Commerce, Nos. 18-2856, 18-2857

assertion that the Supreme Court will “resolve the question whether judicial
review of the Secretary’s actions is limited to the administrative record,” Docket
No. 86, at 1, is meritless because defendants did not present that question to the
Supreme Court. The question on which the Supreme Court granted certiorari is
narrow: “whether in an action seeking to set aside agency action under the
Administrative Procedure Act . . . a district court may order discovery outside
the administrative record to probe the mental processes of the agency
decisionmaker.” Pet’n for a Writ of Mandamus, In re U.S. Dep’t of Commerce, et
al., No. 18-557 (S. Ct. filed Oct. 29, 2018). The only question before the Supreme
Court’s review is thus whether the district court properly authorized specific
extra-record discovery based on a preliminary finding of bad faith. This question
does not address any of the extra-record discovery that the district court
authorized for distinct and allowable purposes—none of which defendants
challenged in their mandamus petitions to this Court or their petition to the
Supreme Court. See Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir.
2005) (extra-record evidence to explain complex subject matter); National
Audubon Soc’y v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997) (extra-record evidence
to evaluate whether the agency failed to consider all relevant factors). To the
extent that defendants nonetheless ask the Supreme Court to go beyond the
narrow question presented and confine the district court’s review to the
administrative record alone, there is a serious question whether they have
preserved that issue given that they did not request such relief in the district
court or in this Court until their recent, eleventh-hour requests to stay trial
proceedings. Defendants have thus not made a strong showing that the Supreme
Court will rule in their favor on the scope of the district court’s review.
Third, defendants have failed to show that they will be irreparably injured
absent a stay. Defendants’ litigation expenses and efforts to prepare post-trial
briefs by today and participate in arguments on November 27 do not constitute
irreparable harm. New York v. U.S. Dep’t of Commerce, No. 18-CV-2921 (JMF),
2018 WL 5791968, at *2 (S.D.N.Y. Nov. 5, 2018) (Amended Opinion and Order
denying stay) (citing “black-letter law”).
There is also no merit to defendants’ contention that they are irreparably
harmed by the possibility that the district court’s decision on the merits will
moot the discovery issue that is pending before the Supreme Court. As
explained, the Supreme Court has already rejected this same argument in
declining to stay trial proceedings. Moreover, defendants insist that they will
not actually suffer any such harm because the Supreme Court will still be able
to review the question presented in the certiorari petition and provide them with
meaningful relief even if the district court issues a final judgment. Defendants
cannot be irreparably harmed by an eventuality that they contend will not
actually happen. In any event, defendants will not be irreparably injured even if
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Re: In re United States Department of Commerce, Nos. 18-2856, 18-2857

a final judgment were to moot the pending Supreme Court case because
defendants have many effective avenues of relief remaining. The district court
could still rule in defendants’ favor on the scope-of-review issue they claim the
Supreme Court will consider, or on the merits of plaintiffs’ claims. And if the
district court issues any rulings adverse to defendants, defendants may pursue
the full panoply of appellate remedies from a final judgment.
Defendants make the further argument that the district court might let
extra-record evidence improperly influence its judgment of the record materials.
But defendants’ unsupported aspersions do not overcome the well-established
presumption that district courts are capable of disregarding improper evidence.
See Bic Corp. v. Far E. Source Corp., 23 F. App’x 36, 38-39 (2d Cir. 2001)
(summary order) (“[T]he trial judge is presumed to be able to exclude improper
inferences from his or her own decisional analysis”); United States v. Am. Exp.
Co., No. 10-CV-4496, 2014 WL 2879811, at *11 (E.D.N.Y. June 24, 2014) (same);
see also Gentile v. State Bar of Nevada, 501 U.S. 1030, 1077 (1991) (Rehnquist,
C.J., dissenting) (“[T]rial judges often have access to inadmissible and highly
prejudicial information and are presumed to be able to discount or disregard it”).
Indeed, defendants’ contention is especially meritless here, where the district
court has repeatedly and clearly articulated its acute awareness of the need to
differentiate between administrative record and extra-record evidence, as well
as the different purposes for which extra-record evidence may be considered
(such as standing), and has also repeatedly instructed the parties to distinguish
between these categories of evidence in post-trial briefing.
By contrast, plaintiffs will be irreparably harmed by a stay. Delaying this
case increases the likelihood that the very harm plaintiffs seek to prevent – the
addition of a citizenship question to the census – cannot be fully adjudicated
before the census forms are printed in June 2019. New York, 2018 WL 5791968,
at *6 n.10. The imminence of the June 2019 deadline is reason to deny any stay
and allow the district court to rule expeditiously. See id. (cataloging defendants’
many representations that this case “is a matter of some urgency”). Meeting the
June 2019 deadline will become harder, not easier, if the parties and courts are
delayed in their task. And as the district court correctly observed, a final
judgment will likely assist, rather than impede, a final resolution of this dispute
by the Supreme Court by narrowing the issues and making the district court’s
actual scope of review concrete rather than hypothetical.
Finally, the public interest is not served by a stay. As the district court
has repeatedly explained, the public has a keen interest in resolving this case
quickly and transparently. Delay undermines this public interest, and ill serves
the public interest of States and municipal governments that are diverting
resources to try to obtain a complete enumeration and trying to plan for
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Re: In re United States Department of Commerce, Nos. 18-2856, 18-2857

adequate funding to meet the basic health and education needs of their
communities.
Respectfully submitted,
BARBARA D. UNDERWOOD
Attorney General of the State of New York
By: /s/ Judith N. Vale
Judith N. Vale
Senior Assistant Solicitor General
28 Liberty Street
New York, NY 10005
Attorney for Government Plaintiffs
cc (via CM/ECF): all counsel of record

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