No. 18-557

In the Supreme Court of the United States
DEPARTMENT OF COMMERCE, ET AL., PETITIONERS
v.
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

PETITIONERS’ RESPONSE TO
RESPONDENTS’ MOTION TO DISMISS THE PETITION
AS IMPROVIDENTLY GRANTED

NOEL J. FRANCISCO
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

 TABLE OF CONTENTS

Page
Statement ...................................................................................... 1
Argument..................................................................................... 12
Conclusion ................................................................................... 16
TABLE OF AUTHORITIES

Cases:
Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402 (1971)................................................................ 5
Dames & Moore v. Regan, 453 U.S. 654 (1981) .................. 14
Gratz v. Bollinger, 539 U.S. 244 (2003) ............................... 14
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ................. 10
Quirin, Ex parte, 317 U.S. 1 (1942) ..................................... 14
SEC v. Chenery Corp., 318 U.S. 80 (1943)........................... 11
United States v. Booker, 543 U.S. 220 (2005) ..................... 14
United States v. Munsingwear, Inc., 340 U.S. 36
(1950) .................................................................................... 15
Wisconsin v. City of New York, 517 U.S. 1 (1996) ............. 13
Constitution, statutes, and rules:
U.S. Const.:
Art. I, § 2, Cl. 3 .................................................................. 2
Enumeration Clause ............................................... 4, 5
Art. III ................................................................................ 8
Administrative Procedure Act, 5 U.S.C. 701 et seq.............. 4
5 U.S.C. 706(2)(A) .............................................................. 8
Census Act, 13 U.S.C. 1 et seq. ............................................... 2
13 U.S.C. 6(c) ................................................................. 8, 9
13 U.S.C. 141(a) ................................................................. 2

(I)

 II
Statutes and rules—Continued:

Page

13 U.S.C. 141(f ).................................................................. 9
13 U.S.C. 141(f )(1) ......................................................... 8, 9
13 U.S.C. 141(f )(2) ............................................................. 9
13 U.S.C. 221 ...................................................................... 2
Voting Rights Act of 1965, 52 U.S.C. 10301 et seq.
(Supp. V 2017):
52 U.S.C. 10301 (§ 2) ......................................................... 2
Sup. Ct. R.:
Rule 10(c) ......................................................................... 13
Rule 11 ........................................................................ 12, 13

 In the Supreme Court of the United States
No. 18-557
DEPARTMENT OF COMMERCE, ET AL., PETITIONERS
v.
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

PETITIONERS’ RESPONSE TO
RESPONDENTS’ MOTION TO DISMISS THE PETITION
AS IMPROVIDENTLY GRANTED

The Court should defer consideration of respondents’ motion (Mot.) to dismiss the writ of certiorari as
improvidently granted. The government intends to file
forthwith a petition for a writ of certiorari before judgment, with a proposal for expedited briefing to allow for
oral argument and decision this Term. The Court
should therefore defer ruling on respondents’ motion
until it rules on the forthcoming petition. If the petition
is granted, respondents’ motion should be denied and
the cases should be consolidated for argument.
STATEMENT

1. The Constitution requires that an “actual Enumeration” of the population be conducted every ten
years to apportion Representatives in Congress among
(1)

 2
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).
Exercising that delegated authority, the Secretary
of Commerce, Wilbur L. Ross, Jr., determined that the
2020 decennial census questionnaire should include a
question requesting citizenship information. Pet. App.
136a-151a. Questions about citizenship or country of
birth (or both) have been asked of at least a sample of
the population on all but one decennial census from 1820
to 2000, and have been (and continue to be) asked on the
annual American Community Survey (ACS) questionnaire, sent to approximately one in 38 households, since
the ACS’s inception in 2005. 315 F. Supp. 3d 766, 776779. The decennial census includes many demographic
questions, including about sex, Hispanic origin, race,
and relationship status. See 18-cv-2921 D. Ct. Doc. 574,
at 21, 22 (Jan. 15, 2019). Individuals who receive the
census questionnaire are required by law to answer
fully and truthfully all of the questions. 13 U.S.C. 221.
2. The Secretary explained the reasons for reinstating the citizenship question to the decennial census in a
March 26, 2018 memorandum. Pet. App. 136a-151a. The
Secretary issued the memorandum in response to a December 12, 2017 letter (Gary Letter) from the Department of Justice (DOJ). Id. at 152a-157a. The Gary Letter stated that citizenship data is “critical” to DOJ’s enforcement of Section 2 of the Voting Rights Act of 1965,
52 U.S.C. 10301 (Supp. V 2017), and that “the decennial

 3
census questionnaire is the most appropriate vehicle for
collecting that data.” Pet. App. 152a-153a; see id. at 155a156a. DOJ thus “formally request[ed] that the Census
Bureau reinstate into the 2020 Census a question regarding citizenship.” Id. at 157a.
After receiving DOJ’s formal request, the Secretary
“initiated a comprehensive review process led by the
Census Bureau,” Pet. App. 136a, 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: do nothing; reinstate the
citizenship question to the decennial census; or rely on
federal administrative records to estimate citizenship
data in lieu of reinstating the citizenship question. Id.
at 139a. After reviewing those alternatives, the Secretary asked the Census Bureau to consider, and he ultimately adopted, a fourth option: reinstating a citizenship question to the decennial census while also using
federal and state administrative records (i.e., a combination of the second and third options). Id. at 143a. The
Secretary concluded that this option “will provide DOJ
with the most complete and accurate CVAP data in response to its request.” Id. at 144a.
The Secretary considered but rejected concerns that
reinstating a citizenship question would reduce the response rate for non-citizens. Pet. App. 140a-142a, 144a147a. 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 * * * operations,” id. at 140a,
he concluded from his discussions with Department of
Commerce personnel, Census Bureau leadership, and
outside parties that, to the best of everyone’s know-

 4
ledge, there was an insufficient empirical basis to conclude that reinstating a citizenship question would, in
fact, materially affect response rates. Id. at 140a-142a
(reviewing the available data); id. at 145a. The Secretary further 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.” Id. at 150a.
3. a. Respondents (plaintiffs below) are governmental entities (including States, cities, and counties) and
non-profit organizations. The operative complaints allege that the Secretary’s action violates the Enumeration Clause; is arbitrary and capricious under the Administrative Procedure Act (APA), 5 U.S.C. 701 et seq.;
and denies equal protection by discriminating against
racial minorities. See 18-cv-5025 Compl. ¶¶ 193-212;
18-cv-2921 Second Am. Compl. ¶¶ 178-197.1 All of the
claims rest on the premise that reinstating a citizenship
question will reduce the self-response rate to the census
because, notwithstanding the legal duty to answer the
census, 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

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

 5
against minorities. To prove their claims, 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 extra-record discovery on that issue, including
deposition discovery, was thus justified, “prefatory to” the
government’s production of the administrative record.
18-cv-2921 D. Ct. Doc. 150, at 9 (May 18, 2018).
b. At a July 3, 2018 hearing, the district court granted
respondents’ request for extra-record discovery over
the government’s objections. Pet. App. 93a-100a. The
court concluded that respondents had made a sufficiently “strong showing of bad faith,” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420
(1971), to warrant extra-record discovery. See Pet.
App. 98a. Following that order, the government supplemented the administrative record with thousands of
pages of documents, including materials reviewed and
created by direct advisors to the Secretary, and even
including materials created by indirect advisors that
were shared with the direct advisors.
c. On July 26, 2018, the district court dismissed
respondents’ Enumeration Clause claims because the
“nearly unbroken practice” of Congress’s including or
authorizing questions about citizenship, along with the
“longstanding historical practice of asking demographic
questions generally,” meant that asking about citizenship “is not an impermissible exercise of the power
granted by the Enumeration Clause to Congress.”
315 F. Supp. 3d at 803-804; see id. at 799-806. The court
did not dismiss respondents’ APA and equal protection
claims, concluding that respondents had alleged sufficient facts to demonstrate standing at the motion-to-

 6
dismiss stage, id. at 781-790; that respondents’ claims
were not barred by the political question doctrine, id. at
790-793; that the content of the census questionnaire
was not committed to the Secretary’s discretion by law,
id. at 793-799; and that respondents’ allegations, accepted as true, stated a plausible claim of intentional
discrimination, id. at 806-811.
d. On August 17, 2018, the district court entered an
order compelling the deposition testimony of thenActing Assistant Attorney General (AAG) for DOJ’s
Civil Rights Division, John M. Gore. 2 Pet. App. 24a-27a.
The court concluded that Acting AAG Gore’s testimony
was “plainly ‘relevant’ ” to respondents’ case in light of
his “apparent role” in drafting the Gary Letter, and
concluded that he “possesses relevant information that
cannot be obtained from another source.” Id. at 25a.
e. On September 21, 2018, the district court entered
an order compelling the deposition of Secretary Ross
himself. Pet. App. 9a-23a. The court recognized that
court-ordered depositions of high-ranking governmental 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 10a-11a (citations omitted). 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 firsthand knowledge’ ” about his reasons for reinstating a
citizenship question that cannot “ ‘be obtained through

On October 11, 2018, the Senate confirmed Eric S. Dreiband as
Assistant Attorney General for the Civil Rights Division. Mr. Gore
was, however, the Acting AAG at all times relevant to this dispute.
2

 7
other, less burdensome or intrusive means.’ ” Id. at 16a,
18a (citation omitted).
4. On October 22, 2018, this Court granted a stay as
to the September 21 order compelling Secretary Ross’s
deposition, to “remain in effect until disposition of ” a
“petition for a writ of certiorari or a petition for a writ
of mandamus,” as long as it was filed “by or before October 29, 2018 at 4 p.m.” 18A375 slip op. 1. The Court
denied a stay as to Acting AAG Gore’s deposition and further extra-record discovery into Secretary Ross’s mental processes, but did “not preclude the [government]
from making arguments with respect to those orders.”
Ibid.
The government filed a petition for a writ of mandamus or, in the alternative, for a writ of certiorari in advance of the Court’s deadline. On November 16, the
Court treated the petition as a petition for a writ of certiorari and granted it. The government moved the district court and the court of appeals to stay further trial
proceedings in light of this Court’s grant of the government’s petition. Both courts declined to stay further
trial proceedings. 18-cv-2921 D. Ct. Doc. 544 (Nov. 20,
2018); 18-2856 C.A. Doc. 93 (Nov. 21, 2018). On November 26, 2018, the government lodged a letter with this
Court suggesting that it might wish to reconsider staying trial proceedings. Meanwhile, Acting AAG Gore was
deposed on October 26, trial commenced on November 5,
and closing arguments were delivered on November 27.
5. On January 15, 2019, the district court entered an
opinion and order memorializing its findings of fact and
conclusions of law. 18-cv-2921 D. Ct. Doc. 574 (Op.). Determining that the Secretary’s decision violated the APA,
the court vacated the Secretary’s decision to reinstate
the citizenship question to the 2020 decennial census

 8
and enjoined the Secretary from reinstating the question “based on [his] March 26, 2018 memorandum or
based on any reasoning that is substantially similar to
the reasoning contained in that memorandum.” Op. 272.
a. The district court first held that most respondents had Article III standing. Op. 155-189. The court
concluded that some private respondents had associational standing because some of their members “receive
funds from federal programs that distribute those funds
on the basis of census data.” Op. 158. The court reasoned that if census data were inaccurate as a result of
adding the citizenship question, those members could
potentially suffer monetary injury. The court also concluded that the alleged “degradation in data quality”
could injure all respondents. Op. 165-173. The court
further determined that respondents New York and Illinois each alleged an impending injury-in-fact because
each faced a “substantial risk” of losing at least one congressional seat in the 2020 decennial census. Op. 160-161.
The court rejected the government’s argument that
these and other purported injuries would not be fairly
traceable to the inclusion of a citizenship question on
the decennial census form because each would materialize, if at all, only because of the independent and unlawful actions of third parties. Op. 178-189.
b. The district court then held that the Secretary’s
decision was “not in accordance with law,” 5 U.S.C.
706(2)(A), because it violates 13 U.S.C. 6(c) and 141(f )(1).
Section 6(c) of the Census Act requires the Secretary
to “acquire and use information available from” federal
and state administrative records “[t]o the maximum extent possible” “instead of conducting direct inquiries”
on the census form, but only if doing so is “consistent

 9
with the kind, timeliness, quality and scope of the statistics required.” 13 U.S.C. 6(c). The district court found
that the Secretary violated subsection (c) because his
March 26, 2018 decisional memorandum did not cite the
provision. Op. 210-211. The court rejected the government’s argument that the Secretary in fact considered
all of the factors listed in subsection (c) in his memorandum, even though he did not cite the provision. Op. 211214. Instead, the court deemed the Secretary to have
“misunderstood his own options” because, in the court’s
view, reinstating the citizenship question and using federal and state administrative records “would produce
less accurate citizenship data” than relying only on the
administrative records. Op. 213-214.
Section 141(f )(1) of the Census Act requires the Secretary to submit a report to Congress containing “the
subjects proposed to be included” and “the types of information to be compiled” in the census to the appropriate
congressional committees at least three years before
the census date. 13 U.S.C. 141(f  )(1). Section 141(f  )(2)
requires a similar report containing “the questions proposed to be included” in the census at least two years
before the census date. 13 U.S.C. 141(f  )(2). Secretary
Ross timely submitted both reports; although the first
report did not include citizenship as a “subject” area,
the second report did include the proposed citizenship
question. See Op. 216-217. The district court nevertheless concluded that Secretary Ross violated subsection
(f )(1) by not including citizenship as a “subject” in a report to Congress. The court rejected the government’s
argument that the contents of the Secretary’s reports
to Congress under Section 141(f ) are not judicially reviewable. See Op. 218-224.

 10
c. The district court further held that the Secretary’s decision was arbitrary and capricious because his
decisional memorandum included what the court viewed
as inaccuracies, and because the Secretary failed to consider “important aspect[s] of the problem,” Op. 231
(quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)) (brackets in original). An example of the inaccuracies was the
Secretary’s statement that adding the question is “no
additional imposition” for millions of households containing citizens or lawful immigrants; in the court’s view,
“common sense” dictates that adding the question would
impose “an additional burden—one question’s worth, per
person, per household—on every respondent.” Op. 226.
An example of an “important aspect” the court thought
that the Secretary failed to consider was “whether it
was necessary to respond to DOJ’s request at all.” Op.
231-232.
In the district court’s view, the Secretary also had
failed to comply with various statistical quality standards, including OMB Statistical Policy Directive Number 2, which requires the Census Bureau to “ ‘design
and administer’ the census ‘in a manner that achieves
the best balance between maximizing data quality and
controlling measurement error while minimizing respondent burden and cost.’ ” Op. 239 (citation omitted).
According to the court, the Secretary’s decision to use
both administrative records and a decennial census
question to gather citizenship data, instead of administrative records alone, was not the “best” balance of benefits and costs. Op. 238-240 (citation omitted).
d. The district court also concluded that the Secretary violated the tenet of administrative law that “the
grounds upon which the . . . agency acted be clearly

 11
disclosed.” Op. 245 (quoting SEC v. Chenery Corp.,
318 U.S. 80, 94 (1943)). In the court’s view, it was “clear
that Secretary Ross’s rationale was pretextual” and
thus not the “real reason for his decision,” ibid., because
the Secretary had “made the decision [to add the citizenship question] months before DOJ sent its letter,”
Op. 94 (¶ 167) (emphasis omitted). The court so found
based on language in a few internal emails. For example, Secretary Ross sent a May 2017 email (Pet. App.
158a) asking about his “months old request that we include the citizenship question”; but because the Secretary did not ask about his “ ‘months old’ request to analyze inclusion of the question,” the email showed prejudgment. Op. 94-95 (¶ 168).
e. The district court rejected respondents’ equalprotection claim, finding no evidence of any discriminatory animus on the Secretary’s part. Op. 261-262. Although the court stated that respondents might have
found such evidence if they had been able to obtain
“sworn testimony from Secretary Ross himself,” it held
they had in effect waived their right to that testimony
by “decid[ing] to press ahead to trial rather than waiting to see if the Supreme Court eventually lifts the stay”
of Secretary Ross’s deposition. Op. 263.
f. As a remedy, the district court vacated the Secretary’s decision to reinstate the citizenship question to
the 2020 decennial census and remanded to the agency.
The court also enjoined the Secretary “from adding a
citizenship question to the 2020 census questionnaire
based on Secretary Ross’s March 26, 2018 memorandum or based on any reasoning that is substantially similar to the reasoning contained in that memorandum.”
Op. 272. The injunction operates nationwide. Op. 273275. Finally, the court vacated its September 21, 2018

 12
order compelling the deposition of Secretary Ross as
moot. Op. 277.
6. On January 17, 2019, respondents moved to dismiss the writ of certiorari as improvidently granted. On
January 18, the Court removed the case from the February argument calendar and suspended the briefing
schedule pending further order of the Court.
ARGUMENT

The Court should defer consideration of respondents’ motion to dismiss the writ of certiorari as improvidently granted while it considers the government’s
forthcoming petition for a writ of certiorari before judgment. If the Court grants the government’s petition, it
should deny respondents’ motion and consolidate the
cases for argument and decision this Term. If the Court
denies the government’s petition, it should grant respondents’ motion and dismiss this case.
1. The government intends to file forthwith a petition for a writ of certiorari before judgment to the Second Circuit to review the district court’s January 15, 2019
opinion and order vacating and enjoining the reinstatement of the citizenship question to the 2020 decennial
census. See Sup. Ct. R. 11. The government already
has filed a notice of appeal to the Second Circuit from
the district court’s order. See 18-cv-2921 D. Ct. Doc.
576 (Jan. 17, 2019); 18-cv-5025 D. Ct. Doc. 168 (Jan. 17,
2019). As respondents recognize (Mot. 7-8, 10), the government must finalize the census questionnaire by the
end of June 2019 to enable it to be printed on time. It is
exceedingly unlikely that there is sufficient time for review in both the court of appeals and in this Court by
that deadline. Even assuming highly expedited briefing
and decision in the court of appeals, the case would not
reach this Court until the spring at the earliest, leaving

 13
insufficient time for briefing, argument, and decision
absent extraordinary expedition. Accordingly, as a practical matter, granting the government’s petition for a
writ of certiorari before judgment is likely the only way
to protect this Court’s opportunity for review.
The government’s forthcoming petition will satisfy
both the traditional criteria for certiorari and the criteria for certiorari before judgment. It will present the
question whether the district court erred in holding that
the Secretary’s decision to reinstate the citizenship
question to the decennial census violated the APA and
in enjoining the Secretary of Commerce, “to whom Congress has delegated its constitutional authority over the
census,” Wisconsin v. City of New York, 517 U.S. 1, 23
(1996), from exercising his delegated authority. That is
both an “important question of federal law that has not
been, but should be, settled by this Court” and “an important federal question” that the district court decided
“in a way that conflicts with relevant decisions of this
Court.” Sup. Ct. R. 10(c). Moreover, this Court already
granted certiorari to consider whether the district court
erred in permitting discovery beyond the administrative record, including depositions of high-ranking officials. The case is no less deserving of review now that
it includes the ultimate merits question of whether the
Secretary’s decision to reinstate the citizenship question to the decennial census was lawful.
Indeed, this “case is of such imperative public importance as to justify deviation from normal appellate
practice and to require immediate determination in this
Court.” Sup. Ct. R. 11. As the district court recognized,
the decennial census “is a matter of national importance”
with “massive and lasting consequences,” in part because it “occurs only once a decade, with no possibility

 14
of a do-over.” Op. 9. In light of the impending deadline
for finalizing the census questionnaire, it is “imperative” for the government (and respondents as well) to
obtain a final resolution of the important issues presented by this case. See, e.g., Dames & Moore v. Regan,
453 U.S. 654, 668 (1981) (reviewing certain executive actions before judgment because they were “of great significance and demand[ed] prompt resolution”); Ex parte
Quirin, 317 U.S. 1, 18-19 (1942) (“public importance” of
issues presented counseled a decision from the Court
without “any avoidable delay”).
2. The forthcoming petition also will fairly encompass the underlying question presented in this case, on
which the Court already has granted certiorari. As respondents recognize (Mot. 11-12), the district court’s interlocutory orders compelling discovery outside the administrative record to probe Secretary Ross’s mental
processes, including the orders compelling the depositions of Acting AAG Gore and Secretary Ross, merge
into the court’s final judgment issued on January 15,
2019. Therefore, rather than dismiss the writ of certiorari as improvidently granted, the Court should simply
hold this case while it considers the government’s forthcoming petition. In the event the petition is granted,
this case could be consolidated with that one, see, e.g.,
United States v. Booker, 543 U.S. 220, 229 (2005); Gratz
v. Bollinger, 539 U.S. 244, 259-260 (2003), or it could be
held and disposed of as appropriate in light of the
Court’s resolution of that other case. Together with its
petition for a writ of certiorari before judgment, the
government will propose expedited petition-stage and
merits-stage briefing schedules that would enable the
cases to be heard this Term during the Court’s April
sitting or, alternatively, at a special sitting in May.

 15
3. Because the propriety of the district court’s orders remains at stake between the parties (in both this
case and the pending appeal of the district court’s final
judgment), this case is not “moot,” as respondents claim;
rather, as they all but concede (Mot. 11-12), the underlying orders themselves remain perfectly reviewable. 3
The government agrees, however, that in light of the
district court’s entry of final judgment and the need to
resolve the form of the census questionnaire by the end
of June 2019, it no longer makes sense to have parallel
proceedings in this Court and the lower courts. For the
reasons given above, this Court therefore should grant
the government’s forthcoming petition for a writ of certiorari before judgment and consolidate the cases for
decision this Term. If the Court denies that petition,
however, it should grant respondents’ motion and dismiss this case.

Even now, respondents carefully avoid disclaiming their intention to depose Secretary Ross in the future, if they can. See Mot. 5.
That alone keeps the issue alive. And it remains possible that respondents will attempt to rely on the district court’s extensive findings and conclusions based on the other extra-record evidence as
alternative grounds for affirmance. To the extent respondents are
willing to affirmatively waive their bid to depose the Secretary or
rely on those alternative grounds, or to the extent the Court views
the issues as truly moot, rather than dismiss the petition altogether,
the Court should vacate the lower courts’ orders compelling the
extra-record discovery (including the Secretary’s deposition) under
United States v. Munsingwear, Inc., 340 U.S. 36 (1950).
3

 16
CONCLUSION

The Court should defer consideration of respondents’ motion to dismiss the writ of certiorari as improvidently granted while it considers the government’s
forthcoming petition for a writ of certiorari before judgment. If that petition is granted, the Court should deny
the motion and consolidate the cases, with a view to consideration and decision this Term. If that petition is denied, however, the Court should grant the motion and
dismiss this case.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General

JANUARY 2019