20A-_______
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
WILBUR L. ROSS, JR., SECRETARY OF COMMERCE, ET AL., APPLICANTS
v.
NATIONAL URBAN LEAGUE, ET AL.
_______________
APPLICATION FOR A STAY PENDING APPEAL TO THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
AND PENDING FURTHER PROCEEDINGS IN THIS COURT AND
REQUEST FOR AN IMMEDIATE ADMINISTRATIVE STAY
_______________
JEFFREY B. WALL
Acting Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

________________________________________________________________
________________________________________________________________

 PARTIES TO THE PROCEEDING
The applicants (defendants-appellants below) are Wilbur L.
Ross, Jr., in his official capacity as Secretary of Commerce;
Steven Dillingham, in his official capacity as Director of the
United States Census Bureau; the United States Department of
Commerce; and the United States Census Bureau, an agency within the
United States Department of Commerce.
The respondents (plaintiffs-appellees below) are National
Urban League; League of Women Voters; Black Alliance for Just
Immigration; Harris County, Texas; King County, Washington; the
City of Los Angeles; the City of Salinas; the City of San Jose;
Rodney Ellis; Adrian Garcia; the Navajo Nation; the National
Association for the Advancement of Colored People; the City of
Chicago; the County of Los Angeles; and the Gila River Indian
Community.
The State of Louisiana and the State of Mississippi (putative
defendants-intervenors below) moved to intervene on the side of
defendants in the district court; the district court has not yet
ruled on that motion.

(I)

 RELATED PROCEEDINGS
United States District Court (N.D. Cal.):
National Urban League v. Ross, No. 20-cv-5799 (Sept. 24, 2020)
United States Court of Appeals (9th Cir.):
National Urban League v. Ross, No. 20-16868 (application for a
stay pending appeal and an immediate administrative stay filed
Sept. 25, 2020; application for an administrative stay denied
Sept. 30, 2020; application for a stay granted in part and
denied in part Oct. 7, 2020)

(II)

 IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 20A-_______
WILBUR L. ROSS, JR., SECRETARY OF COMMERCE, ET AL., APPLICANTS
v.
NATIONAL URBAN LEAGUE, ET AL.
_______________
APPLICATION FOR A STAY PENDING APPEAL TO THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
AND PENDING FURTHER PROCEEDINGS IN THIS COURT 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 Acting Solicitor General, on behalf
of applicants Wilbur L. Ross, Jr., Secretary of Commerce, et al.,
respectfully applies for a stay of the preliminary injunction
issued

by

the

United

States

District

Court

for

the

Northern

District of California, pending consideration and disposition of
the government’s appeal from that injunction to the United States
Court of Appeals for the Ninth Circuit and, if necessary, pending
the filing and disposition of a petition for a writ of certiorari
and any further proceedings in this Court.

In addition, the Acting

Solicitor General respectfully requests an immediate administrative
stay of the injunction pending the Court’s consideration of this
application.

 2
Immediate relief from this Court is necessary because the
district court has enjoined the Census Bureau from concluding field
operations before October 31, 2020 -- as opposed to the Bureau’s
scheduled

conclusion

on

October

5

--

which

will

prevent

the

Secretary from reporting to the President by December 31, 2020, a
statutory deadline that the district court also enjoined.

In

addition to disregarding the statutory deadline, the district court
disregarded the Bureau’s successful efforts to ensure that the 2020
census will reach levels of accuracy and completeness comparable to
other

recent

censuses

while

still

meeting

the

deadline.

In

response to that extraordinary injunction, the government sought a
stay and administrative stay from the court of appeals on September
25, less than 24 hours after the injunction issued.

On September

30, a divided panel of the Ninth Circuit denied an administrative
stay and set a briefing schedule on the stay motion that did not
conclude until October 3.

A separate panel, after hearing argument

on October 5, stayed the portion of the injunction pertaining to
the December 31 deadline but declined to stay the portion of the
injunction that requires field operations to continue for several
more weeks.

As a factual matter, the partial stay will still

require the government to violate the statutory deadline, and as a
legal matter, it is irreconcilable with the district court’s
rationale for issuing any injunction in the first place.
Congress, exercising its authority to “direct” the “Manner” in
which the decennial census will be conducted, U.S. Const. Art. I,

 3
§ 2, Cl. 3, has required the Secretary to take the census “as of
the first day of April” in a census year and further required that
“[t]he tabulation of total population by States

* * *

shall be

completed” and “reported by the Secretary to the President” by
December 31 of that year.

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

Although the

2020 census began on schedule, the Census Bureau, which assists the
Secretary

with

the

census,

see

13

U.S.C.

2,

4,

temporarily

suspended field operations in March 2020 in response to the COVID19 pandemic.

The Department of Commerce and the Bureau initially

proposed that Congress extend by four months the December 31
statutory deadline for completing the tabulation.

But in late

July, when it became clear that Congress was unlikely to enact an
extension, the Bureau began developing a schedule -- known as the
“Replan Schedule” -- that could meet the December 31 deadline with
appropriate levels of completeness and accuracy.
Bureau

announced

that

September

30

was

the

On August 3, the
target

date

for

concluding data-gathering operations in the field, so that it could
then begin the crucial phase of post-collection processing (often
called “post processing”), during which the Bureau must analyze,
correct, and integrate a vast array of data to produce the results
that the Secretary must transmit to the President by December 31.
Respondents filed suit on August 18, 2020, alleging that the
Replan

Schedule

violates

the

Enumeration

Clause

and

the

Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., 701 et
seq.

App., infra, 1a, 15a.

Respondents contended that the Bureau

 4
had not acted “in such Manner” as directed “by Law,” U.S. Const.
Art. I, § 2, Cl. 3, and had acted arbitrarily by organizing census
operations so as to comply with the December 31 deadline imposed by
the Census Act, 13 U.S.C. 1 et seq.

The district court did not

question the validity of the December 31 deadline.
infra, 44a.

See App.,

It “agree[d] that the Census Act’s statutory deadlines

bind” the Bureau, id. at 68a, and it did not find that the Bureau
had chosen an unreasonable means of complying with that binding
deadline by dedicating two months (with increased person-hours per
month) to field operations and three months to post processing.
Rather, the district court held that the Bureau had acted
arbitrarily and capriciously by organizing further operations to
comply with the statutory deadline.

Rejecting an undisputed

declaration from the Bureau, the court concluded that the census
would not be sufficiently accurate (according to an undefined
standard) without more-extended field operations, and it ruled that
the Bureau had acted arbitrarily by declining to consider ignoring
the statutory deadline in order to increase accuracy.

The court

then invoked its authority “to postpone the effective date of an
agency action,” 5 U.S.C. 705 (emphasis added), as the basis for
ordering the government to disregard the congressionally specified
deadline.

App., infra, 78a.

The court entered a preliminary

injunction against “implementing” either the internal September 30
date for ending field operations or the December 31 statutory
deadline.

Ibid.

The

court

later

“[c]larifie[d]”

that

the

 5
injunction requires the Bureau to follow the COVID Schedule, and
therefore to continue field operations until October 31.

D. Ct.

Doc. 288, at 15 (Oct. 1, 2020) (emphasis omitted); see id. at 10.
The district court’s order is remarkable and unprecedented.
The APA ensures that agencies do not act “unlawful[ly]” -- that is,
“not in accordance with law.”

5 U.S.C. 706(2).

Here, the court

held that the Bureau had acted arbitrarily and capriciously by
attempting to comply with a statutory obligation that suffers from
no constitutional defect, and the court ordered as a remedy that
the Bureau must violate the governing statute.

Neither respondents

nor the district court identified any provision of the Census Act
or Constitution that requires the Bureau to achieve a particular
level of accuracy in conducting the census.

As the law stands,

assessing any tradeoff between speed and accuracy is a job for
Congress, which set the December 31 deadline and has not extended
it, and the agencies, which acted reasonably in complying with that
deadline.

There is no legal warrant for the district court’s

intervention.
Even more inexplicable is the court of appeals’ partial stay,
which recognized that the district court likely erred in barring
compliance with the statutory deadline, but nevertheless left in
place the injunction requiring continued field operations -- even
though the only purported basis for that injunction was that the
agency should have considered not complying with the deadline.
Contrary

to

the

court

of

appeals’

attempted

defense

of

this

 6
inconsistent approach (App., infra, 173a), just as courts should
not order agencies to violate statutory deadlines, courts may not
order agencies to treat such deadlines as soft “aspiration[s]”
rather

than

hard

decisionmaking.

constraints

when

exercising

reasoned

Requiring field operations to continue will still

force the Bureau to miss the statutory deadline.
Because courts are not equipped to manage census operations,
it

is

not

surprising

that

the

district

court

assessment of how accurate the census will be.

erred

in

its

The court focused

on early predictions about what would be feasible after the COVID19 delays.

But once it became clear that Congress was unlikely to

extend the statutory deadline, the point of the Replan Schedule was
to

“improve

the

speed

of

our

count

without

sacrificing

completeness,” and the Bureau committed to reaching a response rate
similar to previous censuses.

App., infra, 117a.

Subsequent developments have borne out the reasonableness of
the Bureau’s judgment that field operations should conclude by
September 30 or shortly thereafter.

As of October 6, the Bureau

had enumerated 99.7% of all households, and over 99% of households
in 46 States -- a rate already comparable to the 99% rate in recent
censuses, id. at 96a.1

Indeed, relying on its updated projections,

the Bureau concluded on September 25 that it could complete an
See U.S. Census Bureau, U.S. Dep’t of Commerce, 2020
Census Housing Unit Enumeration Progress by State (Oct. 7, 2020),
https://2020census.gov/content/dam/2020census/news/daily-nrfurates/nrfu-rates-report-10-07.pdf.
Changing the date in that
hyperlink will display earlier or later daily figures.
1

 7
accurate census by the December 31 statutory deadline if it ceased
field operations by October 5 and shifted to post processing, and
the Secretary announced October 5 as a revised target date for
concluding field operations.
29, 2020).

D. Ct. Doc. 233, at 147-151 (Sept.

The Bureau concluded that shifting the target date

would increase enumeration rates and that schedule modifications
for post processing “would still allow the steps necessary to
ensure

data

integrity

to

be

completed,”

and

allow

submission of the Secretary’s report by December 31.2

for

the

The October

5 target date was projected to allow 40 to 49 States to reach a 99%
enumeration rate (with the lowest outlier at 96.6%), id. at 150151, and to require fewer imputed counts than in the last two
censuses.3

Those projections proved accurate.

See note 1, supra.

D. Ct. Doc. 284-1, at 8 (Oct. 1, 2020).
With the
modification, “certain steps necessary to fully implement the
Presidential Memorandum dated July 21, 2020 will not be completed
until after December 31.”
Ibid.
Questions involving that
Memorandum are at issue in Trump v. New York, No. 20-366.
2

Compare Thomas Mule, 2010 Census Coverage Measurement
Estimation Report: Summary of Estimates of Coverage for Persons in
the United States, U.S. Census Bureau (May 22, 2012) at 14 (noting
count imputation for 0.4% of the population in the 2010 and 2000
Censuses), with D. Ct. Doc. 233-1, at 40 (Sept. 29, 2020)
(September 25 spreadsheet projecting 99.7% completion by October 5,
equivalent to imputation for 0.3% of households).
Respondents have speculated (C.A. Stay Opp. 4) that the
reported rates reflect relaxed metrics or procedures. But, under
the Replan Schedule as implemented, nearly all of the procedures
for using proxies, “POP counts,” and administrative records were
unchanged from the COVID Schedule that respondents seek to
reinstate. D. Ct. Doc. 196-1, at 2 & n.1, 3-4 (Sept. 22, 2020).
At times, operations under the Replan Schedule used fewer follow-up
visits for some addresses, but only for addresses that were self3

 8
This Court should expeditiously stay the district court’s
injunction.

First, if the court of appeals upholds the injunction

on appeal, there is a reasonable probability that this Court will
grant a writ of certiorari.

The district court’s order constitutes

an unprecedented intrusion into the Executive’s ability to conduct
the census according to Congress’s direction.

Second, given the

errors in the district court’s analysis, there is more than a fair
prospect that the Court would vacate the injunction.
balance of equities favors a stay.

Third, the

After the Secretary announced a

target date of October 5, the district court quickly responded by
indicating that the injunction would not permit even proposing any
such shift, and then issued an order clarifying that the injunction
requires the Bureau to continue field operations through October 31
-- a prohibition that the court of appeals left standing.

Although

there is sworn testimony in the record -- improperly discounted by
the district court and court of appeals -- of the government’s
ability to meet the statutory deadline on its proposed schedule,
there is virtually no prospect that the Bureau will be able to
comply with that statutory deadline absent a stay of the entire
injunction.

Conversely, there is no risk of corresponding harm to

reported to be vacant. Id. at 6. Other minor changes -- using
high-quality IRS records (rather than multiple administrative
records) to supply some POP counts during closeout procedures, and
making more-limited use of random reinterviews as a quality check
when there are now better ways of assessing enumerators’
reliability than in previous censuses -- are expected to have no
negative effects on the quality of the enumerations that have been
successfully completed. Id. at 4, 5-6.

 9
respondents, because the Bureau is on track to achieve a suitably
accurate census count even if it soon shifts to post processing.
The Court held in similar circumstances that a stay was
warranted with respect to the 1980 census.

There, a district court

found that the December 31 deadline was merely “directory and not
mandatory” and issued an injunction requiring the Bureau to take
actions “to compensate for [a] disproportionate undercount” before
reporting the tabulation of population to the President.
Klutznick, 508 F. Supp. 420, 433 (S.D.N.Y. 1980).

Carey v.

This Court

promptly stayed the injunction, Klutznick v. Carey, 449 U.S. 1068,
1068 (1980), over a dissent contending that missing the December 31
deadline

was

not

sufficient

(Marshall, J., dissenting).

irreparable

harm,

id.

at

1071

The same result is warranted here.

For similar reasons, in light of the October 5 date for
ceasing

field

operations

to

enable

a

timely

shift

to

post

processing, an administrative stay is warranted while the Court
considers this stay application.
gone

while

the

court

of

With October 5 having come and

appeals

was

considering

the

stay

application, every passing day exacerbates the serious risk that
the district court’s order to continue field operations and delay
post processing will make it impossible for the Bureau to comply
with the December 31 statutory reporting deadline.
STATEMENT
1.

The Constitution requires that an “actual Enumeration

shall be made” of the population every ten years “in such Manner as

 10
[Congress] shall by Law direct.”

U.S. Const. Art. I, § 2, Cl. 3.

Congress has directed the timetable for census operations.

The

Census Act sets “the first day of April” as “the ‘decennial census
date,’” 13 U.S.C. 141(a), and prescribes that “[t]he tabulation of
total

population

by

States

* * *

as

required

for

the

apportionment of Representatives in Congress among the several
States shall be completed within 9 months after the census date and
reported by the Secretary to the President of the United States,”
13 U.S.C. 141(b).

Under that timetable, the 2020 enumeration must

be “completed,” and the Secretary must submit his report to the
President, by December 31, 2020.

Ibid.

After receiving the Secretary’s report, the President must
calculate “the number of Representatives to which each State would
be entitled” and transmit that information to Congress within one
week of the first day of the next Congress’s first regular session.
2

U.S.C.

2a(a).

The

“tabulations

of

population”

shall

“be

completed, reported, and transmitted to each respective State” by
March 31, 2021.

13 U.S.C. 141(c); see Franklin v. Massachusetts,

505 U.S. 788, 792 (1992) (describing sequence triggered by the
submission of the Secretary’s report).
Beyond those deadlines, Congress has given the Secretary
“broad authority” to conduct the census.

Department of Commerce v.

New York, 139 S. Ct. 2551, 2568 (2019); see Wisconsin v. City of
New York, 517 U.S. 1, 23 (1996) (noting “the wide discretion
bestowed

* * *

by Congress upon the Secretary”).

 11
2.

The 2020 decennial census is an enormous and complex

operation.

Particularly relevant here are its final two phases:

the “Non-Response Followup” and “post processing.”

As part of Non-

Response Followup, the Bureau contacts non-responsive addresses up
to six times.

App., infra, 92a-93a.

Enumerators also gather

crucial geographic information that may alter the Master Address
File -- the Bureau’s account of every household in the country -such as changes resulting from construction, demolition, or new
uses.

See id. at 84a-85a, 97a.

In post processing, the Bureau engages in a sequence of dataprocessing

operations

statistics.

designed

to

create

See App., infra, 96a-101a.

reliable

and

usable

“Post data collection

processing is a particularly complex operation, and the steps of
the operation generally must be performed consecutively.”
96a.

Id. at

For example, the Bureau must confirm or correct geographic

information in the Master Address File; because this address
information
operations

is

central

cannot

take

to

the

place

census,

“until

addresses nationwide is determined.

the

other

data-processing

entire

Id. at 97a.

universe”

of

Concluding field

operations is thus necessary to proceed with post processing.
3.

The COVID-19 pandemic forced the Bureau to adapt quickly

to new challenges, and in March 2020 it suspended field operations
for four weeks to protect the health and safety of its employees
and the public.

App., infra, 106a.

On April 13, the Bureau’s

staff adopted the “COVID Schedule,” reflecting adjustments to field

 12
operations in light of the pandemic.
107a.

Id. at 107a; see id. at 106a-

As part that plan, the Secretary stated that he “would seek

statutory relief from Congress”; the COVID Schedule thus “assumed
Congressional action” in the form of a 120-day extension of the
statutory deadlines.

Id. at 107a.

Under that assumption, the

self-response period and field operations (including the NonResponse Followup) would have continued until October 31, instead
of July 31 as originally planned.

Ibid.

By late July it became clear that the Bureau could not rely on
a statutory amendment, and on July 29 the Secretary directed the
Bureau’s professional staff to develop a plan to meet the existing
statutory deadlines.

App., infra, 107a; cf. id. at 109a.

On

August 3, Bureau staff presented a revised schedule, known as the
“Replan Schedule,” which the Secretary approved and announced that
day.

Id. at 107a.

A press release announcing the Replan Schedule

stated that the Bureau was “updat[ing]

* * *

our plan

* * *

to

accelerate the completion of data collection and apportionment
counts by our statutory deadline of December 31, 2020, as required
by law and directed by the Secretary of Commerce.”

Id. at 117a.

It emphasized that the Bureau’s “operation remains adaptable and
additional resources will help speed our work” and that the Bureau
“will continue to analyze data and key metrics from its field work
to ensure that our operations are agile and on target for meeting
our statutory delivery dates.”

Id. at 118a.

 13
The

Replan

Schedule

was

designed

to

ensure

that

field

operations and post processing were completed in the five months
remaining before the first statutory deadline.
111a.

App., infra, 107a-

The new schedule reduced the time for field operations by

one month from the COVID Schedule (concluding on September 30
instead of October 31), which was still two months after the
originally planned conclusion of field operations (on July 31).
The Bureau committed to “improv[ing] the speed of our count without
sacrificing completeness” and to “conduct[ing] additional training
sessions and provid[ing] awards to enumerators.”

Id. at 117a.

The

new schedule also took advantage of efficiencies in the NonResponse Followup process (and the census design itself), such as
software

that

maximized

enumerator

effectiveness,

as

well

as

incentives to increase the number of enumerator hours worked “to
get the same work hours as would have been done under the original
time frame.”

Id. at 110a.

With these alterations, the Bureau

explained that it “intends to meet a similar level of household
responses as collected in prior censuses, including outreach to
hard-to-count communities.”

Id. at 117a; see id. at 96a.

Similarly, to ensure expeditious and accurate post processing
in the period between the conclusion of field operations and
December 31, the Bureau increased its staff, adopted a seven-day
workweek, and implemented other efficiencies.
110a, 118a.

App., infra, 109a-

Despite this year’s unprecedented challenges, the

Bureau announced it was “confident that it can achieve a complete

 14
and

accurate

census

and

report

apportionment

counts

statutory deadline following the Replan Schedule.”
4.

a.

by

the

Id. at 111a.

Respondents are a group of local governments, Tribal

nations, nonprofit organizations, and individuals who filed this
suit

on

August

18,

2020,

asserting

that

the

Replan

Schedule

violates the Constitution, constitutes final agency action that is
arbitrary and capricious under the APA, and violates the APA
because it is pretextual.

App., infra, 15a, 44a.

they moved for a preliminary injunction.

On August 25,

See id. at 16a, 44a.

The district court first issued a temporary restraining order
on September 5, barring the Bureau from “implementing” the Replan
Schedule or “allowing to be implemented any actions as a result of
the shortened timelines” in that Schedule, including “winding down
or altering any Census field operations.”
(Sept. 5, 2020).

D. Ct. Doc. 84, at 6-7

The court then engaged in quasi-adversarial

discovery to create what it described as an “administrative record”
for the Replan Schedule.

App., infra, 15a.

The government

repeatedly explained that the Replan Schedule is not discrete and
final agency action within the meaning of the APA, and accordingly
there is no administrative record associated with it.
id. at 15a-17a, 45a.

See, e.g.,

The government urged that if the court

nevertheless believed that it was reviewing discrete and final
agency action and that the action could not be sustained on the
basis of the declarations submitted by the government, it should
“find against the Defendants on the likelihood of success on the

 15
merits

prong”

and

enter

a

preliminary

injunction

sufficient time for orderly appellate review.
(Sept. 8, 2020).

to

enable

D. Ct. Doc. 88, at 4

But the court delayed entry of an appealable

order, and, over the government’s repeated objections, see, e.g.,
D. Ct. Doc. 109, at 4 (Sept. 14, 2020), extended the temporary
restraining order to permit further discovery, D. Ct. Doc. 142
(Sept. 17, 2020).

The court ultimately limited the record it had

constructed to documents predating the August 3 press release
announcing the Replan Schedule.

See App., infra, 46a; cf. D. Ct.

Doc. 154-1, at 3 (Sept. 18, 2020).
b.

On

September

24,

the

district

court

preliminarily

enjoined the government from following key components of the Replan
Schedule.

App., infra, 1a-78a.

The court began by finding that

respondents have Article III standing and that their challenge to
the Replan Schedule does not raise a nonjusticiable political
question.

Id. at 21a-29a.

The district court held that the Replan Schedule constitutes
final agency action.

App., infra, 29a-44a.

The court rejected the

government’s argument that this suit is a “programmatic attack on
the Bureau’s efforts to conduct the 2020 Census,” id. at 29a,
concluding instead that “the Replan is a circumscribed, discrete
agency action,” because the government “named it the ‘Replan’” and
summarized

it

in

a

PowerPoint,

and

because

“[t]he

Secretary

directed the Bureau to develop the Replan” and adopted it, id. at
31a.

The court concluded that, as of August 3, “[t]he Bureau ha[d]

 16
implemented the Replan” and “[n]o further agency decisionmaking
[would] be conducted on the Replan.”

Id. at 33a-34a.

The district court found that respondents are likely to
succeed on the merits of their claim that the Replan Schedule is
arbitrary and capricious and thus violates the APA.
44a-73a.

App., infra,

When considering the APA claim, the court purported to

rely solely on the “administrative record” that it had ordered
compiled and had limited to documents created on or before August
3; the court declined, for example, to consider a September 5
declaration submitted by Albert E. Fontenot Jr., the Associate
Director for Decennial Census Programs, because it believed the
declaration to be a post hoc rationalization for final agency
action.

Id. at 46a, 54a n.11.

The district court found that the Replan Schedule was likely
arbitrary and capricious for five closely related reasons.
infra, 46a.

App.,

First, the court found that the government “failed to

consider important aspects” of the census because it “adopted the
Replan to further one alleged goal alone:

meeting the Census Act’s

statutory deadline of December 31,” while “fail[ing] to consider
how” to fulfill “statutory and constitutional duties to accomplish
an accurate count on such an abbreviated timeline.”
(emphasis omitted).

Id. at 47a

The court relied on predictions by Bureau

employees (made before the Replan Schedule) “that the Bureau could
not meet the December 31, 2020 statutory deadline,” id. at 59a, and
on a few more recent statements expressing doubt about being able

 17
to meet the September 30 deadline for completing fieldwork because
of natural disasters and other issues, id. at 61a.

Second, the

court reasoned that the rationale for adopting the Replan Schedule
-- seeking to satisfy the December 31 deadline -- ran “counter to
the

evidence

before

the

agency,”

because

the

President

and

employees of the Department and the Bureau had previously stated
that they would not be able to satisfy the December 31 deadline.
Id. at 59a (emphasis omitted); see id. at 59a-60a.

Third, the

court found that the government “failed to consider an alternative”
and did not “‘appreciate the full scope of [its] discretion’” -again, because the court thought that the government had given
insufficient consideration to missing the December 31 deadline.
Id. at 64a (citation omitted).

Fourth, the court concluded that

the government “failed to articulate a satisfactory explanation for
its decision to adopt the Replan,” id. at 68a, because its August 3
press release “never explain[ed] why Defendants are ‘required by
law’

to

follow

a

statutory

deadline

that

would

sacrifice

constitutionally and statutorily required interests in accuracy,”
id. at 70a.

Fifth, the court found that the government improperly

“failed to consider the reliance interests of their own partners,
who relied on the October 31 deadline and publicized it to their
communities.”

Id. at 71a.

Turning to the remaining preliminary-injunction factors, the
district

court

found

that

respondents

likely

would

suffer

irreparable harm without an injunction because an inaccurate census

 18
possibly

will

cause

a

loss

of

federal

funds

and

incorrect

apportionment; respondents will need to expend resources to respond
to the Replan Schedule; and local-government respondents will face
increased costs because they “rely on accurate granular census data
to deploy services and allocate capital.”

App., infra, 74a.

And

the court concluded that the balance of the hardships and the
public interest tipped in respondents’ favor because “missing a
statutory deadline [that the government] had expected to miss
anyway[]

would

[respondents].”
The

be

significantly

less

than

the

hardship

on

Id. at 75a.

district

court’s

preliminary

injunction

“stayed”

the

“September 30, 2020 deadline for the completion of data collection
and December 31, 2020 deadline for reporting the tabulation of the
total population to the President,” and it further enjoined the
government “from implementing these two deadlines.”
78a.

App., infra,

The preliminary injunction was based solely on respondents’

arbitrary-and-capricious APA claim; the court declined to reach the
Enumeration Clause and APA pretext claims.

Id. at 44a-45a.

The

court also denied the government’s request for a stay pending
appeal.
c.

Id. at 120a.
On September 28, the Secretary announced that October 5

was the revised target date for concluding field operations.

U.S.

Census Bureau, 2020 Census Update (Sept. 28, 2020), https://
go.usa.gov/xGf58.

In the Bureau’s estimation, that schedule would

allow 40 to 49 States to reach a 99% enumeration rate (with the

 19
rest at 96.6% or higher), while also allowing the Secretary to
submit the tabulation of population to the President on December
31.

See D. Ct. Doc. 233, at 147-151 (Sept. 29, 2020); pp. 6-7,

supra.

Later on September 28, the district court opined at a

hearing that it is “a violation of the [injunction] to propose a
new data collection schedule that is predicated on an enjoined
December 31st date.”

C.A. Doc. 26-2, at 20 (Sept. 30, 2020)

(emphasis added); see id. at 30-31.

Following the production of a

new “administrative record” about the revised target date and
further briefing, the court entered an order clarifying that its
injunction

requires

“immediate

reinstatement

of

the

* * *

deadlines of October 31, 2020 for data collection and April 30,
2021 for reporting the tabulation of total population to the
President.”

D. Ct. Doc. 288, at 10 (Oct. 1, 2020).

The court also

ordered the Bureau “to issue on October 2, 2020 a new text message
to all Census Bureau employees notifying them of the Court’s
Injunction Order, stating that the October 5, 2020 ‘target date’ is
not operative, and stating that data collection operations will
continue through October 31, 2020.”
d.

Id. at 15.

On September 25, less than 24 hours after the district

court entered the preliminary injunction, the government filed a
notice of appeal and moved for a stay pending appeal and an
administrative stay in the Ninth Circuit.

See D. Ct. Doc. 210

(Sept. 25, 2020); C.A. Doc. 4 (Sept. 25, 2020).
panel

of

the

court

of

appeals

denied

On September 30, a

the

motion

for

an

 20
administrative stay in a 33-page published order, including a
lengthy dissent by Judge Bumatay.

App., infra, 121a-153a.

That

panel called for a response to the government’s stay motion by
October 2 and a reply by October 3.
e.

Id. at 130a.

On October 7, a different panel of the court of appeals

stayed the portion of the preliminary injunction that expressly
orders

the

government

to

violate

the

December

31

statutory

deadline, but declined to stay the rest of the injunction -- thus
requiring the Bureau to continue field operations through October
31.

App., infra, 154a-174a.

Although it recognized that the

district court likely erred in ordering the agencies not to comply
with the statutory deadline and did not seriously dispute its
validity, the court of appeals found that respondents are likely to
succeed on their APA claim that the agencies failed to consider
disregarding that deadline in pursuit of increased accuracy.
at 164a-168a.

Id.

Even so, the court “le[ft] the December 31, 2020

date in place as an aspiration.”

Id. at 173a.

ARGUMENT
Under Rule 23 of the Rules of this Court and the All Writs
Act, 28 U.S.C. 1651, a single Justice or the Court may stay a
district-court order pending appeal to a court of appeals.

See,

e.g., Trump v. International Refugee Assistance Project, 137 S. Ct.
2080 (2017) (per curiam); see also San Diegans for the Mt. Soledad
Nat’l War Mem’l v. Paulson, 548 U.S. 1301, 1302 (2006) (Kennedy,
J., in chambers) (stay factors).

Here, all of the relevant factors

 21
favor a stay.

First, this Court likely would grant a writ of

certiorari if the court of appeals were to affirm the district
court’s injunction against compliance with the statutory deadline
for submitting a tabulation of the population to the President
(which, for practical purposes, remains in place despite the court
of appeals’ partial stay, which still requires extended field
operations that would prevent the Bureau from meeting the statutory
deadline).

Second, there is a fair prospect that the Court would

vacate the injunction, which orders the government to violate the
statute governing the census.

And third, there is direct and

irreparable injury to the interests of the government and the
public, but not to respondents.

Because the Bureau’s most recent

calculations were that field operations would need to end on
October 5 to preserve the Secretary’s ability to meet the statutory
deadline, an interim administrative stay while this application is
pending also is warranted.
1.

At the outset, we note that the court of appeals’ partial

stay does not obviate the need for immediate relief from this
Court.

All evidence indicates that continuing field operations

through October 31 would make it impossible to conclude post
processing by the statutory deadline, as the court of appeals
conceded.

Indeed, the court said that it was “leaving the December

31, 2020 date in place as an aspiration,” and recognized that, “as
a practical matter,” the deadline would be missed; but the court
was somehow reassured by the notion that, with the partial stay, it

 22
could claim that missing the deadline was not formally “required by
a court.”

App., infra, 173a (emphasis added).

Moreover, the partial stay is irreconcilable with the legal
rationale for the portion of the preliminary injunction that
remains in force.

The sole basis for requiring continued field

operations was the district court’s holding that it was arbitrary
and capricious for the agencies not to consider flouting the
December 31 deadline for the alleged benefit of increased accuracy.
But neither the courts below nor respondents have disputed that if
the

statutory

deadline

is

binding,

then

the

agencies

acted

reasonably for APA purposes by seeking to end field operations in
early October.

The partial stay is thus internally inconsistent

because if the December 31 deadline is lawful, there is no legal
basis for the remainder of the injunction.

And by purporting to

reinstate a fig-leaf version of the December 31 deadline but
ensuring insufficient time to conduct post processing before then,
the court of appeals has not only made it impossible to comply with
the deadline but also invited the Bureau to conduct a less accurate
census than it would under an immediate stay from this Court.
2.

The first stay factor is met because, if the court of

appeals were to affirm the district court’s injunction on appeal,
at least “four Justices” would likely “vote to grant certiorari.”
San Diegans, 548 U.S. at 1302 (Kennedy, J., in chambers) (citation
omitted).

The injunction bars the government from complying with

the valid statutory deadline -- a deadline that reflects Congress’s

 23
judgment about when to complete census operations and enables
Congress to comply with its constitutional mandate to ensure that
the census is conducted every ten years.

The ability of the Bureau

to comply with that statutory requirement is important, as the
December 31 deadline is tied to other statutory deadlines.
p. 10, supra.

See

The longer the court’s order remains in effect, the

more it could interfere with the ability of Congress and the States
to take countless significant actions -- especially those dealing
with apportionment and redistricting.

See Louisiana & Mississippi

C.A. Amici Br. 1 (Sept. 28, 2020) (contending that “24 states have
state statutory or constitutional deadlines tied to the census that
are imperiled” by the district court’s order); D. Ct. Doc. 204-7,
at 3-9 (Sept. 23, 2020) (laying out those deadlines).
This Court has repeatedly granted a writ of certiorari, or
given plenary consideration to appeals, in cases involving censusrelated issues.

See Department of Commerce v. New York, 139 S. Ct.

2551 (2019); Utah v. Evans, 536 U.S. 452 (2002); Department of
Commerce v. United States House of Representatives, 525 U.S. 316
(1999); Wisconsin v. City of New York, 517 U.S. 1 (1996); Franklin
v. Massachusetts, 505 U.S. 788 (1992); United States Dep’t of
Commerce v. Montana, 503 U.S. 442 (1992); Karcher v. Daggett, 462
U.S. 725 (1983).

This case is an even more compelling candidate

for review, because the question here is not whether the government
has complied with the Census Act -- but whether it may be ordered

 24
to violate that Act.

An order requiring the Executive Branch to

ignore an Act of Congress warrants this Court’s review.
3.

The second stay factor is met because there is at least a

“fair prospect” that this Court would vacate the injunction.

Lucas

v. Townsend, 486 U.S. 1301, 1304 (1988) (Kennedy, J., in chambers).
The injunction lacks any basis in the census statutory scheme, the
APA, or this Court’s case law.
a.

Most obviously, the district court erred in holding that

it was arbitrary and capricious for the agency to seek to comply
with the December 31 statutory deadline.
i.

The Constitution provides that Congress shall direct the

manner in which the decennial census is taken, and Congress in turn
has largely delegated the operations of the census to the Executive
Branch.

See pp. 9-10, supra.

In so doing, Congress has not

required the census to achieve any particular level of accuracy.
But Congress has expressly prescribed when the census must be
completed, which prevents the Bureau from taking as long as might
be needed to achieve maximum accuracy.
The district court “agree[d] that the Census Act’s statutory
deadlines bind Defendants,” App., infra, 68a, and did not find that
statutory scheme unconstitutional.

The court did not hold that, if

the Bureau had to finish the census by year’s end, the Replan
Schedule was an impermissible way to meet Congress’s deadline.
Rather, the court held that the government acted arbitrarily and
capriciously by adopting the Replan Schedule to “meet[] the Census

 25
Act’s statutory deadline.”

Id. at 47a.

In the court’s view (which

disregarded the evidence of the Bureau’s successful efforts to
ensure accuracy and completeness under the Replan Schedule), the
Bureau should have considered whether conducting a more accurate
census

was

deadline.

more
Ibid.

important

than

complying

with

the

statutory

The court therefore invoked a statutory power “to

postpone the effective date of an agency action,” 5 U.S.C. 705
(emphasis added), as its ground for ordering the agency to violate
a congressionally specified deadline.

App., infra, 78a.

The district court’s ruling turned APA review on its head,
finding something that no court (to the government’s knowledge) has
ever found before:

that it was arbitrary and capricious for an

agency to protect its ability to comply with a valid statutory
deadline.

The court compounded that error by ordering the agency

to violate a deadline set by Congress -- a deadline that has roots
in the Constitution, which requires a census every ten years.
While the court gave five reasons that the agencies acted in an
arbitrary and capricious manner, App., infra, 46a, each rationale
was premised on the court’s mistaken view that a court may properly
review and invalidate agency action solely because the agency was
insufficiently

attentive

to

Congress’s plain instructions.
the

Replan

Schedule

to

the

possibility

of

disregarding

See, e.g., id. at 47a (in adopting

“meet[]

the

Census

Act’s

statutory

deadline,” the agency “failed to consider how Defendants would
fulfill their statutory and constitutional duties to accomplish an

 26
accurate count on such an abbreviated timeline”); id. at 64a
(finding that the agency acted arbitrarily and capriciously by
“sacrific[ing] adequate accuracy for an uncertain likelihood of
meeting one statutory deadline”).
ii.

The district court relied on numerous cases involving

missed deadlines, see App., infra, 64a-66a, but none supports the
proposition that a court may order an agency to violate a valid
statutory deadline.

Some of the cases held that an agency does not

necessarily lose authority to implement a statute after it exceeds
a deadline.

See Barnhart v. Peabody Coal Co., 537 U.S. 149, 152

(2003) (finding that the Commissioner of Social Security had
authority to assign retirees for the purposes of retiree benefits
after the statutory deadline); Linemaster Switch Corp. v. EPA, 938
F.2d 1299, 1304-1305 (D.C. Cir. 1991) (finding that the EPA could
add hazardous waste sites to the National Priority List after a
statutory deadline); Newton Cnty. Wildlife Ass’n v. United States
Forest Serv., 113 F.3d 110, 112 (8th Cir. 1997) (finding that the
Forest Service was not required to suspend implementation of timber
sales when it failed to complete a related task by the statutory
deadline).

Other cases reviewed and found reasonable an agency’s

failure to abide by a statutory deadline after the deadline had
passed.

See National Cong. of Hispanic Am. Citizens v. Marshall,

626 F.2d 882, 884, 888 (D.C. Cir. 1979) (reviewing, after the fact,
OSHA’s failure to comply with a statutory timeline for completing
an

agency

rulemaking

once

it

had

commenced

entirely

on

the

 27
Secretary’s initiative).

And the remaining cases involved court-

imposed deadlines set after agencies missed statutory deadlines.
See, e.g., Environmental Def. Fund v. EPA, 852 F.2d 1316, 1331
(D.C. Cir. 1988).
As those cases hold, there may be instances in which an agency
is permitted or even required to take certain acts after failing to
meet a deadline.

In other situations, it may be permissible for a

court to review an agency’s failure to meet a deadline after the
fact.

But none of the cases suggests either that an agency acts

arbitrarily and capriciously by insisting upon compliance with an
upcoming statutory deadline, or that a court may order an agency to
not comply with such a deadline.

Neither the courts below nor

respondents have pointed to any case holding that it is unlawful
for an agency to adhere to a statutory deadline that is clear and
valid on account of competing interests that are not enacted in
concrete statutory standards.
The

district

similarly flawed.

court’s

reliance

on

historical

examples

The court identified some censuses in the early

nineteenth century that missed statutory deadlines.
infra,

67a.

deadlines.

But

is

Congress

itself

retroactively

See App.,

modified

the

Nothing in the early history of the census indicates

that the Bureau may consider disregarding a deadline mandated by
Congress if it wishes to pursue a level of accuracy not mandated by
Congress.

In so holding, the district court committed error that

this Court would likely reverse on the merits.

 28
b.

Far from being arbitrary or capricious, it was inherently

reasonable for the government to adopt a plan to meet the statutory
deadline -- a critical part of the framework established by the
Census Act that fulfills the constitutional mandate for a census
every ten years.

In any event, it is clear that, in response to

unprecedented challenges posed by the COVID-19 pandemic and recent
natural disasters, the Bureau has appropriately sought not only to
comply

with

the

deadline

but

also

to

achieve

accuracy

and

completeness comparable to recent censuses.
i.

As an initial matter, the district court was incorrect to

find that the agency “adopted the Replan to further one alleged
goal

alone:

December 31.”

meeting

the

Census

App., infra, 47a.

Act’s

statutory

deadline

of

The August 3 press release

demonstrates that the government was also considering accuracy,
working to identify concrete ways to “improve the speed of our
count without sacrificing completeness,” and committing to reach
response rates comparable to those of other recent censuses.
at 117a-118a.

Id.

Indeed, the Bureau “evaluated the risks and quality

implications of each suggested time-saving measure and selected
those that [it] believed presented the best combination of changes
to allow [it] to meet the statutory deadline without compromising
quality to an undue degree.”
ii.

Id. at 107a; see id. at 107a-111a.

The district court further erred in concluding that the

Replan Schedule did not adequately take account of accuracy.
e.g., App., infra, 48a-59a.

See,

The court too readily assumed that the

 29
2020 census would be inadequate on the basis of documents that
failed to anticipate changes made under the Replan Schedule.

Later

developments -- which the court expressly declined to consider, see
pp. 34-35, infra -- show that the Bureau is successfully working
toward a complete and accurate count in line with other recent
censuses.

For example, on September 5 Associate Director Fontenot

stated that “current progress indicates that we will nonetheless be
able to complete [Non-Response Followup] before September 30.”
App., infra, 105a.

Mr. Fontenot thought that possible in part

because the Bureau has implemented numerous efficiencies since
August 3.
and

Despite previous concerns about being able to attract

retain

enumerators,

see

id.

at

58a,

the

productivity

of

enumerators has been significantly higher than projected, id. at
105a-106a.

Similarly, as of September 4, the Bureau had already

completed operations in approximately 50 area census offices where
counting

was

resources

complete,

* * *

enabling

it

to

reallocate

to areas that require more work.”

“enumerator
Id. at 112a.

The Bureau also expedited internal deadlines for post processing,
see id. at 96a-101a, and later adopted schedule modifications for
post processing that would allow field operations to continue until
October 5 without sacrificing the steps necessary to ensure data
integrity, see D. Ct. Doc. 284-1, at 8 (Oct. 1, 2020).
The gap between how the census is actually proceeding and the
months-old

statements

on

which

the

district

court

relied

is

illustrated by the sharp increase in the percentage of households

 30
the Bureau has enumerated.

While only 63% of households had

responded to the census as of August 3 (when the Bureau announced
the

schedule

adjustment),

App.,

infra,

118a,

by

the

end

of

September 24 (when the court entered the preliminary injunction),
the Bureau had enumerated 97.0% of all households nationwide, U.S.
Census Bureau, U.S. Dep’t of Commerce, 2020 Census Housing Unit
Enumeration Progress by State (Sept. 25, 2020), https://go.usa.gov/
xGdZr.

That figure has continued to climb every day, reaching

99.7% of all households as of October 6, with 46 States already
over 99%.

See note 1, supra.

It is thus reaching a rate

comparable to those of recent censuses.

See App., infra, 96a.

To be sure, senior Bureau employees expressed significant
concerns about the year-end deadline in June and July, before the
Bureau devised, the Secretary adopted, and the Bureau implemented
the Replan Schedule.

But the district court erred in myopically

focusing on those statements and ignoring the Bureau’s continued
efforts to ensure accuracy in the enumeration.

And in any event,

given the “wide discretion bestowed by the Constitution upon
Congress, and by Congress upon the Secretary,” “the mere fact that
the

Secretary’s

decision

overruled

the

views

of

some

of

his

subordinates” should, “by itself,” have been “of no moment in any
judicial review of his decision.”
The

district

court

also

Wisconsin, 517 U.S. at 23.
misconstrued

the

so-called

“administrative record” that it had required the government to
compile and produce.

For example, the court stated that “in

 31
analyzing the COVID-19 Plan

* * *

the Bureau itself concluded

that missing the statutory deadline was constitutional and in line
with historical precedent.”

App., infra, 67a.

But the cited

document consists only of talking points for a meeting with a
congressman,

ibid.,

which

noted

that

there

would

not

be

a

constitutional problem with “the proposal” -- which was that
“Congress extend” the statutory deadlines, see D. Ct. Doc. 198-5,
at 88-89 (Sept. 22, 2020) (emphasis added).

Acknowledging that

Congress may modify the Census Act said nothing about whether the
Bureau could disregard the deadline if it were not extended.
c.

The

district

court

also

erred

in

finding

that

the

adequacy of the Replan Schedule was even subject to APA review.
i.

The district court faulted the Bureau for failing to give

adequate consideration to its “statutory and constitutional duties
to accomplish an accurate count,” App., infra, 47a, but there is no
enforceable or judicially manageable standard against which to
measure census accuracy, see 5 U.S.C. 701(a)(2); Heckler v. Chaney,
470 U.S. 821, 830, (1985); cf. Rucho v. Common Cause, 139 S. Ct.
2484, 2494 (2019).

Neither the Constitution nor the Census Act

provides such a standard.

Indeed, this Court has repeatedly made

clear that all census counts fall short of the ideal.

“[T]he

Bureau has always failed to reach -- and has thus failed to count
-- a portion of the population.”

Department of Commerce, 525 U.S.

at 322; see Wisconsin, 517 U.S. at 6 (“[N]o census is recognized as
having been wholly successful in achieving th[e] goal [of actual

 32
Enumeration].”); Karcher, 462 U.S. at 732 (“[E]ven the census data
are not perfect.”).
This Court has never suggested that the Constitution or the
Census Act provides a standard for evaluating the likely accuracy
of a particular census plan.

Instead, the Court has expressly

declined to infer “a requirement that the Federal Government
conduct a census that is as accurate as possible,” explaining that
“[t]he Constitution itself provides no real instruction” on what
metrics to use to measure “accuracy” in the census.
U.S. at 17, 18.

Wisconsin, 517

And even assuming there were some baseline

requirement that could be enforced in extreme cases, it is not
implicated here, where the Bureau projects an enumeration rate well
in line with other recent censuses.
By contrast, in satisfying its constitutional obligation to
ensure that the census is conducted every decade and its power to
direct the “Manner” of that conduct, Congress has enacted an
explicit and unambiguous requirement for the Secretary to present
the tabulation of population to the President by December 31.

The

district court erred in faulting the government for seeking to
satisfy

that

express

statutory

requirement

while

purportedly

sacrificing the opportunity to achieve a sufficient level of
accuracy (as gauged by the court under an undefined standard).
ii.

The district court further erred in concluding (App.,

infra, 29a-32a) that the Replan Schedule constituted a discrete
agency action reviewable under the APA.

This Court has found that,

 33
to satisfy the “agency action” requirement, 5 U.S.C. 551(13), the
matter at issue must be a “circumscribed, discrete agency action[]”
that exhibits a “characteristic of discreteness.”

Norton v.

Southern Utah Wilderness Alliance, 542 U.S. 55, 62-63 (2004); see
Lujan v. National Wildlife Fed’n, 497 U.S. 871, 891, 893 (1990).
The Replan Schedule, like the COVID Schedule that preceded it,
was not a circumscribed, discrete agency action.

Rather, it was a

collection of individual judgments by the Bureau, all subject to
constant revision based on new data, time and resource constraints,
and changes in conditions on the ground -- as the press release
announcing the new schedule noted.
obstacles

could

be

sources

of

See pp. 12-14, supra.
additional

efficiencies could advance the timetable.
that

the

2020

census

repeatedly adjusted.

can

be

delays,

but

New
new

The methods for ensuring

accurate

and

timely

have

been

See pp. 6-7, 11-13, supra.

While it is true that on August 3 the Bureau announced a
target date of September 30 for completing field data collection,
it had by no means finalized the myriad decisions that it would
make

to

help

deadline.
single

meet

that

target

or

the

December

31

statutory

The term “Replan Schedule” thus “does not refer to a

* * *

of particular

order or regulation, or even to a completed universe
* * *

orders and regulations”; it instead “refer[s]

to the continuing (and thus constantly changing) operations” of the
Bureau, which means that it is “no[t]
‘agency action.’”

* * *

Lujan, 497 U.S. at 890.

an identifiable

 34
For the same reasons, there was no “final” agency action as of
August 3 because the press release did not “mark the consummation
of the agency’s decisionmaking process”; rather, the schedule was
still “tentative” and “interlocutory.”

Bennett v. Spear, 520 U.S.

154, 178 (1997) (citations and internal quotation marks omitted).
Accordingly,

the

district

court

erred

in

finding

reviewable agency action had occurred by August 3.

that

Merely being

able to “name” a schedule and summarize a shift in the course of
the census in a PowerPoint deck and a press release, App., infra,
31a, did not transform the various changes -- some of which had not
yet been finalized -- into a discrete agency action.

Similarly,

although the court insisted that adjudicating respondents’ claims
would

not

require

it

“to

enforce

free-floating

standards

of

‘sufficiency,’” id. at 30a, that is precisely what the injunction
has done:

it forbids the Bureau from following the timeline of the

Replan Schedule on the ground (contrary to sworn declarations) that
the Bureau did not sufficiently take account of the census’s
accuracy, and it does so without ever specifying how accuracy is
measured, what level of accuracy the court believed the Replan
Schedule would be able to achieve, or what level would suffice to
support bringing an end to field operations or post processing.
Because the district court found that reviewable agency action
occurred by August 3, it mostly refused to consider any evidence
regarding the development and implementation of the Replan Schedule
after that date.

App., infra, 46a.

Most importantly, the court

 35
declined to consider a September 5 declaration from Associate
Director Fontenot.

Id. at 54a n.11; see id. at 79a-115a.

That

declaration reveals the dynamic nature of census operations as
implemented under the Replan Schedule; it discusses a number of
adjustments that the Bureau has made to its approach to conducting
the census since August 3; and it illuminates how the Bureau can
provide an accurate census count by the December 31 deadline.4
court

thus

selectively

blinded

itself

to

evidence

The

strongly

supporting the conclusion that the Bureau is likely to conduct a
census under the Replan Schedule with a level of accuracy and
completeness comparable to recent censuses.5
4.

The balance of harms also favors a stay because the

injunction causes direct, irreparable injury to the government and
the public, and there is no corresponding risk of injury to
respondents.
a.

Cf. Nken v. Holder, 556 U.S. 418, 435 (2009).

A stay (and administrative stay) is immediately necessary

to prevent irreparable harm to the conduct of the census as
The district court did selectively consider some postAugust 3 evidence. It relied on a portion of a second declaration
from Associate Director Fontenot submitted on September 22. While
the court referenced and relied on statements in that declaration
describing events after August 3 that posed new obstacles for
ultimately meeting the statutory deadline, see App., infra, 13a,
61a, 75a, the court declined to consider other statements in that
declaration that support the government’s position.
4

The Court may properly consider Associate Director
Fontenot’s September 5 declaration, which was entered on the
district court docket and is included in the appendix to this
application. See App., infra, 79a-115a. But even if the Court
declined to consider that declaration, it still would be likely to
reverse the decision below.
5

 36
mandated by statute.

See Maryland v. King, 567 U.S. 1301, 1303

(2012) (Roberts, C.J., in chambers) (“‘[A]ny time a State is
enjoined

by

a

court

from

effectuating

statutes

enacted

by

representatives of its people, it suffers a form of irreparable
injury.’”) (citation omitted; brackets in original).
The Bureau cannot proceed with the final phase of the census
until

it

concludes

field

operations.

The

Replan

Schedule

established September 30 as the target date for concluding field
operations, and the Secretary recently announced that, in light of
new developments and the most current information at the Bureau’s
disposal, October 5 was the new target date.

See pp. 6-7, supra.

The Replan Schedule shortened the schedule for post processing from
five to three months to achieve an accurate census while meeting
the statutory deadline.

See App., infra, 113a.

Because of that

condensed schedule, the operations will require the concerted
devotion of personnel and resources seven days a week throughout
the entire post processing period.

See id. at 110a-111a.

If the

statutory deadline is to be met, field operations must end and post
processing must commence.

Although it is impossible to predict

with certainty precisely when the drop-dead date has passed, at
this point in time, every day that the Bureau is barred from
exercising its judgment in how to conduct the census, its ability
to most efficiently allocate its resources to achieve an accurate
enumeration while striving to meet the statutory deadline is put in
serious jeopardy.

Cf. id. at 111a-114a.

 37
The district court failed to understand the gravity of the
injury resulting from its injunction.

It reasoned that its order

would simply cause the government to “miss[] a statutory deadline
[it] had expected to miss anyway.”

App., infra, 75a; see id. at

125a (court of appeals relying on similar rationale in denying the
administrative stay).

But the Bureau had a reasonable plan to meet

the statutory deadline.

See pp. 6-7, 11-14, supra.

Continued

interference with its implementation not only frustrates Congress’s
constitutionally
injury),

but

authorized

also

threatens

directive
to

(itself

disrupt

an

irreparable

countless

downstream

operations at all other levels of government that depend on the
timely completion of the census.
The ongoing proceedings in the district court underscore the
injury that the preliminary injunction continues to inflict on the
government.

The court enjoined the government from engaging in any

contingency planning to satisfy the statutory deadline in the event
that the injunction is stayed or vacated on appeal and required the
Bureau to continue field operations through October 31 -- even if
the

Bureau

will

reach

enumeration

rates

achieved in recent censuses long before then.

comparable

to

those

See pp. 6-7, supra.

An immediate stay is necessary to allow the government to prepare
to meet a valid statutory deadline.
b.

Respondents have failed to demonstrate irreparable harm.

The district court’s finding to the contrary is premised on the
assumption that census data will fall below some unspecified (but

 38
binding) level of accuracy if the deadlines are not enjoined, see
App., infra, 74a, but there is no basis for concluding that the
census as it is currently being conducted is likely to result in an
impermissibly inaccurate enumeration, see pp. 6-7, 28-31, supra.
And to the extent that respondents allege possible injury related
to a change in apportionment or federal funding, they can show
irreparable injury only by demonstrating that (1) there likely
would be inaccuracies that affect the communities they represent
disproportionate to other communities in their States and across
the country, and (2) such disproportionate effects are likely to
have an actual impact on apportionment and federal funding.

But

plaintiffs have demonstrated no such likelihood and thus face only
an abstract “possibility of irreparable injury,” Nken, 556 U.S. at
434, which is insufficient.
Indeed, despite allegations of a possible disproportionate
undercount, this Court granted a stay in Klutznick v. Carey, 449
U.S. 1068 (1980).

There, a district court found that “there ha[d]

been a disproportionate undercount” of the State of New York and
New York City, declared the December 31 deadline to be “directory
and not mandatory,” and ordered the Bureau to take actions to
remedy the undercount before reporting the tabulation of population
to the President.
(S.D.N.Y. 1980).

Carey v. Klutznick, 508 F. Supp. 420, 432, 433
This Court stayed the injunction, Klutznick, 449

U.S. at 1068, over a dissent asserting “[t]he only [irreparable
harm]

* * *

is that the Census Bureau will be unable to comply

 39
with the December 31 deadline if the District Court’s order is not
stayed,” id. at 1071 (Marshall, J., dissenting).

As in 1980, the

Court should stay the injunction below and permit the Bureau to
seek

to

comply

with

the

statutory

deadline

and

therefore

to

conclude field operations on the schedule necessary to meet that
deadline while still conducting an accurate census.
c.

The need for immediate relief from this Court on an

emergency basis is, in significant part, the result of the lower
courts’ delays.

The district court’s entry and extension of a

temporary restraining order that lasted 19 days -- despite the
government’s

repeated

urging

that

it

enter

an

immediately

appealable order -- delayed its decision until shortly before the
Bureau’s

planned

processing.

transition

from

field

operations

to

post

The court of appeals then considered the government’s

stay motion for twelve days -- including an entire week after one
panel had produced 33 pages of contrasting opinions.

These delays

support staying the injunction, as this Court has repeatedly
expressed

disapproval

of

“eleventh

hour

injunction[s],”

particularly in cases involving long-term planning and interrelated
obligations.

Western Airlines, Inc. v. International Bhd. of

Teamsters, 480 U.S. 1301, 1308 (1987) (O’Connor, J., in chambers);
see, e.g., Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006) (per
curiam); Bucklew v. Precythe, 139 S. Ct. 1112, 1134 (2019).
5.

At a minimum, the Court should grant an administrative

stay immediately so that it can consider the full stay in due

 40
course without seriously jeopardizing the Bureau’s ability to
complete a timely and accurate census.

And importantly, unlike the

consequences of failing to grant an administrative stay, granting
an administrative stay would not impose irreparable harms on
respondents if a full stay were ultimately denied.
infra, 150a-151a (Bumatay, J., dissenting).

See App.,

In the unlikely event

that the injunction is later affirmed on appeal, the Bureau could
reopen field operations for a brief period and then redo post
processing.

That would come at great cost, but it demonstrates

that respondents’ asserted harm is not irreparable.

It would also

delay the census, but such delay is not a cognizable harm to
respondents, who have demanded that it be delayed by months.
Missing

the

statutory

deadline,

by

contrast,

could

never

be

remedied.
CONCLUSION
The preliminary injunction should be stayed pending appeal
and, if the court of appeals affirms the injunction, pending the
filing and disposition of a petition for a writ of certiorari and
any further proceedings in this Court.

The injunction also should

be administratively stayed during this application’s pendency.
Respectfully submitted.
JEFFREY B. WALL
Acting Solicitor General
OCTOBER 2020