U.S. District Court California Northern District (San Jose) CIVIL DOCKET FOR CASE #: 5:20-cv-05799-LHK

National Urban League et al v. Ross et al Assigned to: Judge Lucy H. Koh Referred to: Judge Nathanael M. Cousins Relate Case Case: 5:20-cv-05167-LHK-RRC-EMC Case in other court: Ninth Circuit, 20-16868 Cause: 05:702 Administrative Procedure Act

Date Filed: 08/18/2020 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff National Urban League

represented by Pooja Chaudhuri Lawyers' Committee for Civil Rights Under Law 1500 K Street NW Suite 9 Washington, DC 20005 415-726-1414 Email: pchaudhuri7@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ajay P Saini Lawyers' Committee for Civil Rights Under Law 1500 K Street, NW Suite 900 Washington, DC 20005 202-662-8304 Email: asaini@lawyerscommittee.org PRO HAC VICE ATTORNEY TO BE NOTICED

Amit Makker Latham & Watkins LLP 505 Montgomery Street, Suite 2000 San Francisco, CA 94111 415-395-8034 Email: amit.makker@lw.com ATTORNEY TO BE NOTICED

Anne Wylde Robinson Latham & Watkins LLP 555 Eleventh Street, NW, Suite1000 Washington, DC 20004-1304 (202) 637-2200 Fax: (202) 637-2201 Email: anne.robinson@lw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Ezra D Rosenberg Lawyers' Committee for Civil Rights Under Law 1500 K Street, NW Suite 900 Washington, DC 20005 (202) 662-8345 Fax: (202) 783-0857 Email: erosenberg@lawyerscommittee.org PRO HAC VICE ATTORNEY TO BE NOTICED
Gemma Donofrio Latham and Watkins LLP 555 Eleventh Street, NW Suite 1000 Washington, DC 20004 (202) 637-2200 Email: gemma.donofrio@lw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve P. Hoffman Latham and Watkins LLP 555 Eleventh Street, NW Suite 1000 Washington, DC 20004 (202) 637-2200 Email: genevieve.hoffman@lw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jon Greenbaum Lawyers' Committee for Civil Rights Under Law

1401 New York Avenue NW, Suite 400 Washington, DC 20005 (202) 662-8315 Fax: (202) 783-0857 Email: jgreenbaum@lawyerscommittee.org ATTORNEY TO BE NOTICED
Kelly Marita Percival The Brennan Center for Justice at NYU School of Law 120 Broadway Suite 1750 New York, NY 10271 646-925-8758 Email: percivalk@brennan.law.nyu.edu ATTORNEY TO BE NOTICED
Kristen Clarke Lawyers' Committee for Civil Rights 1500 k st nw suite 900 washington, dc 20001 United Sta 202-662-8382 Email: kclarke@lawyerscommittee.org PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Arbus Sherry Latham and Watkins LLP 555 Eleventh St. NW Suite 1000 Washington, DC 20004 202-637-2200 Email: melissa.sherry@lw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Richard P. Bress Latham and Watkins LLP 555 Eleventh Street, N.W. Suite 1000

Washington, DC 20004-1304 202-637-2200 Email: rick.bress@lw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Shannon Danielle Lankenau Latham and Watkins LLP 505 Montgomery Street Suite 2000 San Francisco, CA 94111 415-391-0600 Fax: 415-391-8095 Email: shannon.lankenau@lw.com ATTORNEY TO BE NOTICED
Steven Mark Bauer Latham & Watkins LLP 505 Montgomery Street, Suite 2000 San Francisco, CA 94111 (415) 391-0600 Fax: (415) 395-8095 Email: steve.bauer@lw.com ATTORNEY TO BE NOTICED
Thomas Patrick Wolf Brennan Center for Justice 120 Broadway Suite 1750 New York, NY 10271 732-740-5578 Email: wolft@brennan.law.nyu.edu PRO HAC VICE ATTORNEY TO BE NOTICED
Tyce Randall Walters Latham and Watkins LLP 555 Eleventh Street, NW Suite 1000 Washington, DC 20004 (202) 637-2200 Email: tyce.walters@lw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy R Weiser

Plaintiff League of Women Voters

Brennan Center for Justice 120 Broadway New York City, NY 10271 United Sta 646-292-8310 Email: weiserw@brennan.law.nyu.edu PRO HAC VICE ATTORNEY TO BE NOTICED
Sadik Harry Huseny Latham & Watkins LLP 505 Montgomery Street, Suite 2000 San Francisco, CA 94111 415-391-0600 Fax: 415-395-8095 Email: sadik.huseny@lw.com ATTORNEY TO BE NOTICED
represented by Ajay P Saini (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amit Makker (See above for address) ATTORNEY TO BE NOTICED
Anne Wylde Robinson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ezra D Rosenberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Gemma Donofrio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve P. Hoffman (See above for address)

PRO HAC VICE ATTORNEY TO BE NOTICED
Jon Greenbaum (See above for address) ATTORNEY TO BE NOTICED
Kelly Marita Percival (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristen Clarke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Arbus Sherry (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Pooja Chaudhuri (See above for address) ATTORNEY TO BE NOTICED
Richard P. Bress (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shannon Danielle Lankenau (See above for address) ATTORNEY TO BE NOTICED
Steven Mark Bauer (See above for address) ATTORNEY TO BE NOTICED
Thomas Patrick Wolf (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tyce Randall Walters (See above for address)

Plaintiff
Black Alliance For Just Immigration

PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy R Weiser (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) ATTORNEY TO BE NOTICED
represented by Pooja Chaudhuri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajay P Saini (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amit Makker (See above for address) ATTORNEY TO BE NOTICED
Anne Wylde Robinson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ezra D Rosenberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Gemma Donofrio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve P. Hoffman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jon Greenbaum (See above for address) ATTORNEY TO BE NOTICED
Kelly Marita Percival (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristen Clarke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Maryum Jordan Lawyers' Committee for Civil Rights Under Law 1500 K Street NW Suite 900 Washington, DC 20005 202-662-8355 Email: mjordan@lawyerscommittee.org ATTORNEY TO BE NOTICED
Melissa Arbus Sherry (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard P. Bress (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shannon Danielle Lankenau (See above for address) ATTORNEY TO BE NOTICED
Steven Mark Bauer (See above for address) ATTORNEY TO BE NOTICED
Thomas Patrick Wolf (See above for address)

Plaintiff Harris County, Texas

PRO HAC VICE ATTORNEY TO BE NOTICED
Tyce Randall Walters (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy R Weiser (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) ATTORNEY TO BE NOTICED
represented by Pooja Chaudhuri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajay P Saini (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amit Makker (See above for address) ATTORNEY TO BE NOTICED
Anne Wylde Robinson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ezra D Rosenberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Gemma Donofrio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Genevieve P. Hoffman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon Greenbaum (See above for address) ATTORNEY TO BE NOTICED
Kelly Marita Percival (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristen Clarke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Arbus Sherry (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard P. Bress (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shannon Danielle Lankenau (See above for address) ATTORNEY TO BE NOTICED
Steven Mark Bauer (See above for address) ATTORNEY TO BE NOTICED
Thomas Patrick Wolf (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tyce Randall Walters (See above for address) PRO HAC VICE

Plaintiff King County, Washington

ATTORNEY TO BE NOTICED
Wendy R Weiser (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) ATTORNEY TO BE NOTICED
represented by Pooja Chaudhuri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajay P Saini (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amit Makker (See above for address) ATTORNEY TO BE NOTICED
Anne Wylde Robinson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ezra D Rosenberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Gemma Donofrio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve P. Hoffman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jon Greenbaum (See above for address) ATTORNEY TO BE NOTICED
Kelly Marita Percival (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristen Clarke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Arbus Sherry (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard P. Bress (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shannon Danielle Lankenau (See above for address) ATTORNEY TO BE NOTICED
Steven Mark Bauer (See above for address) ATTORNEY TO BE NOTICED
Thomas Patrick Wolf (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tyce Randall Walters (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy R Weiser (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff City of Los Angeles, California

Sadik Harry Huseny (See above for address) ATTORNEY TO BE NOTICED
represented by Danielle Luce Goldstein Office of the Los Angeles City Attorney 200 North Spring Street 14th Floor Los Angeles, CA 90012 213.978.1868 Fax: 213.978.2286 Email: danielle.goldstein@lacity.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Nelson Feuer Los Angeles City Attorney's Office 200 N. Main Street City Hall East, Suite 800 Los Angeles, CA 90012 213-978-8100 Fax: 213-978-8312 Email: mike.feuer@lacity.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anne Wylde Robinson (See above for address) ATTORNEY TO BE NOTICED
Jon Greenbaum (See above for address) ATTORNEY TO BE NOTICED
Kathleen Alice Kenealy Los Angeles City Attorney's Office 200 N. Main Street City Hall East - Suite 800 Los Angeles, CA 90012 213-978-8354 Email: kathleen.kenealy@lacity.org ATTORNEY TO BE NOTICED

Plaintiff City of Salinas, California

Melissa Arbus Sherry (See above for address) ATTORNEY TO BE NOTICED
Michael Joseph Dundas Office of the Los Angeles City Attorney 200 N. Main Street City Hall East, Suite 800 Los Angeles, CA 90012 213-978-8100 Fax: 213-978-8211 Email: mike.dundas@lacity.org ATTORNEY TO BE NOTICED
Steven Mark Bauer (See above for address) ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Alan Callihan City Attorney 200 Lincoln Ave Salinas, CA 93901 831-758-7256 Email: chrisc@ci.salinas.ca.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anne Wylde Robinson (See above for address) ATTORNEY TO BE NOTICED
Jon Greenbaum (See above for address) ATTORNEY TO BE NOTICED
Melissa Arbus Sherry (See above for address) ATTORNEY TO BE NOTICED
Michael David Mutalipassi

Plaintiff City of San Jose, California

City of Salinas Office of the City Attorney 200 Lincoln Avenue Salinas, CA 93901 831-758-7256 Fax: 831-758-7257 Email: michaelmu@ci.salinas.ca.us ATTORNEY TO BE NOTICED
Steven Mark Bauer (See above for address) ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) ATTORNEY TO BE NOTICED
represented by Mark Dale Rosenbaum Public Counsel 610 South Ardmore Avenue Los Angeles, CA 90005 (213) 385-2977 Fax: (213) 385-9089 Email: mrosenbaum@publiccounsel.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pooja Chaudhuri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajay P Saini (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amit Makker (See above for address) ATTORNEY TO BE NOTICED
Anne Wylde Robinson (See above for address) PRO HAC VICE

ATTORNEY TO BE NOTICED
Ezra D Rosenberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Gemma Donofrio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve P. Hoffman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon Greenbaum (See above for address) ATTORNEY TO BE NOTICED
Kelly Marita Percival (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristen Clarke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Arbus Sherry (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard P. Bress (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shannon Danielle Lankenau (See above for address) ATTORNEY TO BE NOTICED
Steven Mark Bauer

Plaintiff Rodney Ellis

(See above for address) ATTORNEY TO BE NOTICED
Thomas Patrick Wolf (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tyce Randall Walters (See above for address) ATTORNEY TO BE NOTICED
Wendy R Weiser (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) ATTORNEY TO BE NOTICED
represented by Pooja Chaudhuri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajay P Saini (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amit Makker (See above for address) ATTORNEY TO BE NOTICED
Anne Wylde Robinson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ezra D Rosenberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Gemma Donofrio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve P. Hoffman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jon Greenbaum (See above for address) ATTORNEY TO BE NOTICED
Kelly Marita Percival (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristen Clarke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Arbus Sherry (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard P. Bress (See above for address) ATTORNEY TO BE NOTICED
Shannon Danielle Lankenau (See above for address) ATTORNEY TO BE NOTICED
Steven Mark Bauer (See above for address) ATTORNEY TO BE NOTICED
Thomas Patrick Wolf (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Adrian Garcia

Tyce Randall Walters (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy R Weiser (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) ATTORNEY TO BE NOTICED
represented by Pooja Chaudhuri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ajay P Saini (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Amit Makker (See above for address) ATTORNEY TO BE NOTICED
Anne Wylde Robinson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ezra D Rosenberg (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Gemma Donofrio (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Genevieve P. Hoffman (See above for address)

PRO HAC VICE ATTORNEY TO BE NOTICED
Jon Greenbaum (See above for address) ATTORNEY TO BE NOTICED
Kelly Marita Percival (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kristen Clarke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Arbus Sherry (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard P. Bress (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shannon Danielle Lankenau (See above for address) ATTORNEY TO BE NOTICED
Steven Mark Bauer (See above for address) ATTORNEY TO BE NOTICED
Thomas Patrick Wolf (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Tyce Randall Walters (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy R Weiser

Plaintiff Navajo Nation

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) ATTORNEY TO BE NOTICED
represented by Doreen McPaul Navajo Nation Department of Justice P.O. Box 2010 Window Rock, AZ 86515 928-871-6345 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anne Wylde Robinson (See above for address) ATTORNEY TO BE NOTICED
Jason M Searle Navajo Nation Department of Justice P.O. Box 2010 Window Rock, AZ 86515 United Sta 928-871-6210 Email: jasearle@nndoj.org PRO HAC VICE ATTORNEY TO BE NOTICED
Kristen Clarke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Arbus Sherry (See above for address) ATTORNEY TO BE NOTICED
Pooja Chaudhuri (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
The National Association for the Advancement of Colored People

Sadik Harry Huseny (See above for address) ATTORNEY TO BE NOTICED
represented by Kelly Marita Percival (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Melissa Arbus Sherry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Patrick Wolf (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Wendy R Weiser (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Amit Makker (See above for address) ATTORNEY TO BE NOTICED
Anne Wylde Robinson (See above for address) ATTORNEY TO BE NOTICED
Kristen Clarke (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Pooja Chaudhuri (See above for address) ATTORNEY TO BE NOTICED
Shannon Danielle Lankenau

Plaintiff City of Chicago, Illinois

(See above for address) ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) ATTORNEY TO BE NOTICED
represented by Mark Flessner CORPORATION COUNSEL FOR THE 121 N. LaSalle Street, Room 600 Chicago, IL 60602 312-744-8143 Fax: 312-744-5185 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen J Kane COPORATION COUNSEL FOR THE CITY OF CHICAGO 121 N. LaSalle Street, room 600 Chicago, IL 60602 312-744-8143 Fax: 312-744-5185 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anne Wylde Robinson (See above for address) ATTORNEY TO BE NOTICED
Lily E. Hough Edelson PC 123 Townsend Street Suite 100 San Francisco, CA 94107 United Sta 415-212-9300 Email: lhough@edelson.com ATTORNEY TO BE NOTICED
Melissa Arbus Sherry (See above for address) ATTORNEY TO BE NOTICED

Plaintiff County of Los Angeles, California

Rafey Sarkis Balabanian Edelson PC 123 Townsend Street, Suite 100 San Francisco, CA 94107 (415) 212-9300 Fax: (415) 373-9435 Email: rbalabanian@edelson.com ATTORNEY TO BE NOTICED
Rebecca Hirsch City of Chicago 121 N. LaSalle Street Room 600 Chicago, IL 60602 United Sta 312-744-8143 Fax: 312-744-5185 Email: Rebecca.hirsch2@cityofchicago.org PRO HAC VICE ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) ATTORNEY TO BE NOTICED
represented by Jacqueline Nicole Harvey Holland & Knight LLP 50 California Street, Suite 2800 San Francisco, CA 94111 (415) 743-6900 Fax: (415) 743-6910 Email: jacqueline.harvey@hklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anne Wylde Robinson (See above for address) ATTORNEY TO BE NOTICED
Daniel Patrick Kappes Holland & Knight LLP 50 California Street, 28th Floor San Francisco, CA 94111

Plaintiff Gila River Indian Community

(415) 743-6900 Fax: (415) 743-6910 Email: daniel.kappes@hklaw.com ATTORNEY TO BE NOTICED
David Ilan Holtzman Holland & Knight LLP 50 California Street, 28th Floor San Francisco, CA 94111 (415) 743-6900 Fax: (415) 743-6910 Email: david.holtzman@hklaw.com ATTORNEY TO BE NOTICED
Melissa Arbus Sherry (See above for address) ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) ATTORNEY TO BE NOTICED
represented by Dario Joseph Frommer Akin Gump Strauss Hauer & Feld LLP 1999 Avenue of the Stars, Suite 600 Los Angeles, CA 90067-6022 213.254.1270 Fax: 310.229.1001 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anne Wylde Robinson (See above for address) ATTORNEY TO BE NOTICED
Donald R Pongrace Akin Gump Strauss Hauer and Feld LLP 2001 K St NW Washington, DC 20006-1037 United Sta 202-887-4000 Email: dpongrace@akingump.com PRO HAC VICE

ATTORNEY TO BE NOTICED
Melissa Arbus Sherry (See above for address) ATTORNEY TO BE NOTICED
Sadik Harry Huseny (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Wilbur L. Ross in his official capacity as Secretary of Commerce

represented by Alexander Sverdlov U.S. Department of Justice Civil 450 5th St. NW Washington, DC 20530 202-307-0138 Email: alexander.v.sverdlov@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel D. Mauler U.S. Department of Justice Civil Division - Federal Programs Branch 20 Massachusetts Ave, NW Room 6141 Washington, DC 20530 202-616-0773 Email: dan.mauler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Bossert Clark U.S. Department of Justice Civil division, Federal Programs Branch 1100 L Street, NW Washington, DC 20005 202-616-8489 LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED
Alexander Kenneth Haas U.S. Department of Justice 1100 L Street, NW Washington, DC 20005 202-616-0773 Fax: 202-616-8470 Email: alexander.haas@usdoj.gov ATTORNEY TO BE NOTICED
August Flentje U.S. Department of Justice Civil Division 950 Pennsylvania Avenue NW Room 3613 Washington, DC 20530 202-514-3309 Email: august.flentje@usdoj.gov ATTORNEY TO BE NOTICED
Brad Prescott Rosenberg U.S. Department of Justice Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 202-514-3374 Fax: 202-616-8460 Email: brad.rosenberg@usdoj.gov ATTORNEY TO BE NOTICED
David Michael Morrell United States Department of Justice Civil Division 950 Pennsylvania Avenue NW, Room 3141 Washington, DC 20530 (202) 514-2331 Email: david.m.morrell@usdoj.gov ATTORNEY TO BE NOTICED
Diane Kelleher United States Department of Justice Civil Division Federal Programs Branch

Defendant U.S. Department of Commerce

P.O. Box 883 Washington, DC 20044 202-514-4775 Fax: 2-2-616-8202 Email: Diane.Kelleher@usdoj.gov ATTORNEY TO BE NOTICED
Ethan Price Davis U.S. Department of Justice Civil Division 950 Pennsylvania Ave NW Room 3133 Washington, DC 20530 202-616-4171 Email: ethan.p.davis@usdoj.gov ATTORNEY TO BE NOTICED
Michael Andrew Zee United States Department of Justice Civil Division, Federal Programs Branch 450 Golden Gate Avenue, Room 75395 San Francisco, CA 94102 415-436-6646 Fax: 415-436-6632 Email: m.andrew.zee@usdoj.gov ATTORNEY TO BE NOTICED
Stephen Ehrlich United States Department of Justice Civil Divisions, Federal Programs Branch P.O. Box 883 Washington, DC 20044 (202) 305-9803 Email: stephen.ehrlich@usdoj.gov ATTORNEY TO BE NOTICED
represented by Alexander Sverdlov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel D. Mauler

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Bossert Clark (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alexander Kenneth Haas (See above for address) ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
Brad Prescott Rosenberg (See above for address) ATTORNEY TO BE NOTICED
David Michael Morrell (See above for address) ATTORNEY TO BE NOTICED
Diane Kelleher (See above for address) ATTORNEY TO BE NOTICED
Ethan Price Davis (See above for address) ATTORNEY TO BE NOTICED
John V Coghlan U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, NW Washington, DC 20005 202-305-9803 ATTORNEY TO BE NOTICED
Michael Andrew Zee (See above for address) ATTORNEY TO BE NOTICED

Defendant Steven Dillingham in his official capacity as Director of the U.S. Census Bureau
Defendant U.S. Census Bureau

Stephen Ehrlich (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander Sverdlov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
Michael Andrew Zee (See above for address) ATTORNEY TO BE NOTICED
Stephen Ehrlich (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander Sverdlov (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey Bossert Clark (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

V. Movant State of Louisiana

Alexander Kenneth Haas (See above for address) ATTORNEY TO BE NOTICED
August Flentje (See above for address) ATTORNEY TO BE NOTICED
Brad Prescott Rosenberg (See above for address) ATTORNEY TO BE NOTICED
David Michael Morrell (See above for address) ATTORNEY TO BE NOTICED
Diane Kelleher (See above for address) ATTORNEY TO BE NOTICED
Ethan Price Davis (See above for address) ATTORNEY TO BE NOTICED
John V Coghlan (See above for address) ATTORNEY TO BE NOTICED
Michael Andrew Zee (See above for address) ATTORNEY TO BE NOTICED
Stephen Ehrlich (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley A. Benbrook Benbrook Law Group 400 Capitol Mall, Suite 1610 Sacramento, CA 95814 916-447-4900 Fax: 916-447-4904

Movant State of Mississippi

Email: brad@benbrooklawgroup.com ATTORNEY TO BE NOTICED
Jeff Landry Louisiana Department of Justice 1885 N. Third Street Baton Rouge, LA 70804 225-485-2458 ATTORNEY TO BE NOTICED
Joseph Scott St. John Louisiana Department of Justice Office of the Attorney General 1885 N. Third Street Baton Rouge, LA 70804 225-485-2458 Fax: 504-556-9900 Email: stjohnj@ag.louisiana.gov PRO HAC VICE ATTORNEY TO BE NOTICED
Stephen Michael Duvernay Benbrook Law Group 400 Capitol Mall, Suite 2530 Sacramento, CA 95814 (916) 447-4900 Fax: (916) 447-4904 Email: steve@benbrooklawgroup.com ATTORNEY TO BE NOTICED
represented by Lynn Fitch Office of Mississippi Attorney General P.O. Box 220 Jackson, MS 39205 601-359-3680 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bradley A. Benbrook (See above for address) ATTORNEY TO BE NOTICED

Amicus Cummins Inc.
Amicus General Assembly Space, Inc.
Amicus Knotel, Inc.

Stephen Michael Duvernay (See above for address) ATTORNEY TO BE NOTICED
represented by Julian Wolfe Kleinbrodt Gibson Dunn and Crutcher, LLP 555 Mission Street Suite 3000 San Francisco, CA 94105 415-393-8382 Email: JKleinbrodt@gibsondunn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander H. Southwell Gibson, Dunn and Crutcher LLP 200 Park Avenue New York, NY 10166 212-351-4000 Fax: 212-351-4035 Email: asouthwell@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Julian Wolfe Kleinbrodt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander H. Southwell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Julian Wolfe Kleinbrodt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander H. Southwell (See above for address)

Amicus Levi Strauss & Co.
Amicus LivHOME, Inc.
Amicus Lush Cosmetics LLC
Amicus Mara Hoffman Inc.

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Julian Wolfe Kleinbrodt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander H. Southwell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Julian Wolfe Kleinbrodt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander H. Southwell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Julian Wolfe Kleinbrodt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander H. Southwell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Julian Wolfe Kleinbrodt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander H. Southwell (See above for address)

Amicus Minneapolis Regional Chamber of Commerce
Amicus Postmates Inc.
Amicus Univision Communications Inc.
Amicus Workplace Options, LLC

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Julian Wolfe Kleinbrodt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander H. Southwell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Julian Wolfe Kleinbrodt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander H. Southwell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Julian Wolfe Kleinbrodt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander H. Southwell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Julian Wolfe Kleinbrodt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander H. Southwell (See above for address)

Amicus Zendesk Inc.
Amicus County of Santa Clara
Amicus State of New York Office of Attorney General 28 Liberty Street 19th Floor New York, NY 10005 212-416-8469 Attorneys for Amici Curiae States of New York, et al.

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Julian Wolfe Kleinbrodt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander H. Southwell (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Raphael N. Rajendra Office of the County Counsel County of Santa Clara 70 West Hedding Street East Wing, Ninth Floor San Jose, CA 95110 408-299-5900 Fax: 408-292-7240 Email: raphael.rajendra@cco.sccgov.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gavin Geraghty McCabe New York State Office of Attorney General 28 Liberty Street 19th Floor New York, NY 10005 212-416-8469 Fax: 212-416-6007 Email: gavin.mccabe@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

08/18/2020 08/18/2020 08/18/2020
08/18/2020 08/18/2020

1 COMPLAINT for Declaratory and Injunctive Relief (Filing fee $400, receipt number 0971-14828740) against Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. Filed byCity of Los Angeles, California, Black Alliance For Just Immigration, City of Salinas, California, Rodney Ellis, League of Women Voters, City of San Jose, California, Harris County, Texas, National Urban League, Adrian Garcia, King County, Washington. (Attachments: # 1 Civil Cover Sheet)(Huseny, Sadik) (Filed on 8/18/2020) (Entered: 08/18/2020)
2 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-14829876.) filed by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League. (Attachments: # 1 Exhibit Certificate of Good Standing)(Wolf, Thomas) (Filed on 8/18/2020) (Entered: 08/18/2020)
3 Case assigned to Judge Nathanael M. Cousins.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 9/1/2020. (mbcS, COURT STAFF) (Filed on 8/18/2020) (Entered: 08/18/2020)
4 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-14830168.) filed by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League. (Attachments: # 1 Exhibit Certificate of Good Standing)(Percival, Kelly) (Filed on 8/18/2020) (Entered: 08/18/2020)
5 First MOTION for leave to appear in Pro Hac Vice Wendy Weiser ( Filing fee $ 310, receipt number 0971-14830320.) filed by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League. (Attachments:

08/18/2020 08/18/2020 08/18/2020 08/18/2020 08/18/2020
08/18/2020
08/18/2020

# 1 Certificate/Proof of Service certificate of good standing)(Weiser, Wendy) (Filed on 8/18/2020) (Entered: 08/18/2020)
6 SUA SPONTE Judicial Referral for Purpose of Determining Relationship of Case 5:20-cv-05799 NC with 5:20-cv-05167 LHK and 5:20-cv-05169 LHK. Signed by Judge Nathanael Cousins on 8/18/2020. (lmh, COURT STAFF) (Filed on 8/18/2020) (Entered: 08/18/2020)
7 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 11/11/2020. Initial Case Management Conference set for 11/18/2020 10:00 AM in San Jose, Courtroom 5, 4th Floor. (sfbS, COURT STAFF) (Filed on 8/18/2020) (Entered: 08/18/2020)
8 Proposed Summons. (Huseny, Sadik) (Filed on 8/18/2020) (Entered: 08/18/2020)
9 NOTICE of Appearance by Steven Mark Bauer on behalf of Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just Immigration; Harris County, Texas; King County, Washington; City of San Jose, California; Rodney Ellis and Adrian Garcia (Bauer, Steven) (Filed on 8/18/2020) (Entered: 08/18/2020)
10 MOTION for leave to appear in Pro Hac Vice for Richard P. Bress ( Filing fee $ 310, receipt number 0971-14832247.) filed by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League. (Attachments: # 1 Certificate of Good Standing)(Bress, Richard) (Filed on 8/18/2020) (Entered: 08/18/2020)
11 MOTION for leave to appear in Pro Hac Vice for Melissa Arbus Sherry ( Filing fee $ 310, receipt number 0971-14832288.) filed by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League. (Attachments: # 1 Certificate of Good Standing)(Sherry, Melissa) (Filed on 8/18/2020) (Entered: 08/18/2020)
12 MOTION for leave to appear in Pro Hac Vice for Anne W. Robinson ( Filing fee $ 310, receipt number 0971-14832323.) filed by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League. (Attachments: # 1 Certificate of Good Standing)(Robinson, Anne) (Filed on 8/18/2020) (Entered: 08/18/2020)

08/18/2020 08/18/2020
08/18/2020
08/18/2020
08/19/2020 08/19/2020 08/19/2020 08/19/2020

13 NOTICE of Appearance by Shannon Danielle Lankenau on behalf of Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just Immigration; Harris County, Texas; King County, Washington; City of San Jose, California; Rodney Ellis and Adrian Garcia (Lankenau, Shannon) (Filed on 8/18/2020) (Entered: 08/18/2020)
14 MOTION for leave to appear in Pro Hac Vice for Tyce R. Walters ( Filing fee $ 310, receipt number 0971-14832361.) filed by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League. (Attachments: # 1 Certificate of Good Standing)(Walters, Tyce) (Filed on 8/18/2020) (Entered: 08/18/2020)
15 MOTION for leave to appear in Pro Hac Vice for Genevieve P. Hoffman ( Filing fee $ 310, receipt number 0971-14832370.) filed by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League. (Attachments: # 1 Certificate of Good Standing)(Hoffman, Genevieve) (Filed on 8/18/2020) (Entered: 08/18/2020)
16 MOTION for leave to appear in Pro Hac Vice for Gemma Donofrio ( Filing fee $ 310, receipt number 0971-14832380.) filed by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League. (Attachments: # 1 Certificate of Good Standing)(Donofrio, Gemma) (Filed on 8/18/2020) (Entered: 08/18/2020)
17 NOTICE of Appearance by Jon Greenbaum (Greenbaum, Jon) (Filed on 8/19/2020) (Entered: 08/19/2020)
18 Summons Issued as to Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce, U.S. Attorney and U.S. Attorney General (sfbS, COURT STAFF) (Filed on 8/19/2020) (Entered: 08/19/2020)
19 ORDER GRANTING 2 APPLICATION for Admission of Attorney Thomas P. Wolf Pro Hac Vice representing Plaintiffs. Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 8/19/2020). (Entered: 08/19/2020)
20 ORDER GRANTING 4 APPLICATION for Admission of Attorney Kelly M. Percival Pro Hac Vice representing Plaintiffs.

08/19/2020 08/19/2020 08/19/2020 08/19/2020 08/19/2020 08/19/2020 08/19/2020 08/21/2020

Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 8/19/2020) (Entered: 08/19/2020)
21 ORDER GRANTING 5 APPLICATION for Admission of Attorney Wendy Weiser Pro Hac Vice representing Plaintiffs. Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 8/19/2020) (Entered: 08/19/2020)
22 ORDER GRANTING 10 APPLICATION for Admission of Attorney Richard P. Bress representing Plaintiffs. Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 8/19/2020) (Entered: 08/19/2020)
23 ORDER GRANTING 11 APPLICATION for Admission of Attorney Melissa Arbus Sherry Pro Hac Vice representing Plaintiffs. Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 8/19/2020) (Entered: 08/19/2020)
24 ORDER GRANTING 12 APPLICATION for Admission of Attorney Anne W. Robinson Pro Hac Vice representing Plaintiffs. Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 8/19/2020) (Entered: 08/19/2020)
25 ORDER GRANTING 14 APPLICATION for Admission of Attorney Tyce R. Walters Pro Hac Vice representing Plaintiffs. Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 8/19/2020) (Entered: 08/19/2020)
26 ORDER GRANTING 15 APPLICATION for Admission of Attorney Genevieve P. Hoffman Pro Hac Vice representing Plaintiffs. Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 8/19/2020) (Entered: 08/19/2020)
27 ORDER GRANTING 16 APPLICATION of Attorney Gemma Donofrio Pro Hac Vice representing Plaintiffs. Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 8/19/2020) (Entered: 08/19/2020)
28 ORDER RELATING CASES by Judge Lucy H. Koh. The Court RELATES Case No. 5:20-cv-05799-NC, National Urban League et al v. Ross et al, to Case Nos. 5:20-cv-05167-LHK, City of San Jose, et al v. Donald J. Trump, et al, and 5:20-cv-05169 LHK, State of California, et al v. Donald J. Trump, et al. The Clerk shall reassign National Urban League et al v. Ross et al to Judge Lucy H. Koh. (This is a text-only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Filed on 8/21/2020) (Entered: 08/21/2020)

08/21/2020 08/21/2020
08/21/2020 08/24/2020

29 ORDER REASSIGNING CASE. Case reassigned to Judge Lucy H. Koh for all further proceedings. Magistrate Judge Nathanael M. Cousins no longer assigned to case
Notice: The assigned judge participates in the Cameras in the Courtroom Pilot Project. See General Order No. 65 and http://cand.uscourts.gov/cameras.. Signed by Clerk on 8/21/2020. (Attachments: # 1 Notice of Eligibility for Video Recording)(sfbS, COURT STAFF) (Filed on 8/21/2020) (Entered: 08/21/2020)
30 SUMMONS Returned Executed by City of Los Angeles, California, Black Alliance For Just Immigration, City of Salinas, California, Rodney Ellis, League of Women Voters, City of San Jose, California, Harris County, Texas, National Urban League, Adrian Garcia, King County, Washington. Steven Dillingham served on 8/20/2020, answer due 10/19/2020; Wilbur L. Ross served on 8/20/2020, answer due 10/19/2020; U.S. Census Bureau served on 8/20/2020, answer due 10/19/2020; U.S. Department of Commerce served on 8/20/2020, answer due 10/19/2020. (Bauer, Steven) (Filed on 8/21/2020) (Entered: 08/21/2020)
31 Order Requiring Appearance and Setting Case Management Conference. Signed by Judge Lucy H. Koh on 8/21/2020. (lhklc3, COURT STAFF) (Filed on 8/21/2020) (Entered: 08/21/2020)
32 CLERK'S NOTICE SETTING ZOOM INITIAL CASE MANAGEMENT CONFERENCE. Per 31 Order, an Initial Case Management Conference is SET for 8/26/2020 at 2:00 PM. This proceeding will be held via a Zoom webinar.
Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/lhk
Court Appearances: Advanced notice is required of counsel or parties who wish to be identified by the court as making an appearance or will be participating in the argument at the hearing. A list of names and emails must be sent to the CRD at lhkcrd@cand.uscourts.gov no later than 8/25/2020 at 12:00pm noon PST.
General Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.

08/24/2020 08/25/2020 08/25/2020
08/25/2020

Zoom Guidance and Setup: https://www.cand.uscourts.gov/zoom/.
(This is a text-only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Filed on 8/24/2020) (Entered: 08/24/2020)
33 NOTICE of Appearance by Daniel D. Mauler on behalf of Defendants (Mauler, Daniel) (Filed on 8/24/2020) (Entered: 08/24/2020)
34 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-14856733.) filed by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League. (Attachments: # 1 Exhibit Certificate of Good Standing)(Rosenberg, Ezra) (Filed on 8/25/2020) (Entered: 08/25/2020)
35 STIPULATION WITH PROPOSED ORDER Regarding Preliminary Injunction Briefing Schedule, Page Counts, and Defendants' Response to Complaint filed by Black Alliance For Just Immigration, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League. (Attachments: # 1 Declaration of Sadik Huseny, # 2 Proposed Order)(Huseny, Sadik) (Filed on 8/25/2020) (Entered: 08/25/2020)
36 MOTION to Stay and, MOTION for Preliminary Injunction filed by Black Alliance For Just Immigration, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League. Motion Hearing set for 9/17/2020 01:30 PM in San Jose, Courtroom 8, 4th Floor before Judge Lucy H. Koh. Responses due by 9/8/2020. Replies due by 9/15/2020. (Attachments: # 1 Proposed Order, # 2 Declaration of John Thompson, # 3 Declaration of D. Sunshine Hillygus, Ph.D., # 4 Declaration of Dr. Thomas A. Louis, # 5 Declaration of Andrew J. Westall, # 6 Declaration of Maria de la Luz Garcia, # 7 Declaration of Umair A. Shah, # 8 Declaration of Adrian Garcia, # 9 Declaration of Jared R. Briggs, # 10 Declaration of Paul Wilden, # 11 Declaration of Elizabeth Soto, # 12 Declaration of Monica Gurmilan, # 13 Declaration of Dwight Dively, # 14 Declaration of Nana Gyamfi, # 15 Declaration of Celina Stewart, # 16 Declaration of Jeri Green, # 17 Declaration of Rodney Ellis)(Huseny, Sadik) (Filed on 8/25/2020) Modified on 10/5/2020 (lhklc3, COURT STAFF). (Entered: 08/25/2020)

08/25/2020
08/25/2020 08/25/2020 08/25/2020 08/25/2020
08/25/2020 08/25/2020 08/25/2020

37 Declaration of Sadik Huseny in Support of 36 MOTION to Stay and MOTION for Preliminary Injunction filed byBlack Alliance For Just Immigration, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15)(Related document(s) 36 ) (Huseny, Sadik) (Filed on 8/25/2020) (Entered: 08/25/2020)
38 Order by Judge Lucy H. Koh granting 34 Motion for Pro Hac Vice. (lhklc3, COURT STAFF) (Filed on 8/25/2020) (Entered: 08/25/2020)
39 NOTICE of Appearance by Michael Joseph Dundas (Dundas, Michael) (Filed on 8/25/2020) (Entered: 08/25/2020)
40 NOTICE of Appearance by Kathleen Alice Kenealy (Kenealy, Kathleen) (Filed on 8/25/2020) (Entered: 08/25/2020)
41 JOINT CASE MANAGEMENT STATEMENT filed by Black Alliance For Just Immigration, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League. (Huseny, Sadik) (Filed on 8/25/2020) (Entered: 08/25/2020)
42 NOTICE of Appearance by Amit Makker on behalf of Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just Immigration; Harris County, Texas; King County, Washington; City of San Jose, California; Rodney Ellis and Adrian Garcia (Makker, Amit) (Filed on 8/25/2020) (Entered: 08/25/2020)
43 Order by Judge Lucy H. Koh granting 35 Stipulation Regarding Preliminary Injunction Briefing, Page Counts, and Defendants' Response to Complaint. (lhklc3, COURT STAFF) (Filed on 8/25/2020) (Entered: 08/25/2020)
44 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-14860453.) filed by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League. (Attachments: # 1 Certificate of Good Standing)(Saini, Ajay) (Filed on 8/25/2020) (Entered: 08/25/2020)

08/26/2020 08/26/2020 08/26/2020
08/27/2020 08/31/2020

45 Case Management Order. Signed by Judge Lucy H. Koh on 8/26/2020. (lhklc3, COURT STAFF) (Filed on 8/26/2020) (Entered: 08/26/2020)
46 Order by Judge Lucy H. Koh granting 44 Motion for Pro Hac Vice. (lhklc3, COURT STAFF) (Filed on 8/26/2020) (Entered: 08/26/2020)
48 Minute Entry for proceedings held before Judge Lucy H. Koh: Initial Case Management Conference held on 8/26/2020 from 2:02 PM - 3:24 PM (1 hour, 22 minutes). 45 Case Management Order memorializes all relevant information, deadlines, and rulings from the Conference.
Further Case Management Conference SET for Monday, September 14, 2020 at 2:00 PM. The parties shall file their joint case management statement by September 11, 2020 at 5:00 PM.
Total Time in Court: 1 hour, 22 minutes. Court Reporter: Lee-Anne Shortridge.
Attorneys for Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just Immigration; Harris County, Texas; King County, Washington; City of San Jose, California; Rodney Ellis; and Adrian Garcia: Melissa Sherry, Richard Bress, Ezra Rosenberg, Thomas Wolf, Ajay Saini, and Kelly Percival. Attorney for Plaintiff City of Los Angeles, California: Danielle Goldstein. Attorney for Plaintiff City of Salinas, California: Michael Mutalipassi. Attorneys for Defendants: Daniel Mauler and Brad Rosenberg.
For transcript orders, please visit https://cand.uscourts.gov/transcripts
(This is a text-only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Date Filed: 8/26/2020) (Entered: 08/27/2020)
47 TRANSCRIPT ORDER for proceedings held on 8/26/2020 before Judge Lucy H. Koh by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce, for Court Reporter Lee-Anne Shortridge. (Mauler, Daniel) (Filed on 8/27/2020) (Entered: 08/27/2020)
49 NOTICE of Appearance by Julian Wolfe Kleinbrodt (Kleinbrodt, Julian) (Filed on 8/31/2020) (Entered: 08/31/2020)

08/31/2020
08/31/2020
08/31/2020 08/31/2020 08/31/2020 08/31/2020 08/31/2020 08/31/2020

50 Brief re 36 MOTION to Stay and MOTION for Preliminary Injunction of Amicus Curiae 12 Businesses and Business Organizations filed byCummins Inc., General Assembly Space, Inc., Knotel, Inc., Levi Strauss & Co., LivHOME, Inc., Lush Cosmetics LLC, Mara Hoffman Inc., Minneapolis Regional Chamber of Commerce, Postmates Inc., Univision Communications Inc., Workplace Options, LLC, Zendesk Inc.. (Related document(s) 36 ) (Kleinbrodt, Julian) (Filed on 8/31/2020) (Entered: 08/31/2020)
51 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-14882496.) filed by Cummins Inc., General Assembly Space, Inc., Knotel, Inc., Levi Strauss & Co., LivHOME, Inc., Lush Cosmetics LLC, Mara Hoffman Inc., Minneapolis Regional Chamber of Commerce, Postmates Inc., Univision Communications Inc., Workplace Options, LLC, Zendesk Inc.. (Attachments: # 1 Exhibit Certificate of Good Standing)(Southwell, Alexander) (Filed on 8/31/2020) (Entered: 08/31/2020)
52 Order by Judge Lucy H. Koh granting 51 Motion for Pro Hac Vice. (lhklc3, COURT STAFF) (Filed on 8/31/2020) (Entered: 08/31/2020)
53 NOTICE of Appearance by Raphael N. Rajendra on behalf of the County of Santa Clara, California and 19 Additional Local Governments and Officials (Rajendra, Raphael) (Filed on 8/31/2020) (Entered: 08/31/2020)
54 Brief of Amici Curiae County of Santa Clara and 19 Additional Local Governments and Officials in Support of Plaintiffs' Motion for Preliminary Injunction filed byCounty of Santa Clara. (Rajendra, Raphael) (Filed on 8/31/2020) (Entered: 08/31/2020)
55 NOTICE of Appearance by Gavin Geraghty McCabe (McCabe, Gavin) (Filed on 8/31/2020) (Entered: 08/31/2020)
56 Amicus Curiae APPEARANCE entered by Gavin Geraghty McCabe on behalf of State of New York. (McCabe, Gavin) (Filed on 8/31/2020) (Entered: 08/31/2020)
57 Brief re 36 MOTION to Stay and MOTION for Preliminary Injunction Amicus Brief in Support of Plaintiffs' Motion to Stay and for Preliminary Injunction on behalf of coalition of 32 States, Counties, Cities and U.S. Conference of Mayors filed byState of New York. (Related document(s) 36 ) (McCabe, Gavin) (Filed on 8/31/2020) (Entered: 08/31/2020)

08/31/2020 09/01/2020 09/01/2020 09/01/2020
09/02/2020 09/02/2020 09/03/2020 09/03/2020

58 Brief re 57 Brief, Corrected version of Amicus Brief in Support of Plaintiffs' Motion to Stay and for Preliminary Injunction on behalf of coalition of 32 States, Counties, Cities and U.S. Conference of Mayors filed byState of New York. (Related document(s) 57 ) (McCabe, Gavin) (Filed on 8/31/2020) (Entered: 08/31/2020)
59 TRANSCRIPT ORDER for proceedings held on 08/26/2020 before Judge Lucy H. Koh by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, for Court Reporter Lee-Anne Shortridge. (Lankenau, Shannon) (Filed on 9/1/2020) (Entered: 09/01/2020)
60 STIPULATION Regarding Plaintiffs' First Amended Complaint filed by Black Alliance For Just Immigration, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League. (Huseny, Sadik) (Filed on 9/1/2020) (Entered: 09/01/2020)
61 AMENDED COMPLAINT against Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. Filed byCity of Salinas, California, League of Women Voters, National Urban League, Adrian Garcia, City of Los Angeles, California, Black Alliance For Just Immigration, Rodney Ellis, City of San Jose, California, Harris County, Texas, King County, Washington, Navajo Nation, The National Association for the Advancement of Colored People, City of Chicago, Illinois, County of Los Angeles, California, Gila River Indian Community. (Huseny, Sadik) (Filed on 9/1/2020) (Entered: 09/01/2020)
62 NOTICE of Appearance by David Ilan Holtzman on Behalf of the County of Los Angeles (Holtzman, David) (Filed on 9/2/2020) (Entered: 09/02/2020)
63 STATUS REPORT (Defendants' Statement on Status of Field Operations) by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. (Mauler, Daniel) (Filed on 9/2/2020) (Entered: 09/02/2020)
64 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-14896569.) filed by Gila River Indian Community. (Attachments: # 1 Exhibit Certificate of Good Standing)(Pongrace, Donald) (Filed on 9/3/2020) (Entered: 09/03/2020)
65 Transcript of Proceedings held on 8-26-20, before Judge Lucy H. Koh. Court Reporter Lee-Anne Shortridge, telephone number e-mail: lee-

09/03/2020
09/04/2020 09/04/2020 09/04/2020

anne_shortridge@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 47 Transcript Order ) Release of Transcript Restriction set for 12/2/2020. (Related documents(s) 47 ) (lasS, COURT STAFF) (Filed on 9/3/2020) (Entered: 09/03/2020)
66 MOTION for Temporary Restraining Order filed by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Attachments: # 1 Proposed Order, # 2 Declaration of Amit Makker, # 3 Exhibits A-D to Makker Decl., # 4 Copy of First Amended Complaint [Dkt. 61], # 5 Copy of Motion for Stay and Preliminary Injunction and Expert and Fact Decl. [Dkt. 36], # 6 Copy of Huseny Decl. in support of Mot. for Stay and PI [Dkt. 37])(Sherry, Melissa) (Filed on 9/3/2020) (Entered: 09/03/2020)
67 NOTICE by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce re 66 MOTION for Temporary Restraining Order (Defendants' Notice of Intent to Respond Today to Plaintiffs' Motion for TRO) (Mauler, Daniel) (Filed on 9/4/2020) (Entered: 09/04/2020)
68 Order re: Communications with the Court. Signed by Judge Lucy H. Koh on 9/4/2020. (lhklc3, COURT STAFF) (Filed on 9/4/2020) (Entered: 09/04/2020)
69 **CLERK'S NOTICE SETTING HEARING ON 66 MOTION FOR TEMPORARY RESTRAINING ORDER**
Pursuant to this notice, a hearing on 66 MOTION for Temporary Restraining Order is SET for today, September 4, 2020, at 3:00 PM before Judge Lucy H. Koh. This proceeding will be held via a Zoom webinar.
Webinar Access: All counsel, members of the public, and media may access the webinar information at http s://www.cand.uscourts.gov/lhk

09/04/2020 09/04/2020 09/04/2020 09/04/2020 09/04/2020 09/04/2020

General Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.
Zoom Guidance and Setup: https://www.cand.uscourts.gov/zoom/.
(This is a text-only entry g enerated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Filed on 9/4/2020) (Entered: 09/04/2020)
70 NOTICE of Appearance by Alexander Sverdlov for all Defendants (Sverdlov, Alexander) (Filed on 9/4/2020) (Entered: 09/04/2020)
71 NOTICE of Appearance by Lily E. Hough on behalf of Plaintiff City of Chicago (Hough, Lily) (Filed on 9/4/2020) (Entered: 09/04/2020)
72 NOTICE of Appearance by Rafey Sarkis Balabanian on behalf of Plaintiff City of Chicago (Balabanian, Rafey) (Filed on 9/4/2020) (Entered: 09/04/2020)
73 NOTICE of Appearance by Michael Andrew Zee (Zee, Michael) (Filed on 9/4/2020) (Entered: 09/04/2020)
74 OPPOSITION/RESPONSE (re 66 MOTION for Temporary Restraining Order ) filed byU.S. Department of Commerce. (Sverdlov, Alexander) (Filed on 9/4/2020) (Entered: 09/04/2020)
75 Minute Entry for proceedings held before Judge Lucy H. Koh: Hearing on 66 MOTION for Temporary Restraining Order held on 9/4/2020 via Zoom Videoconference.
The Court SET a Case Management Conference on Tuesday, September 8, 2020 at 10:00 AM. The Further Case Management Conference will be held via Zoom Videoconference; details will be included in a Clerk's Notice on the docket.
Total Time in Court: 51 minutes. Court Reporter: Summer Fisher.
Attorneys for Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just Immigration; Harris County, Texas; King County, Washington; City of San Jose, California; Rodney Ellis; and Adrian Garcia: Melissa Sherry, Richard Bress, Ezra Rosenberg,

09/04/2020 09/04/2020
09/04/2020

Thomas Wolf, Steven Bauer, and Sadik Huseny. Attorney for Plaintiff City of Los Angeles, California: Danielle Goldstein. Attorney for Plaintiff City of Salinas, California: Michael Mutalipassi. Attorney for Plaintiff City of Chicago, Illinois: Lily Hough. Attorney for Plaintiff Gila River Indian Community: Donald Pongrace. Attorneys for Defendants: Alexander Sverdlov and Andrew Zee.
For transcript orders, please visit https://cand.uscourts.gov/transcripts (This is a text-only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Date Filed: 9/4/2020) (Entered: 09/04/2020)
76 NOTICE of Appearance by Michael David Mutalipassi for plaintiff City of Salinas (Mutalipassi, Michael) (Filed on 9/4/2020) (Entered: 09/04/2020)
77 **CLERK'S NOTICE SETTING ZOOM CASE MANAGEMENT CONFERENCE**
During the September 4, 2020 hearing on Plaintiffs' motion for temporary restraining order, the Court set a Further Case Management Conference for Tuesday, September 8, 2020 at 10:00 AM in San Jose, Courtroom 8, 4th Floor. This proceeding will be held via a Zoom webinar.
Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/lhk
General Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.
Zoom Guidance and Setup: https://www.cand.uscourts.gov/zoom/.< /p> (This is a text-only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Filed on 9/4/2020) (Entered: 09/04/2020)
78 TRANSCRIPT ORDER for proceedings held on 09/04/2020 before Judge Lucy H. Koh by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, The National Association for the Advancement of

09/04/2020 09/04/2020 09/04/2020 09/05/2020
09/05/2020 09/05/2020 09/06/2020

Colored People, for Court Reporter Summer Fisher. (Makker, Amit) (Filed on 9/4/2020) (Entered: 09/04/2020)
79 TRANSCRIPT ORDER for proceedings held on 9/4/2020 before Judge Lucy H. Koh by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce, for Court Reporter Summer Fisher. (Mauler, Daniel) (Filed on 9/4/2020) (Entered: 09/04/2020)
80 Order re: Reply. Signed by Judge Lucy H. Koh on 9/4/2020. (lhklc3, COURT STAFF) (Filed on 9/4/2020) (Entered: 09/04/2020)
81 OPPOSITION/RESPONSE (re 36 MOTION to Stay and MOTION for Preliminary Injunction ) filed bySteven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. (Attachments: # 1 Declaration of Albert E. Fontenot, Jr.)(Zee, Michael) (Filed on 9/4/2020) (Entered: 09/04/2020)
82 Transcript of Proceedings held on 09/04/2020, before Judge Lucy H. Koh. Court Reporter/Transcriber Summer Fisher, telephone number summer_fisher@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 78 Transcript Order, ) Redaction Request due 9/28/2020. Redacted Transcript Deadline set for 10/6/2020. Release of Transcript Restriction set for 12/4/2020. (Related documents(s) 78 ) (Fisher, Summer) (Filed on 9/5/2020) (Entered: 09/05/2020)
83 REPLY (re 66 MOTION for Temporary Restraining Order ) filed byBlack Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/5/2020) (Entered: 09/05/2020)
84 Order by Judge Lucy H. Koh granting 66 Motion for Temporary Restraining Order. (lhklc3, COURT STAFF) (Filed on 9/5/2020) (Entered: 09/05/2020)
85 Order by Judge Lucy H. Koh granting 64 Motion for Pro Hac Vice. (lhklc3, COURT STAFF) (Filed on 9/6/2020) (Entered: 09/06/2020)

09/08/2020 09/08/2020
09/08/2020 09/08/2020
09/08/2020 09/08/2020 09/08/2020

86 NOTICE by U.S. Department of Commerce re 84 Order on Motion for TRO Defendants' Notice Regarding Compliance (Sverdlov, Alexander) (Filed on 9/8/2020) (Entered: 09/08/2020)
87 TRANSCRIPT ORDER for proceedings held on 9/8/2020 before Judge Lucy H. Koh by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, The National Association for the Advancement of Colored People, for Court Reporter Ana Dub. (Makker, Amit) (Filed on 9/8/2020) (Entered: 09/08/2020)
88 Brief in Response to Court's Request at Conference filed byU.S. Department of Commerce. (Attachments: # 1 Declaration of Brian DiGiacomo)(Sverdlov, Alexander) (Filed on 9/8/2020) (Entered: 09/08/2020)
89 Brief Plaintiffs Submission Regarding Administrative Record filed byBlack Alliance For Just Immigration, City of Chicago, Illinois, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/8/2020) (Entered: 09/08/2020)
90 TRANSCRIPT ORDER for proceedings held on 9/8/2020 before Judge Lucy H. Koh by U.S. Department of Commerce, for Court Reporter Ana Dub. (Sverdlov, Alexander) (Filed on 9/8/2020) (Entered: 09/08/2020)
91 Order to Respond to Defendants' Objections as to the Scope of the Administrative Record. Signed by Judge Lucy H. Koh on 9/8/2020. (lhklc3S, COURT STAFF) (Filed on 9/8/2020) (Entered: 09/08/2020)
94 Minute Entry for proceedings held before Judge Lucy H. Koh: Further Case Management Conference held on 9/8/2020 from 10:03 AM - 10:14 AM; 10:18 AM - 11:13 AM; 11:30 AM - 12:00 PM (1 hour, 36 minutes).
Total Time in Court: 1 hour, 36 minutes. Court Reporter: Ana Dub.
For Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just Immigration; Harris County, TX; King County, Washington; City of San Jose, California; Rodney Ellis; Adrian Garcia; and NAACP: Melissa Sherry, Richard Bress, Steven Bauer, Ezra

09/09/2020
09/09/2020 09/09/2020 09/10/2020 09/10/2020

Rosenberg, Ajay Saini, Thomas Wolf, and Sadik Huseny. For Plaintiff Navajo Nation: Ezra Rosenberg and Thomas Wolf. For Plaintiff City of Los Angeles: Michael Dundas. For Plaintiff County of Los Angeles: David Holtzman. For Plaintiff City of Salinas: Michael Mutalipassi. For Plaintiff City of Chicago: Lily Hough. For Plaintiff Gila River Indian Community: Donald Pongrace. For Defendants: Alexander Sverdlov and Brad Rosenberg.
For transcript orders, please visit https://cand.uscourts.gov/transcripts
(This is a text-only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Date Filed: 9/8/2020) Modified on 9/9/2020 (kedS, COURT STAFF). (Entered: 09/09/2020)
92 Statement re 88 Brief, 91 Order (Plaintiffs' Submission Regarding Scope of Administrative Record) by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/9/2020) (Entered: 09/09/2020)
93 Order re: Communications with the Court. Signed by Judge Lucy H. Koh on 9/9/2020. (lhklc3, COURT STAFF) (Filed on 9/9/2020) (Entered: 09/09/2020)
95 MOTION for leave to appear in Pro Hac Vice for Rebecca Hirsch ( Filing fee $ 310, receipt number 0971-14921210.) filed by City of Chicago, Illinois. (Attachments: # 1 Certificate of Good Standing)(Hirsch, Rebecca) (Filed on 9/9/2020) (Entered: 09/09/2020)
96 Order to Produce the Administrative Record. Signed by Judge Lucy H. Koh on 9/10/2020. (lhklc3S, COURT STAFF) (Filed on 9/10/2020) (Entered: 09/10/2020)
97 CLERK'S NOTICE REGARDING SEPTEMBER 14, 2020 CASE MANAGEMENT CONFERENCE. The Further Case Management Conference remains as set on Monday, September 14, 2020 at 2:00 PM before Judge Lucy H. Koh. This proceeding will be held via a Zoom webinar.

09/11/2020 09/11/2020

Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/lhk
Court Appearances: A dvanced notice is required of counsel or parties who wish to be identified by the court as making an appearance or will be participating in the argument at the hearing. A list of names and emails must be sent to the CRD at lhkcrd@cand.uscourts.gov no later than September 11, 2020 at 3:00 PM PST.
General Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.
Zoom Guidance and Setup: https://www.cand.uscourts.gov/zoom/.
(This is a text-only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Filed on 9/10/2020) (Entered: 09/10/2020)
98 Transcript of Zoom Videoconference Proceedings held on 9/8/2020, before Judge Lucy H. Koh. Court Reporter Ana M. Dub, CSR 7445, RDR, CRR, telephone number 415-290-1651; ana_dub@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date, it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 90 Transcript Order, 87 Transcript Order, ) Release of Transcript Restriction set for 12/10/2020. (Related documents(s) 90 , 87 ) (amdS, COURT STAFF) (Filed on 9/11/2020) (Entered: 09/11/2020)
99 JOINT CASE MANAGEMENT STATEMENT filed by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/11/2020) (Entered: 09/11/2020)

09/12/2020 100 Order re: Communications with the Court. Signed by Judge Lucy H. Koh on 9/12/2020. (lhklc3, COURT STAFF) (Filed on 9/12/2020) (Entered: 09/12/2020)

09/12/2020 101 Order re: Briefing and Deadline for Production. Signed by Judge Lucy H. Koh on 9/12/2020. (lhklc3, COURT STAFF) (Filed on 9/12/2020) (Entered: 09/12/2020)

09/12/2020 102 NOTICE of Appearance by Donald R Pongrace (Pongrace, Donald) (Filed on 9/12/2020) (Entered: 09/12/2020)

09/12/2020 103 Order to Identify Key Documents in the Administrative Record. Signed by Judge Lucy H. Koh on 9/12/2020. (lhklc3, COURT STAFF) (Filed on 9/12/2020) (Entered: 09/12/2020)

09/13/2020

104 NOTICE by U.S. Department of Commerce re 96 Order Notice of Filing Documents (Attachments: # 1 Declaration of Brian D. DiGiacomo)(Sverdlov, Alexander) (Filed on 9/13/2020) (Entered: 09/13/2020)

09/13/2020

105 EXHIBITS re 104 Notice (Other) Documents Produced in Response to the Court's September 10, 2020 Order filed byU.S. Department of Commerce. (Attachments: # 1 Exhibit Part 2, # 2 Exhibit Part 3, # 3 Exhibit Part 4)(Related document(s) 104 ) (Sverdlov, Alexander) (Filed on 9/13/2020) (Entered: 09/13/2020)

09/13/2020

106 NOTICE by U.S. Department of Commerce re 105 Exhibits, 104 Notice (Other) Notice of Corrected Index and Privilege Log (Sverdlov, Alexander) (Filed on 9/13/2020) (Entered: 09/13/2020)

09/14/2020 107 RESPONSE re 100 Order by U.S. Department of Commerce. (Sverdlov, Alexander) (Filed on 9/14/2020) (Entered: 09/14/2020)

09/14/2020

108 RESPONSE re 100 Order Plaintiffs Response to Courts Order Re: Communications with Court by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/14/2020) (Entered: 09/14/2020)

09/14/2020 109 RESPONSE re 101 Order by U.S. Department of Commerce. (Sverdlov, Alexander) (Filed on 9/14/2020) (Entered: 09/14/2020)

09/14/2020 110 RESPONSE re 103 Order by U.S. Department of Commerce. (Sverdlov, Alexander) (Filed on 9/14/2020) (Entered: 09/14/2020)

09/14/2020

111 RESPONSE re 101 Order Plaintiffs' Response re: Briefing and Deadline Production by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Attachments: # 1 Declaration of Anne W. Robinson, # 2 Annex A)(Robinson, Anne) (Filed on 9/14/2020) (Entered: 09/14/2020)

09/14/2020

112 Order re: Communications with the Court. Signed by Judge Lucy H. Koh on 9/14/2020. (lhklc3, COURT STAFF) (Filed on 9/14/2020) (Entered: 09/14/2020)

09/14/2020

113 Order re: Allegations of Potential Non-Compliance with Court's Temporary Restraining Order. Signed by Judge Lucy H. Koh on 9/14/2020. (lhklc3, COURT STAFF) (Filed on 9/14/2020) (Entered: 09/14/2020)

09/14/2020

114 RESPONSE re 103 Order Plaintiffs' Response to Order to Identify Key Documents in Administrative Record by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/14/2020) (Entered: 09/14/2020)

09/14/2020

115 CLERK'S NOTICE SETTING ZOOM HEARING. Pursuant to 113 Order re: Allegations of Potential Non-Compliance with Court's Temporary Restraining Order, a hearing is SET for Tuesday, September 15, 2020 at 2:00 PM. This proceeding will be held via a Zoom webinar.

Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/lhk

Gener al Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including

screenshots or other visual copying of a hearing, is absolutely prohibited.

Zoom Guidance and Setup: https://www.cand.uscourts.gov/zoom/.

(This is a text-only entry generated by the court. There is no document assoc iated with this entry.) (kedS, COURT STAFF) (Filed on 9/14/2020) (Entered: 09/14/2020)

09/14/2020

116 Order by Judge Lucy H. Koh granting 95 Motion for Pro Hac Vice. (lhklc3, COURT STAFF) (Filed on 9/14/2020) (Entered: 09/14/2020)

09/14/2020 117 NOTICE of Appearance by Rebecca Hirsch on behalf of Plaintiff City of Chicago (Hirsch, Rebecca) (Filed on 9/14/2020) (Entered: 09/14/2020)

09/14/2020

118 Minute Entry for proceedings held before Judge Lucy H. Koh: Further Case Management Conference held on 9/14/2020 from 2:09 PM - 3:44 PM; 4:30 PM - 5:02 PM (2 hours, 5 minutes).

Total Time in Court: 2 hours, 5 minutes. Court Reporter: Lee-Anne Shortridge.

For Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just Immigration; Harris County, TX; King County, Washington; City of San Jose, California; Rodney Ellis; Adrian Garcia; and NAACP: Melissa Sherry, Richard Bress, Steven Bauer, and Sadik Huseny. For Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just Immigration; Harris County, TX; King County, Washington; City of San Jose, California; Rodney Ellis; Adrian Garcia; NAACP; and Navajo Nation: Ezra Rosenberg and Thomas Wolf.

For Plaintiff City of Los Angeles: Michael Dundas. For Plaintiff County of Los Angeles: David Holtzman. For Plaintiff City of Salinas: Michael Mutalipassi. For Plaintiff City of Chicago: Lily Hough and Rebecca Hirsch. For Plaintiff Gila River Indian Community: Donald Pongrace. For Defendants: Alexander Sverdlov and Brad Rosenberg.

For transcript orders, please visit https://cand.uscourts.gov/transcripts

(This is a text-only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Date Filed:

9/14/2020) Modified on 9/16/2020 (kedS, COURT STAFF). (Entered: 09/14/2020)

09/14/2020

119 Order re: Production of Inspector General Document Production. Signed by Judge Lucy H. Koh on 9/14/2020. (lhklc3, COURT STAFF) (Filed on 9/14/2020) (Entered: 09/14/2020)

09/14/2020

120 TRANSCRIPT ORDER for proceedings held on 09/14/2020 before Judge Lucy H. Koh by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, The National Association for the Advancement of Colored People, for Court Reporter Lee-Anne Shortridge. (Makker, Amit) (Filed on 9/14/2020) (Entered: 09/14/2020)

09/14/2020

121 Statement Plaintiffs' Listing of Plaintiffs and Corresponding Representation by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/14/2020) (Entered: 09/14/2020)

09/14/2020 122 RESPONSE re 119 Order by U.S. Department of Commerce. (Sverdlov, Alexander) (Filed on 9/14/2020) (Entered: 09/14/2020)

09/14/2020

123 Plaintiffs' Submission Regarding Production of OIG Documents by Black Alliance For Just Immigration, City of Chicago, Illinois, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/14/2020) Modified text on 9/15/2020 (dhmS, COURT STAFF). (Entered: 09/14/2020)

09/15/2020

124 Plaintiffs' Submission Regarding Production of OIG Documents [Corrected Docket Text] by Black Alliance For Just Immigration, City of Chicago, Illinois, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/15/2020) Modified on 9/15/2020 (dhmS, COURT STAFF). (Entered: 09/15/2020)

09/15/2020

125 TRANSCRIPT ORDER for proceedings held on 9/14/2020 before Judge Lucy H. Koh by U.S. Department of Commerce, for Court Reporter Lee-Anne Shortridge. (Sverdlov, Alexander) (Filed on 9/15/2020) (Entered: 09/15/2020)

09/15/2020

126 Transcript of Proceedings held on 9-14-20, before Judge Lucy H. Koh. Court Reporter Lee-Anne Shortridge, telephone number e-mail: leeanne_shortridge@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 120 Transcript Order, ) Release of Transcript Restriction set for 12/14/2020. (Related documents(s) 120 ) (lasS, COURT STAFF) (Filed on 9/15/2020) (Entered: 09/15/2020)

09/15/2020 127 RESPONSE re 113 Order by U.S. Department of Commerce. (Attachments: # 1 Declaration of James T. Christy)(Sverdlov, Alexander) (Filed on 9/15/2020) (Entered: 09/15/2020)

09/15/2020 128 Order re: Document Production. Signed by Judge Lucy H. Koh on 9/15/2020. (lhklc3, COURT STAFF) (Filed on 9/15/2020) (Entered: 09/15/2020)

09/15/2020

129 Statement (Plaintiffs' Statement Regarding Case Management Issues) by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Sherry, Melissa) (Filed on 9/15/2020) (Entered: 09/15/2020)

09/15/2020

130 REPLY (re 36 MOTION to Stay and MOTION for Preliminary Injunction ) filed byBlack Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Sherry, Melissa) (Filed on 9/15/2020) (Entered: 09/15/2020)

09/15/2020 131 Declaration of Sadik Huseny in Support of 130 Reply to Opposition/Response,, re Plaintiffs' Motion for Stay and Preliminary

Injunction filed byBlack Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Attachments: # 1 Exhibit 16, # 2 Exhibit 17, # 3 Exhibit 18, # 4 Exhibit 19, # 5 Exhibit 20, # 6 Exhibit 21, # 7 Exhibit 22, # 8 Exhibit 23, # 9 Exhibit 23-B, # 10 Exhibit 24, # 11 Exhibit 25, # 12 Exhibit 26, # 13 Exhibit 27, # 14 Exhibit 28, # 15 Exhibit 29, # 16 Exhibit 30, # 17 Exhibit 31, # 18 Exhibit 32)(Related document(s) 130 ) (Huseny, Sadik) (Filed on 9/15/2020) (Entered: 09/15/2020)

09/15/2020 132 Order to Produce Inspector General Document Production. Signed by Judge Lucy H. Koh on 9/15/2020. (lhklc3, COURT STAFF) (Filed on 9/15/2020) (Entered: 09/15/2020)

09/15/2020

133 RESPONSE to the Court's Directive During September 15, 2020 Hearing by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. (Attachments: # 1 Declaration of James T. Christy)(Zee, Michael) (Filed on 9/15/2020) (Entered: 09/15/2020)

09/15/2020 137 Minute Entry for proceedings held before Judge Lucy H. Koh: Further Case Management Conference held on 9/15/2020 from 2:08 PM - 3:37 PM; 3:55 PM - 4:10 PM (1 hour, 45 minutes).

The Court STAYED its September 10, 2020 Order to Produce the Administrative Record (ECF No. 96 ). The Court SET a Further Case Management Conference for Friday, September 18, 2020 at 10:00 AM. The Court also CONTINUED the hearing on Plaintiffs' 36 Motion for Stay and Preliminary Injunction from Thursday, September 17, 2020 to Tuesday, September 22, 2020 at 10:00 AM. Both the Further Case Management Conference and the Motion Hearing will be held via Zoom webinar. A Clerk's Notice will be issued before each hearing with the Zoom information; this Court's Zoom information can also be found anytime at cand.uscourts.gov/LHK and cand.uscourts.gov/zoom.

Total Time in Court: 1 hour, 45 minutes. Court Reporter: Lee-Anne Shortridge.

For Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just Immigration; Harris County, TX; King County, Washington; City of San Jose, California; Rodney Ellis; Adrian Garcia; and NAACP: Melissa Sherry, Richard Bress, Steven Bauer, and Sadik Huseny.

For Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just Immigration; Harris County, TX; King County, Washington; City of San Jose, California; Rodney Ellis; Adrian Garcia; NAACP; and Navajo Nation: Ezra Rosenberg and Thomas Wolf. For Plaintiff City of Los Angeles: Michael Dundas. For Plaintiff County of Los Angeles: David Holtzman. For Plaintiff City of Salinas: Michael Mutalipassi. For Plaintiff City of Chicago: Rebecca Hirsch. For Plaintiff Gila River Indian Community: Donald Pongrace. For Defendants: Alexander Sverdlov and Brad Rosenberg.

For transcript orders, please visit https://cand.uscourts.gov/transcripts

(This is a text-only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Date Filed: 9/15/2020) (Entered: 09/16/2020)

09/16/2020

134 TRANSCRIPT ORDER for proceedings held on 9/15/2020 before Judge Lucy H. Koh by U.S. Department of Commerce, for Court Reporter Lee-Anne Shortridge. (Sverdlov, Alexander) (Filed on 9/16/2020) (Entered: 09/16/2020)

09/16/2020

135 TRANSCRIPT ORDER for proceedings held on 09/15/2020 before Judge Lucy H. Koh by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, The National Association for the Advancement of Colored People, for Court Reporter Lee-Anne Shortridge. (Lankenau, Shannon) (Filed on 9/16/2020) (Entered: 09/16/2020)

09/16/2020 136 NOTICE of Appearance by Pooja Chaudhuri (Chaudhuri, Pooja) (Filed on 9/16/2020) (Entered: 09/16/2020)

09/16/2020 138 TRANSCRIPT ORDER for proceedings held on 9/4/2020 before Judge Lucy H. Koh for Court Reporter Summer Fisher. (sp, COURT STAFF) (Filed on 9/16/2020) (Entered: 09/16/2020)

09/16/2020

139 First MOTION for leave to appear in Pro Hac Vice Jason Searle ( Filing fee $ 310, receipt number 0971-14949223.) filed by Navajo Nation. (Attachments: # 1 Certificate/Proof of Service NM Bar Certificate of Good Standing)(Searle, Jason) (Filed on 9/16/2020) (Entered: 09/16/2020)

09/16/2020

140 Order re: Privilege Disputes. Signed by Judge Lucy H. Koh on 9/16/2020. (lhklc3, COURT STAFF) (Filed on 9/16/2020) (Entered: 09/16/2020)

09/16/2020

141 Transcript of Proceedings held on 9-15-20, before Judge Lucy H. Koh. Court Reporter Lee-Anne Shortridge, telephone number e-mail: leeanne_shortridge@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 134 Transcript Order ) Release of Transcript Restriction set for 12/15/2020. (Related documents(s) 134 ) (lasS, COURT STAFF) (Filed on 9/16/2020) (Entered: 09/16/2020)

09/17/2020

142 Order Extending Temporary Restraining Order for Defendants' Partial Production of the Administrative Record. Signed by Judge Lucy H. Koh on 9/17/2020. (lhklc3, COURT STAFF) (Filed on 9/17/2020) (Entered: 09/17/2020)

09/17/2020

143 JOINT CASE MANAGEMENT STATEMENT filed by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/17/2020) (Entered: 09/17/2020)

09/17/2020

144 NOTICE of Appearance by Bradley A. Benbrook as counsel for proposed intervenor, The State of Louisiana (Attachments: # 1 Certificate/Proof of Service)(Benbrook, Bradley) (Filed on 9/17/2020) (Entered: 09/17/2020)

09/17/2020

145 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-14954912.) filed by The State of Louisiana. (Attachments: # 1 Certificate of Good Standing)(St. John, Joseph) (Filed on 9/17/2020) (Entered: 09/17/2020)

09/18/2020

146 NOTICE by The State of Louisiana NOTICE OF INTENT TO INTERVENE AND REQUEST TO PARTICIPATE IN STATUS CONFERENCE (Benbrook, Bradley) (Filed on 9/18/2020) (Entered: 09/18/2020)

09/18/2020 147 CLERK'S NOTICE CONFIRMING 9/18/2020 CASE MANAGEMENT CONFERENCE VIA ZOOM. The Further Case Management Conference remains as set on Friday, September 18, 2020

at 10:00 AM before Judge Lucy H. Koh. This proceeding will be held via a Zoom webinar.

Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/lhk

General Order 58. Pe rsons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.

Zoom Guidance and Setup: https://www.cand.uscourts.gov/zoom/.

(This is a text-only entry generated by the court. There is no document associated with this entr y.) (kedS, COURT STAFF) (Filed on 9/18/2020) (Entered: 09/18/2020)

09/18/2020

148 First MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-14959122.) filed by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Attachments: # 1 Certificate/Proof of Service Certificate of Good Standing)(Clarke, Kristen) (Filed on 9/18/2020) (Entered: 09/18/2020)

09/18/2020

149 PLAINTIFFS MEMORANDUM RE: PRIVILEGE DISPUTES re 140 Order , by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/18/2020) Modified text on 9/21/2020 (dhmS, COURT STAFF). (Entered: 09/18/2020)

09/18/2020

150 RESPONSE re 140 Order Defendants' Response to the Court's September 16, 2020 Order by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. (Attachments: # 1 Exhibit 1 - Census Bureau Personnel, # 2 Exhibit 2 - Commerce Department Personnel, # 3 Exhibit 3 - Census Bureau Organizational Chart, # 4 Exhibit 4 - Census Bureau Staff Roster)(Zee, Michael) (Filed on 9/18/2020) (Entered: 09/18/2020)

09/18/2020 151 Minute Entry for proceedings held before Judge Lucy H. Koh: Further Case Management Conference held on 9/18/2020 from 10:08 AM - 11:38 AM (1 hour, 30 minutes).

Total Time in Court: 1 hour, 30 minutes. Court Reporter: Lee-Anne Shortridge.

For Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just Immigration; Harris County, TX; King County, Washington; City of San Jose, California; Rodney Ellis; Adrian Garcia; and NAACP: Melissa Sherry, Richard Bress, and Sadik Huseny. For Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just Immigration; Harris County, TX; King County, Washington; City of San Jose, California; Rodney Ellis; Adrian Garcia; NAACP; and Navajo Nation: Ezra Rosenberg and Thomas Wolf. For Plaintiff City of Los Angeles: Michael Dundas. For Plaintiff County of Los Angeles: David Holtzman. For Plaintiff City of Salinas: Michael Mutalipassi. For Plaintiff City of Chicago: Rebecca Hirsch. For Plaintiff Gila River Indian Community: Donald Pongrace. For Defendants: Alexander Sverdlov and Brad Rosenberg.

For transcript orders, please visit https://cand.uscourts.gov/transcripts

(This is a text-only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Date Filed: 9/18/2020) (Entered: 09/18/2020)

09/18/2020

152 CLERK'S NOTICE CONFIRMING 9/22/2020 HEARING VIA ZOOM. The hearing on 36 MOTION to Stay and MOTION for Preliminary Injunction remains as set on Tuesday, September 22, 2020 at 10:00 AM before Judge Lucy H. Koh. This proceeding will be held via a Zoom webinar.

Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/lhk

General Or der 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.

Zoom Guidance and Setup: https://www.cand.uscourts.gov/zoom/.

(This is a text-only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Filed on 9/18/2020) (Entered: 09/18/2020)

09/18/2020 153 Order re: Privilege Declaration and Documents for In Camera Review. Signed by Judge Lucy H. Koh on 9/18/2020. (lhklc3, COURT STAFF) (Filed on 9/18/2020) (Entered: 09/18/2020)

09/18/2020

154 NOTICE by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce re 132 Order Notice of Filing Documents in Response to Court's September 15, 2020 Order (Attachments: # 1 Declaration of Michael A. Cannon, # 2 Att A Index and Privilege Log, # 3 1 of 37, # 4 2 of 37, # 5 3 of 37, # 6 4 of 37, # 7 5 of 37, # 8 6 of 37, # 9 7 of 37, # 10 8 of 37, # 11 9 of 37, # 12 10 of 37)(Zee, Michael) (Filed on 9/18/2020) (Entered: 09/18/2020)

09/18/2020

155 NOTICE by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce re 132 Order Notice of Filing Documents in Response to Court's September 15, 2020 Order (Parts 11-20) (Attachments: # 1 11 of 37, # 2 12 of 37, # 3 13 of 37, # 4 14 of 37, # 5 15 of 37, # 6 16 of 37, # 7 17 of 37, # 8 18 of 37, # 9 19 of 37, # 10 20 of 37)(Zee, Michael) (Filed on 9/18/2020) (Entered: 09/18/2020)

09/18/2020

156 NOTICE by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce re 132 Order Notice of Filing Documents in Response to Court's September 15, 2020 Order (Parts 21-30) (Attachments: # 1 21 of 37, # 2 22 of 37, # 3 23 of 37, # 4 24 of 37, # 5 25 of 37, # 6 26 of 37, # 7 27 of 37, # 8 28 of 37, # 9 29 of 37, # 10 30 of 37)(Zee, Michael) (Filed on 9/18/2020) (Entered: 09/18/2020)

09/18/2020

157 NOTICE by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce re 132 Order Notice of Filing Documents in Response to Court's September 15, 2020 Order (Parts 31-37) (Attachments: # 1 31 of 37, # 2 32 of 37, # 3 33 of 37, # 4 34 of 37, # 5 35 of 37, # 6 36 of 37, # 7 37 of 37)(Zee, Michael) (Filed on 9/18/2020) (Entered: 09/18/2020)

09/19/2020 158 AFFIDAVIT Declaration of Allyson Deitrick by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. (Zee, Michael) (Filed on 9/19/2020) (Entered: 09/19/2020)

09/19/2020

159 AFFIDAVIT Declaration of Megan Heller by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. (Zee, Michael) (Filed on 9/19/2020) (Entered: 09/19/2020)

09/19/2020

160 Order to Identify Key Documents in Defendants' September 18, 2020 Production. Signed by Judge Lucy H. Koh on 09/19/2020. (lhklc2, COURT STAFF) (Filed on 9/19/2020) (Entered: 09/19/2020)

09/19/2020 161 RESPONSE re 160 Order by U.S. Department of Commerce. (Sverdlov, Alexander) (Filed on 9/19/2020) (Entered: 09/19/2020)

09/19/2020

162 Statement (Plaintiffs' Preliminary Identification of Potentially Key Documents in Defendants' September 18, 2020 Production) by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/19/2020) (Entered: 09/19/2020)

09/19/2020

163 ORDER on Procedures for In Camera Privilege Review by Magistrate Judges (Cousins, Nathanael) (Filed on 9/19/2020) (Entered: 09/19/2020)

09/19/2020 164 RESPONSE re 163 Order, 160 Order Defendants' combined response by U.S. Department of Commerce. (Sverdlov, Alexander) (Filed on 9/19/2020) (Entered: 09/19/2020)

09/19/2020

165 ORDER, Supplementing Procedures on Privilege Review, and Advancing One Deadline for Defendants to Confirm Earlier Production (Cousins, Nathanael) (Filed on 9/19/2020) (Entered: 09/19/2020)

09/19/2020

166 Statement (Plaintiffs' Preliminary Identification of Potentially Key Documents in Defendants' September 18, 2020 Production - Integrated Second Set) by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/19/2020) (Entered: 09/19/2020)

09/19/2020

167 Order Re: Supplemental Preliminary Injunction Briefs, Identification of Key Documents, and General Accounting Office Production. Signed by Judge Lucy H. Koh on 9/19/2020. (lhklc2, COURT STAFF) (Filed on 9/19/2020) (Entered: 09/19/2020)

09/19/2020

168 RESPONSE re 165 Order Defendants' Response to the Court's September 19, 2020 Order by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. (Zee, Michael) (Filed on 9/19/2020) (Entered: 09/19/2020)

09/19/2020

169 Order to Confirm Number of Documents in September 13 and 18, 2020 Productions. Signed by Judge Lucy H. Koh on 9/19/2020. (lhklc2, COURT STAFF) (Filed on 9/19/2020) (Entered: 09/19/2020)

09/19/2020

170 Statement (Plaintiffs' Privilege Objections) by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Huseny, Sadik) (Filed on 9/19/2020) (Entered: 09/19/2020)

09/20/2020

171 Statement (Plaintiffs' Preliminary Identification of Potentially Key Documents in Defendants' September 18, 2020 Production - Integrated Third Set) by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/20/2020) (Entered: 09/20/2020)

09/20/2020

172 RESPONSE re 170 Statement,, Defendants' Response to Plaintiffs' Privilege Objections by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. (Attachments: # 1 Attachment A - Responses to Privilege Challenges, # 2 Attachment B - Supplement Privilege Information)(Zee, Michael) (Filed on 9/20/2020) (Entered: 09/20/2020)

09/20/2020

173 Order Continuing September 22, 2020 Preliminary Injunction Hearing from 10 a.m. to 2 p.m. Signed by Judge Lucy H. Koh on 9/20/2020. (lhklc2, COURT STAFF) (Filed on 9/20/2020) (Entered: 09/20/2020)

09/20/2020

174 ORDER AFTER IN CAMERA REVIEW AS TO ATTORNEYCLIENT PRIVILEGE ASSERTED BY DEFENDANTS. Signed by Judge Nathanael Cousins, Judge Susan van Keulen, Judge Thomas S. Hixson. (lmh, COURT STAFF) (Filed on 9/20/2020) (Entered: 09/20/2020)

09/20/2020

175 DEFENDANTS NOTICE OF RELEASE OF DOCUMENTS PURSUANT TO THE COURTS SEPTEMBER 20, 2020, by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce re 174 Order (Attachments: # 1 Attachment A Documents)(Zee, Michael) (Filed on 9/20/2020) Modified on 9/21/2020 to correct misspelling (dhmS, COURT STAFF). (Entered: 09/20/2020)

09/20/2020

176 Supplemental Brief In Opposition to Plaintiffs' Motion for a Preliminary Injunction filed byU.S. Department of Commerce. (Sverdlov, Alexander) (Filed on 9/20/2020) (Entered: 09/20/2020)

09/20/2020 177 RESPONSE re 169 Order by U.S. Department of Commerce. (Sverdlov, Alexander) (Filed on 9/20/2020) (Entered: 09/20/2020)

09/20/2020

178 Supplemental Brief re Preliminary Injunction filed byBlack Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/20/2020) (Entered: 09/20/2020)

09/20/2020

179 FIRST ORDER AFTER IN CAMERA REVIEW AS TO DELIBERATIVE PROCESS PRIVILEGE ASSERTED BY DEFENDANTS. Signed by Judge Nathanael Cousins, Judge Susan van Keulen, Judge Thomas S. Hixson on 9/20/2020. (lmh, COURT STAFF) (Filed on 9/20/2020) (Entered: 09/20/2020)

09/20/2020 180 NOTICE by U.S. Department of Commerce re 179 Order (Sverdlov, Alexander) (Filed on 9/20/2020) (Entered: 09/20/2020)

09/20/2020

181 TRANSCRIPT ORDER for proceedings held on 9/18/2020 before Judge Lucy H. Koh by U.S. Department of Commerce, for Court Reporter Lee-Anne Shortridge. (Sverdlov, Alexander) (Filed on 9/20/2020) (Entered: 09/20/2020)

09/20/2020

182 SECOND ORDER AFTER IN CAMERA REVIEW AS TO DELIBERATIVE PROCESS PRIVILEGE ASSERTED BY DEFENDANTS; ADDENDUM ON FORMAT OF PRODUCTION. Signed by Judge Nathanael Cousins, Judge Susan van Keulen, Judge Thomas S. Hixson on 9/20/2020. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(lmh, COURT STAFF) (Filed on 9/20/2020) (Entered: 09/20/2020)

09/20/2020

183 Order Re: Identification of Key Documents and Supplemental Preliminary Injunction Briefs. Signed by Judge Lucy H. Koh on 9/20/2020. (lhklc2, COURT STAFF) (Filed on 9/20/2020) (Entered: 09/20/2020)

09/20/2020

184 THIRD ORDER AFTER IN CAMERA REVIEW AS TO DELIBERATIVE PROCESS PRIVILEGE ASSERTED BY DEFENDANTS. Signed by Judge Nathanael Cousins, Judge Susan van Keulen, Judge Thomas S. Hixson on 9/20/2020. (Attachments: # 1 Exhibit A 9.13, # 2 Exhibit B 9.18)(lmh, COURT STAFF) (Filed on 9/20/2020) (Entered: 09/21/2020)

09/21/2020 185 RESPONSE re 183 Order by U.S. Department of Commerce. (Attachments: # 1 Exhibit Part 1, # 2 Exhibit Part 2)(Sverdlov, Alexander) (Filed on 9/21/2020) (Entered: 09/21/2020)

09/21/2020

186 Statement re 183 Order (Plaintiffs' Statement of Compliance with Dkt. 183) by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/21/2020) (Entered: 09/21/2020)

09/21/2020

187 Per 173 Order, the hearing on 36 MOTION to Stay and MOTION for Preliminary Injunction remains as set on 9/22/2020, but will begin at 2:00 PM PT. This proceeding will be held via a Zoom webinar.

Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/lhk

General Order 58. Persons granted access to court proceedings h eld by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.

Zoom Guidance and Setup: https://www.cand.uscourts.gov/zoom/.

(This is a text-only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Filed on 9 /21/2020) (Entered: 09/21/2020)

09/21/2020

188 Statement (Plaintiffs' Preliminary Identification of Potentially Key Documents in Defendants' September 18, 2020 Production - Integrated Fourth Set) by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/21/2020) (Entered: 09/21/2020)

09/21/2020

189 NOTICE by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People (Notice Regarding Just-Released Office of Inspector General Report; Request for Clarification Regarding Supplemental Briefing) (Huseny, Sadik) (Filed on 9/21/2020) (Entered: 09/21/2020)

09/21/2020

190 Statement (Plaintiffs' Preliminary Identification of Potentially Key Documents in Defendants' September 18, 2020 Production - Integrated Fifth Set) by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/21/2020) (Entered: 09/21/2020)

09/21/2020 191 RESPONSE re 167 Order by U.S. Department of Commerce. (Attachments: # 1 Declaration of Albert E. Fontenot, Jr.)(Sverdlov, Alexander) (Filed on 9/21/2020) (Entered: 09/21/2020)

09/21/2020

192 Transcript of Proceedings held on 9-18-20, before Judge Lucy H. Koh. Court Reporter Lee-Anne Shortridge, telephone number e-mail: leeanne_shortridge@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 181 Transcript Order ) Release of

Transcript Restriction set for 12/21/2020. (Related documents(s) 181 ) (lasS, COURT STAFF) (Filed on 9/21/2020) (Entered: 09/21/2020)

09/21/2020

193 TRANSCRIPT ORDER for proceedings held on 09/18/2020 before Judge Lucy H. Koh by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, The National Association for the Advancement of Colored People, for Court Reporter Lee-Anne Shortridge. (Lankenau, Shannon) (Filed on 9/21/2020) (Entered: 09/21/2020)

09/21/2020

194 Order Re: Supplemental Preliminary Injunction Briefs and Production of Secretary Ross Documents. Signed by Judge Lucy H. Koh on 9/21/2020. (lhklc2, COURT STAFF) (Filed on 9/21/2020) (Entered: 09/21/2020)

09/21/2020

195 RESPONSE re 194 Order Defendants' Response to Court's September 21, 2020 Order re: Secretary Ross Documents by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. (Attachments: # 1 Attachment A - Documents)(Zee, Michael) (Filed on 9/21/2020) (Entered: 09/21/2020)

09/22/2020

196 Supplemental Brief in Opposition to Preliminary Injunction filed byU.S. Department of Commerce. (Attachments: # 1 Declaration)(Sverdlov, Alexander) (Filed on 9/22/2020) (Entered: 09/22/2020)

09/22/2020

197 Supplemental Brief re 36 MOTION to Stay and MOTION for Preliminary Injunction filed byBlack Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Attachments: # 1 Attachment)(Related document(s) 36 ) (Huseny, Sadik) (Filed on 9/22/2020) (Entered: 09/22/2020)

09/22/2020

198 NOTICE by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce re 182 Order, 179 Order, 184 Order, 174 Order Defendants' Notice of Filing Documents in Response to Court's Orders of September 20, 2020 (Attachments: # 1 1 of 23, # 2 2 of 23, # 3 3 of 23, # 4 4 of 23, # 5 5 of 23, # 6 6 of 23, # 7 7 of 23, # 8 8 of 23, # 9 9 of 23, # 10 10 of 23, # 11 11 of 23, # 12 12 of 23)(Zee, Michael) (Filed on 9/22/2020) (Entered: 09/22/2020)

09/22/2020

199 NOTICE by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce re 182 Order, 179 Order, 184 Order, 174 Order Defendants' Notice of Filing Documents in Response to Court's Orders of September 20, 2020 (Attachments: # 1 13 of 23, # 2 14 of 23, # 3 15 of 23, # 4 16 of 23, # 5 17 of 23, # 6 18 of 23, # 7 19 of 23, # 8 20 of 23, # 9 21 of 23, # 10 22 of 23, # 11 23 of 23)(Zee, Michael) (Filed on 9/22/2020) (Entered: 09/22/2020)

09/22/2020

200 Minute Entry for proceedings held before Judge Lucy H. Koh: Hearing on 36 MOTION to Stay and MOTION for Preliminary Injunction held on 9/22/2020 from 2:08 PM - 3:48 PM; 4:03 PM 4:22 PM (1 hour, 59 minutes).

The Court set a Further Case Management Conference for Monday, September 28, 2020 at 2:00 PM. This proceeding will be held via a Zoom webinar. Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/lhk Total Time in Court: 1 hour, 59 minutes. Court Reporter: Irene Rodriguez.

For Plaintiffs National Urban League; League of Women Voters; Black Alliance f or Just Immigration; Harris County, TX; King County, Washington; City of San Jose, California; Rodney Ellis; Adrian Garcia; and NAACP: Melissa Sherry, Richard Bress, Sadik Huseny, and Steven Bauer. For Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just Immigration; Harris County, TX; King County, Washington; City of San Jose, California; Rodney Ellis; Adrian Garcia; NAACP; and Navajo Nation: Ezra Rosenberg and Thomas Wolf. For Plaintiff City of Los Angeles: Michael Dundas. For Plaintiff County of Los Angeles: David Holtzman. For Plaintiff City of Salinas: Michael Mutalipassi. For Plaintiff City of Chicago: Rebecca Hirsch. For Plaintiff Gila River Indian Community: Donald Pongrace. For Defendants: Alexander Sverdlov and Brad Rosenberg.

For transcript orders, please visit https://cand.uscourts.gov/transcripts

(This is a text-only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Date Filed: 9/22/2020) (Entered: 09/22/2020)

09/22/2020 201 RESPONSE to Court Request During September 22, 2020, Hearing by U.S. Department of Commerce. (Sverdlov, Alexander) (Filed on 9/22/2020) (Entered: 09/22/2020)

09/22/2020

202 TRANSCRIPT ORDER for proceedings held on 09/22/2020 before Judge Lucy H. Koh by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, The National Association for the Advancement of Colored People, for Court Reporter Irene Rodriguez. (Lankenau, Shannon) (Filed on 9/22/2020) (Entered: 09/22/2020)

09/22/2020

203 RESPONSE to Court Request During September 22, 2020 Hearing Regarding Historical Censuses by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Huseny, Sadik) (Filed on 9/22/2020) (Entered: 09/22/2020)

09/23/2020

204 MOTION to Intervene filed by The State of Louisiana. Responses due by 10/7/2020. Replies due by 10/14/2020. (Attachments: # 1 Declaration of Joseph S. St. John, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Proposed Answer, # 20 Proposed Order)(St. John, Joseph) (Filed on 9/23/2020) (Entered: 09/23/2020)

09/23/2020

205 TRANSCRIPT ORDER for proceedings held on 9/22/2020 before Judge Lucy H. Koh by U.S. Department of Commerce, for Court Reporter Irene Rodriguez. (Sverdlov, Alexander) (Filed on 9/23/2020) (Entered: 09/23/2020)

09/23/2020 206 MOTION to Expedite filed by The State of Louisiana. (Attachments: # 1 Declaration of Joseph Scott St. John, # 2 Exhibit 1, # 3 Proposed Order)(St. John, Joseph) (Filed on 9/23/2020) (Entered: 09/23/2020)

09/24/2020

208 Order Granting Plaintiffs' Motion for Stay and Preliminary Injunction. Signed by Judge Lucy H. Koh on 9/24/2020. (lhklc3, COURT STAFF) (Filed on 9/24/2020) (Entered: 09/24/2020)

09/25/2020

209 CLERK'S NOTICE CONFIRMING 9/28/2020 CASE MANAGEMENT CONFERENCE VIA ZOOM. Pursuant to the Minute Entry at ECF No. 200, a Further Case Management Conference is set for Monday, September 28, 2020 at 2:00 PM. This proceeding will be held via a Zoom webinar.

Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/lhk

General Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.

Zoom Guidance and Setup: https://www.cand.uscourts.gov/zoom/.

(This is a text-only entry generated by the court. There is no document associated wit h this entry.) (kedS, COURT STAFF) (Filed on 9/25/2020) (Entered: 09/25/2020)

09/25/2020

210 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Defendants, Commerce Secretary Wilbur L. Ross, Jr., the U.S. Department of Commerce, the Director of the U.S. Census Bureau Steven Dillingham, and the U.S. Census Bureau. Appeal of Order 208 (Appeal fee FEE WAIVED.) (Sverdlov, Alexander) (Filed on 9/25/2020) Modified on 10/7/2020 to add names of all filers (dhmS, COURT STAFF). (Entered: 09/25/2020)

09/25/2020

211 MOTION to Stay re 208 Order filed by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. Responses due by 10/9/2020. Replies due by 10/16/2020. (Attachments: # 1 Proposed Order)(Zee, Michael) (Filed on 9/25/2020) (Entered: 09/25/2020)

09/25/2020

212 Order by Judge Lucy H. Koh denying 211 Motion to Stay Pending Appeal. (lhklc3, COURT STAFF) (Filed on 9/25/2020) (Entered: 09/25/2020)

09/25/2020

213 USCA Case Number 20-16868 Ninth Circuit for 210 Notice of Appeal filed by U.S. Department of Commerce. The schedule to be set. Preliminary Injunction Appeal. C.R. 3-3. (dhmS, COURT STAFF) (Filed on 9/25/2020) (Entered: 09/25/2020)

09/27/2020 214 Order re: Communications with the Court. Signed by Judge Lucy H. Koh on 9/27/2020. (lhklc2, COURT STAFF) (Filed on 9/27/2020) (Entered: 09/27/2020)

09/27/2020

215 Order re: Response to Allegation of Non-Compliance with Preliminary Injunction. Signed by Judge Lucy H. Koh on 9/27/2020. (lhklc2, COURT STAFF) (Filed on 9/27/2020) (Entered: 09/27/2020)

09/28/2020

216 Order by Judge Lucy H. Koh granting 139 Motion for Pro Hac Vice. (lhklc3, COURT STAFF) (Filed on 9/28/2020) (Entered: 09/28/2020)

09/28/2020 217 Order by Judge Lucy H. Koh granting 148 Motion for Pro Hac Vice. (lhklc3, COURT STAFF) (Filed on 9/28/2020) (Entered: 09/28/2020)

09/28/2020

218 RESPONSE re 215 Order (Plaintiffs' Response to Allegation of Noncompliance with Preliminary Injunction) by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/28/2020) (Entered: 09/28/2020)

09/28/2020

219 RESPONSE re 215 Order by U.S. Department of Commerce. (Attachments: # 1 Declaration of James T. Christy)(Sverdlov, Alexander) (Filed on 9/28/2020) (Entered: 09/28/2020)

09/28/2020 220 Order re: Communications with the Court. Signed by Judge Lucy H. Koh on 9/28/2020. (lhklc3, COURT STAFF) (Filed on 9/28/2020) (Entered: 09/28/2020)

09/28/2020 221 Order re: Communications with the Court. Signed by Judge Lucy H. Koh on 9/28/2020. (lhklc3, COURT STAFF) (Filed on 9/28/2020) (Entered: 09/28/2020)

09/28/2020 222 Email from Gregory Dillon to the Courtroom Deputy dated 9/28/2020. (kedS, COURT STAFF) (Filed on 9/28/2020) (Entered: 09/28/2020)

09/28/2020

223 OPPOSITION/RESPONSE (re 206 MOTION to Expedite ) (Plaintiffs' Opposition to Motion to Shorten Time and to Expedite by States of Louisiana and Mississippi) filed byBlack Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California,

City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Attachments: # 1 Declaration of Sadik Huseny)(Huseny, Sadik) (Filed on 9/28/2020) (Entered: 09/28/2020)

09/28/2020

224 Order for Response to Email to the Courtroom Deputy. Signed by Judge Lucy H. Koh on 9/28/2020. (lhklc3, COURT STAFF) (Filed on 9/28/2020) (Entered: 09/28/2020)

09/28/2020 225 Order to Produce the Administrative Record. Signed by Judge Lucy H. Koh on 9/28/2020. (lhklc3, COURT STAFF) (Filed on 9/28/2020) (Entered: 09/28/2020)

09/28/2020

226 Minute Entry for proceedings held before Judge Lucy H. Koh: Further Case Management Conference held on 9/28/2020 from 2:04 PM - 2:36 PM; 2:48 PM - 3:28 PM (1 hour, 12 minutes). Further Case Management Conference SET for Tuesday, September 29, 2020 at 3:00 PM. Total Time in Court: 1 hour, 12 minutes. Court Reporter: Irene Rodriguez. For Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just Immigration; Harris County, TX; King County, Washington; City of San Jose, California; Rodney Ellis; Adrian Garcia; and NAACP: Melissa Sherry, Richard Bress, Sadik Huseny, and Steven Bauer. For Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just Immigration; Harris County, TX; King County, Washington; City of San Jose, California; Rodney Ellis; Adrian Garcia; NAACP; and Navajo Nation: Ezra Rosenberg and Thomas Wolf. For Plaintiff Navajo Nation: Jason Searle. For Plaintiff City of Los Angeles: Danielle Goldstein. For Plaintiff City of Salinas: Michael Mutalipassi. For Plaintiff City of Chicago: Lily Hough. For Plaintiff County of Los Angeles: David Holtzman. For Plaintiff Gila River Indian Community: Donald Pongrace. For Defendants: Alexander Sverdlov and Brad Rosenberg. (This is a text-only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Date Filed: 9/28/2020) (Entered: 09/28/2020)

09/28/2020 227 CLERK'S NOTICE SETTING ZOOM CASE MANAGEMENT CONFERENCE. Pursuant to the Minute Entry at ECF No. 226, a Further Case Management Conference is set for Tuesday, September

29, 2020 at 3:00 PM before Judge Lucy H. Koh. This proceeding will be held via a Zoom webinar.

Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/lhk

Gen eral Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.

Zoom Guidance and Setup: https://www.cand.uscourts.gov/zoom/.

(This is a text-only entry generated by the court. There is no document ass ociated with this entry.) (kedS, COURT STAFF) (Filed on 9/28/2020) (Entered: 09/28/2020)

09/28/2020

228 TRANSCRIPT ORDER for proceedings held on 09/28/2020 before Judge Lucy H. Koh by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, The National Association for the Advancement of Colored People, for Court Reporter Irene Rodriguez. (Lankenau, Shannon) (Filed on 9/28/2020) (Entered: 09/28/2020)

09/28/2020 229 Order re: Communications with the Court. Signed by Judge Lucy H. Koh on 9/28/2020. (lhklc3, COURT STAFF) (Filed on 9/28/2020) (Entered: 09/28/2020)

09/28/2020

230 Email from Jeff Williams to court staff dated 9/28/2020. SEE ATTACHMENT #1 FOR READABLE VERSION. (kedS, COURT STAFF) (Filed on 9/28/2020) (Additional attachment(s) added on 9/29/2020: # 1 Readable Version) (kedS, COURT STAFF). Modified on 9/29/2020 (kedS, COURT STAFF). (Entered: 09/29/2020)

09/29/2020 231 Email from Robert Cohen to court staff dated 9/29/2020. (kedS, COURT STAFF) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020

232 RESPONSE re 225 Order by U.S. Department of Commerce. (Attachments: # 1 Exhibit Privilege Log, # 2 Declaration DiGiacomo Declaration)(Sverdlov, Alexander) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020 233 EXHIBITS re 232 Response ( Non Motion ) filed byU.S. Department of Commerce. (Attachments: # 1 Exhibit Part 2, # 2 Exhibit Part

3)(Related document(s) 232 ) (Sverdlov, Alexander) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020

234 NOTICE by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce Notice of Filing of Declaration in Response to Directive at September 28, 2020 Case Management Conference (Attachments: # 1 Declaration of James T. Christy, # 2 Attachments)(Zee, Michael) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020 235 Email from TaMarra Cooley to court staff dated 9/29/2020. (kedS, COURT STAFF) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020

236 ORDER CONCERNING DEFENDANTS' SEPTEMBER 29 PRIVILEGE LOG. Signed by Judge Nathanael Cousins, Judge Susan van Keulen, Judge Thomas S. Hixson on 9/29/2020. (lmh, COURT STAFF) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020

237 Transcript of Proceedings held on 09/28/2020, before Judge Koh. Court Reporter Irene L. Rodriguez, email address Irene_Rodriguez@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 12/28/2020. (irodS, COURT STAFF) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020 238 Order for Response to Emails. Signed by Judge Lucy H. Koh on 9/29/2020. (lhklc2, COURT STAFF) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020 239 NOTICE of Appearance by August Flentje (Flentje, August) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020 240 RESPONSE re 236 Order by U.S. Department of Commerce. (Attachments: # 1 Exhibit Privilege Log)(Sverdlov, Alexander) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020

241 TRANSCRIPT ORDER for proceedings held on 9/28/2020 before Judge Lucy H. Koh by U.S. Department of Commerce, for Court Reporter Irene Rodriguez. (Sverdlov, Alexander) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020

242 RESPONSE re 236 Order (Plaintiffs' Privilege Objections) by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020

243 Statement re 225 Order (Plaintiffs' Statement In Advance of the September 29, 2020 Hearing) by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Sherry, Melissa) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020

244 NOTICE by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce re 221 Order, 220 Order, 229 Order, 224 Order Notice of Filing in Response to the Court's Orders of September 28, 2020 (Attachments: # 1 Declaration of James T. Christy)(Zee, Michael) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020

245 TRANSCRIPT ORDER for proceedings held on 9/29/2020 before Judge Lucy H. Koh by U.S. Department of Commerce, for Court Reporter Irene Rodriguez. (Sverdlov, Alexander) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020

246 RESPONSE (Plaintiffs' Response to Orders Re: Communications with the Court [Dkts. 220, 221, 224, 229]) by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020

247 TRANSCRIPT ORDER for proceedings held on 9/29/2020 before Judge Lucy H. Koh by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National

Urban League, The National Association for the Advancement of Colored People, for Court Reporter Irene Rodriguez. (Lankenau, Shannon) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020 248 Email from Jared Hautamaki to court staff dated 9/29/2020. (kedS, COURT STAFF) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020 249 Email to court staff dated 9/29/2020. (kedS, COURT STAFF) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020 250 Email from Zoltan Boka to court staff dated 9/29/2020. (kedS, COURT STAFF) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020

251 RESPONSE re 242 Response ( Non Motion ),, Defendants' Response to Plaintiffs' Privilege Objections by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. (Zee, Michael) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020 252 Email from Paul Costa to court staff dated 9/29/2020. (kedS, COURT STAFF) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020

253 ORDER AFTER IN CAMERA REVIEW OF DOCUMENTS IDENTIFIED ON DEFENDANTS' SEPTEMBER 29 PRIVILEGE LOG. Signed by Judge Nathanael Cousins on 9/29/2020. (lmh, COURT STAFF) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020 254 Email to court staff dated 9/29/2020. (kedS, COURT STAFF) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020 255 Order for Response to Emails. Signed by Judge Lucy H. Koh on September 29, 2020. (kedS, COURT STAFF) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020 256 RESPONSE re 253 Order by U.S. Department of Commerce. (Attachments: # 1 Exhibit)(Sverdlov, Alexander) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020 257 Email to court staff dated 9/29/2020. (kedS, COURT STAFF) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020 258 Order for Response to Email. Signed by Judge Lucy H. Koh on 9/29/2020. (lhklc2, COURT STAFF) (Filed on 9/29/2020) (Entered: 09/29/2020)

09/29/2020

264 Minute Entry for proceedings held before Judge Lucy H. Koh: Further Case Management Conference held on 9/29/2020 from 3:09 PM - 3:30 PM; 4:08 - 4:27 PM (40 minutes). Plaintiffs shall file any motion to compel by September 30, 2020 by

11:00 AM Pacific Time. A hearing on the anticipated motion is SET for Friday, October 2, 2020 at 3:00 PM before Judge Lucy H. Koh via Zoom videoconference. Total Time in Court: 40 minutes. Court Reporter: Irene Rodriguez. For Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just Immigration; Harris County, TX; King County, Washington; City of San Jose, California; Rodney Ellis; Adrian Garcia; and NAACP: Melissa Sherry, Richard Bress, Sadik Huseny, and Steven Bauer. For Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just Immigration; Harris County, TX; King County, Washington; City of San Jose, California; Rodney Ellis; Adrian Garcia; NAACP; and Navajo Nation: Ezra Rosenberg and Thomas Wolf. For Plaintiff Navajo Nation: Jason Searle. For Plaintiff City of Los Angeles: Danielle Goldstein. For Plaintiff City of Salinas: Michael Mutalipassi. For Plaintiff City of Chicago: Rebecca Hirsch. For Plaintiff County of Los Angeles: David Holtzman. For Plaintiff Gila River Indian Community: Donald Pongrace. For Defendants: Alexander Sverdlov, August Flentje, and Brad Rosenberg. For transcript orders, please visit https://cand.uscourts.gov/transcripts (This is a text-only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Date Filed: 9/29/2020) (Entered: 09/30/2020)

09/30/2020 260 RESPONSE re 238 Order by U.S. Department of Commerce. (Attachments: # 1 Declaration)(Sverdlov, Alexander) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020

261 RESPONSE (Plaintiffs' Response to Order for Response to Emails [Dkt. 238]) by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020 262 Email from Joshua Harkins dated 9/30/2020. (kedS, COURT STAFF) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020 263 Order for Response to Email. Signed by Judge Lucy H. Koh on September 30, 2020. (kedS, COURT STAFF) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020

265 MOTION to Compel and for Sanctions filed by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. Motion Hearing set for 10/2/2020 03:00 PM in San Jose, Courtroom 8, 4th Floor before Judge Lucy H. Koh. Responses due by 10/1/2020. Replies due by 10/2/2020. (Huseny, Sadik) (Filed on 9/30/2020) Modified on 10/5/2020 (lhklc3, COURT STAFF). (Entered: 09/30/2020)

09/30/2020

266 RESPONSE re 258 Order, 263 Order, 255 Order by U.S. Department of Commerce. (Attachments: # 1 Declaration)(Sverdlov, Alexander) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020

267 RESPONSE (Plaintiffs' Response to Order for Response to Emails [Dkt. 255]) by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020 268 Email to court staff dated 9/30/2020. (kedS, COURT STAFF) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020 269 Order For Response to Email. Signed by Judge Lucy H. Koh on September 30, 2020. (kedS, COURT STAFF) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020 270 Email from Marcus Pun to court staff dated 9/30/2020. (kedS, COURT STAFF) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020 271 Email from Jan Rice to court staff dated 9/30/2020. (kedS, COURT STAFF) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020 272 Email to court staff dated 9/30/2020. (kedS, COURT STAFF) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020 273 Email from Anthony Smith to court staff dated 9/30/2020. (kedS, COURT STAFF) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020 274 Order for Response to Emails. Signed by Judge Lucy H. Koh on September 30, 2020. (kedS, COURT STAFF) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020

275 RESPONSE (Plaintiffs' Response to Order for Response to Emails [Dkts. 258, 263, 269]) by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020 276 Email from Bob Ross to court staff dated 9/30/2020. (kedS, COURT STAFF) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020

277 FILED ORDER of USCA for PUBLICATION (JOHNNIE B. RAWLINSON, MORGAN B. CHRISTEN and PATRICK J. BUMATAY) (Dissent by Judge Bumatay) Because the status quo would be upended, rather than preserved, if an administrative stay is issued, the governments request for an immediate administrative stay is denied. Appellees response to the emergency motion is due October 2, 2020. Appellants optional reply is due by October 3, 2020, as to 210 Notice of Appeal filed by U.S. Department of Commerce. (dhmS, COURT STAFF) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020

278 RESPONSE re 269 Order by U.S. Department of Commerce. (Attachments: # 1 Declaration)(Sverdlov, Alexander) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020

279 MOTION for Temporary Restraining Order Pending Ruling on Plaintiffs' Motion to Compel and for Sanctions filed by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Attachments: # 1 Proposed Order)(Huseny, Sadik) (Filed on 9/30/2020) Modified on 10/5/2020 (lhklc3, COURT STAFF). (Entered: 09/30/2020)

09/30/2020

280 Order Re: Opposition to Temporary Restraining Order. Signed by Judge Lucy H. Koh on 9/30/2020. (lhklc2, COURT STAFF) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020 281 Email from Gregory Dillon to court staff dated 9/30/2020. (Attachments: # 1 Declaration)(kedS, COURT STAFF) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020

282 RESPONSE (Plaintiffs' Response to Order for Response to Emails [Dkt. 274]) by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 9/30/2020) (Entered: 09/30/2020)

09/30/2020

283 RESPONSE re 274 Order Response to the Court's Order by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. (Attachments: # 1 Declaration of James T. Christy)(Zee, Michael) (Filed on 9/30/2020) (Entered: 09/30/2020)

10/01/2020

284 OPPOSITION/RESPONSE (re 279 MOTION for Temporary Restraining Order Pending Ruling on Plaintiffs' Motion to Compel and for Sanctions ) filed byU.S. Department of Commerce. (Attachments: # 1 Declaration)(Sverdlov, Alexander) (Filed on 10/1/2020) (Entered: 10/01/2020)

10/01/2020 285 Email from Stefanie Villalobos to court staff dated 10/1/2020. (kedS, COURT STAFF) (Filed on 10/1/2020) (Entered: 10/01/2020)

10/01/2020

286 OPPOSITION/RESPONSE (re 265 MOTION to Compel and for Sanctions ) filed byU.S. Department of Commerce. (Sverdlov, Alexander) (Filed on 10/1/2020) (Entered: 10/01/2020)

10/01/2020 287 Email from Jeff Williams to court staff dated 10/1/2020. (kedS, COURT STAFF) (Filed on 10/1/2020) (Entered: 10/01/2020)

10/01/2020

288 Order re: Clarification of Stay and Preliminary Injunction. Signed by Judge Lucy H. Koh on 10/1/20. (lhklc3, COURT STAFF) (Filed on 10/1/2020) (Entered: 10/01/2020)

10/02/2020

***Set Deadlines/Hearings per 288 Order: Further Case Management Conference set for 10/6/2020 02:00 PM in San Jose, Courtroom 8, 4th Floor. (amkS, COURT STAFF) (Filed on 10/2/2020) (Entered: 10/02/2020)

10/02/2020 289 Order Compelling Defendants' Response. Signed by Judge Lucy H. Koh on 10/2/2020. (lhklc3, COURT STAFF) (Filed on 10/2/2020) (Entered: 10/02/2020)

10/02/2020

290 NOTICE by U.S. Department of Commerce re 288 Order ; Notice of Compliance (Attachments: # 1 Declaration of James T. Christy)(Sverdlov, Alexander) (Filed on 10/2/2020) (Entered: 10/02/2020)

10/02/2020 291 Order Compelling Defendants' Response. Signed by Judge Lucy H. Koh on 10/2/2020. (lhklc2, COURT STAFF) (Filed on 10/2/2020) (Entered: 10/02/2020)

10/02/2020

292 RESPONSE re 289 Order by U.S. Department of Commerce. (Attachments: # 1 Declaration)(Sverdlov, Alexander) (Filed on 10/2/2020) (Entered: 10/02/2020)

10/03/2020 293 NOTICE of Appearance by Stephen Ehrlich on behalf of Defendants (Ehrlich, Stephen) (Filed on 10/3/2020) (Entered: 10/03/2020)

10/03/2020 294 Emails to Court Staff dated 10/2/2020 and 10/3/2020. (lhklc2, COURT STAFF) (Filed on 10/3/2020) (Entered: 10/03/2020)

10/04/2020

295 NOTICE by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce Notice of Filing Documents in Response to Court's September 10, 2020 Order and Directive at September 28, 2020 Case Management Conference (Attachments: # 1 Attachment A Index, # 2 Attachment B - Privilege Log, # 3 Declaration of Megan Heller, # 4 1 of 5, # 5 2 of 5, # 6 3 of 5, # 7 4 of 5, # 8 5 of 5)(Zee, Michael) (Filed on 10/4/2020) (Entered: 10/04/2020)

10/05/2020

296 ORDER of USCA as to 210 Notice of Appeal filed by U.S. Department of Commerce. Appellants and appellees shall appear by telephone for oral argument on the pending emergency motion to stay the district courts September 24, 2020 order on Monday, October 5, 2020 at 9:00 a.m. PDT. The argument will be live-streamed and shall take place in courtroom 4 in San Francisco. Only one attorney for each side shall be permitted to argue, and each side will be permitted 20 minutes of argument time. Call-in instructions will be provided to the appearing parties. (dhmS, COURT STAFF) (Filed on 10/5/2020) (Entered: 10/05/2020)

10/05/2020

297 CLERK'S NOTICE CONFIRMING 10/6/2020 CASE MANAGEMENT CONFERENCE VIA ZOOM. A Further Case Management Conference is set for Tuesday, October 6, 2020 at 2:00 PM. This proceeding will be held via a Zoom webinar.

Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/lhk

General Order 58. Persons granted access to court procee dings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.

Zoom Guidance and Setup: https://www.cand.uscourts.gov/zoom/.

(This is a text-only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Fil ed on 10/5/2020) (Entered: 10/05/2020)

10/05/2020

298 RESPONSE re 291 Order by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. (Attachments: # 1 Twelfth Declaration of James T. Christy)(Ehrlich, Stephen) (Filed on 10/5/2020) (Entered: 10/05/2020)

10/05/2020

299 ORDER on Procedures for In Camera Review of Documents on October 4 Privilege Log. Signed by Judge Nathanael Cousins, Judge Thomas S. Hixson, Judge Susan van Keulen on 10/5/2020. (lmh, COURT STAFF) (Filed on 10/5/2020). (Entered: 10/05/2020)

10/05/2020

300 RESPONSE to Court's October 1, 2020 Order by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. (Attachments: # 1 Declaration of Steven Dillingham, # 2 Attachments)(Zee, Michael) (Filed on 10/5/2020) (Entered: 10/05/2020)

10/05/2020 301 Email from Steven Anderson to court staff on October 4, 2020. (lhklc2, COURT STAFF) (Filed on 10/5/2020) (Entered: 10/05/2020)

10/05/2020 302 Order Compelling Defendants' Response. Signed by Judge Lucy H. Koh on 10/5/2020. (lhklc2, COURT STAFF) (Filed on 10/5/2020) (Entered: 10/05/2020)

10/05/2020

303 Order by Judge Lucy H. Koh granting 145 Motion for Pro Hac Vice. (lhklc3, COURT STAFF) (Filed on 10/5/2020) (Entered: 10/05/2020)

10/05/2020

304 RESPONSE re 299 Order (Plaintiffs' Privilege Objections) by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement

of Colored People. (Attachments: # 1 Proposed Order)(Huseny, Sadik) (Filed on 10/5/2020) (Entered: 10/05/2020)

10/05/2020

305 RESPONSE re 304 Response ( Non Motion ),, 299 Order by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. (Attachments: # 1 Declaration of Megan Heller)(Ehrlich, Stephen) (Filed on 10/5/2020) (Entered: 10/05/2020)

10/06/2020

306 ORDER AFTER IN CAMERA REVIEW of Documents Identified on Defendants' October 4 Privilege Log. Signed by Judge Nathanael Cousins and Judge Thomas S. Hixson on 10/6/2020. (lmh, COURT STAFF) (Filed on 10/6/2020). (Entered: 10/06/2020)

10/06/2020

307 RESPONSE re 302 Order by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. (Attachments: # 1 Thirteenth Declaration of James T. Christy)(Ehrlich, Stephen) (Filed on 10/6/2020) (Entered: 10/06/2020)

10/06/2020

308 RESPONSE re 306 Order Defendants' Response to Court's October 6, 2020 Order by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. (Attachments: # 1 Documents)(Zee, Michael) (Filed on 10/6/2020) (Entered: 10/06/2020)

10/06/2020 309 Letter from Brett Pruit to Court Staff on October 6, 2020. (lhklc1S, COURT STAFF) (Filed on 10/6/2020) (Entered: 10/06/2020)

10/06/2020

310 Minute Entry for proceedings held before Judge Lucy H. Koh: Further Case Management Conference held on 10/6/2020 from 2:03 PM - 3:11 PM (1 hour, 8 minutes). Further Case Management Conference SET for 10/16/2020 at 1:30 PM via Zoom videoconference. Total Time in Court: 1 hour, 8 minutes. Court Reporter: Summer Fisher. For Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just Immigration; Harris County, TX; King County, Washington; City of San Jose, California; Rodney Ellis; Adrian Garcia; and NAACP: Melissa Sherry, Sadik Huseny, and Steven Bauer. For Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just Immigration; Harris County, TX; King County, Washington; City of San Jose, California; Rodney Ellis; Adrian Garcia; NAACP; and Navajo Nation: Ezra Rosenberg and Thomas Wolf. For Plaintiff Navajo Nation: Jason Searle. For Plaintiff City of Los Angeles: Danielle Goldstein. For Plaintiff City of Salinas: Michael Mutalipassi. For Plaintiff City of Chicago: Rebecca Hirsch. For Plaintiff County of Los Angeles: David Holtzman.

For Plaintiff Gila River Indian Community: Donald Pongrace. For Defendants: August Flentje and Brad Rosenberg. For transcript orders, please visit https://cand.uscourts.gov/transcripts. (This is a text-only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Date Filed: 10/6/2020) (Entered: 10/06/2020)

10/06/2020

311 TRANSCRIPT ORDER for proceedings held on 10/6/2020 before Judge Lucy H. Koh by Black Alliance For Just Immigration, City of San Jose, California, Rodney Ellis, Adrian Garcia, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, The National Association for the Advancement of Colored People, for Court Reporter Summer Fisher. (Lankenau, Shannon) (Filed on 10/6/2020) (Entered: 10/06/2020)

10/07/2020

312 TRANSCRIPT ORDER for proceedings held on October 6, 2020 before Judge Lucy H. Koh by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce, for Court Reporter Summer Fisher. (Zee, Michael) (Filed on 10/7/2020) (Entered: 10/07/2020)

10/07/2020 313 Order re: Communications with the Court. Signed by Judge Lucy H. Koh on 10/7/2020. (lhklc3, COURT STAFF) (Filed on 10/7/2020) (Entered: 10/07/2020)

10/07/2020

314 Transcript of Proceedings held on 10/06/2020, before Judge Lucy H. Koh. Court Reporter/Transcriber Summer Fisher, telephone number summer_fisher@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 312 Transcript Order ) Redaction Request due 10/28/2020. Redacted Transcript Deadline set for 11/9/2020. Release of Transcript Restriction set for 1/5/2021. (Related documents(s) 312 ) (Fisher, Summer) (Filed on 10/7/2020) (Entered: 10/07/2020)

10/07/2020 315 Email to court staff dated 10/7/2020. (kedS, COURT STAFF) (Filed on 10/7/2020) (Entered: 10/07/2020)

10/07/2020 316 Email from Jeff Williams to court staff dated 10/7/2020. (kedS, COURT STAFF) (Filed on 10/7/2020) (Entered: 10/07/2020)

10/07/2020 317 Email from Jesse Granato to court staff dated 10/7/2020. (kedS, COURT STAFF) (Filed on 10/7/2020) (Entered: 10/07/2020)

10/07/2020 318 Email from Dan Weisman to court staff dated 10/7/2020. (kedS, COURT STAFF) (Filed on 10/7/2020) (Entered: 10/07/2020)

10/07/2020 319 Email to court staff dated 10/7/2020. (kedS, COURT STAFF) (Filed on 10/7/2020) (Entered: 10/07/2020)

10/07/2020

320 USCA ORDER for PUBLICATION (SUSAN P. GRABER, WILLIAM A. FLETCHER and MARSHA S. BERZON) as to 210 Notice of Appeal filed by Defendants, Commerce Secretary Wilbur L. Ross, Jr., the U.S. Department of Commerce, the Director of the U.S. Census Bureau Steven Dillingham, and the U.S. Census Bureau. To the extent that the district court enjoined the Defendants from attempting to meet the December 31 date, that injunction is stayed pending appeal. Emergency Motion for a Stay DENIED IN PART and GRANTED IN PART. (dhmS, COURT STAFF) (Filed on 10/7/2020) (Entered: 10/07/2020)

10/07/2020

321 OPPOSITION/RESPONSE (re 204 MOTION to Intervene ) filed byBlack Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 10/7/2020) (Entered: 10/07/2020)

10/07/2020 322 Order Compelling Defendants' Response. Signed by Judge Lucy H. Koh on 10/7/2020. (lhklc2, COURT STAFF) (Filed on 10/7/2020) (Entered: 10/07/2020)

10/08/2020

323 RESPONSE to the Court's October 6, 2020 Order by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. (Attachments: # 1 Declaration of Albert E. Fontenot, Jr.)(Ehrlich, Stephen) (Filed on 10/8/2020) (Entered: 10/08/2020)

10/09/2020 324 Email from William Polmanteer to court staff dated 10/9/220. (kedS, COURT STAFF) (Filed on 10/9/2020) (Entered: 10/09/2020)

10/09/2020 325 Email from Peter Singer to court staff dated 10/8/2020. (kedS, COURT STAFF) (Filed on 10/9/2020) (Entered: 10/09/2020)

10/09/2020 326 RESPONSE re 322 Order by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. (Attachments:

# 1 Fourteenth Declaration James T. Christy)(Ehrlich, Stephen) (Filed on 10/9/2020) (Entered: 10/09/2020)

10/09/2020 327 Email to court staff dated 10/9/2020. (kedS, COURT STAFF) (Filed on 10/9/2020) (Entered: 10/09/2020)

10/09/2020 328 Emails from Peter Singer to court staff dated 10/9/2020. (kedS, COURT STAFF) (Filed on 10/9/2020) (Entered: 10/09/2020)

10/09/2020

329 RESPONSE to Court's Instruction During October 6, 2020 Case Management Conference by Steven Dillingham, Wilbur L. Ross, U.S. Census Bureau, U.S. Department of Commerce. (Attachments: # 1 1 of 2, # 2 2 of 2)(Zee, Michael) (Filed on 10/9/2020) (Entered: 10/09/2020)

10/09/2020

330 NOTICE by Gila River Indian Community of Filing of Declaration of Sheila Valenzuela (Attachments: # 1 Declaration of Sheila Valenzuela)(Pongrace, Donald) (Filed on 10/9/2020) (Entered: 10/09/2020)

10/09/2020

331 Statement (Plaintiffs' Preliminary Identification of Potentially Key Documents in Defendants' October 4, 2020 Production) by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Attachments: # 1 Key Documents)(Huseny, Sadik) (Filed on 10/9/2020) (Entered: 10/09/2020)

10/12/2020 332 Email from Christopher Burns to court staff. (lhklc3, COURT STAFF) (Filed on 10/12/2020) Modified on 10/12/2020 (kedS, COURT STAFF). (Entered: 10/12/2020)

10/12/2020 333 Email from Daniel Bachmann to court staff dated 10/10/2020. (kedS, COURT STAFF) (Filed on 10/12/2020) (Entered: 10/12/2020)

10/12/2020 334 Email to court staff dated 10/12/2020. (kedS, COURT STAFF) (Filed on 10/12/2020) (Entered: 10/12/2020)

10/12/2020 335 Email from Hari Naidu to the Court dated 10/12/2020. (kedS, COURT STAFF) (Filed on 10/12/2020) (Entered: 10/12/2020)

10/13/2020 336 Email from John Rogers to court staff dated 10/13/2020. (kedS, COURT STAFF) (Filed on 10/13/2020) (Entered: 10/13/2020)

10/13/2020 337 Order Compelling Defendants' Response. Signed by Judge Lucy H. Koh on 10/13/2020. (lhklc2, COURT STAFF) (Filed on 10/13/2020) (Entered: 10/13/2020)

10/13/2020 338 Email from Chase Springer to court staff dated 10/13/2020. (kedS, COURT STAFF) (Filed on 10/13/2020) (Entered: 10/13/2020)

10/13/2020

339 Order re: United States Supreme Court's Stay and Case Management Conference. Signed by Judge Lucy H. Koh on 10/13/2020. (lhklc3, COURT STAFF) (Filed on 10/13/2020) Modified on 10/13/2020 (lhklc3, COURT STAFF). (Entered: 10/13/2020)

10/13/2020

***Set Deadlines/Hearings per 339 Order: Further Case Management Conference CONTINUED from 10/16/2020 to 10/27/2020 at 1:30 PM via Zoom webinar. All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/lhk. (kedS, COURT STAFF) (Filed on 10/13/2020) (Entered: 10/13/2020)

10/15/2020

340 RESPONSE re 337 Order by U.S. Department of Commerce. (Attachments: # 1 Declaration Fifteenth Declaration of James Christy)(Sverdlov, Alexander) (Filed on 10/15/2020) (Entered: 10/15/2020)

10/16/2020

341 STIPULATION WITH PROPOSED ORDER Regarding Deadlines Related to Second Amended Complaint filed by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Attachments: # 1 Declaration of Sadik Huseny, # 2 Proposed Order)(Huseny, Sadik) (Filed on 10/16/2020) (Entered: 10/16/2020)

10/20/2020 342 Order by Judge Lucy H. Koh granting 341 Stipulation re: Deadlines Related to Second Amended Complaint.(lhklc2, COURT STAFF) (Filed on 10/20/2020) (Entered: 10/20/2020)

10/23/2020 343 RESPONSE re 339 Order by U.S. Department of Commerce. (Sverdlov, Alexander) (Filed on 10/23/2020) (Entered: 10/23/2020)

10/23/2020

344 Statement re 339 Order (Plaintiffs' Statement Regarding United States Supreme Court's Stay Pending Appeal) by Black Alliance For Just Immigration, City of Chicago, Illinois, City of Los Angeles, California, City of Salinas, California, City of San Jose, California, County of Los

Angeles, California, Rodney Ellis, Adrian Garcia, Gila River Indian Community, Harris County, Texas, King County, Washington, League of Women Voters, National Urban League, Navajo Nation, The National Association for the Advancement of Colored People. (Huseny, Sadik) (Filed on 10/23/2020) (Entered: 10/23/2020)

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 Case 5:20-cv-05799-LHK Document 1 Filed 08/18/20 Page 1 of 62

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ATTORNEYS AT LAW SAN FRANCISCO

LATHAM & WATKINS LLP Steven M. Bauer (Bar No. 135067) steven.bauer@lw.com Sadik Huseny (Bar No. 224659) sadik.huseny@lw.com Shannon D. Lankenau (Bar No. 294263) shannon.lankenau@lw.com
505 Montgomery Street, Suite 2000 San Francisco, CA 94111 Telephone: 415.391.0600 Facsimile: 415.395.8095 LATHAM & WATKINS LLP
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Melissa Arbus Sherry (pro hac vice pending) melissa.sherry@lw.com
Anne W. Robinson (pro hac vice pending) anne.robinson@lw.com
Tyce R. Walters (pro hac vice pending) tyce.walters@lw.com
Genevieve P. Hoffman (pro hac vice pending) genevieve.hoffman@lw.com
Gemma Donofrio (pro hac vice pending) gemma.donofrio@lw.com
555 Eleventh Street NW, Suite 1000 Washington, D.C. 20004 Telephone: 202.637.2200 Facsimile: 202.637.2201

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW
Kristen Clarke (pro hac vice pending) kclarke@lawyerscommittee.org
Jon M. Greenbaum (Bar No. 166733) jgreenbaum@lawyerscommittee.org
Ezra D. Rosenberg (pro hac vice pending) erosenberg@lawyerscommittee.org
Dorian L. Spence (pro hac vice pending) dspence@lawyerscommittee.org
Ajay P. Saini (pro hac vice pending) asaini@lawyerscommittee.org
Maryum Jordan (Bar No. 325447) mjordan@lawyerscommittee.org
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1500 K Street NW, Suite 900 Washington, D.C. 20005 Telephone: 202.662.8600 Facsimile: 202.783.0857
Additional counsel and representation information listed in signature block

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

NATIONAL URBAN LEAGUE; LEAGUE OF WOMEN VOTERS; BLACK ALLIANCE FOR JUST IMMIGRATION; HARRIS COUNTY, TEXAS; KING COUNTY, WASHINGTON; CITY OF LOS ANGELES, CALIFORNIA; CITY OF SALINAS, CALIFORNIA; CITY OF SAN JOSE, CALIFORNIA; RODNEY ELLIS; and ADRIAN GARCIA,
Plaintiffs, v.

CASE NO. 20-cv-5799
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

WILBUR L. ROSS, JR., in his official capacity as Secretary of Commerce; U.S. DEPARTMENT OF COMMERCE; STEVEN DILLINGHAM, in his official capacity as Director of the U.S. Census Bureau; and U.S. CENSUS BUREAU,

Defendants.

1

COMPLAINT

Case 5:20-cv-05799-LHK Document 1 Filed 08/18/20 Page 2 of 62

1

INTRODUCTION

2

1. This lawsuit challenges the unconstitutional and illegal decision by Secretary of

3 Commerce Wilbur Ross, and Census Bureau (the “Bureau”) Director Steven Dillingham, to

4 sacrifice the accuracy of the 2020 Census by forcing the Census Bureau to compress eight and a

5 half months of vital data-collection and data-processing into four and a half months, against the

6 judgment of the Bureau’s staff and in the midst of a once-in-a-century pandemic.

7

2. The Census Bureau’s staff spent most of the past decade developing a final

8 operational plan for the 2020 Census that reflected the Bureau’s understanding of the best

9 methods for counting everyone once and in the right place (the “Final Operational Plan”). In

10 April 2020, as the COVID-19 pandemic spread throughout the country, the Census Bureau

11 revised its plan to account for both the difficulties of census-taking during a pandemic and the

12 Bureau’s constitutional and statutory obligation to achieve a fair and accurate count (the

13 “COVID-19 Plan”). To achieve both ends, the Department of Commerce and the Census Bureau

14 delayed the counting process, shifted the timeframe for conducting and completing its data-

15 collection operation, and increased the time for conducting data-processing, while, crucially,

16 preserving the same amount of time for each step of those operations.

17

3. On August 3, 2020, the Department of Commerce and the Census Bureau

18 suddenly and without explanation reversed course and replaced the Bureau’s COVID-19 Plan

19 with a new one (the “Rush Plan”). The Bureau’s Rush Plan requires the Bureau to complete eight

20 and a half months of data-collection and data-processing in half the time. It ignores the multi-

21 month delay in census data-collection that the COVID-19 pandemic caused. It compels a final

22 date for delivering apportionment data to the President that Bureau officials have repeatedly

23 asserted they cannot meet. And it threatens a massive undercount of the country’s communities

24 of color and the municipalities, cities, counties, and states where they live. Under these

25 circumstances, the Bureau’s new plan to rush the 2020 Census violates, among other things, the

26 federal government’s legal obligations to secure an accurate count and statutory prohibitions on

27 arbitrary, capricious, and pretextual federal government action.

28

4. The federal government’s attempt to rush the census count poses a grave threat to

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1 all the vital functions that rely on census data, from reapportioning the United States House of

2 Representatives and redrawing state and local electoral districts, to equitably distributing over

3 $1.5 trillion annually in federal funds that support basic needs such as food, health care, and

4 education. Undercounted cities, counties, and municipalities will lose representation in Congress

5 and tens of millions of dollars in funding. And communities of color will lose core political

6 power and vital services. In contrast to these dire stakes, the immediate solution to this problem

7 is simple: set aside and enjoin implementation of the impossibly-shortened Rush Plan, which is

8 based on an unexplained change of position, and allow the Census Bureau to implement the plan

9 that it had designed to fulfill its constitutional duties during the pandemic.

10

5. The COVID-19 pandemic upended all 2020 Census field operations, many of

11 which the Census Bureau designed to enumerate populations that it has long struggled to count,

12 including racial and ethnic minorities, non-English speakers, and undocumented persons. Among

13 the disrupted census operations was the largest, most time-consuming operation undertaken to

14 count the country’s hard-to-count communities—the “Non-Response Follow Up” operation.

15 During Non-Response Follow Up, the Bureau sends its employees to knock on the doors of

16 households that have not yet responded to the census and perform other vital data-collecting

17 functions.

18

6. The Bureau’s staff responded to the pandemic—and the impossibility of

19 conducting house visits during widespread lockdowns—by making necessary adjustments to the

20 timeline in the Final Operational Plan. This revised operational plan, the COVID-19 Plan issued

21 on April 13, 2020, was intended to ensure that hard-to-count communities would be enumerated

22 and the health and safety of Bureau employees and the public would be protected. This plan

23 adjusted the deadlines of, but did not shorten the time for, critical operations. Under this plan—

24 which experts and census stakeholders alike endorsed as a scientifically sound approach for

25 minimizing the pandemic’s potential damage to the accuracy of the count—the Bureau extended

26 its data-collection deadlines to October 31, 2020 and its data-processing deadlines into the

27 second quarter of 2021. Critically, the COVID-19 Plan delayed door-knocking by three months,

28 pushing it from May–July 2020 to August–October 2020. But the COVID-19 Plan

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1 acknowledged that the Bureau must spend the same amount of time—around eleven and a half

2 weeks—on door-knocking, just as it had planned to do before the pandemic. The COVID-19

3 Plan also incorporated the same methods and techniques contemplated in the Final Operational

4 Plan that the Bureau had spent years developing. Indeed, the only respect in which the COVID-

5 19 Plan altered the amount of time devoted to operations set out in the Final Operational Plan

6 was a requirement that the Bureau spend more time than originally planned processing the data it

7 collected—that is, performing the necessary work to transform over 100 million individual

8 census forms into high-quality, reliable, and legitimate data. This additional investment in data-

9 processing reflected daunting new challenges the COVID-19 pandemic posed to an accurate

10 count, including massive displacements of people that would introduce problems of duplicate

11 responses, responses without unique census identifiers, and other complex data issues.

12

7. The Department of Commerce and the Census Bureau also recognized that the

13 impact of COVID-19 had made it impossible to meet certain statutory deadlines for reporting

14 census results to Congress. Commerce Secretary Wilbur Ross and Census Bureau Director

15 Steven Dillingham announced that the Bureau was seeking relief from Congress to formally

16 extend two statutory deadlines: first, the deadline for reporting the state-population totals used to

17 calculate the congressional apportionment to the President, which Congress was asked to extend

18 from December 31, 2020 to April 30, 2021; and, second, the deadline for reporting redistricting

19 data to the states, which Congress was asked to extend from March 31, 2021, to July 31, 2021.

20 Commenting on the statutory-deadline extensions, President Trump publicly stated on April 13,

21 2020, “I don’t know that you even have to ask [Congress]. This is called an act of God. This is

22 called a situation that has to be. They have to give in. I think 120 days isn’t nearly enough.”

23 Hansi Lo Wang, Trump Officials Ask to Delay Census Data for Voting Districts, House Seats,

24 NPR (Apr. 13, 2020), https://www.npr.org/2020/04/13/833546675/trump-officials-ask-to-delay-

25 census-data-for-voting-districts-house-seats.

26

8. Recognizing that more time was necessary to complete an accurate census, and

27 consistent with the President’s statement, the Bureau proceeded immediately under its COVID-

28
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19 Plan. The Bureau delayed its door-knocking operation to late summer, with the declared
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1 intention of completing it by October 31, 2020. And recognizing that a successful census is

2 dependent on all levels of government working together, the Bureau publicized this plan to the

3 public, as well as to government and non-profit partners involved in the years-long and multi-

4 million-dollar public education campaign to ensure public trust and encourage public

5 participation in the census.

6

9. Throughout the summer, Bureau officials repeatedly stated that the pandemic had

7 rendered it impossible for the Bureau to complete a reasonably accurate count by December 31,

8 2020. But to comply with its constitutional obligations, the Bureau continued collecting data on

9 the timelines set in the COVID-19 Plan, which itself extended the Bureau’s data-processing

10 timelines into 2021.

11

10. On August 3, 2020—in the face of a pandemic that has only grown worse and in

12 disregard of the Census Bureau’s constitutional and statutory duties to conduct an actual

13 enumeration of the entire population—Secretary Ross and Director Dillingham abruptly

14 abandoned the COVID-19 Plan. Without explanation, they announced the new Rush Plan for the

15 2020 Census, including shortening the Bureau’s data-collection operation by one month to

16 September 30, 2020, and requiring the Bureau to process and report the apportionment data to

17 President Trump by December 31, 2020. The Rush Plan cuts a crucial four weeks from the data-

18 collection operation. And it disregards the Bureau’s own prior conclusions that such rushed

19 processing renders it impossible to fulfil its constitutional obligation to ensure reasonable quality

20 and accuracy of 2020 Census data.

21

11. Defendants’ decision to abandon the COVID-19 Plan in favor of the Rush Plan

22 does not satisfy the Supreme Court’s clear command that any decision relating to the census bear

23 a “reasonable relationship” to producing an accurate count. See Wisconsin v. City of N.Y., 517

24 U.S. 1, 20 (1996). As demonstrated by Defendants' own prior statements, the challenged decision

25 cannot be justified by any legitimate interest in conducting an accurate census, and in fact will

26 introduce several inaccuracies in the count, chief among them major undercounts of communities

27 of color.

28
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12. The reason for this abrupt change of position is not apparent on the face of the
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1 press release announcing the Rush Plan or any other subsequently issued statements or

2 publications from the federal government. The Bureau has refused requests from Congress and at

3 least one Plaintiff in this action to provide one.

4

13. The announcement of the Rush Plan did reference two developments that

5 occurred between the adoption of the COVID-19 Plan and the announcement of the Bureau’s

6 intent to adopt the Rush Plan. But neither of these developments can justify Defendants' actions.

7 First, the announcement refers to the Secretary of Commerce’s direction to the Bureau to comply

8 with the statutory deadline of December 31, 2020 for completing the apportionment count. But

9 this statutory deadline cannot justify an unconstitutional decision to cut short crucial operations

10 and fail to satisfy its constitutional obligation. A statutory deadline, particularly one that was set

11 without a global pandemic in mind, cannot override the federal government’s constitutional duty

12 to accomplish an accurate census; there is “nothing sacred in the due date of the filing [of

13 apportionment data], especially when the work of the Census Bureau . . . is incomplete.” Carey

14 v. Klutznick, 637 F. 2d 834, 837 (2d Cir. 1980). Moreover, the Bureau was cognizant of this

15 deadline even as it designed and implemented the COVID-19 Plan, including delaying crucial

16 field operations by several months. And Bureau officials have repeatedly made clear that because

17 of the impediments introduced by COVID-19, together with the multi-month delay, it is already

18 too late to satisfy these pre-COVID-19 deadlines.

19

14. Second, both the text of the Rush Plan announcement and the timing of the

20 decision suggest that the federal government’s motivation for the Rush Plan is to facilitate

21 another illegal act: suppressing the political power of communities of color by excluding

22 undocumented people from the final apportionment count. On July 21, 2020—just a few weeks

23 earlier—President Trump issued a Presidential Order titled “Memorandum Excluding Illegal

24 Aliens From the Apportionment Base Following the 2020 Census” (the “Apportionment

25 Exclusion Order”)—which expressly stated the President’s determination to exclude

26 undocumented people from the population count used for apportionment. To increase the chance

27 that the President can fully effectuate the Apportionment Exclusion Order, he must receive the

28
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population totals while he is still in office, and he ordered the Secretary of Commerce to provide
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1 him with 2020 decennial census information by December 31, 2020 to carry out his objective.

2

15. The President’s Apportionment Exclusion Order (currently being challenged as

3 unconstitutional and unlawful in a number of lawsuits filed in jurisdictions around the country,

4 including in this District) represents only the most recent of Defendants' serial attempts to

5 manipulate the 2020 Census to suppress the political power of communities of color. These

6 attempts started with a campaign to introduce a historically unprecedented and untested

7 citizenship question onto the 2020 Census questionnaire to advantage—in the words of a

8 deceased Republican redistricting consultant—“Republicans and non-Hispanic whites.” Michael

9 Wines, Deceased G.O.P. Strategist’s Hard Drives Reveal New Details on the Census Citizenship

10 Question, N.Y. Times (May 30, 2019), https://www.nytimes.com/2019/05/30/us/census-

11 citizenship-question-hofeller.html. Since the Supreme Court blocked the question, Defendants

12 have looked for other means to achieve that same end, including collecting data on citizenship

13 from administrative records and, now, cutting the census short.

14

16. Plaintiffs are local governments, civil rights and civic organizations, and

15 individuals whose communities will almost certainly be inaccurately represented and

16 underrepresented in the final census count if the administration succeeds in truncating census

17 data-collection and data-processing.

18

17. Plaintiffs seek declaratory relief affirming that Defendants’ actions violate the

19 Enumeration Clause and the Administrative Procedure Act. Plaintiffs additionally seek to set

20 aside and enjoin implementation of the illegal Rush Plan, thereby permitting the Bureau to

21 implement the preexisting COVID-19 Plan it carefully designed to ensure a complete and

22 accurate count. This relief will allow the Bureau to conduct the 2020 Census on the timeline it

23 has repeatedly asserted is necessary to complete a full, fair, and accurate count.

24

18. Without such relief, Plaintiffs and the communities they represent will suffer

25 irreparable harm for at least another decade, until the next census is conducted.

26

JURISDICTION AND VENUE

27

19. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331, 1346(a), and

28 1361.
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1

20. Venue is proper in this judicial district under 28 U.S.C. § 1391(b)(2) and (e)(1).

2 Defendants are United States officers or agencies sued in their official capacities, a substantial

3 part of the events or omissions giving rise to this action have occurred or will occur in this

4 district, and one or more Plaintiffs reside in this district.

5

21. This Court may grant declaratory and injunctive relief under 28 U.S.C. §§ 2201

6 and 2202.

7

22. The proper intradistrict assignment for this action is the San Jose Division, in light

8 of the location of Plaintiffs City of San Jose and members of the League of Women Voters.

9

PARTIES

10 I. Plaintiffs

11

23. The National Urban League (“Urban League”) is a civil-rights organization with

12 over 90 affiliates serving 300 communities in 37 states and the District of Columbia. Founded in

13 1910, the National Urban League is headquartered in New York City. The mission of the

14 National Urban League is to help African Americans and others in underserved communities

15 achieve their highest human potential and secure economic self-reliance, parity, power, and civil

16 rights.

17

24. For the 2020 Census, the Urban League has expended substantial resources

18 developing programs designed to encourage self-response and cooperation with Census Bureau

19 offices in historically undercounted communities. Specifically, the organization has engaged in

20 efforts to educate the public about the census through various methods, including virtual town

21 halls, production and distribution of toolkits, workshops for locally based get-out-the-count

22 organizations, and publication and upkeep of a website, www.MakeBlackCount.org, to

23 disseminate critical information about the census. The Urban League has also worked with

24 Census Bureau regional offices to encourage enumerator recruitment, and the organization uses

25 social media to encourage 2020 Census participation.

26

25. Plaintiff Black Alliance for Just Immigration (“BAJI”) is a nonprofit organization

27 organized and existing under the laws of California, with offices and members across the

28
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country, including in Oakland, California, Miami, Florida, Atlanta, Georgia, and New York City.
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1 BAJI collaborates with African Americans and Black immigrants to organize and advocate for

2 equal and just laws in their communities. BAJI campaigns to advance racial justice and provides

3 partner organizations with varied assistance—particularly on immigration policy—and it spends

4 significant resources educating its partner organizations, individuals, and other constituents

5 through presentations, workshops, publications, technical assistance, and trainings. BAJI is a

6 membership organization, and its members either pay dues or volunteer their time to support the

7 organization. Members also actively participate in BAJI’s self-governance and decision-making

8 at the local level.

9

26. For the 2020 Census, BAJI has worked to ensure non-responsive households in

10 Black and immigrant communities are counted. BAJI has hired additional staff dedicated to

11 engaging local communities on the census, and has engaged in outreach using social media and

12 mailers to bolster self-response. In addition, since the outbreak of the COVID-19 pandemic,

13 BAJI staff regularly participate in webinars and virtual events to provide the public more

14 information about the census, with a specific focus on encouraging participation in Black and

15 immigrant communities.

16

27. The League of Women Voters is a nonprofit civic organization that encourages

17 informed and active participation in government. Founded in 1920, the League of Women Voters

18 is headquartered in Washington, D.C. The League of Women Voters has over 800 state and local

19 affiliates, located in all 50 states and in 764 specific communities, including affiliates with

20 members in San Francisco and Monterey County, California, Detroit, Michigan, Miami, Florida,

21 Philadelphia, Pennsylvania, and New York City. The League of Women Voters seeks to

22 empower voters and defend democracy. The League of Women Voters has over 65,000 members

23 nationwide, and its members either pay dues or volunteer their time to support the organization.

24

28. The League of Women Voters has engaged in significant efforts to ensure

25 historically undercounted communities are enumerated during the 2020 Non-Response Follow

26 Up operation. Prior to the outbreak of COVID-19 in the United States, the League of Women

27 Voters and its affiliates participated in public events across the country aimed at providing

28
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information about the census to undercounted communities. Since March of this year, the League
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1 of Women Voters has shifted to a digital public-education campaign, encouraging education and

2 participation through social media, email listservs, webinars, and blog posts. Affiliates in

3 Kansas, South Carolina and Maine are also participating in state Complete Count Committees

4 that seek to increase awareness of the 2020 Census, improve participation, and coordinate with

5 Census Bureau officials.

6

29. Harris County, Texas is a political subdivision of the State of Texas. With over

7 4.7 million residents, Harris County is the third largest county in the United States. The county’s

8 population is over 43% Latino, 20% Black, over 7% Asian, and over 28% non-Hispanic White.

9 During the 2010 Census, 65.1% of households in Harris County self-responded to the census. As

10 of August 14, 2020, 58.3% of households in Harris County had self-responded to the 2020

11 Census. This response rate in Harris County was well below the national response rate on that

12 date, 63.6%.

13

30. For the 2020 Census, officials in Harris County engaged in extensive efforts to

14 encourage participation in the County. County officials formed a Complete Count Committee

15 with city officials in Houston that engaged in public education about the census, and built

16 partnerships with local Census Bureau officials to coordinate outreach efforts. In addition, in

17 2019, the County approved a budget of nearly $4 million dollars to conduct outreach during the

18 2020 Census. To that end, the County has contracted with vendors to conduct surveys about the

19 opinions and attitudes of non-responsive populations and develop a digital advertising campaign

20 on Facebook and Instagram to encourage 2020 Census participation. And the County receives

21 substantial federal funding tied to census data.

22

31. King County is a political subdivision of the State of Washington. Over 2.2

23 million people live in King County, making it the most populous county in Washington. As of

24 August 14, 2020, 26.1% of households in King County had not responded to the 2020 Census.

25 The county has large populations of historically undercounted communities. For instance,

26 according to the Department of Housing and Urban Development, King County had nearly

27 12,000 residents experiencing homelessness, the third highest total of any locale in the country.

28 The Seattle metro area, which includes King County, is estimated to have 140,000

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1 undocumented immigrant residents.

2

32. King County worked in partnership with local cities to provide $1.17 million to

3 community-based organizations serving historically undercounted communities. Specifically,

4 King County sought to fund organizations that work with communities that are Limited English

5 Proficient. Through this funding, these organizations produced public education materials related

6 to the 2020 Census, and developed campaigns to get-out-the-count. And King County, too,

7 receives substantial federal funding tied to census data.

8

33. The City of Los Angeles, California is a municipal corporation organized and

9 existing under the laws of the State of California, and is a charter city pursuant to Article XI of

10 the California Constitution. The City is home to roughly 4 million people, and is located in the

11 county recognized by the Census Bureau as the hardest to count in the nation. The city’s

12 population is a large contributor to the County’s hard-to-count status as more than half of the

13 City’s residents live in census tracts that are hard to count. As of August 14, 2020, only 53.8% of

14 the City’s households had responded to the 2020 Census—well below the statewide average of

15 65.1% and even further below the City's own 2010 self-response rate of 68 percent.

16

34. As a result of its hard-to-count status, Los Angeles has engaged in years of

17 planning and devoted significant resources to developing a strategy for an accurate count,

18 tailored to the unique challenges of the City’s population. To fund these efforts, the City has

19 overseen distribution of roughly $2 million dollars to community-based organizations and the

20 investment of almost $1.5 million of both City general fund and grant money in its own efforts.

21 And the City of Los Angeles also receives substantial federal funding tied to census data.

22

35. The City of Salinas, California is a political subdivision of the State of California.

23 Salinas is the most populous city in and the government seat of the County of Monterey. The city

24 is home to more than 150,000 people, including 38.5% of the county’s “hard-to-count”

25 population. As of August 14, 2020, 57.2% of all households in Salinas have responded to the

26 2020 Census, which is 422nd out of all 482 California cities. The current response rate is 7.9

27 percentage points below California’s statewide average for self-responses and more than 10

28 percentage points below Salinas's self-response rate from the 2010 Census.

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1

36. Salinas has dedicated significant resources to funding and staffing its “Census

2 Action Team,” which is composed of city staff and representatives from the County of

3 Monterey’s “Complete Count Committee,” as well as community-based organizations, school

4 districts, and local businesses. The city’s population is more than 75% Latino, and more than 1 in

5 5 households have limited English-language proficiency. As part of its outreach, the Salinas

6 Census Action Team engages religious and community organizations, such as local food banks,

7 to assist with enumeration efforts in the Latino community and all communities of color as these

8 organizations are able to assist with trust and communication barriers that can make these groups

9 hard to count. The City of Salinas also receives substantial federal funding tied to census data.

10

37. The City of San Jose is a political subdivision of the State of California. San Jose

11 has over 1 million residents, making it the largest city in Northern California, and the tenth

12 largest city in the United States. San Jose’s population is 32% Latino, and 35% Asian, and nearly

13 40% of residents are foreign born. As of August 14, 2020, 28% of households in San Jose had

14 not responded to the census. San Jose has large populations of historically undercounted

15 communities. For instance, according to the Department of Housing and Urban Development, in

16 2019, San Jose had over 6,000 residents experiencing homeless. In addition, the San Jose metro

17 area is estimated to have over 150,000 undocumented immigrant residents.

18

38. The City of San Jose has engaged in extensive public-education and get-out-the-

19 count efforts during the 2020 Census. San Jose has formed a Complete Count Committee with

20 Santa Clara County, and nearly 90 community-based organizations. The Committee focuses on

21 raising awareness of the census in historically undercounted communities. San Jose also

22 disseminates information about the census to the public through city departments and offices.

23 San Jose also worked closely with the Census Bureau to recruit qualified bilingual enumerators.

24 The City of San Jose receives substantial federal funding tied to census data.

25

39. Plaintiff Rodney Ellis is the Commissioner for Precinct One on the Harris County

26 Commissioners Court. He is a resident and citizen of Harris County, where he is registered to

27 vote and regularly exercises his right to vote. Commissioner Ellis regularly drives on roads and

28 highways in Harris County.

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1

40. Plaintiff Adrian Garcia is the Commissioner for Precinct Two on the Harris

2 County Commissioners Court. He is a life-long resident and citizen of Harris County, where he

3 is registered to vote and regularly exercises his right to vote. Commissioner Garcia also regularly

4 drives on roads and highways in Harris County.

5 II. Defendants

6

41. Defendant Wilbur L. Ross is the Secretary of the U.S. Department of Commerce

7 and is sued in his official capacity. Secretary Ross oversees the U.S. Department of Commerce

8 and the Census Bureau. Congress has delegated the responsibility for carrying out the decennial

9 census to the Secretary of Commerce. 13 U.S.C. § 141(a).

10

42. Defendant U.S. Department of Commerce is a cabinet agency within the

11 Executive Branch responsible for administering the decennial census.

12

43. Defendant Steven Dillingham is the Director of the U.S. Census Bureau and is

13 sued in his official capacity.

14

44. Defendant U.S. Census Bureau is an agency within the Department of Commerce

15 responsible for planning and administering the decennial census. 13 U.S.C. § 2.

16

FACTUAL ALLEGATIONS

17 I. Defendants’ Constitutional and Statutory Obligations.

18

45. Under the United States Constitution, the federal government must conduct an

19 “actual Enumeration” of the population once every ten years. U.S. Const. art. I, § 2.

20

46. The population totals produced by the decennial enumeration are used to

21 apportion congressional representatives to the various states. Id. Census figures are also used in

22 state and local redistricting and in the distribution of federal funds to communities across the

23 United States.

24

47. The Enumeration Clause requires that decisions relating to the census bear a

25 “reasonable relationship” to the constitutional purpose of the enumeration. Wisconsin, 517 U.S.

26 at 20.

27

48. Similarly, the Census Act imposes a mandatory duty on the Secretary of

28
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Commerce to “conduct a census that is accurate and that fairly accounts for the crucial
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1 representational rights that depend on the census and the apportionment.” Dep’t of Commerce v.

2 New York, 139 S. Ct. 2551, 2569 (2019) (citation omitted).

3

49. Consequently, the Secretary of Commerce and the Census Bureau are

4 constitutionally obligated to make decisions in conducting the census that are reasonably related

5 to achieving a fair and accurate calculation of the population of the United States.

6 II. The Census Bureau’s Pre-COVID-19 Operational Plans for the 2020 Census.

7

50. For the 2020 Census, the Census Bureau spent the better part of a decade

8 designing operations to fulfill its constitutional and statutory mandate, including: soliciting and

9 incorporating feedback from seasoned experts, advisors, and community groups; testing various

10 features of its data-collection and data-processing operations; and ensuring that its decisions for

11 conducting the census reflected sound, scientifically based judgment.

12

51. To this end, the Bureau created an operational plan to guide its efforts, including

13 its efforts to collect data from census respondents and to process that data into usable forms for

14 constitutionally and statutorily mandated purposes, including reapportionment and redistricting.

15

52. On December 31, 2018, the Bureau promulgated the final version of its

16 operational plan, which the Bureau called “Version 4.0” (hereinafter referred to as the “Final

17 Operational Plan”). See U.S. Census Bureau, Final Operational Plan (Dec. 2018),

18 https://www2.census.gov/programs-surveys/decennial/2020/program-management/planning-

19 docs/2020-oper-plan4.pdf. In the Final Operational Plan, the Census Bureau stated that its goal

20 for the 2020 Census is to “count everyone once, only once, and in the right place.”

21

53. Under the Paperwork Reduction Act, the Office of Management and Budget must

22 review and approve the plans for any federal survey, including the decennial census, to ensure

23 that those surveys meet government standards, minimize respondent burden, and maximize the

24 utility of the collected information. 44 U.S.C. § 3504(c).

25

54. The Office of Management and Budget formally reviewed and approved the

26 Census Bureau’s pre-COVID-19 plans for the decennial census, including the Final Operational

27 Plan.

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55. The Final Operational Plan includes over 200 pages of detailed and transparent
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1 conclusions for achieving the 2020 Census’s objective of an accurate count.

2

56. The Final Operational Plan reflects the conclusions of various experts including

3 survey methodologists, statisticians, demographers, geographers, linguists, and mathematicians.

4

57. The Final Operational Plan states that it “reflects and supports evidence-based

5 decision-making” about the operations necessary to gather and process census responses from

6 every household in the country.

7

58. The Final Operational Plan states that it was “informed through research, testing,

8 and analysis conducted from 2012 through 2018.”

9

59. The Bureau conducted at least fifteen tests between 2012 and December 31, 2018,

10 when it published its Final Operational Plan.

11

60. Career Bureau staff developed the Final Operational Plan following substantial

12 consultation with outside experts and census stakeholders, including members of the Census

13 Scientific Advisory Committee and the National Advisory Committee.

14

61. The Census Bureau also produced a series of “detailed operational plans,” which

15 supplement the Final Operational Plan, and provide more parameters for the individual

16 operations that, together, comprise the 2020 Census.

17

62. The detailed operational plans likewise reflect the conclusions of various subject-

18 matter experts regarding how to complete an accurate count.

19

63. The Bureau’s Final Operational Plan contains several major categories of

20 operations. Two of those categories are particularly important for purposes of this lawsuit: data-

21 collection and data-processing.

22

64. “Data-collection” refers to operations through which the Bureau obtains

23 information from and about all the people living in the United States.

24

65. “Data-processing” refers to operations through which the Bureau fills in any gaps

25 in the personal information that it collects from people, transforms the resulting data into usable

26 forms, checks those results for accuracy and other aspects of data quality, and publishes those

27 results, among other things.

28
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66. The Bureau must thoroughly, fully, and correctly perform both categories of
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1 operations—collection and processing—to achieve its stated goal of counting everyone once,

2 only once, and in the right place.

3

A. Census Data Collection

4

67. During the census, the Bureau attempts both to determine the number of people in

5 the country and their characteristics, such as their race and ethnicity.

6

68. Although the Census Bureau planned to deploy many methods during the 2020

7 Census to collect counts and characteristics from households around the country, the Bureau

8 contemplated, in both the Final Operational Plan, and in the supplemental detailed operational

9 plans, that three methods would account for the overwhelming majority of census responses: the

10 “Self-Response” method; the “Update Leave” method; and the “Non-Response Follow Up”

11 method. See U.S. Census Bureau, 2020 Census Detailed Operational Plan for: 18. Non-

12 Response Follow Up Operation (July 15, 2019), https://www2.census.gov/programs-

13 surveys/decennial/2020/program-management/planning-docs/NRFU-detailed-operational-

14 plan_v20.pdf.

15

69. The Self-Response method was the “primary methodology for the 2020 Census.”

16 Under this method, heads of households would provide their 2020 Census responses directly to

17 the Census Bureau by mailing back a paper census form, filling out a digital form on the

18 Bureau’s online census portal, or calling into telephone hotlines to provide their responses to

19 Bureau employees operating those hotlines.

20

70. The Update Leave method was the methodology for reaching housing units that

21 could not receive physical mail or did not have verifiable mailing addresses. Under this method,

22 Bureau employees would travel throughout both rural and urban areas, leaving invitations to

23 participate and paper census questionnaires at these housing units, so that the people living in

24 those locations could respond themselves.

25

71. The Self-Response method and the Update Leave method are crucial for obtaining

26 accurate information about the number of people in the country and their characteristics, because

27 data people report about themselves and the members of their housing units is the highest quality

28 data that the census collects.

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1

72. But for the tens of millions of households that do not report their personal data

2 through the Self-Response or Update Leave method, the Bureau’s next-best source of personal

3 data is data it collects directly from people through the Non-Response Follow Up method.

4

73. As part of the Non-Response Follow Up method, the Bureau sends its employee

5 enumerators directly to housing units so that they can attempt to speak with a person occupying

6 each unit and obtain information about everyone who should be counted in that unit.

7

74. The Bureau requires enumerators to record their responses for each household

8 through iPhones that the Bureau specifically contracted and customized for this purpose. The

9 enumerators’ iPhones include software designed to lead enumerators consistently and reliably to

10 solicit information from people at their doors. The enumerators’ iPhones also include software to

11 ensure that any data collected from housing units remains confidential as it is being transmitted

12 to the Bureau. The limited supply of these customized iPhones places a limit on the number of

13 enumerators that the Bureau can deploy in the field.

14

75. The Bureau’s Detailed Operational Plan for Non-Response Follow Up, which

15 supplements the Final Operational Plan, sets out a specific protocol for conducting Non-

16 Response Follow Up.

17

76. Under the Detailed Operational Plan, each housing unit assigned for a visit from

18 an enumerator was eligible for up to six “contact days.” A “contact day” could include more than

19 one attempted contact per day.

20

77. The Bureau concluded it could pursue less than six contact days only under

21 certain scenarios.

22

78. One scenario that would allow the Bureau to pursue fewer than six contact days

23 was the existence of high-quality administrative records for the housing unit. The Census Bureau

24 has collected data from federal administrative agencies, such as the Social Security

25 Administration, the Internal Revenue Service, and the Department of Housing and Urban

26 Renewal, among others, as well as data from states, which it uses to provide information about

27 the count and characteristics of non-responsive households.

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79. If the Bureau had located administrative data from federal and/or state
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1 administrative records and concluded that those records contained accurate demographic data for

2 the occupants of a housing unit, the Bureau’s enumerators would attempt only one contact with

3 that unit. If—during that contact attempt—the enumerator did not succeed in finding a live

4 person at the unit, then the Bureau would use the information in the administrative records to fill

5 in the census responses for that unit during the data-processing phase of the 2020 Census.

6

80. A second scenario that would allow the Bureau to pursue less than six contact

7 days would arise if the Bureau identified a proxy—a person such as a neighbor or landlord that

8 the enumerator could ask for information about the occupants of the housing unit in question.

9 After a third failed contact attempt, a unit would become eligible for being counted through

10 proxy.

11

81. Proxies can produce many types of data. For instance, proxies are useful for

12 helping the Bureau identify whether a housing unit is vacant—and thus should be marked

13 “vacant” in the Master Address File that the Bureau uses to keep track of the overwhelming

14 majority of housing units that it must enumerate—or non-existent—and thus should be deleted

15 from the Master Address File. For the 2020 Census, the Bureau is planning to use administrative

16 records, such as the United States Postal Service’s directory of non-deliverable addresses, to

17 identify vacant housing, but proxies are generally more accurate for this purpose. Finally, proxies

18 provide vital data for other operations that the Bureau undertakes during its data-processing

19 phase, described further below.

20

82. If the Bureau is unable to enumerate a household after six contact days, in most

21 cases, it will resort to less accurate methods for determining the count and characteristics of the

22 household during its data-processing phase, described below.

23

83. The Bureau performs several other vital operations in addition to door-knocking

24 during the Non-Response Follow Up period, including a series of operations to ensure the quality

25 of the data that it collects in the field.

26

84. During the Non-Response Follow Up process, the Bureau: follows up with people

27 who self-responded to the census online but did not enter their unique census identification

28 number to ensure that they are counted in the right place (a process known as “Field

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1 Verification”); and corrects information reported erroneously or omitted from previously

2 submitted census forms (a process known as “Coverage Improvement”).

3

85. In addition, the Bureau re-collects census responses in select instances to ensure

4 that the original submissions were accurate (a process known as “Self-Response Quality

5 Assurance”). This operation protects against enumerators falsifying the information that they

6 provide to the Bureau. Specifically, the Bureau conducts quality control reinterviews of a sample

7 of households. This component is designed to deter and detect cases where enumerators have

8 provided false information about the housing units they are assigned to canvass.

9

86. Quality control reinterviews are part of a broader set of protocols that the Bureau

10 has developed to guard against factors that endanger the accuracy of the count. Non-Response

11 Follow Up is thus important not only for collecting information, but also for ensuring that the

12 information that is collected is accurate. These two components—gathering data and ensuring its

13 accuracy—must both occur for the Bureau to get a fair and accurate count.

14

87. The Bureau anticipated that approximately 60% of housing units nationally would

15 respond to the 2020 Census through Self-Response and Update Leave, potentially making up to

16 40% of housing units targets for Non-Response Follow Up.

17

88. A Non-Response Follow Up universe of 40% of the housing units in the country

18 would have been the largest follow up universe on a percentage basis since at least 1970.

19

89. The Census Bureau did not anticipate that the Non-Response Follow Up universe

20 in 2020 would mirror the demographic makeup of the nation’s population as a whole.

21

90. Instead, the Census Bureau anticipated that the Non-Response Follow Up

22 universe in 2020 would contain a disproportionate number of people who belong to communities

23 that the Bureau calls “hard-to-count.”

24

91. The Final Operational Plan describes hard-to-count populations as including, but

25 not limited to, the following populations: young children; highly mobile persons; racial and

26 ethnic minorities; non-English speakers; low-income persons; persons experiencing

27 homelessness; undocumented immigrants; persons who have distrust in the government; lesbian,

28
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gay, bisexual, transgender, and questioning/queer (LGBTQ) persons; persons with mental and
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1 physical disabilities; and persons who do not live in traditional housing.

2

92. Historically, these populations have had low self-response rates and have, thus,

3 made up disproportionate shares of households that must receive contact days during Non-

4 Response Follow Up.

5

93. Consequently, the Final Operational Plan acknowledges, “[t]he NRFU Operation

6 is entirely about hard-to-count populations.”

7

94. The Final Operational Plan also acknowledges that hard-to-count populations may

8 require more outreach than the Non-Response Follow Up method would normally provide, and

9 the Bureau designed its Final Operational Plan accordingly.

10

95. The Final Operational Plan states that “[w]hile most cases receive a maximum of

11 six attempts, cases in hard-to-count areas may receive more than six attempts to achieve a

12 consistent response rate for all geographic areas.”

13

96. Accurate data about the size, location, and characteristics of communities of color

14 is necessary to equitably distribute political power through congressional reapportionment and

15 redistricting at the state and local levels, enforce civil-rights laws that affect basic needs like

16 housing and employment, and conduct effective research, including on pressing issues like

17 public health.

18

B. Census Data-Processing

19

97. After collection activities are complete, the Census Bureau must process the data.

20

98. Census data-processing cannot begin until census data-collection concludes.

21

99. Census data is unusable for its intended purposes until it has been processed.

22

100. The Census Bureau’s data-processing operations transform tens of millions of

23 census responses into usable products, including the population totals used to reapportion seats in

24 the U.S. House of Representatives and to create electoral districts.

25

101. The Bureau uses its data-processing operations to, among other things, ensure that

26 data received from different data-collection methods are all in a single format allowing them to

27 be processed together.

28
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102. The Bureau uses its data-processing operations to “unduplicate responses”—
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1 meaning to resolve conflicts of information among multiple forms attributable to the same

2 housing unit.

3

103. The Bureau uses its data-processing operations to determine the final status of a

4 housing unit—such as vacant or inhabited—and determine the total number of people that should

5 be attributed to any apparently inhabited unit that was not counted through Self-Response,

6 Update Leave, or Non-Response Follow Up.

7

104. The Bureau also uses its data-processing operations to ensure that Bureau data

8 products accurately report respondents’ characteristics, such as age, race, and ethnicity.

9

105. The Bureau uses administrative records and statistical imputation during the data-

10 processing phase to fill in both missing people and their characteristics. But administrative

11 records—especially low-quality administrative records—and statistical imputation are generally

12 less accurate than self-response data.

13

106. For many households, administrative data provides only low quality information,

14 replete with inaccuracies and incomplete information. This is especially the case for particular

15 communities that are underrepresented in administrative records, including communities of

16 color, immigrants, and low-income families. Use of this low-quality data to fill in missing

17 information for non-responsive households produces less accurate information.

18

107. Imputation involves the Bureau using information from surrounding responsive

19 households to infer the count and characteristics of a non-responsive household. Imputation thus

20 assumes the existence of other data points gathered through other data-collection methods—such

21 as self-response, proxies, and administrative records—and generates more accurate results when

22 it can be triangulated against those data points. The processes that the Bureau uses to collect and

23 process self-response data, proxy data, and administrative records are thus critical and

24 inextricably linked to the Bureau’s ability to impute data accurately.

25

108. At various phases of the Bureau’s data-processing operations, Census Bureau

26 personnel must review the quality of files in-process before those files can be sent to the

27 subsequent steps in the data-processing operation. These reviews include personnel with subject-

28 matter expertise from several different divisions of the Bureau.

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1

109. The Bureau’s data-processing operations help ensure that people are not missed,

2 that other people are not counted multiple times, and that people’s characteristics are accurately

3 reported. These processes help eliminate or reduce undercounts, among other kinds of data-

4 quality issues.

5

C. The Final Operational Plan’s Original Timeline for the 2020 Census

6

110. The Bureau’s Final Operational Plan called for data-collection to run from

7 January 21, 2020, to July 31, 2020, for a total of more than six months.

8

111. In that window, the Self Response method was scheduled to run from March 12,

9 2020 to July 31, 2020, and the Update Leave method was scheduled for March 15, 2020 to April

10 17, 2020.

11

112. The Bureau also scheduled several special operations to occur early in its census

12 taking process. The Service-Based Enumeration, which counts people experiencing

13 homelessness, was scheduled for March 30, 2020 to April 1, 2020, and Group Quarters

14 Enumeration, which counts people living in group housing such as nursing homes, was

15 scheduled from April 2, 2020 to June 5, 2020.

16

113. The Bureau scheduled the Non-Response Follow Up method to run from May 13,

17 2020 to July 31, 2020, for a total of approximately eleven and a half weeks.

18

114. The Bureau scheduled up to five months—from July 31, 2020 to December 31,

19 2020—to process census data for the congressional reapportionment report.

20

115. The Bureau also scheduled an additional three months—from January 1, 2021 to

21 March 30, 2021—to process census data for redistricting.

22

116. The Bureau’s timelines for implementing the Final Operational Plan reflect the

23 Bureau’s scientifically informed understanding of the time necessary to complete its operations

24 and generate an accurate count.

25 III. The Census Bureau’s COVID-19 Plan.

26

A. COVID-19 Disrupts the 2020 Census

27

117. On January 21, 2020, the Bureau began 2020 Census data-collection in remote

28 Alaska.
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1

118. On March 10, 2020, the Bureau began to accept self-responses on its website.

2

119. Shortly thereafter, many parts of the nation rapidly began to shut down due to the

3 COVID-19 pandemic.

4

120. The Census Bureau quickly concluded that it could not continue to engage in

5 operations safely. On March 18, 2020, the Bureau announced that it would suspend all field

6 operations for two weeks in order to “help protect the health and safety of the American public.”

7 Press Release, U.S. Census Bureau, U.S. Census Bureau Director Steven Dillingham on

8 Operational Updates (Mar. 18, 2020), https://www.census.gov/newsroom/press-

9 releases/2020/operational-update.html.

10

121. On March 28, 2020, the Bureau announced yet another two-week suspension until

11 April 15, 2020, as the coronavirus pandemic made it impossible to engage in operations.

12

122. The suspension disrupted several field operations, including Update/Leave

13 method, the Service Based Enumeration counting people experiencing homelessness, and the

14 Group Quarters Enumeration counting people living in group housing.

15

123. In addition, the Bureau halted all hiring and training of the hundreds of thousands

16 of enumerators it needs to conduct Non-Response Follow Up. This included halting any and all

17 background checks and fingerprinting of enumerators that were conditionally hired at that time.

18

124. The Bureau also decreased office staff at regional centers responsible for

19 processing mail-in self-response forms and at the Bureau’s call centers.

20

B. Changes to the Final Operational Plan in the COVID-19 Plan

21

125. On April 13, 2020, the Bureau issued an adjustment to its Final Operational Plan

22 to account for the long-term impact of the COVID-19 pandemic. The new plan included a shifted

23 timeline for data-collection and data-processing operations that corresponded with the delays in

24 operations that the pandemic has caused (the “COVID-19 Plan”).

25

126. Adjustments to plans approved by the Office of Management and Budget under

26 the Paperwork Reduction Act must be re-submitted for approval. 44 U.S.C. § 3507(h)(3). The

27 Census Bureau submitted the COVID-19 Plan to the Office of Management and Budget on April

28 30, 2020. The changes were approved on May 11, 2020.

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1

127. The COVID-19 Plan was designed to “[e]nsure a complete and accurate count of

2 all communities,” “[p]rotect the health and safety of the American public and Census Bureau

3 employees,” and “[i]mplement guidance from federal, state, and local authorities regarding

4 COVID-19.” Press Release, U.S. Census Bureau, 2020 Census Operational Adjustments Due to

5 COVID-19 Fact Sheet (Apr. 27, 2020).

6

128. The COVID-19 Plan reflected the conclusions of various experts for how best to

7 proceed with completing an accurate count during the current pandemic. These experts include

8 survey methodologists, statisticians, demographers, geographers, linguists, and mathematicians.

9

129. Under the COVID-19 Plan, the Bureau suspended 2020 Census field operations

10 for several months, including those operations that were designed to ensure a full count of

11 traditionally undercounted communities.

12

130. The COVID-19 Plan provided that the Bureau would start the nationwide Non-

13 Response Follow Up operation on August 11, 2020, and continue the door-knocking process

14 through October 31, 2020.

15

131. Thus, the COVID-19 Plan delayed the start of most door-knocking by three

16 months while maintaining the same amount of time spent undertaking the process—

17 approximately eleven and a half weeks—as the Final Operational Plan had required.

18

132. Under the COVID-19 Plan, the Bureau also delayed the start of other operations

19 that enumerate traditionally undercounted populations, including the enumeration of the

20 country’s homeless population, which the Bureau shifted from March 30, 2020 to September 22,

21 2020.

22

133. And the COVID-19 Plan permitted households to submit self-response data to the

23 Bureau until October 31, 2020, extending the deadline under which private persons were able to

24 submit their responses to be counted by more than one month.

25

134. The Bureau also granted itself one additional month to process data under its

26 COVID-19 Plan, extending the data-processing leg of its operations to nine months given the

27 pandemic. Under this plan, the Bureau would have up to six months to process the data for the

28
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apportionment count (between October 31, 2020 and April 30, 2021) and three months to process
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1 the data for redistricting (between April 30, 2021 and July 31, 2021).

2

135. The Bureau’s timelines for implementing the COVID-19 Plan reflect a

3 scientifically informed understanding of the time necessary to appropriately and fully complete

4 its operations and generate an accurate count.

5

C. Expert and Stakeholder Response to the COVID-19 Plan

6

136. The Census Bureau solicited feedback on the COVID-19 Plan from relevant area

7 experts and interested stakeholders, including state and local governments and national and

8 community-based non-profit partners.

9

137. For instance, four former Census Bureau Directors—who served under both

10 Democratic and Republican administrations—issued a statement saying that they had “discussed

11 these operational and schedule adjustments with senior career leadership at the Census Bureau.”

12 Press Release, Vincent Barabba et al., Statement by Former U.S. Census Bureau Directors (Apr.

13 14, 2020), https://www.documentcloud.org/documents/6838166-Statement-by-Former-Census-

14 Bureau-Directors-04.html.

15

138. These four former Census Bureau Directors further asserted: “Based on (1) our

16 extensive experience in planning, executing, and often adjusting operations of previous decennial

17 censuses, and (2) our firm conclusion that the extension of the field operations reflect careful

18 analysis by the technical, scientific, and operational staff at the Census Bureau, we support the

19 decision and urge Congress to act in concert with it.” Press Release, Vincent Barabba et al.,

20 Statement by Former U.S. Census Bureau Directors (Apr. 14, 2020),

21 https://www.documentcloud.org/documents/6838166-Statement-by-Former-Census-Bureau-

22 Directors-04.html.

23

139. Prominent civil-rights groups endorsed the COVID-19 Plan. Vanita Gupta,

24 President and CEO of The Leadership Conference on Civil and Human Rights and The

25 Leadership Conference Education Fund, stated that her organization “support[ed] the Census

26 Bureau’s updated timeline.” Press Release, Leadership Conference Education Fund, Census

27 Timeline Must Protect Health, Ensure Fair Count (Apr. 13, 2020),

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https://civilrights.org/edfund/2020/04/13/census-timeline-must-protect-health-ensure-fair-count/.
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1

D. Implementation of the COVID-19 Plan

2

140. When announcing the COVID-19 Plan, Secretary Ross and Director Dillingham

3 issued a statement indicating that the Bureau requested that Congress extend by 120 days the

4 December 31, 2020 statutory deadline for reporting the state-population totals to the President

5 for purposes of calculating the state apportionments, and extend by 120 days the March 30, 2021

6 statutory deadline for delivering redistricting data to the states.

7

141. That same day, President Trump suggested this request was unnecessary, stating:

8

142. “I don’t know that you even have to ask them. This is called an act of God. This is

9 called a situation that has to be. They have to give in. I think 120 days isn’t nearly enough.”

10 Hansi Lo Wang, Trump Officials Ask to Delay Census Data for Voting Districts, House Seats,

11 NPR (Apr. 13, 2020), https://www.npr.org/2020/04/13/833546675/trump-officials-ask-to-delay-

12 census-data-for-voting-districts-house-seats.

13

143. Indeed, the Census Bureau did not wait for Congress to act before beginning

14 implementation of the COVID-19 Plan. And the Bureau continued implementation of the

15 COVID-19 Plan for over three months through the end of July 2020.

16

144. For instance, the Census Bureau field operations remained suspended through

17 May 2020.

18

145. The Bureau only began re-opening a few limited operations, such as the Update

19 Leave method, on a phased basis through mid-June 2020, over two months after the operation

20 was originally planned to occur in the Final Operational Plan.

21

146. The Bureau did not undertake any Non-Response Follow Up operations in most

22 of the country between May 13, 2020 and July 31, 2020, the timeframe originally set out in the

23 Final Operational Plan.

24

147. Instead, while the Bureau “soft-launched” door-knocking in select regions of the

25 country in mid-July 2020, the COVID-19 Plan did not call for door-knocking across the country

26 until August 11, 2020, at the earliest.

27

148. The Bureau ultimately opened six area census offices for Non-Response Follow

28
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Up on July 16, 2020, six more on July 23, 2020, thirty-five on July 30, 2020, and forty additional
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1 offices on August 6, 2020.

2

149. The remaining 161 stateside offices remained unopened until August 9, 2020,

3 including offices in many states and localities with relatively low response rates such as the

4 entire southeastern United States, Texas, New Mexico, Arizona, and Southern California.

5

150. All along the Bureau continually communicated to the public, and to important

6 local partners, including local governments and national and community based non-profit

7 organizations, that self-responses would be accepted until October 31, 2020, and that Non-

8 Response Follow Up would continue until at least that date.

9

151. Census partners, stakeholders, and state and local governments relied on the new

10 deadlines set forth in the COVID-19 Plan to redirect their outreach efforts.

11

152. For example, Plaintiffs Urban League and BAJI, publicized the October 31, 2020

12 deadline, letting their constituents, members and local organizations know that households had

13 until that time to self-respond. Urban League representatives informed coalition partners

14 participating in the Black Census Roundtable of the new deadlines, and spoke of the deadlines on

15 webinars and other public events. Officials at BAJI publicized the deadlines at public events,

16 including webinars in July 2020, and as part of the organization’s social media campaign.

17

153. Similarly, officials in City of Los Angeles, Harris County, King County, City of

18 San Jose, and City of Salinas, publicized the new deadline while conducting 2020 Census

19 outreach efforts.

20

154. These public education efforts were significant because they were directed at the

21 general public and at local non-profits that do not primarily work on census issues. The latter

22 often rely on information about the census provided by Plaintiff national non-profits and local

23 governments when communicating with their constituents. Plaintiffs, by disseminating the

24 October 31, 2020 deadline for nearly three months to the public, were largely successful in

25 spreading the understanding that communities had until at least that time to complete the count.

26

155. For example, the City of Los Angeles announced this date on its own social media

27 platforms and in a social media toolkit that it developed for partner organizations. Los Angeles is

28
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deeply concerned that residents have already received information about the October 31, 2020
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1 self-response date and, as a result, will fail to respond before the newly shortened deadline,

2 especially given the Bureau’s own minimal efforts at explanation and outreach around the new

3 deadline.

4

156. Finally, the level of self-response during the 2020 Census, and the ongoing

5 COVID-19 pandemic, provided further evidence for the necessity of continued implementation

6 of the COVID-19 Plan.

7

157. Under its Final Operational Plan, for example, the Census Bureau had planned to

8 spend eleven and a half weeks canvassing a Non-Response Follow Up universe comprised of

9 39.5% of households nationally.

10

158. As of August 9, 2020, the first date of nationwide Non-Response Follow Up, the

11 national self-response rate was 63.2%, meaning that nearly 37% of households nationwide had

12 not yet responded to the census.

13

159. Several cities with large percentages of traditionally undercounted populations,

14 have even lower response rates. For instance, as of August 14, 2020, the response rate in the City

15 of Detroit was 48.9%, Miami was 49.9%, Philadelphia was 52.3%, Los Angeles was 53.8%,

16 Houston was 54.4%, and New York City was 55.6%.

17

160. The United States had 24,156 new coronavirus cases on April 13, 2020, the day

18 the Bureau announced its COVID-19 Plan. On August 3, 2020, the United States had

19 approximately 50,000 new coronavirus cases.

20

161. With COVID-19 limiting the willingness of people to apply for enumerator

21 positions, the areas where the Bureau can safely send enumerators to knock on doors, and the

22 willingness of the public to interact with enumerators, the Non-Response Follow Up operation

23 continues to face far more complications than the Final Operational Plan anticipated.

24

162. Given these conditions of low response rates and increased coronavirus spread,

25 the Bureau can reasonably expect that it will need to engage in a Non-Response Follow Up

26 operation at least as comprehensive and time-consuming as the operation laid out in the Final

27 Operational Plan.

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163. Due to significant delays in operations resulting from the implementation of the
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1 COVID-19 Plan, the Bureau itself has recognized that it would be impossible to produce fair and

2 accurate apportionment numbers to the President by December 31, 2020.

3

164. On May 27, 2020, Tim Olson, head of field operations for the 2020 Census, stated

4 during a May 26, 2020 webinar organized by the National Congress of American Indians that,

5 “[w]e have passed the point where we could even meet the current legislative requirement of

6 December 31st. We can’t do that anymore.” Nat’l Conf. of Am. Indians, 2020 Census Webinar:

7 American Indian/Alaska Native, YouTube (May 26, 2020), https://www.youtube.com/

8 watch?v=F6IyJMtDDgY&feature=youtu.be&t=4689.

9

165. On July 8, 2020, Al Fontenot, Jr., Associate Director for Decennial Census

10 Programs and a top Census Bureau official, affirmed that the Bureau is “past the window of

11 being able to get” accurate counts to the President by December 31, 2020. U.S. Census Bureau,

12 Operational Press Briefing – 2020 Census Update at 21 (July 8, 2020),

13 https://www.census.gov/content/dam/Census/newsroom/press-kits/2020/news-briefing-program-

14 transcript-july8.pdf.

15 IV. The Census Bureau’s New Rush Plan.

16

A. The Announcement of the Rush Plan

17

166. On August 3, 2020, at the behest of the Secretary of Commerce, Director

18 Dillingham abruptly and without explanation abandoned the COVID-19 Plan and announced the

19 Rush Plan.

20

167. The Rush Plan drastically shortens the timelines for multiple operations set out in

21 the COVID-19 Plan.

22

168. The Rush Plan took the form of a short press release on the Census Bureau’s

23 website. The press release included a statement from Director Dillingham, which did not provide

24 an explanation for Defendants’ decision to suddenly abandon the COVID-19 Plan that the

25 Bureau had adopted and implemented for approximately three and a half months. Nor did it

26 provide any specifics as to why the Bureau no longer believed the timelines called for in the

27 COVID-19 Plan were necessary to ensure an accurate count.

28
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169. The statement noted that the Bureau was taking this action at the direction of the
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1 Secretary of Commerce. But the Secretary made no statement explaining his reason for giving

2 this directive.

3

170. The Director’s statement was largely silent on specific adjustments the Bureau

4 would need to make in order to reengineer its field operations to meet its new, artificially

5 compressed schedule. The statement included proposals for enumerator “awards” and

6 maximizing enumerators’ phone and tablet usage, but it did not provide any details about

7 adjustments to the detailed operations provided in the Final Operational Plan.

8

171. The only adjustments announced under the Rush Plan were severely truncated

9 timelines for conducting data-collection and data-processing operations.

10

172. Under the Rush Plan, data-collection is now set to end on September 30, 2020,

11 one month earlier than contemplated in the Bureau’s COVID-19 Plan.

12

173. While the Bureau’s pre-COVID-19 Final Operational Plan provided 79 days for

13 the nationwide door-knocking stage of the census, and the COVID-19 Plan provided 81 days, the

14 Rush Plan provides just 52 days of nationwide door-knocking.

15

174. The Rush Plan also cuts post-collection data processing for the apportionment

16 report from up to 6 months as provided in the COVID-19 Plan, and up to 5 months as originally

17 provided in the Final Operational Plan, to less than 3 months.

18

175. The Rush Plan also shortened the time under which households can self-respond,

19 providing that self-responses delivered after September 30, 2020—which previously would have

20 been timely under the October 31, 2020 deadline—will no longer be counted.

21

176. While the Rush Plan requires the Bureau to accelerate its operations to complete

22 the 2020 Census by the same deadline contemplated in the Final Operational Plan, it ignores the

23 multiple-month pause in operations, beginning in mid-March 2020, caused by the initial outbreak

24 of COVID-19 in the United States.

25

177. The decision to rescind the COVID-19 Plan and adopt the Rush Plan was

26 announced without consultation with important stakeholders.

27

178. As noted above, as late as July 8, 2020, senior Bureau officials were still

28
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confirming that it was impossible to complete an accurate count by December 31, 2020.
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1

179. In addition, until July 30, 2020, just four days before the Bureau announced its

2 decision to abandon the COVID-19 Plan, the Bureau was informing respondents on its website

3 that it would engage in Non-Response Follow-Up until October 31, 2020 and that non-

4 responsive households would have until that date to self-respond. Those references were deleted

5 from the website on or about July 31, 2020 and were replaced with the shortened timeframe after

6 the August 3, 2020 announcement.

7

180. An official at the Government Accountability Office confirmed that Bureau

8 officials told his office that they were given “hours rather than days or weeks” to adjust their

9 plans to finish counting by September 2020. Hansi Lo Wang, ‘Not Enough Time’: Census

10 Workers Fear Rushing Count Could Botch Results, NPR (Aug. 11, 2020),

11 https://www.npr.org/2020/08/11/901202892/not-enough-time-census-workers-fear-rushing-

12 count-could-botch-results.

13

181. While the Census Bureau’s decisions, even during the COVID-19 emergency,

14 have often involved consultations with scientific advisory committees, the Committee on

15 National Statistics in the National Academies of Science, other external experts and local

16 government officials, and the thousands of organizations partnering with the Bureau to conduct

17 crucial outreach to historically undercounted communities, no such consultation was made

18 before the Bureau announced its abandonment of the COVID-19 Plan.

19

182. Census stakeholders immediately denounced the Rush Plan, including

20 stakeholders who had endorsed the COVID-19 Plan.

21

183. The same four former Census Bureau Directors who endorsed the COVID-19

22 Plan issued a statement saying that “our expert opinion is that failing to extend the deadlines to

23 April 30, 2021 will result in seriously incomplete enumerations in many areas across our

24 country.” Press Release, Former Census Bureau Directors, On the Importance of Extending the

25 2020 Census Statutory Deadlines to Achieve a Fair and Accurate Enumeration of the United

26 States (Aug. 4, 2020), https://www.documentcloud.org/documents/7013550-Aug-4-2020-

27 Statement-By-Former-U-S-Census-Bureau.html.

28
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184. These four former Census Bureau Directors further asserted: “The Census Bureau
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1 will not be able to carry out the NRFU fully and will be forced to take steps such as fewer in-

2 person visits and rely instead on the use of administrative records or statistical techniques on a

3 much larger scale tha[n] in previous census. The end result will be under-representation of those

4 persons that NRFU was expected to reach and, at even greater rates for traditionally hard-to-

5 count populations and over-representation of all other populations with potentially extreme

6 differential undercounts.” Press Release, Former Census Bureau Directors, On the Importance

7 of Extending the 2020 Census Statutory Deadlines to Achieve a Fair and Accurate Enumeration

8 of the United States (Aug. 4, 2020), https://www.documentcloud.org/documents/7013550-Aug-

9 4-2020-Statement-By-Former-U-S-Census-Bureau.html.

10

185. The President of the American Statistical Association, the world’s largest

11 professional organization of statisticians, issued a statement saying “[t]here is no scientific

12 rationale to curtail the data-collection period for this constitutionally mandated activity, and the

13 premature cessation of census enumeration will produce flawed counts.” Letter from Rob

14 Santos, President of the American Statistical Association, to Mitch McConnell, U.S. Senate

15 Majority Leader (Apr. 5, 2020), https://www.amstat.org/asa/files/pdfs/POL-

16 CensusSenateAugust.pdf.

17

186. Nearly 450 nonpartisan philanthropic organizations who “rely on accurate census

18 data to help identify community needs and to prioritize grantmaking” issued a letter to Secretary

19 Ross and Director Dillingham urging the Bureau to revert to its COVID-19 Plan. Letter from

20 U.S. Philanthropy Leaders to Wilbur Ross, Secretary of the U.S. Dep’t of Commerce (Aug. 5,

21 2020), https://funderscommittee.org/wp-content/uploads/2020/08/Letter-Philanthropic-Leaders-

22 on-Census-Being-Cut-Short-8-5.pdf.

23

187. Prominent civil-rights groups condemned the Rush Plan. Vanita Gupta, President

24 and CEO of The Leadership Conference on Civil and Human Rights and The Leadership

25 Conference Education Fund, stated that “[c]urtailing operations is an obvious ploy to guarantee

26 the Census Bureau won’t be able to finish counting millions of people—especially those hit

27 hardest by the pandemic.” Press Release, Leadership Conference on Civil and Human Rights,

28
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Trump Plans to Sabotage 2020 Census by Cutting Short Operations (July 31, 2020), 31

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1 https://civilrights.org/2020/07/31/trump-plans-to-sabotage-2020-census-by-cutting-short-

2 operations/.

3

188. And the Census Bureau’s own field workers have confirmed the impossibility of

4 this new timeline, explaining that the Rush Plan means that it will not be an accurate count for

5 the next 10 years.

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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B. The Rush Plan Fails to Appropriately Account for Key Factors Affecting the 2020 Census
189. The Rush Plan fails to account for several important factors that affect the 2020 Census Non-Response Follow Up operation.
190. First, the Rush Plan does not adequately account for the large number of households in the Non-Response Follow Up universe.
191. Under the Rush Plan, the Census Bureau must attempt to count approximately the same number of households during Non-Response Follow Up as it anticipated counting in its pre-COVID-19 Final Operational Plan, but the Bureau will have four weeks less than provided in that plan to complete the operation. In other words, the Bureau must now try to complete the same amount of work in just 65% of the time it had originally scheduled to complete that work.
192. Over 37% of households nationwide are non-responsive, and several states have even higher percentages of households in the Non-Response Follow Up universe, including New Mexico (46.1%), South Carolina (42.4%), Texas (41.3%), and Georgia (40.8%).
193. While soft-launches of Non-Response Follow Up began in select locations in mid-July 2020, the operation did not begin in any of these states, with large amounts of nonresponsive households, until August 9, 2020.
194. Within states, and in particular cities and localities, there are even higher NonResponse Follow Up workloads. For instance, in Plaintiff Harris County, enumerators must still visit over 41% of households. In the City of Los Angeles, over 46% of households remain to be enumerated. The self-response rate in Los Angeles is approximately 14 percentage points below the final self-response rate the City attained during the 2010 Census. Counting in these jurisdictions also did not begin until August 9, 2020.
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1

195. Moreover, given the time constraints placed by the Rush Plan, counting will need

2 to be conducted while these jurisdictions, in many places, struggle to control a surge in COVID-

3 19 cases.

4

196. While the Bureau announced on August 11, 2020 that it is now “training census

5 takers to follow up with households by phone” in light of the pandemic, that change in Non-

6 Response Follow Up operations was not anticipated in the Final Operational Plan. Press

7 Release, U.S. Census Bureau, Door-to-Door Visits Begin Nationwide for 2020 Census (Aug. 11,

8 2020), https://www.census.gov/newsroom/press-releases/2020/door-to-door-visits-begin-

9 nationwide.html.

10

197. Given the traditionally low response rates for phone surveys in the wireless era,

11 following up by phone is unlikely to materially increase response rates.

12

198. A recent Census Bureau survey running in parallel with the 2020 Census

13 demonstrates the difficulty in obtaining responses via phone or email. This spring, the Bureau

14 began conducting a “Household Pulse Survey” to measure household experiences under the

15 COVID-19 pandemic. This survey solicited participation through emails and text messages. Over

16 the first twelve weeks of this survey, response rates were meager, ranging from 1.3% to 3.8%.

17

199. Second, the Rush Plan does not account for the staffing challenges that the Bureau

18 is currently experiencing, many of which are directly related to the ongoing pandemic.

19

200. As demonstrated in the soft-launch of Non-Response Follow Up in select locales,

20 the Bureau is already experiencing staffing shortages and retention problems with enumerators.

21

201. In the midst of the ongoing pandemic, prospective enumerators, many of whom

22 are elderly and at high risk of contracting a severe COVID-19 related illness, are less willing to

23 engage in the required door-to-door canvassing.

24

202. Indeed, Tim Olson, head of field operations for the 2020 Census, stated at a July

25 8, 2020 press briefing that “[a]bout a third of our [enumerator] applicants [are] older persons

26 considered high risk of the virus.” U.S. Census Bureau, Operational Press Briefing – 2020

27 Census Update at 21 (July 8, 2020), https://www.census.gov/content/dam/Census/

28 newsroom/press-kits/2020/news-briefing-program-transcript-july8.pdf.

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1

203. And Deborah Stempowski, the Census Bureau’s Assistant Director for Decennial

2 Programs, noted the Bureau’s difficulty retaining enumerators in early August 2020, confirming

3 that potential enumerators were “a little hesitant because of the COVID environment.” Mike

4 Schneider, Census Bureau Drop-Outs Complicate Door-Knocking Efforts, Associated Press

5 (Aug. 8, 2020), https://www.usnews.com/news/us/articles/2020-08-08/census-bureau-drop-outs-

6 complicate-door-knocking-efforts.

7

204. In testimony before Congress on July 28, 2020, Director Dillingham confirmed

8 that the Bureau believed that “the pandemic is estimated to increase the number of no shows to

9 training sessions, as well as the number of employees who complete training but decline to show

10 up for work.” Id.

11

205. According to reports from census-operations staff working in the field, these

12 predictions have come to pass. One census field supervisor working in the mid-Atlantic noted

13 that, given the new rushed timeline and lack of sufficient staff, “[w]e’re just sending bodies out

14 regardless of whether they’re ready or not.” Hansi Lo Wang, ‘Not Enough Time’: Census

15 Workers Fear Rushing Count Could Botch Results, NPR (Aug. 11, 2020), https://www.npr.org/

16 2020/08/11/901202892/not-enough-time-census-workers-fear-rushing-count-could-botch-results.

17

206. In addition to enumerator low-count and hesitancy, another source of staffing

18 issues involves delays in processing background checks on enumerator applicants and in

19 enumerator onboarding.

20

207. A June 2020 GAO report on the 2020 Census delays COVID-19 has caused, and

21 the risks the pandemic has exacerbated, noted that the Bureau “will have to quickly hire and

22 onboard sufficient staff to conduct its operations” to reach adequate staffing levels. U.S. Gov’t

23 Accountability Office, COVID-19 Presents Delays and Risks to Census Count (June 2020),

24 https://www.gao.gov/assets/710/707456.pdf.

25

208. That same report also noted that, once potential enumerators accept a job offer

26 from the Bureau, the new hires “must wait a minimum of 60 days before they can begin training,

27 a time period during which they must complete fingerprinting and a background check.” Id.

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209. Reports from recently hired enumerators confirm that the Bureau is facing these
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1 technical challenges as well, under the compressed timeline. One recent hire in Boulder,

2 Colorado noted that he lost six potential days of door-knocking because he was unable to

3 complete the Bureau’s online training module.

4

210. Thus, under the Rush Plan, the Bureau will not be able to hire and train sufficient

5 enumerators.

6

211. Even if it were possible for the Bureau to hire all of the enumerators it will need,

7 the Bureau would also need time and funding to obtain additional equipment for any additional

8 enumerators it hires beyond its initial estimates of equipment. For example, the Bureau would

9 need more of the iPhones discussed above that the Bureau specifically contracted and

10 customized for 2020 Census enumerators.

11

212. With fewer enumerators in the field, in addition to training and equipment issues,

12 the Bureau cannot ensure that non-responsive households receive the requisite number of visits,

13 as contemplated in the Final Operational Plan.

14

213. While the Bureau had a $2 billion contingency fund prior to the existence of the

15 COVID-19 pandemic, it has already used $1.5 billion of that fund addressing pandemic-related

16 issues. The remaining $500 million will be needed to further respond to the pandemic, and, in

17 any event, is nowhere near the $1 billion that the administration claims that the Bureau would

18 need to conduct adequate Non-Response Follow Up operations under the Rush Plan.

19

214. Thus, instead of providing additional enumerators, the Bureau’s Rush Plan will

20 likely result in a smaller number of enumerators shouldering larger-than-planned workloads.

21 Increasing workloads for enumerators over a short period of time can result in errors and

22 inaccuracies in counting but it cannot make up for the time lost to the Rush Plan.

23

215. Third, the Rush Plan fails to account for factors relevant to efficient enumeration,

24 such as the time when enumerators visit households.

25

216. For instance, under the Final Operational Plan, enumerators visit households at

26 specific times of day and on specific days of the week, depending on when residents are likely to

27 answer.

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217. Under the Rush Plan, enumerators will be under pressure to complete their work
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1 in a tightly constrained timeframe. As a result, ensuring that non-responsive households receive

2 the requisite number of enumerator visits at the most opportune times for enumeration may

3 become exceedingly difficult, if not impossible. Instead, the Rush Plan increases the likelihood

4 that households will either receive visits at less opportune times, or simply receive fewer visits

5 altogether.

6

218. Fourth, the Rush Plan fails to account for the additional crucial operations that

7 enumerators must conduct, as contemplated in the Bureau’s final plans for the 2020 Census.

8 Apart from visiting households upwards of six times, enumerators also engage in a host of

9 additional quality control activities.

10

219. As noted above, enumerators are expected to visit the households of persons that

11 self-responded to the census online but did not enter the unique identifier provided on census

12 mailers. This “non-ID processing” is necessary to verify the address information provided by

13 respondents. While this process only requires a single visit to a household, it nevertheless must

14 be completed in the compressed timeline provided for under the Rush Plan.

15

220. Similarly, the Bureau must conduct quality control reinterviews of a sample of

16 households during Non-Response Follow Up. This operation is designed to deter and detect

17 enumerator falsification. Detecting such falsifications will be especially important under the

18 Rush Plan where individual enumerators must shoulder a heavier workload. The use of

19 enumerators to conduct these reinterviews will, under the Rush Plan, place additional strain on

20 the Bureau’s already stretched labor resources.

21

221. Cutting any one of these functions will cause errors and inaccuracies to affect the

22 final 2020 Census data. By reversing the COVID-19 Plan and shortening the timeframe for

23 conducting Non-Response Follow Up by a month, the Bureau will likely need to make cuts to

24 one or more of these operations.

25

222. By reducing the amount of time and resources necessary to perform the kinds of

26 quality-control measures that the Bureau originally planned for Non-Response Follow Up, the

27 Rush Plan actively dismantles processes that the Bureau has specifically developed over the

28
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course of time as checks against falsified census responses. The Rush Plan thus threatens census
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1 accuracy not only by reducing the Bureau’s time to collect data, but also by reducing the

2 Bureau’s time to ensure that the data it has collected has been collected properly and truthfully.

3

223. Fifth, the Rush Plan fails to account for the other field operations enumerators

4 will need to conduct at the same time as they attempt to speed through door-knocking operations.

5

224. Under the Final Operational Plan, the Bureau planned to finish specialized

6 operations for counting people experiencing homelessness, and people living in group housing in

7 April 2020, before engaging in nationwide door-knocking. After suspending operations due to

8 COVID-19, the Bureau moved these operations to September 2020, well-before the October 31,

9 2020 deadline the Bureau set for completing the Non-Response Follow Up operation.

10

225. The new Rush Plan requires the Bureau to conduct these specialized operations at

11 the same time as it is scrambling to complete Non-Response Follow Up. This will further stretch

12 the Bureau’s limited resources and increase the likelihood of missing information.

13

C. The Rush Plan Also Fails to Appropriately Account for Factors that Will Affect

14

Post-Collection Data Processing

15

226. The Rush Plan fails to account for the additional strain on data-processing

16 operations resulting from the consequences of the COVID-19 pandemic.

17

227. Following the outbreak of COVID-19 in the United States in mid-March 2020,

18 colleges and universities across the country closed, and students moved out of campus and off-

19 campus housing. Similarly, many residents of cities, especially those living in COVID-19

20 hotspots, moved to locations where the virus was less prevalent. In a recent study, three percent

21 of people surveyed reported that they had moved permanently or temporarily as a result of the

22 pandemic.

23

228. This significant movement of people coincided with Census Day, April 1, 2020,

24 and will lead to confusion about what residence should be listed on responses.

25

229. It is likely that the Bureau will receive an increased amount of duplicate

26 responses, which will, in turn, require more time and Bureau resources to review and correct.

27

230. The Rush Plan also fails to account for the Bureau’s inability to timely obtain and

28 process all the administrative-records data crucial for completing an accurate count.

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1

231. The Bureau relies principally on Title 26 data—that is, tax returns that individuals

2 file with the Internal Revenue Service (“IRS”)—for the administrative records it uses to fill in

3 missing people and their characteristics.

4

232. Because this year’s tax filing deadline was July 15, 2020, and the IRS generally

5 requires three months to transfer Title 26 data to the Census Bureau, the Bureau will not possess

6 all the Title 26 data it is planning to use until mid-October 2020, at the earliest. Once the Bureau

7 has possession of that Title 26 data, it will have to undertake a time-consuming round of

8 additional review and processing, further delaying its ability to use the data for its planned

9 purposes. These delays will compel the data-processing phase of 2020 Census operations to

10 proceed more slowly than the Rush Plan contemplates or would allow.

11

233. Ultimately, the solution to alleviate each of these problems was articulated in the

12 COVID-19 Plan: provide the Bureau’s limited number of enumerators with additional time to

13 conduct the data-collection operations necessary to ensure a complete and accurate census, and

14 provide Bureau staff with additional time to conduct the data-processing operations necessary to

15 ensuring the same. The Rush Plan fails to address these issues or explain why the Bureau's prior

16 conclusions were incorrect..

17

D. The Rush Plan Does Not Account for Federal Statistical Guidelines

18

234. In replacing the COVID-19 Plan with the Rush Plan, Defendants departed from

19 federal government statistical standards that promote the accuracy of information collected and

20 disseminated by the agencies.

21

235. The Bureau’s failure to follow these standards further emphasizes its inability to

22 conduct an adequate count in the time and under the conditions that the Rush Plan provides.

23

236. Under the Paperwork Reduction Act, the Office of Management and Budget is

24 responsible for coordinating the federal statistical system, including the development and

25 implementation of “Governmentwide policies, principles, standards, and guidelines” “concerning

26 [] statistical collection procedures and methods.” 44 U.S.C. § 3504(e)(3) (A).

27

237. The Office of Management and Budget is responsible for issuing guidelines that

28
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provide “procedural guidance to Federal agencies for ensuring and maximizing the quality,
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1 objectivity, utility and integrity of information (including statistical information) disseminated by

2 Federal agencies.” Consolidated Appropriations Act, FY 2001, Pub. L. No. 106-554, § 515,

3 114 Stat. 2763 (2000).

4

238. One such guideline issued by the Office of Management and Budget provides

5 specific standards to agencies like the Census Bureau, in ensuring the quality and utility of

6 federal statistical surveys, such as the decennial census. Office of Mgmt. & Budget, Standards

7 and Guidelines for Statistical Surveys § 2 (2006).

8

239. Under these standards, agencies are required to develop “realistic timetable[s]”

9 for surveys. Id. § 1.2.

10

240. The Bureau failed to take this basic requirement into account when it decided to

11 implement the Rush Plan. The Rush Plan compresses the timeline for counting operations despite

12 evidence of staffing shortages and heavier workload. The Plan attempts to accomplish a task—

13 speedy delivery of results by December 31, 2020—that the Bureau has already deemed

14 “impossible.”

15

241. The standards also require agencies, including the Census Bureau, to “[e]ncourage

16 respondents to participate to maximize response rates and improve data quality.” Office of

17 Mgmt. & Budget, Standards and Guidelines for Statistical Surveys § 2.3.2. This standard

18 requires that the Census Bureau “[e]nsure that the data collection period is of adequate and

19 reasonable length.”

20

242. Again, the Rush Plan does not account for this standard. The Final Operational

21 Plan and the COVID-19 Plan provided for over eleven weeks of Non-Response Follow Up, and

22 up to five and six months, respectively, of post-collection data processing for the apportionment

23 report. The Rush Plan, on the other hand, cuts the time allotted for counting by four weeks,

24 without explaining how it will encourage more efficiency in collecting responses than the plan it

25 reversed.

26

243. The standards also require the Bureau to plan for “an adequate number of contact

27 attempts” to the respondent and to establish protocols for minimizing enumerator falsification,

28
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including “reinterviewing respondents.” Office of Mgmt. & Budget, Standards and Guidelines
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1 for Statistical Surveys, Directive No. 2, § 2.3.3.

2

244. With the Rush Plan significantly cutting the time available to conduct Non-

3 Response Follow Up, it is expected that the Bureau will need to cut particular Non-Response

4 Follow Up processes. This includes reducing the number of housing unit visits it earlier deemed

5 necessary to enumerate a non-responsive household, or cutting back on enumerator reinterviews.

6 Either decision will conflict with the Bureau’s obligation to abide by federal statistical standards.

7

E. The Rush Plan Will Produce Low Quality and Inaccurate Data

8

245. Ultimately, Defendants’ decision to rush completion of the 2020 Census will

9 produce a significantly less accurate census than the COVID-19 Plan.

10

246. By cutting down the time allotted for door-knocking, the Rush Plan will result in

11 fewer contact days by enumerators to non-responsive households, and less data collected by

12 enumerators about those households.

13

247. The concerns about inaccuracy resulting from shortening time for Non-Response

14 Follow Up are real and verified. A GAO review of the 2010 Non-Response Follow Up operation

15 determined that local census offices with “higher percentages” of “less complete house-hold

16 data” were more likely to have completed their Non-Response Follow Up in 53 days or less as

17 compared to those offices that took a longer period of time. U.S. Gov’t Accountability Office,

18 2010 Census: Data Collection Operations Were Generally Completed as Planned, but Long-

19 Standing Challenges Suggest Need for Fundamental Reforms (Dec. 2010),

20 https://www.gao.gov/new.items/d11193.pdf.

21

248. As noted above, after the Bureau exhausts attempts to enumerate households

22 through methods that render more accurate results, such as self-response and enumerator

23 interviews, the Bureau turns to less accurate sources of data and statistical methods as a last

24 resort to fill in missing information.

25

249. By curtailing Non-Response Follow Up, the Rush Plan will force the Bureau to

26 resort to less accurate methods of data collection, well before the exhaustion of more accurate

27 methods. Consequently, the Rush Plan will lead to the production of lower-quality information.

28
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250. For instance, under the Final Operational Plan, the Bureau would not consider
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1 low-quality administrative data before conducting the requisite number of contact days for a

2 particular type of housing unit. By reducing the number of enumerator contact days, the Rush

3 Plan will lead to reliance on these types of lower-quality data sources prior to exhausting the

4 more accurate methods contemplated in the Final Operational Plan. Consequently, the Rush Plan

5 will lead to more inaccuracies in the data.

6

251. Based upon past practices, the Bureau may also use whole-count imputation to

7 calculate missing household data but to an extent and in ways not used previously. Imputation

8 involves the Bureau using information from surrounding responsive households to infer the

9 count and characteristics of a non-responsive household.

10

252. In previous censuses, the Bureau imputed upwards of 2.0% of households left

11 over after exhausting its Non-Response Follow Up efforts. Under the time constraints of the

12 Rush Plan, the Bureau will need to turn to imputation before exhausting its in-person

13 enumeration efforts. One former Census Bureau Director estimates that, under the Rush Plan, the

14 Bureau may end up imputing up to 10% of households.

15

253. Since data produced through the Bureau’s current imputation methods are less

16 accurate than data collected from enumerator interviews, Defendants’ decision to rush

17 completion of the 2020 Census will result in significantly less accurate total-population data than

18 would have been produced under the COVID-19 Plan. This decline in accuracy will affect both

19 the census’s calculations of the total number of people living in the country and the census’s

20 recording of the characteristics of those people, and such inaccurate data will not meet the

21 constitutional minimum for conducting the decennial enumeration or satisfy the “strong

22 constitutional interest in accuracy” of the Census. Utah v. Evans, 536 U.S. 452, 478 (2002).

23

254. The Rush Plan will likely exacerbate the quality problems associated with

24 imputation by compromising the Bureau’s ability to collect the other kinds of data—such as self-

25 responses, proxies, and administrative records—that it requires to impute most accurately. As

26 noted above, imputation does not occur in isolation from the Bureau’s other data sources, but in

27 concert with them. With less data drawn from these other sources and less accurate data drawn

28 from these other sources, the quality of the Bureau’s imputation will decline.

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1

255. The Rush Plan will also disrupt the post-collection data processing operations,

2 described above. As noted by Secretary Ross and Director Dillingham in mid-April 2020,

3 following Non-Response Follow Up the Bureau engages in “lengthy, thorough and scientifically

4 rigorous” data processing, which is essential to ensuring an accurate census.

5

256. In announcing the new plan to rush the completion of the 2020 Census, Director

6 Dillingham stated that the Bureau would “streamline” these operations in order to meet the

7 December 31, 2020 deadline.

8

257. While the Director has not specified what this “streamlining” means for post-

9 collection operations, the bottom line is that the Bureau cannot fully engage in the operations as

10 contemplated in its Final Operational Plan on the shortened timeframe. As a result, the Bureau

11 will have to cut or reduce its efforts to review and process collected data to ensure accuracy.

12

F. The New “Rush” Plan Will Create Confusion that Plaintiffs Will Be Forced to

13

Spend Time and Money Counteracting

14

258. The new plan to rush completion of the 2020 Census also creates additional

15 confusion about census operations at a critical moment in the census-taking process.

16

259. The Census Bureau’s abrupt change will require groups and local governments

17 engaging in Get Out the Count campaigns, including Plaintiff localities and Plaintiff

18 organizations, to expend resources to correct confusion about the last date for counting in the

19 2020 Census.

20

260. As noted above, Plaintiff organizations and localities engaged in extensive public

21 information campaigns that publicized the October 31, 2020 deadline.

22

261. The Rush Plan requires Plaintiffs to expend additional resources in order to

23 update existing public materials, distribute new materials, and engage in more public-facing

24 efforts to educate the public, their constituents, their members and/or constituents, and local

25 organizations that the self-response period for the census ends on September 30, 2020.

26

262. For instance, in Harris County, officials ordered a mailing to constituents

27 informing them that they had until October 31, 2020 to respond to the census. That order

28
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occurred before the August 3, 2020 decision to implement the Rush Plan. In light of the new
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1 plan, the officials were forced to order stickers to cover the reference to October 31, 2020 on the

2 mailer and to dedicate office staff to spend time affixing those stickers and updating the mailer.

3 Similarly, Plaintiffs the City of Los Angeles, BAJI, and Urban League must update

4 advertisements on social media to correct previous communications that referenced the October

5 31, 2020 deadline.

6

263. Apart from correcting misinterpretations arising from earlier statements Plaintiffs

7 made in reliance on the Bureau’s COVID-19 Plan, Plaintiffs must now also engage in more,

8 unanticipated outreach to educate the public about the Census Bureau’s Rush Plan decision. With

9 one month less of counting, there is now increased urgency for non-responsive households to

10 self-respond. As a result, Plaintiffs are developing new plans to reach more households and

11 encourage more census participation.

12

G. The New “Rush” Plan Will Lead to Undercounting of Minorities

13

264. The new plan to rush completion of the 2020 Census will exacerbate

14 undercounting of Black, Latino, and Native American communities.

15

265. As noted above, Non-Response Follow Up, is specifically designed to ensure that

16 traditionally hard-to-count communities, including Black, Latino, and Native American

17 communities are fully counted. By cutting Non-Response Follow Up short, the administration is

18 disrupting the operation most essential to ensuring an accurate count for these communities.

19

266. For the 2020 Census, Black, Latino and Native American populations make up a

20 disproportionate share of the population in tracts with the lowest self-response rates in the United

21 States. For instance, as of July 23, 2020, one in five residents living in census tracts with the

22 lowest self-response rates was Black, and one in four was Hispanic, far larger proportions than

23 Black and Hispanic shares of the general population.

24

267. Consequently, Black, Latino, and Native American households will make up a

25 disproportionate share of the Non-Response Follow Up universe.

26

268. Given the challenges of the shortened Non-Response Follow Up timeline, Black,

27 Latino, and Native American households have a high likelihood of being missed, or inaccurately

28
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enumerated through administrative records and imputation. As noted above, these alternative
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1 methods for enumeration will result in lower quality data for these groups.

2

269. The problem, however, is even more serious because it replicates and exacerbates

3 problems the Census Bureau has found in prior censuses and has striven to correct in subsequent

4 censuses. Data from previous censuses shows that Black, Latino, and Native Americans have

5 historically been undercounted. Over-reliance on alternative methods of data to enumerate a

6 disproportionate share of the population in these groups will further exacerbate potential

7 undercounting in these groups during the 2020 Census.

8

270. Accurate data about the size, location, and characteristics of communities of color

9 is necessary to equitably distribute political power through congressional reapportionment and

10 redistricting at the state and local levels, enforce civil-rights laws that affect basic needs like

11 housing and employment, and conduct effective research, including on pressing issues like

12 public health.

13

271. Truncating Non-Response Follow Up will exacerbate undercounts of

14 communities of color in at least two ways: first, by missing members of those communities

15 entirely; or, second, by recording their characteristics incorrectly, such that the census results

16 will not register them as members of communities of color. In either instance, data regarding

17 communities of color will be inaccurate. This inaccuracy then deprives communities of color of

18 federal funding, all the material support that flows from federal funding, the protections of the

19 law, and political power at the federal, state, and local levels.

20

H. The New Rush Plan Has No Legitimate Justification

21

272. In announcing the Rush Plan, Defendants provided no express justification.

22 Defendants stated in passing, however, that reporting of apportionment data to the President by

23 December 31, 2020 is required by statute.

24

273. But there is “nothing sacred in the due date of the filing [of apportionment data],

25 especially when the work of the Census Bureau . . . is incomplete.” Carey v. Klutznick, 637 F. 2d

26 834, 837 (2d Cir. 1980).

27

274. The Supreme Court thus determined that the government can and should

28
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substitute apportionment counts that have already been filed and certified with “newer, more
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1 accurate version[s].” Utah v. Evans, 536 U.S. 452, 462 (2002).

2

275. Defendants have also recognized that, in the event of a conflict between the two,

3 the constitutional requirement of a fair and accurate enumeration, rather than the statutory

4 deadline, is the controlling legal requirement. With the COVID-19 pandemic threatening the

5 health and safety of communities across the country, Defendants adjusted 2020 Census

6 operations in the COVID-19 Plan, shifting the timeline by several months. Defendants did not

7 wait for Congress to act to implement this plan, recognizing that the Plan was necessary to

8 protect enumerators and respondents, and to ensure an accurate count.

9

276. Because of those delays, as the Bureau itself recognized, it was no longer possible

10 for Defendants to produce data by December 31, 2020 that fulfilled their constitutional and

11 statutory mandate. Specifically, the Bureau could not simultaneously pursue an accurate 2020

12 Census, and speed through completion of census-taking in order to report numbers to the

13 President by the end of the year.

14

277. Several senior officials charged with actually conducting the 2020 Census

15 confirmed the impossibility of this task throughout the summer, including approximately four

16 weeks before Defendants’ abruptly announced their decision to adopt the Rush Plan.

17

278. The statutory deadline at issue is not mandated by the Constitution. Taking the

18 modest additional time necessary to ensure an accurate census, should not prevent a timely

19 reapportionment, as elections for congressional seats impacted by reapportionment will not occur

20 until 2022.

21

279. Ultimately, Defendants cannot sacrifice their mandatory constitutional obligation

22 to make decisions reasonably related to producing an accurate count in order to comply with a

23 pro forma statutory deadline. Congress clearly could not, for instance, satisfy its constitutional

24 obligations by providing the Census Bureau with a single week in which to conduct the census.

25 Strictly adhering to the December 31, 2020 deadline, as applied in extraordinary circumstances

26 of the ongoing pandemic, would be equally unconstitutional.

27

I. Implementation of the Apportionment Exclusion Order

28
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280. Defendants have not yet sought to justify their motivation for adopting the Rush
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1 Plan, and it cannot be justified on the basis of artificial statutory deadlines. Instead, the timing of

2 the abandonment suggests that the decision was influenced by a desire to implement the

3 President’s Executive Memorandum excluding undocumented immigrants from the

4 apportionment count, thereby undercutting the contribution of communities of color to the

5 calculations for equal representation for purposes of congressional apportionment

6 (the “Apportionment Exclusion Order”).

7

281. In late June 2020, the White House took the unprecedented step of adding two

8 political appointees to Census Bureau staff with unspecified job duties. Neither appointee had an

9 expertise in statistics, and both had a demonstrated history of partisan activity. These unusual

10 appointees had previously engaged with the Census Bureau on questions about changing

11 operations and methodology.

12

282. In mid-July 2020, White House officials reportedly asked congressional

13 appropriators to include $1 billion in the next coronavirus stimulus bill for the purpose of

14 completing the 2020 Census by the December 31, 2020 deadline.

15

283. This abrupt change in policy coincided with and was motivated by the President’s

16 July 21, 2020 issuance of the unconstitutional Apportionment Exclusion Order declaring that it is

17 the policy of the United States to remove undocumented persons from the apportionment count,

18 and requiring the Secretary of Commerce to produce estimates of the number of undocumented

19 persons in the United States when reporting total population counts to the President. As noted,

20 the Apportionment Exclusion Order is currently being challenged as unconstitutional and

21 unlawful in a number of lawsuits filed in jurisdictions around the country, including in this

22 District.

23

284. Shortening the census timeline increases the likelihood that, regardless of the

24 outcome of the November 2020 election, this President will have the opportunity to implement

25 his Apportionment Exclusion Order. Delaying reporting until spring—as the COVID-19 Plan

26 issued by the Census Bureau and Department of Commerce previously did—leaves open the

27 possibility that the President will no longer be in office when data is provided, and thus will be

28 unable to effectuate the Apportionment Exclusion Order.

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1

285. Defendants did not justify their sudden, unexplained reversal of position with any

2 evidence that Bureau officials had been wrong in stating, repeatedly, that it would be impossible

3 to produce accurate counts by December 31, 2020. There is also no evidence that the decision to

4 cut short counting operations was driven by the scientifically based judgment of Bureau

5 personnel or external experts.

6

286. To the extent that Defendants’ are motivated by a desire to implement the

7 President’s Apportionment Exclusion Order, that motivation is improper. It bears no reasonable

8 relationship to the achievement of a fair and accurate census, and, under the circumstances

9 currently facing the count, implementing the Apportionment Exclusion Order will undermine

10 that goal.

11

287. Moreover, that Memorandum is just the latest attempt by the President and

12 Secretary Ross to manipulate the census along racial and ethnic lines. Beginning in 2017,

13 Secretary Ross attempted to add an untested citizenship question to the 2020 Census, claiming

14 that the question was necessary to better enforce the Voting Rights Act. In reality, the

15 administration was seeking block-level citizenship data so states could draw district lines in a

16 manner that would disadvantage Black and Latino communities.

17

288. Defendant Ross’s decision was litigated, and enjoined by three district courts.

18 One of those cases ultimately ended up before the Supreme Court. There the Court found that

19 Defendant Ross’s stated Voting Rights Act rationale to support the addition of a citizenship

20 question to the 2020 Census was “contrived” and vacated Defendant Ross’s decision. Dep’t of

21 Commerce v. New York, 139 S. Ct. 2551, 2575-76 (2019).

22

289. On July 5, 2019, following the Supreme Court’s decision, President Trump

23 confirmed the real rationale—and fully justified the Supreme Court’s holding that the

24 administration’s rationale for this census decision was pretextual—when he stated that the

25 administration sought a citizenship question, not to enforce the Voting Rights Act, but rather “for

26 districting” and “for appropriations.” Remarks by President Trump Before Marine One

27 Departure (July 5, 2019), https://www.whitehouse.gov/briefings-statements/remarks-president-

28 trump-marine-one-departure-51/.

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1

290. Indeed, further evidence that Defendants’ actions were pretextual arose from files

2 of a prominent redistricting strategist, Thomas Hofeller. In 2015, Hofeller prepared a study titled

3 “The Use of Citizen Voting Age Population in Redistricting.” In the study, Hofeller

4 recommended adding a citizenship question to the census so that states could use citizen voting-

5 age population rather than total population to redistrict. This change in the redistricting base, in

6 Hofeller’s words, would be advantageous to “Non-Hispanic Whites” and would undercut the

7 political power of Hispanics.

8

291. It was later revealed that Hofeller was involved in drafting portions of the

9 memorandum from the Department of Justice to Defendant Commerce seeking addition of a

10 citizenship question on the 2020 Census, including sections relating to the pretextual reason for

11 requesting the question. See Ex. 8 to NYIC Pls.’ Mot. for Sanctions at 124-31, New York v. U.S.

12 Dep’t of Commerce, No. 1:18-cv-2921-JMF (S.D.N.Y. July 16, 2019), ECF No. 635-1; Defs.’

13 Opp. to Letter Mot. to Compel at 3, New York v. U.S. Dep’t of Commerce, No. 1:18-cv-2921-

14 JMF (S.D.N.Y. Oct. 30, 2018), ECF No. 451.

15

292. Shortly after the Supreme Court’s decision, President Trump issued an executive

16 order, demanding executive agencies provide the Census Bureau with administrative records

17 sufficient to allow the Bureau to determine “the number of citizens and noncitizens in the

18 country.” Exec. Order No. 13,880, § 1, 84 Fed. Reg. 33,821, 33,821 (July 16, 2019). The

19 Executive Order explicitly states that the reason this data is necessary is to design “legislative

20 districts based on the population of voter-eligible citizens,” instead of total population. Id. at

21 33,823-84.

22

293. In light of that history, the Apportionment Exclusion Order, and the near-

23 contemporaneous decision to cut counting operations short represent yet another attempt by the

24 administration to manipulate the 2020 Census and potentially undercut the political power of

25 communities of color. Defendants cannot rely on this memorandum as justification to support

26 their decision to undermine the accuracy of the census.

27 V. Harm to Plaintiffs.

28
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294. Plaintiffs and Plaintiff non-profits’ members and/or constituents reside in locales
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1 that will suffer harm as a result of Defendants’ decision because that decision is very likely to

2 cause these locales to be more disproportionately undercounted in the 2020 Census than they

3 otherwise would have been.

4

295. On August 9, 2020, at the beginning of the Non-Response Follow Up operation,

5 Plaintiff City of Los Angeles, had a response rate of just 53.1%, which was significantly lower

6 than the 64.5% statewide response rate in California on that same date.

7

296. The Urban League, League of Women Voters, and BAJI have affiliates,

8 constituents, and members in major cities across the United States. This includes cities where

9 response rates were lower than their corresponding statewide response rates on the first day of

10 Non-Response Follow Up including San Francisco (61.4%) and Monterey (60.5%) as compared

11 to California (64.5%), Miami (49.6%) as compared to Florida (60.1%), Philadelphia (52%) as

12 compared to Pennsylvania (65.5%), Detroit (48.7%) as compared to Michigan (68.9%), and New

13 York City (54.9%) as compared to New York State (58.9%).

14

297. Plaintiffs Ellis and Garcia are residents of Houston, Texas. The response rate in

15 Houston at the beginning of Non-Response Follow Up was 54%, which was lower than the

16 statewide response rate for Texas on that date, 58.2%.

17

298. As noted above, Defendants’ decision will result in fewer enumerations through

18 Non-Response Follow Up, increased reliance on low-quality administrative data, and increased

19 imputation. Consequently, Defendants’ decision will result in cities’ with higher rates of non-

20 response (1) having less accurate data; and (2) experiencing higher rates of undercounting.

21

299. Because these cities have a higher proportion of households in the Non-Response

22 Follow Up universe than their corresponding states, these cities have a substantially higher

23 likelihood of being undercounted because of Defendants’ decision than surrounding communities

24 in their states. These disproportionate undercounts will cause Plaintiffs to suffer both fiscal and

25 representational harm.

26

A. Funding Harms

27

300. The Rush Plan will result in loss of federal funding for Plaintiffs Harris County,

28
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City of Salinas, and the City of Los Angeles and the communities where members of Plaintiff
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1 non-profits reside, including Miami, Detroit, Philadelphia and New York.

2

301. Over 130 programs and 675 billion dollars are allocated to states and localities on

3 the basis of census-derived information. This includes funding to states for federal transportation

4 planning purposes, education, and healthcare.

5

302. Many important federal programs, including Title I Grants under the Every

6 Student Succeeds Act, require states to distribute funds to localities on the basis of census-

7 derived information.

8

303. State Education Agencies must allocate Title I Grants, at least in part, on the

9 number of children aged 5-17 living in poverty in a local education agency’s jurisdiction.

10

304. Given that members of Plaintiff non-profits reside in cities that are likely to be

11 more undercounted under the Rush Plan relative to surrounding communities in their states,

12 including San Francisco, Miami, Detroit, Philadelphia, and New York City, Defendants’ decision

13 will likely deprive the communities where these members reside of Title I Grant funding they

14 would have otherwise received. Similarly, Defendants’ decision places Plaintiffs Ellis and

15 Garcia’s community at higher risk of deprivation of Title I Grant funding.

16

305. Several additional federal programs require states to use census-derived

17 information to distribute funds directly to cities and counties, based on their share of a relevant

18 population. For instance, the Low Income Home Energy Assistance Program, the Workforce

19 Innovation and Opportunity Act program, and the Community Services Block Grant Program, all

20 require states to distribute funds to cities and counties, at least in part, on the proportion of a

21 state’s low-income residents living in those cities and counties. This data is derived from

22 information collected during the decennial census.

23

306. Both Harris County and the City of Los Angeles receive funds under these

24 programs. Consequently, disproportionate undercounting of Harris County and the City of Los

25 Angeles, as compared to their states, is likely to result in loss of funds under these and similar

26 programs.

27

307. Several federal funding programs provide funding directly to cities and counties

28
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based on census-derived information. For instance, the Community Development Block Grant
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1 program, and the Emergency Solutions Grant, allocate funding to cities and counties based, at

2 least in part, on their share of the overall population count relative to other metropolitan areas.

3

308. Of cities with over 500,000 people, the City of Los Angeles had the fourth lowest

4 response rate in the country, just behind Detroit and Philadelphia. Consequently, Los Angeles

5 will likely lose Community Development Block Grant funds because of Defendants’ decision.

6

309. Similarly, members of Plaintiff non-profits live in major metropolitan areas with

7 some of the lowest response rates in the country, such as Miami, Detroit and Philadelphia.

8 Defendants’ decision will likely deprive these members’ communities of funding under the

9 Community Development Block Grant program.

10

310. Finally, the allocation of federal transportation including the Surface

11 Transportation Block Grant Program, and the Metropolitan and Statewide Nonmetropolitan

12 Transportation Planning Programs are based on the population of urbanized areas in a state

13 compared to those of other states, as determined by the decennial census.

14

311. Plaintiffs Ellis and Garcia regularly drive on highways and roads in Texas.

15 Disproportionate undercounting of urbanized areas in Texas during the 2020 Census will result

16 in reduced transportation funding for Texas under federal transportation programs.

17

B. Representational Harm

18

312. Defendants’ decision will also likely result in representational harm to individual

19 Plaintiffs and to the members of Plaintiff organizations.

20

313. Plaintiffs Ellis and Garcia reside in Houston, Texas. In terms of self-response

21 rates, Texas ranks 39th in the United States. Approximately four million Texas households are in

22 the Non-Response Follow Up universe, which is more households than any state other than

23 California.

24

314. Consequently, Defendants’ decision will not only cause a substantial undercount

25 in Texas, but that undercount will likely be disproportionate as compared to other states. Texas

26 will likely be deprived of its fair share of representation in the next congressional apportionment.

27

315. As a result, Defendants’ decision is likely to result in reduction of voting power

28
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and representation for Plaintiffs Ellis and Garcia, because it will likely cause the loss of a seat in
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1 Texas, and will result in fewer Representatives spread out over the state of Texas.

2

316. As for Plaintiff City of Los Angeles, at least one study has predicted that, were

3 California to lose a congressional seat because of the final census count, that seat is very likely to

4 come from a district that includes portions of South Los Angeles, thus reducing the city’s

5 representational delegation.

6

317. Defendants’ decision will also cause Plaintiff Ellis and members of Plaintiff non-

7 profits to experience a loss of intrastate voting power.

8

318. By causing disproportionate undercounting of communities in Houston, Detroit,

9 Philadelphia, and Miami, as compared to their corresponding states, Defendants’ decision will

10 result in drawing of district lines that do not accurately represent the population of the state, and

11 disadvantage Plaintiffs Ellis and Garcia, and members of Plaintiff organizations that live in

12 undercounted communities.

13

C. Inaccurate Data

14

319. Plaintiff local governments will suffer harm from the adverse impact Defendants’

15 decision will have the accuracy of population counts produced by the Census Bureau. Plaintiff

16 local governments often rely on accurate information collected by the Census Bureau for crucial

17 public planning purposes, including planning for how to respond to emergencies.

18

320. For example, local governments often rely on a Social Vulnerability Index to

19 identify communities that are at high risk during a particular emergency. Government officials

20 rely on this index to determine where to allocate resources before and during emergencies. A

21 Social Vulnerability Index use census data to identify specific populations that may be

22 vulnerable to a particular emergency, including data relating to age, housing density, income

23 status, and race and ethnicity. Inaccurate census data would make disaster planning and

24 emergency response more difficult, and could disrupt important public programs.

25

321. In Harris County, officials used the Center for Disease Control’s Social

26 Vulnerability Index to inform decisions about proper distribution of COVID-19 Relief Funds.

27 The funds were allocated to provide relief to Harris County residents most impacted by the

28
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global pandemic. That Social Vulnerability Index, which was based on census data, was used to
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1 identify census tracts with the most vulnerable residents, and applications from residents from

2 those tracts were prioritized and given higher chances of acceptance for funds. Without accurate

3 census data, Harris County would struggle to ensure that crucial relief funds were reaching the

4 communities most in need of them.

5

322. Similarly, King County relies on accurate census data to inform its public-policy

6 decision making. For instance, the county uses census data to plan public-transit service, and to

7 ensure priority populations have transit access, and to site public health clinics.

8

323. The low-quality data and undercounting that Defendants’ decision will cause will

9 also harm Plaintiffs. For instance, undercounting of Black, Latino, Native American, and

10 immigrant communities will negatively affect the Urban League, League of Women Voters and

11 BAJI by undermining these organizations’ core missions of promoting equal and just laws and

12 empowering vulnerable communities through building coalitions and initiating campaigns with

13 African Americans and Black immigrants, and fostering racial, economic, and social equality for

14 the communities they serve.

15

D. Expending Additional Resources

16

324. Plaintiff organizations, the Urban League, the League of Women Voters, and

17 BAJI, and Plaintiff local governments, City of San Jose, Harris County, King County, City of

18 Salinas, and City of Los Angeles will need to expend additional resources and divert resources

19 from planned programs and projects in order to address the adverse consequences of Defendants’

20 decision to abandon the COVID-19 Plan, and implement the Rush Plan.

21

325. Plaintiffs’ planned efforts to ensure the effective enumeration of historically

22 undercounted communities were based on the understanding that the Census Bureau would

23 implement the Non-Response Follow Up operation contemplated in the Final Operational Plan

24 and adjusted in the COVID-19 Plan.

25

326. The abrupt reversal of the COVID-19 Plan, and the implementation of curtailed

26 Non-Response Follow Up in the Bureau’s Rush Plan will adversely affect Plaintiffs’ plans.

27

327. Plaintiff organizations and local governments will likely need to adjust plans, and

28
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divert resources from other planned activities and programs in order to ensure the communities
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1 they serve are adequately counted. Specifically, Plaintiffs will need to recruit and train staff to

2 engage in increased and expanded outreach to potential non-responsive households in order to

3 make up for fewer enumerator visits, or to other aspects of the Non-Response Follow Up

4 program, such as the reinterview process.

5

328. For instance, Plaintiff BAJI is planning significant adjustments to its 2020 Census

6 outreach plans in light of Defendants’ decision, that include diversion of resources from other

7 sources, and significant expenditures. In order to engage in effective outreach, BAJI needs

8 organizing staff dedicated to civic engagement. With Non-Response Follow Up occurring from

9 August 11, 2020 through October 31, 2020, BAJI anticipated that it could spread its staffing

10 resources over that timeframe to ensure it was meeting its goals within the organization’s budget.

11 However, on a shorter timeframe, BAJI needs additional staff on a shorter timeframe, which will

12 require adjusting the organization’s budget and priorities for the next several months.

13

329. The adjustment is also challenging for BAJI as the organization caters to

14 immigrant communities with a variety of language needs. Increasing staffing on a short

15 timeframe poses significant challenges for the organization, because it must locate staff that can

16 communicate with the particular community that the organization is targeting for outreach

17 18 19 20 21 22 23 24 25 26 27 28
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efforts.

CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF Violation of the Enumeration Clause, and Fourteenth Amendment
(U.S. Const. art. I, § 2; U.S. Const. amend. XIV, § 2) 330. Plaintiffs incorporate by reference the allegations set forth in the preceding paragraphs. 331. Under the Enumeration Clause of the U.S. Constitution, Congress, and, by delegation, the Secretary of Commerce, must conduct an “actual Enumeration” of the population. This clause requires that decisions relating to census-taking “bear a reasonable relationship to the accomplishment of an actual enumeration of the population.” Wisconsin v. City of N.Y., 517 U.S. 1, 20 (1996). 332. The COVID-19 pandemic severely disrupted the 2020 Census, resulting in
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1 months of suspended operations and significant delays in crucial counting processes. Moreover,

2 the public-health crisis continues to impact census operations, as the Bureau struggles to retain

3 enumerators and engage in door-knocking in communities experiencing surges of the virus.

4

333. To navigate this emergency, the Bureau took necessary action to adjust its

5 operational timelines in the COVID-19 Plan while seeking to maintain the operations and

6 processes included in the Final Operational Plan that had been designed to help ensure a

7 complete and accurate count.

8

334. Abruptly and without explanation, on August 3, 2020, Defendants abandoned the

9 COVID-19 Plan and implemented the Rush Plan. The Rush Plan does not “bear a reasonable

10 relationship to the accomplishment of an actual enumeration of the population.” After delaying

11 all operations for months, the Bureau and its staff repeatedly recognized that it was impossible to

12 produce counts consistent with their duties to ensure a full, fair, and accurate count by December

13 31, 2020. Indeed, current conditions demonstrate that it is infeasible to obtain a fair and accurate

14 count by the end of the year. Nevertheless, the Defendants abandoned their constitutionally

15 mandated pursuit of fair and accurate data, in favor of the speed of the Rush Plan, and the

16 inaccurate data it will produce.

17

335. Under these circumstances, the decision to curtail crucial 2020 Census operations

18 violates the Enumeration Clause of the United States Constitution.

19

336. These constitutional violations have caused, are causing, and will continue to

20 cause harm to Plaintiffs as alleged above, and there is a substantial likelihood that the requested

21 relief will redress this harm.

22

SECOND CLAIM FOR RELIEF Violation of Administrative Procedure Act—Arbitrary and Capricious

23

(5 U.S.C. § 706(2)(A))

24

337. Plaintiffs incorporate by reference the allegations set forth in the preceding

25 paragraphs.

26

338. The APA, 5 U.S.C. § 706(2), provides that a court shall hold unlawful and set

27 aside agency action found to be arbitrary, capricious, an abuse of discretion, or otherwise not in

28
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accordance with law. The Rush Plan is final agency action because it marks the consummation
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1 of the agency’s decision-making process, and it is one by which rights or obligations have been

2 determined, or from which legal consequences will flow. Bennett v. Spear, 520 U.S. 154, 177-78

3 (1997).

4

339. In determining whether an action violates the APA, courts consider whether the

5 agency examined relevant data and articulated a satisfactory explanation for its decision,

6 including formulating a rational connection between the facts found and the choice made. Motor

7 Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

8 Where an agency wishes to depart from an earlier decision, it must acknowledge that change and

9 any reliance interests its previous actions engendered. See Perez v. Mortg. Bankers Ass’n, 575

10 U.S. 92, 105-06 (2015).

11

340. The Bureau spent several years developing its Final Operational Plan for the 2020

12 Census. That plan carefully determined the required length of each operation, including the

13 appropriate length for data-collection and data-processing. It also included details about the

14 implementation of the various operations.

15

341. The COVID-19 pandemic disrupted census operations, and the Bureau responded

16 by adjusting its operations in its COVID-19 Plan. That plan involved retaining the details and the

17 length of time of various operations laid out in the Final Operational Plan, but shifting the

18 timeline for counting several months into the future to account for both the necessity of those

19 operations and the public-health emergency.

20

342. The Bureau began implementing the plan, and critical operations were suspended

21 and delayed through the summer. Bureau officials publicly and expressly recognized that it was

22 no longer possible to comply with the December 31, 2020 deadline if the Bureau intended to

23 fulfill its constitutional and statutory obligation of producing reasonably accurate population

24 counts.

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343. Without explanation and without citing any evidence, Defendants suddenly

26 changed their position and issued a new plan with shortened timelines. Among other things, that

27 change conclusively changed the legal rights and obligations of private households, who now

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have substantially less time to respond if they wish to be counted in the 2020 Census. Defendants
COMPLAINT
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Case 5:20-cv-05799-LHK Document 1 Filed 08/18/20 Page 58 of 62

1 have provided no evidence to support rescinding the COVID-19 Plan, have failed to

2 acknowledge or explain their departure from their previous conclusions as to the length of time

3 necessary for an accurate census, and have cited no evidence that they could obtain accurate

4 counts on the shortened timeframe. Defendants’ unexplained and unjustifiable reversal is

5 precisely the sort of arbitrary and capricious agency action that the Administrative Procedure Act

6 forbids.

7

344. Defendants’ decision also fails to account for several factors relevant to the

8 decision, including the multiple-month long suspension in operations and delay of crucial census

9 operations, the staffing shortages facing the Bureau, the meticulously designed and tested

10 technical requirements for effective enumeration included in the Bureau’s Final Operational

11 Plan, and the various quality-control measures the Bureau must engage in to ensure that its

12 reported data is accurate.

13

345. Consequently, Defendants’ action is arbitrary and capricious.

14

346. This unlawful action has caused, is causing, and will continue to cause harm to

15 Plaintiffs as alleged above, and there is a substantial likelihood that the requested relief will

16 redress this harm. 17 18

THIRD CLAIM FOR RELIEF Violation of Administrative Procedure Act—Pretext
(5 U.S.C. § 706)

19

347. Plaintiffs incorporate by reference the allegations set forth in the preceding

20 paragraphs.

21

348. Under the Administrative Procedure Act, agencies are required to disclose the

22 “genuine justification[] for important decisions.” Dep’t of Commerce, 139 S. Ct. at 2569, 2575-

23 76. Courts will not accept “contrived reasons” provided by agencies as that would defeat the

24 purpose of judicial review. Id. at 2576. Moreover, agencies cannot simply avoid providing

25 reasoning for their decision-making altogether.

26

349. Defendants have decided to cut crucial operations in order to produce 2020

27 Census population results to the President by December 31, 2020. In announcing that decision,

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Defendants provided no legitimate justification for abandoning the COVID-19 Plan and
COMPLAINT
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Case 5:20-cv-05799-LHK Document 1 Filed 08/18/20 Page 59 of 62

1 implementing the Rush Plan.

2

350. Any attempt by the Defendants to rely on the reporting deadline provided under

3 the Census Act as justification for their decision is mere pretext. 13 U.S.C § 141(b).

4

351. For months, Defendants implemented the COVID-19 Plan, the timeline for which

5 necessarily assumed the statutory deadlines could not defeat the constitutional duty to conduct an

6 accurate enumeration, as applied to the extraordinary circumstances at hand. Defendants made

7 significant adjustments, including months-long delays of census operations, on the assumption

8 that the Bureau could and would conduct a full and robust count through the end of October 31,

9 2020. Since mid-April 2020, Defendants have expressly and publicly recognized that the Bureau

10 could not provide a complete and accurate count by December 31, 2020. And President Trump

11 maintained that the statutory deadlines need not be followed.

12

352. Defendants’ reversal of position on the 2020 Census timeline appears driven by

13 Defendants’ efforts to ensure implementation of the President’s unconstitutional Apportionment

14 Exclusion Order, which attempts to exclude undocumented persons from the apportionment

15 count and continues a long-running pattern of racially discriminatory and improperly politically

16 motivated conduct of the 2020 Census.

17

353. In light of these considerations, Defendants’ purported justification is pretextual

18 and, thus, arbitrary and capricious under the Administrative Procedure Act.

19

354. Defendants’ unlawful action has caused, is causing, and will continue to cause

20 harm to Plaintiffs as alleged above, and there is a substantial likelihood that the requested relief

21 will redress this harm.

22

PRAYER FOR RELIEF

23

355. Plaintiffs respectfully request that this Court:

24

356. Declare that Defendants’ promulgation of the Rush Plan, and corresponding

25 revocation of the COVID-19 Plan is unconstitutional under the Enumeration Clause, and

26 unlawful under the Administrative Procedure Act.

27

357. Vacate the Rush Plan, thereby reinstating the COVID-19 Plan.

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358. Enjoin Defendants from implementing the Rush Plan or otherwise unlawfully
COMPLAINT
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Case 5:20-cv-05799-LHK Document 1 Filed 08/18/20 Page 60 of 62

1 interfering with the COVID-19 Plan.

2

359. Award Plaintiffs costs, expenses, and reasonable attorneys’ fees.

3

360. Award any other relief the Court deems just and proper.

4 5 Dated: August 18, 2020 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

LATHAM & WATKINS LLP
By: /s/ Sadik Huseny Steven M. Bauer (Bar No. 135067) Sadik Huseny (Bar No. 224659) Shannon D. Lankenau (Bar. No. 294263) 505 Montgomery Street, Suite 2000 San Francisco, CA 94111 Telephone: 415.391.0600 Facsimile: 415.395.8095
Richard P. Bress (pro hac vice pending) Melissa Arbus Sherry (pro hac vice pending) Anne W. Robinson (pro hac vice pending) Tyce R. Walters (pro hac vice pending) Genevieve P. Hoffman (pro hac vice pending) Gemma Donofrio (pro hac vice pending) 555 Eleventh Street NW, Suite 1000 Washington, D.C. 20004 Telephone: 202.637.2200 Facsimile: 202.637.2201
Attorneys for Plaintiffs National Urban League; City of San Jose, California; Harris County, Texas; League of Women Voters; King County, Washington; Black Alliance for Just Immigration; Rodney Ellis and Adrian Garcia

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COMPLAINT
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Case 5:20-cv-05799-LHK Document 1 Filed 08/18/20 Page 61 of 62

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ATTORNEYS AT LAW SAN FRANCISCO

LAWYERS’ COMMITTEE FOR CIVIL CITY ATTORNEY FOR THE CITY OF

RIGHTS UNDER LAW

LOS ANGELES

By: /s/ Jon M. Greenbaum Kristen Clarke (pro hac vice pending) Jon M. Greenbaum (Bar No. 166733) Ezra D. Rosenberg (pro hac vice pending) Dorian L. Spence (pro hac vice pending) Ajay P. Saini (pro hac vice pending) Maryum Jordan (Bar No. 325447) Pooja Chaudhuri (Bar No. 314847) 1500 K Street NW, Suite 900 Washington, DC 20005 Telephone: 202.662.8600 Facsimile: 202.783.0857

By: /s/ Danielle Goldstein Michael N. Feuer (Bar No. 111529)
mike.feuer@lacity.org Kathleen Kenealy (Bar No. 212289)
kathleen.kenealy@lacity.org Danielle Goldstein (Bar No. 257486)
danielle.goldstein@lacity.org Michael Dundas (Bar No. 226930)
mike.dundas@lacity.org 200 N. Main Street, 8th Floor Los Angeles, CA 90012 Telephone: 213.473.3231 Facsimile: 213.978.8312

Attorneys for Plaintiffs National Urban League; City of San Jose, California; Harris County, Texas; League of Women Voters; King County, Washington; Black Alliance for Just Immigration; Rodney Ellis, and Adrian Garcia
BRENNAN CENTER FOR JUSTICE
By: /s/ Wendy R. Weiser Wendy R. Weiser (pro hac vice pending)
weiserw@brennan.law.nyu.edu Thomas P. Wolf (pro hac vice pending)
wolf@brennan.law.nyu.edu Kelly M. Percival (pro hac vice pending)
percivalk@brennan.law.nyu.edu 120 Broadway, Suite 1750 New York, NY 10271 Telephone: 646.292.8310 Facsimile: 212.463.7308
Attorneys for Plaintiffs National Urban League; City of San Jose, California; Harris County, Texas; League of Women Voters; King County, Washington; Black Alliance for Just Immigration; Rodney Ellis, and Adrian Garcia

Attorneys for Plaintiff City of Los Angeles
CITY OF SALINAS
By: /s/ Christopher A. Callihan Christopher A. Callihan (Bar No. 203010)
legalwebmail@ci.salinas.ca.us Michael Mutalipassi (Bar No. 274858)
michaelmu@ci.salinas.ca.us 200 Lincoln Avenue Salinas, CA 93901 Telephone: 831.758.7256 Facsimile: 831.758.7257
Attorneys for Plaintiff City of Salinas
PUBLIC COUNSEL
By: /s/ Mark Rosenbaum Mark Rosenbaum (Bar No. 59940)
mrosenbaum@publiccounsel.org 610 South Ardmore Avenue Los Angeles, CA 90005 Telephone: 213.385.2977 Facsimile: 213.385.9089

Attorneys for Plaintiff City of San Jose

COMPLAINT
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1

ATTESTATION

2

I, Sadik Huseny, am the ECF user whose user ID and password authorized the filing of this

3 document. Under Civil L.R. 5-1(i)(3), I attest that all signatories to this document have concurred
4 in this filing. 5

6 Dated: August 18, 2020

LATHAM & WATKINS LLP

7

By: /s/ Sadik Huseny

8

Sadik Huseny

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COMPLAINT
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 Case 5:20-cv-05799-LHK Document 61 Filed 09/01/20 Page 1 of 68

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ATTORNEYS AT LAW SAN FRANCISCO

LATHAM & WATKINS LLP Steven M. Bauer (Bar No. 135067) steven.bauer@lw.com Sadik Huseny (Bar No. 224659) sadik.huseny@lw.com Amit Makker (Bar No. 280747) amit.makker@lw.com Shannon D. Lankenau (Bar No. 294263) shannon.lankenau@lw.com
505 Montgomery Street, Suite 2000 San Francisco, CA 94111 Telephone: 415.391.0600 Facsimile: 415.395.8095 LATHAM & WATKINS LLP
Richard P. Bress (admitted pro hac vice) rick.bress@lw.com
Melissa Arbus Sherry (admitted pro hac vice) melissa.sherry@lw.com
Anne W. Robinson (admitted pro hac vice) anne.robinson@lw.com
Tyce R. Walters (admitted pro hac vice) tyce.walters@lw.com
Genevieve P. Hoffman (admitted pro hac vice) genevieve.hoffman@lw.com
Gemma Donofrio (admitted pro hac vice) gemma.donofrio@lw.com
555 Eleventh Street NW, Suite 1000 Washington, D.C. 20004 Telephone: 202.637.2200 Facsimile: 202.637.2201

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW
Kristen Clarke (pro hac vice forthcoming)
kclarke@lawyerscommittee.org Jon M. Greenbaum (Bar No. 166733)
jgreenbaum@lawyerscommittee.org Ezra D. Rosenberg (admitted pro hac vice)
erosenberg@lawyerscommittee.org Dorian L. Spence (pro hac vice forthcoming)
dspence@lawyerscommittee.org Ajay P. Saini (admitted pro hac vice)
asaini@lawyerscommittee.org Maryum Jordan (Bar No. 325447)
mjordan@lawyerscommittee.org Pooja Chaudhuri (Bar No. 314847)
pchaudhuri@lawyerscommittee.org 1500 K Street NW, Suite 900 Washington, D.C. 20005 Telephone: 202.662.8600 Facsimile: 202.783.0857
Additional counsel and representation information listed in signature block

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

NATIONAL URBAN LEAGUE; LEAGUE OF WOMEN VOTERS; BLACK ALLIANCE FOR JUST IMMIGRATION; HARRIS COUNTY, TEXAS; KING COUNTY, WASHINGTON; CITY OF LOS ANGELES, CALIFORNIA; CITY OF SALINAS, CALIFORNIA; CITY OF SAN JOSE, CALIFORNIA; RODNEY ELLIS; ADRIAN GARCIA; THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; CITY OF CHICAGO, ILLINOIS; COUNTY OF LOS ANGELES, CALIFORNIA; NAVAJO NATION; and GILA RIVER INDIAN COMMUNITY,

CASE NO. 20-cv-5799-LHK
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs, v.

CASE NO. 20-CV-05799-LHK FIRST AMENDED COMPLAINT

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1

2

WILBUR L. ROSS, JR., in his official capacity as Secretary of Commerce; U.S. DEPARTMENT

3

OF COMMERCE; STEVEN DILLINGHAM, in his official capacity as Director of the U.S.

4 Census Bureau; and U.S. CENSUS BUREAU,

5

Defendants.

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CASE NO. 20-CV-05799-LHK FIRST AMENDED COMPLAINT

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1

INTRODUCTION

2

1. This lawsuit challenges the unconstitutional and illegal decision by Secretary of

3 Commerce Wilbur Ross, and Census Bureau (the “Bureau”) Director Steven Dillingham, to

4 sacrifice the accuracy of the 2020 Census by forcing the Census Bureau to compress eight and a

5 half months of vital data-collection and data-processing into four and a half months, against the

6 judgment of the Bureau’s staff and in the midst of a once-in-a-century pandemic.

7

2. The Census Bureau’s staff spent most of the past decade developing a final

8 operational plan for the 2020 Census that reflected the Bureau’s understanding of the best

9 methods for counting everyone once and in the right place (the “Final Operational Plan”). In

10 April 2020, as the COVID-19 pandemic spread throughout the country, the Census Bureau

11 revised its plan to account for both the difficulties of census-taking during a pandemic and the

12 Bureau’s constitutional and statutory obligation to achieve a fair and accurate count (the

13 “COVID-19 Plan”). To achieve both ends, the Department of Commerce and the Census Bureau

14 delayed the counting process, shifted the timeframe for conducting and completing its data-

15 collection operation, and increased the time for conducting data-processing, while, crucially,

16 preserving the same amount of time for each step of those operations.

17

3. On August 3, 2020, the Department of Commerce and the Census Bureau

18 suddenly and without explanation reversed course and replaced the Bureau’s COVID-19 Plan

19 with a new one (the “Rush Plan”). The Bureau’s Rush Plan requires the Bureau to complete eight

20 and a half months of data-collection and data-processing in half the time. It ignores the multi-

21 month delay in census data-collection that the COVID-19 pandemic caused. It compels a final

22 date for delivering apportionment data to the President that Bureau officials have repeatedly

23 asserted they cannot meet. And it threatens a massive undercount of the country’s communities

24 of color and the municipalities, cities, counties, and states where they live. Under these

25 circumstances, the Bureau’s new plan to rush the 2020 Census violates, among other things, the

26 federal government’s legal obligations to secure an accurate count and statutory prohibitions on

27 arbitrary, capricious, and pretextual federal government action.

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4. The federal government’s attempt to rush the census count poses a grave threat to

CASE NO. 20-CV-05799-LHK

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1 all the vital functions that rely on census data, from reapportioning the United States House of

2 Representatives and redrawing state and local electoral districts, to equitably distributing over

3 $1.5 trillion annually in federal funds that support basic needs such as food, health care, and

4 education. Undercounted cities, counties, and municipalities will lose representation in Congress

5 and tens of millions of dollars in funding. And communities of color will lose core political

6 power and vital services. In contrast to these dire stakes, the immediate solution to this problem

7 is simple: set aside and enjoin implementation of the impossibly-shortened Rush Plan, which is

8 based on an unexplained change of position, and allow the Census Bureau to implement the plan

9 that it had designed to fulfill its constitutional duties during the pandemic.

10

5. The COVID-19 pandemic upended all 2020 Census field operations, many of

11 which the Census Bureau designed to enumerate populations that it has long struggled to count,

12 including racial and ethnic minorities, non-English speakers, and undocumented persons. Among

13 the disrupted census operations was the largest, most time-consuming operation undertaken to

14 count the country’s hard-to-count communities—the “Non-Response Follow Up” operation.

15 During Non-Response Follow Up, the Bureau sends its employees to knock on the doors of

16 households that have not yet responded to the census and perform other vital data-collecting

17 functions.

18

6. The Bureau’s staff responded to the pandemic—and the impossibility of

19 conducting house visits during widespread lockdowns—by making necessary adjustments to the

20 timeline in the Final Operational Plan. This revised operational plan, the COVID-19 Plan issued

21 on April 13, 2020, was intended to ensure that hard-to-count communities would be enumerated

22 and the health and safety of Bureau employees and the public would be protected. This plan

23 adjusted the deadlines of, but did not shorten the time for, critical operations. Under this plan—

24 which experts and census stakeholders alike endorsed as a scientifically sound approach for

25 minimizing the pandemic’s potential damage to the accuracy of the count—the Bureau extended

26 its data-collection deadlines to October 31, 2020 and its data-processing deadlines into the

27 second quarter of 2021. Critically, the COVID-19 Plan delayed door-knocking by three months,

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pushing it from May–July 2020 to August–October 2020. But the COVID-19 Plan

CASE NO. 20-CV-05799-LHK

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1 acknowledged that the Bureau must spend the same amount of time—around eleven and a half

2 weeks—on door-knocking, just as it had planned to do before the pandemic. The COVID-19

3 Plan also incorporated the same methods and techniques contemplated in the Final Operational

4 Plan that the Bureau had spent years developing. Indeed, the only respect in which the COVID-

5 19 Plan altered the amount of time devoted to operations set out in the Final Operational Plan

6 was a requirement that the Bureau spend more time than originally planned processing the data it

7 collected—that is, performing the necessary work to transform over 100 million individual

8 census forms into high-quality, reliable, and legitimate data. This additional investment in data-

9 processing reflected daunting new challenges the COVID-19 pandemic posed to an accurate

10 count, including massive displacements of people that would introduce problems of duplicate

11 responses, responses without unique census identifiers, and other complex data issues.

12

7. The Department of Commerce and the Census Bureau also recognized that the

13 impact of COVID-19 had made it impossible to meet certain statutory deadlines for reporting

14 census results to Congress. Commerce Secretary Wilbur Ross and Census Bureau Director

15 Steven Dillingham announced that the Bureau was seeking relief from Congress to formally

16 extend two statutory deadlines: first, the deadline for reporting the state-population totals used to

17 calculate the congressional apportionment to the President, which Congress was asked to extend

18 from December 31, 2020 to April 30, 2021; and, second, the deadline for reporting redistricting

19 data to the states, which Congress was asked to extend from March 31, 2021, to July 31, 2021.

20 Commenting on the statutory-deadline extensions, President Trump publicly stated on April 13,

21 2020, “I don’t know that you even have to ask [Congress]. This is called an act of God. This is

22 called a situation that has to be. They have to give in. I think 120 days isn’t nearly enough.”

23 Hansi Lo Wang, Trump Officials Ask to Delay Census Data for Voting Districts, House Seats,

24 NPR (Apr. 13, 2020), https://www.npr.org/2020/04/13/833546675/trump-officials-ask-to-delay-

25 census-data-for-voting-districts-house-seats.

26

8. Recognizing that more time was necessary to complete an accurate census, and

27 consistent with the President’s statement, the Bureau proceeded immediately under its COVID-

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19 Plan. The Bureau delayed its door-knocking operation to late summer, with the declared

CASE NO. 20-CV-05799-LHK

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1 intention of completing it by October 31, 2020. And recognizing that a successful census is

2 dependent on all levels of government working together, the Bureau publicized this plan to the

3 public, as well as to government and non-profit partners involved in the years-long and multi-

4 million-dollar public education campaign to ensure public trust and encourage public

5 participation in the census.

6

9. Throughout the summer, Bureau officials repeatedly stated that the pandemic had

7 rendered it impossible for the Bureau to complete a reasonably accurate count by December 31,

8 2020. But to comply with its constitutional obligations, the Bureau continued collecting data on

9 the timelines set in the COVID-19 Plan, which itself extended the Bureau’s data-processing

10 timelines into 2021.

11

10. On August 3, 2020—in the face of a pandemic that has only grown worse and in

12 disregard of the Census Bureau’s constitutional and statutory duties to conduct an actual

13 enumeration of the entire population—Secretary Ross and Director Dillingham abruptly

14 abandoned the COVID-19 Plan. Without explanation, they announced the new Rush Plan for the

15 2020 Census, including shortening the Bureau’s data-collection operation by one month to

16 September 30, 2020, and requiring the Bureau to process and report the apportionment data to

17 President Trump by December 31, 2020. The Rush Plan cuts a crucial four weeks from the data-

18 collection operation. And it disregards the Bureau’s own prior conclusions that such rushed

19 processing renders it impossible to fulfil its constitutional obligation to ensure reasonable quality

20 and accuracy of 2020 Census data.

21

11. Defendants’ decision to abandon the COVID-19 Plan in favor of the Rush Plan

22 does not satisfy the Supreme Court’s clear command that any decision relating to the census bear

23 a “reasonable relationship” to producing an accurate count. See Wisconsin v. City of N.Y., 517

24 U.S. 1, 20 (1996). As demonstrated by Defendants' own prior statements, the challenged decision

25 cannot be justified by any legitimate interest in conducting an accurate census, and in fact will

26 introduce several inaccuracies in the count, chief among them major undercounts of communities

27 of color.

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12. The reason for this abrupt change of position is not apparent on the face of the

CASE NO. 20-CV-05799-LHK

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1 press release announcing the Rush Plan or any other subsequently issued statements or

2 publications from the federal government. The Bureau has refused requests from Congress and at

3 least one Plaintiff in this action to provide one.

4

13. The announcement of the Rush Plan did reference two developments that

5 occurred between the adoption of the COVID-19 Plan and the announcement of the Bureau’s

6 intent to adopt the Rush Plan. But neither of these developments can justify Defendants' actions.

7 First, the announcement refers to the Secretary of Commerce’s direction to the Bureau to comply

8 with the statutory deadline of December 31, 2020 for completing the apportionment count. But

9 this statutory deadline cannot justify an unconstitutional decision to cut short crucial operations

10 and fail to satisfy its constitutional obligation. A statutory deadline, particularly one that was set

11 without a global pandemic in mind, cannot override the federal government’s constitutional duty

12 to accomplish an accurate census; there is “nothing sacred in the due date of the filing [of

13 apportionment data], especially when the work of the Census Bureau . . . is incomplete.” Carey

14 v. Klutznick, 637 F. 2d 834, 837 (2d Cir. 1980). Moreover, the Bureau was cognizant of this

15 deadline even as it designed and implemented the COVID-19 Plan, including delaying crucial

16 field operations by several months. And Bureau officials have repeatedly made clear that because

17 of the impediments introduced by COVID-19, together with the multi-month delay, it is already

18 too late to satisfy these pre-COVID-19 deadlines.

19

14. Second, both the text of the Rush Plan announcement and the timing of the

20 decision suggest that the federal government’s motivation for the Rush Plan is to facilitate

21 another illegal act: suppressing the political power of communities of color by excluding

22 undocumented people from the final apportionment count. On July 21, 2020—just a few weeks

23 earlier—President Trump issued a Presidential Order titled “Memorandum Excluding Illegal

24 Aliens From the Apportionment Base Following the 2020 Census” (the “Apportionment

25 Exclusion Order”)—which expressly stated the President’s determination to exclude

26 undocumented people from the population count used for apportionment. To increase the chance

27 that the President can fully effectuate the Apportionment Exclusion Order, he must receive the

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population totals while he is still in office, and he ordered the Secretary of Commerce to provide

CASE NO. 20-CV-05799-LHK

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1 him with 2020 decennial census information by December 31, 2020 to carry out his objective.

2

15. The President’s Apportionment Exclusion Order (currently being challenged as

3 unconstitutional and unlawful in a number of lawsuits filed in jurisdictions around the country,

4 including in this District) represents only the most recent of Defendants' serial attempts to

5 manipulate the 2020 Census to suppress the political power of communities of color. These

6 attempts started with a campaign to introduce a historically unprecedented and untested

7 citizenship question onto the 2020 Census questionnaire to advantage—in the words of a

8 deceased Republican redistricting consultant—“Republicans and non-Hispanic whites.” Michael

9 Wines, Deceased G.O.P. Strategist’s Hard Drives Reveal New Details on the Census Citizenship

10 Question, N.Y. Times (May 30, 2019), https://www.nytimes.com/2019/05/30/us/census-

11 citizenship-question-hofeller.html. Since the Supreme Court blocked the question, Defendants

12 have looked for other means to achieve that same end, including collecting data on citizenship

13 from administrative records and, now, cutting the census short.

14

16. Plaintiffs are local governments, civil rights and civic organizations, and

15 individuals whose communities will almost certainly be inaccurately represented and

16 underrepresented in the final census count if the administration succeeds in truncating census

17 data-collection and data-processing.

18

17. Plaintiffs seek declaratory relief affirming that Defendants’ actions violate the

19 Enumeration Clause and the Administrative Procedure Act. Plaintiffs additionally seek to set

20 aside and enjoin implementation of the illegal Rush Plan, thereby permitting the Bureau to

21 implement the preexisting COVID-19 Plan it carefully designed to ensure a complete and

22 accurate count. This relief will allow the Bureau to conduct the 2020 Census on the timeline it

23 has repeatedly asserted is necessary to complete a full, fair, and accurate count.

24

18. Without such relief, Plaintiffs and the communities they represent will suffer

25 irreparable harm for at least another decade, until the next census is conducted.

26

JURISDICTION AND VENUE

27

19. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331, 1346(a), and

28 1361.
ATTORNEYS AT LAW SAN FRANCISCO

CASE NO. 20-CV-05799-LHK

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1

20. Venue is proper in this judicial district under 28 U.S.C. § 1391(b)(2) and (e)(1).

2 Defendants are United States officers or agencies sued in their official capacities, a substantial

3 part of the events or omissions giving rise to this action have occurred or will occur in this

4 district, and one or more Plaintiffs reside in this district.

5

21. This Court may grant declaratory and injunctive relief under 28 U.S.C. §§ 2201

6 and 2202.

7

22. The proper intradistrict assignment for this action is the San Jose Division, in light

8 of the location of Plaintiffs City of San Jose and members of the League of Women Voters.

9

PARTIES

10 I. Plaintiffs

11

23. The National Urban League (“Urban League”) is a civil-rights organization with

12 over 90 affiliates serving 300 communities in 37 states and the District of Columbia. Founded in

13 1910, the National Urban League is headquartered in New York City. The mission of the

14 National Urban League is to help African Americans and others in underserved communities

15 achieve their highest human potential and secure economic self-reliance, parity, power, and civil

16 rights.

17

24. For the 2020 Census, the Urban League has expended substantial resources

18 developing programs designed to encourage self-response and cooperation with Census Bureau

19 offices in historically undercounted communities. Specifically, the organization has engaged in

20 efforts to educate the public about the census through various methods, including virtual town

21 halls, production and distribution of toolkits, workshops for locally based get-out-the-count

22 organizations, and publication and upkeep of a website, www.MakeBlackCount.org, to

23 disseminate critical information about the census. The Urban League has also worked with

24 Census Bureau regional offices to encourage enumerator recruitment, and the organization uses

25 social media to encourage 2020 Census participation.

26

25. Plaintiff Black Alliance for Just Immigration (“BAJI”) is a nonprofit organization

27 organized and existing under the laws of California, with offices and members across the

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country, including in Oakland, California, Miami, Florida, Atlanta, Georgia, and New York City.

CASE NO. 20-CV-05799-LHK

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1 BAJI collaborates with African Americans and Black immigrants to organize and advocate for

2 equal and just laws in their communities. BAJI campaigns to advance racial justice and provides

3 partner organizations with varied assistance—particularly on immigration policy—and it spends

4 significant resources educating its partner organizations, individuals, and other constituents

5 through presentations, workshops, publications, technical assistance, and trainings. BAJI is a

6 membership organization, and its members either pay dues or volunteer their time to support the

7 organization. Members also actively participate in BAJI’s self-governance and decision-making

8 at the local level.

9

26. For the 2020 Census, BAJI has worked to ensure non-responsive households in

10 Black and immigrant communities are counted. BAJI has hired additional staff dedicated to

11 engaging local communities on the census, and has engaged in outreach using social media and

12 mailers to bolster self-response. In addition, since the outbreak of the COVID-19 pandemic,

13 BAJI staff regularly participate in webinars and virtual events to provide the public more

14 information about the census, with a specific focus on encouraging participation in Black and

15 immigrant communities.

16

27. The League of Women Voters is a nonprofit civic organization that encourages

17 informed and active participation in government. Founded in 1920, the League of Women Voters

18 is headquartered in Washington, D.C. The League of Women Voters has over 800 state and local

19 affiliates, located in all 50 states and in 764 specific communities, including affiliates with

20 members in San Francisco and Monterey County, California, Detroit, Michigan, Miami, Florida,

21 Philadelphia, Pennsylvania, and New York City. The League of Women Voters seeks to

22 empower voters and defend democracy. The League of Women Voters has over 65,000 members

23 nationwide, and its members either pay dues or volunteer their time to support the organization.

24

28. The League of Women Voters has engaged in significant efforts to ensure

25 historically undercounted communities are enumerated during the 2020 Non-Response Follow

26 Up operation. Prior to the outbreak of COVID-19 in the United States, the League of Women

27 Voters and its affiliates participated in public events across the country aimed at providing

28
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information about the census to undercounted communities. Since March of this year, the League

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1 of Women Voters has shifted to a digital public-education campaign, encouraging education and

2 participation through social media, email listservs, webinars, and blog posts. Affiliates in

3 Kansas, South Carolina and Maine are also participating in state Complete Count Committees

4 that seek to increase awareness of the 2020 Census, improve participation, and coordinate with

5 Census Bureau officials.

6

29. Harris County, Texas is a political subdivision of the State of Texas. With over

7 4.7 million residents, Harris County is the third largest county in the United States. The county’s

8 population is over 43% Latino, 20% Black, over 7% Asian, and over 28% non-Hispanic White.

9 During the 2010 Census, 65.1% of households in Harris County self-responded to the census. As

10 of August 14, 2020, 58.3% of households in Harris County had self-responded to the 2020

11 Census. This response rate in Harris County was well below the national response rate on that

12 date, 63.6%.

13

30. For the 2020 Census, officials in Harris County engaged in extensive efforts to

14 encourage participation in the County. County officials formed a Complete Count Committee

15 with city officials in Houston that engaged in public education about the census, and built

16 partnerships with local Census Bureau officials to coordinate outreach efforts. In addition, in

17 2019, the County approved a budget of nearly $4 million dollars to conduct outreach during the

18 2020 Census. To that end, the County has contracted with vendors to conduct surveys about the

19 opinions and attitudes of non-responsive populations and develop a digital advertising campaign

20 on Facebook and Instagram to encourage 2020 Census participation. And the County receives

21 substantial federal funding tied to census data.

22

31. King County is a political subdivision of the State of Washington. Over 2.2

23 million people live in King County, making it the most populous county in Washington. As of

24 August 14, 2020, 26.1% of households in King County had not responded to the 2020 Census.

25 The county has large populations of historically undercounted communities. For instance,

26 according to the Department of Housing and Urban Development, King County had nearly

27 12,000 residents experiencing homelessness, the third highest total of any locale in the country.

28
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The Seattle metro area, which includes King County, is estimated to have 140,000

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1 undocumented immigrant residents.

2

32. King County worked in partnership with local cities to provide $1.17 million to

3 community-based organizations serving historically undercounted communities. Specifically,

4 King County sought to fund organizations that work with communities that are Limited English

5 Proficient. Through this funding, these organizations produced public education materials related

6 to the 2020 Census, and developed campaigns to get-out-the-count. And King County, too,

7 receives substantial federal funding tied to census data.

8

33. The City of Los Angeles, California is a municipal corporation organized and

9 existing under the laws of the State of California, and is a charter city pursuant to Article XI of

10 the California Constitution. The City is home to roughly 4 million people, and is located in the

11 county recognized by the Census Bureau as the hardest to count in the nation. The city’s

12 population is a large contributor to the County’s hard-to-count status as more than half of the

13 City’s residents live in census tracts that are hard to count. As of August 14, 2020, only 53.8% of

14 the City’s households had responded to the 2020 Census—well below the statewide average of

15 65.1% and even further below the City's own 2010 self-response rate of 68 percent.

16

34. As a result of its hard-to-count status, Los Angeles has engaged in years of

17 planning and devoted significant resources to developing a strategy for an accurate count,

18 tailored to the unique challenges of the City’s population. To fund these efforts, the City has

19 overseen distribution of roughly $2 million dollars to community-based organizations and the

20 investment of almost $1.5 million of both City general fund and grant money in its own efforts.

21 And the City of Los Angeles also receives substantial federal funding tied to census data.

22

35. The City of Salinas, California is a political subdivision of the State of California.

23 Salinas is the most populous city in and the government seat of the County of Monterey. The city

24 is home to more than 150,000 people, including 38.5% of the county’s “hard-to-count”

25 population. As of August 14, 2020, 57.2% of all households in Salinas have responded to the

26 2020 Census, which is 422nd out of all 482 California cities. The current response rate is 7.9

27 percentage points below California’s statewide average for self-responses and more than 10

28
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percentage points below Salinas's self-response rate from the 2010 Census.

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1

36. Salinas has dedicated significant resources to funding and staffing its “Census

2 Action Team,” which is composed of city staff and representatives from the County of

3 Monterey’s “Complete Count Committee,” as well as community-based organizations, school

4 districts, and local businesses. The city’s population is more than 75% Latino, and more than 1 in

5 5 households have limited English-language proficiency. As part of its outreach, the Salinas

6 Census Action Team engages religious and community organizations, such as local food banks,

7 to assist with enumeration efforts in the Latino community and all communities of color as these

8 organizations are able to assist with trust and communication barriers that can make these groups

9 hard to count. The City of Salinas also receives substantial federal funding tied to census data.

10

37. The City of San Jose is a political subdivision of the State of California. San Jose

11 has over 1 million residents, making it the largest city in Northern California, and the tenth

12 largest city in the United States. San Jose’s population is 32% Latino, and 35% Asian, and nearly

13 40% of residents are foreign born. As of August 14, 2020, 28% of households in San Jose had

14 not responded to the census. San Jose has large populations of historically undercounted

15 communities. For instance, according to the Department of Housing and Urban Development, in

16 2019, San Jose had over 6,000 residents experiencing homeless. In addition, the San Jose metro

17 area is estimated to have over 150,000 undocumented immigrant residents.

18

38. The City of San Jose has engaged in extensive public-education and get-out-the-

19 count efforts during the 2020 Census. San Jose has formed a Complete Count Committee with

20 Santa Clara County, and nearly 90 community-based organizations. The Committee focuses on

21 raising awareness of the census in historically undercounted communities. San Jose also

22 disseminates information about the census to the public through city departments and offices.

23 San Jose also worked closely with the Census Bureau to recruit qualified bilingual enumerators.

24 The City of San Jose receives substantial federal funding tied to census data.

25

39. Plaintiff Rodney Ellis is the Commissioner for Precinct One on the Harris County

26 Commissioners Court. He is a resident and citizen of Harris County, where he is registered to

27 vote and regularly exercises his right to vote. Commissioner Ellis regularly drives on roads and

28 highways in Harris County.
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1

40. Plaintiff Adrian Garcia is the Commissioner for Precinct Two on the Harris

2 County Commissioners Court. He is a life-long resident and citizen of Harris County, where he

3 is registered to vote and regularly exercises his right to vote. Commissioner Garcia also regularly

4 drives on roads and highways in Harris County.

5

41. The National Association for the Advancement of Colored People (“NAACP”) is

6 the nation’s oldest and largest grassroots-based civil rights organization. The NAACP is

7 headquartered in Baltimore, Maryland, and has over 2000 units across the country, including

8 units in all 50 states and the District of Columbia. The NAACP’s units are predominantly located

9 in states and metropolitan areas with large Black populations, and NAACP members are more

10 likely than the average resident of the United States to reside in a hard-to-count community. The

11 NAACP has membership and active units in cities like Detroit, Cleveland, and Newark—all

12 places where, as of August 28, the Census Bureau reported a lower than 50 percent self-response

13 rate to the 2020 Census.

14

42. The NAACP has made considerable efforts—and expended significant

15 resources—to ensure that the 2020 Non-Response Follow Up operation successfully enumerates

16 hard-to-count communities. Prior to the outbreak of COVID-19, the NAACP and its units

17 launched a “Be Counted” campaign to inform NAACP membership and undercounted

18 communities about the 2020 Census. The NAACP and its local units participated in public

19 events around the country; the NAACP hosted townhalls and published materials and posts

20 describing the importance of the census and the historical undercount of Black communities; and

21 NAACP local units assumed leadership rules in a variety of Complete Count Committees. Since

22 COVID-19, the NAACP has transitioned to online educational efforts. To get out the count in the

23 face of COVID-19, the NAACP has published a number of posts and articles, hosted an all-

24 online “Black Census Week,” partnered with CBS and other organizations to create 2020 Census

25 digital “PSAs,” and built new youth programming to make use of social media.

26

43. The City of Chicago is a municipal corporation and home rule unit organized and

27 existing under the constitution and laws of the State of Illinois. With over 2.7 million residents,

28
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Chicago is the third largest city in the United States. Chicago’s population is 30% Black, 29%

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1 Latino, over 6.4% Asian, and over 32% non-Hispanic White. During the 2010 Census, 62.4% of

2 households in Chicago self-responded to the census. As of August 28, 58.1% of households in

3 Chicago had self-responded to the 2020 Census. This response rate was well below the national

4 response rate on that date, 64.7%.

5

44. For the 2020 Census, officials in the City of Chicago designated $2.7 million for

6 promotion of census participation. Chicago established a complete count committee with

7 businesses and nonprofits to stimulate participation, provided grants to organizations engaging

8 with hard-to-count communities, and encouraged responses through public service

9 announcements on radio, social media, billboards and newspapers. In addition, Chicago is

10 sending paid staff into communities with low response rates to encourage participation, as well

11 as engaging in phone banking and texting campaigns. Chicago receives federal funding under

12 several federal programs that allocate resources based on census-derived information, including

13 the Community Development Block Grant program, the Low Income Home Energy Assistance

14 Program, Workforce Innovation and Opportunity Act grants and others.

15

45. The County of Los Angeles is a political subdivision of the State of California.

16 The County of Los Angeles is the largest county in the nation, with more than 10 million

17 residents. It is also one of the country’s most diverse counties, with millions of immigrants

18 calling it home. According to the U.S. Census Bureau, 34.2% of Los Angeles County residents

19 are foreign-born and 48.6% are of Latino descent. Given a high concentration of hard to count

20 populations, Los Angeles is among the hardest to count counties in the United States. As of

21 August 28, 62.2% of households in the County of Los Angeles, had responded to the 2020

22 Census, well below both the California average self-response rate of 66.9% and the national self-

23 response rate of 64.7% on that date.

24

46. To ensure a more accurate count in the 2020 Census, the County of Los Angeles

25 has engaged in significant expenditures. The County of Los Angeles instigated a notice

26 campaign to all residents informing them of the previous, October 31, 2020, Self-Response

27 deadline. The County of Los Angeles will need to reprint the materials stating the date, distribute

28
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them to residents, and address any confusion regarding the change in dates, to the extent

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1 possible. The County of Los Angeles also created an extensive outreach and promotional

2 campaign including but not limited to in-store signage at grocery stores and pharmacies, print

3 and digital advertising, and social media editorial calendars and content. The County of Los

4 Angeles developed these plans specifically incorporating the October 31, 2020, Self-Response

5 deadline under the COVID-19 Plan, and would need to revise these campaigns to account for a

6 new, shortened Self-Response deadline, as required under the Rush Plan.

7

47. The Navajo Nation is the largest Indian Nation in the United States with a

8 reservation spanning 27,000 square miles across the states of Arizona, New Mexico, and Utah.

9 The 2010 Census recorded a population of 327,726 for the Navajo Nation. During the 2010

10 Census, 29.4% of households in the Navajo Nation responded to the census. As of August 28,

11 only 18% of households in the Navajo Nation had self-responded to the 2020 Census. Many

12 households in Navajo Nation have limited access to regular mail, and internet. As a result, the

13 primary method for enumerating households in the Navajo Nation is through census field

14 operations.

15

48. For the 2020 Census, the Navajo Nation sought to ensure that every resident was

16 counted. To that end, the Navajo Nation engaged in outreach efforts such as posting public

17 service announcements on social media, radio, television and in newspapers. The Navajo Nation

18 also worked with advocates to speak at community events, and provide informational flyers

19 during food distribution events, during senior shopping hours at grocery stores, and at checkpoint

20 stops for those entering and leaving the Nation. Outreach was conducted in both English and

21 Diné. The Navajo Nation ultimately depends on accurate census data for a number of essential

22 government functions, including determining the appropriate location for healthcare facilities

23 and services on the reservation, and projecting population needs to assist in determination of

24 water rights claims. In addition, the Navajo Nation federal funding under several programs that

25 allocate resources on the basis of census-derived data, including the Tribal Transportation

26 Program which provides essential resources for maintenance of roads, bridges and airports on

27 reservations.

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1

49. The Gila River Indian Community (“Gila River”) is a sovereign Indian nation

2 composed of members of the Pima and Maricopa Tribes, traditionally known as the Akimel

3 O’otham and Pee-Posh. It is organized and federally recognized pursuant to § 16 of the Indian

4 Reorganization Act of June 18, 1934, 25 U.S.C. § 5123. The Gila River Indian Reservation, an

5 area of over 372,000 acres, is located in south-central Arizona south of Phoenix. Most of the

6 reservation is rural, and many households are identifiable only by a post office box. Also, many

7 households lack access to high-speed internet. Consequently, in-person interaction with census

8 enumerators is critical to ensuring an accurate census count of the Gila River Community. As of

9 August 28, only 9.5% of households had self-responded to the 2020 Census.

10

50. The Gila River Community had planned census-response rallies and activities for

11 2020, as well as a door-to-door effort to make sure all individuals and households on the

12 Reservation are counted. But for the past five months the Community has been under shelter-in-

13 place orders, making most of those efforts impossible. Federal funding for the Community is

14 based largely on census numbers. An undercount will result in significant underfunding of tribal

15 programs, including Indian Health Service Funding, Indian Housing Block Grants, the Tribal

16 Transportation Program, Violence Against Women Programs, Family Violence Prevention and

17 Services Grants (for battered women shelters), Native American Employment and Training

18 programs, Head Start, Temporary Assistance to Needy Families, and Special Programs for the

19 Aging – tribal grants.

20 II. Defendants

21

51. Defendant Wilbur L. Ross is the Secretary of the U.S. Department of Commerce

22 and is sued in his official capacity. Secretary Ross oversees the U.S. Department of Commerce

23 and the Census Bureau. Congress has delegated the responsibility for carrying out the decennial

24 census to the Secretary of Commerce. 13 U.S.C. § 141(a).

25

52. Defendant U.S. Department of Commerce is a cabinet agency within the

26 Executive Branch responsible for administering the decennial census.

27

53. Defendant Steven Dillingham is the Director of the U.S. Census Bureau and is

28 sued in his official capacity.
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1

54. Defendant U.S. Census Bureau is an agency within the Department of Commerce

2 responsible for planning and administering the decennial census. 13 U.S.C. § 2.

3

FACTUAL ALLEGATIONS

4 I. Defendants’ Constitutional and Statutory Obligations.

5

55. Under the United States Constitution, the federal government must conduct an

6 “actual Enumeration” of the population once every ten years. U.S. Const. art. I, § 2.

7

56. The population totals produced by the decennial enumeration are used to

8 apportion congressional representatives to the various states. Id. Census figures are also used in 9 state and local redistricting and in the distribution of federal funds to communities across the

10 United States.

11

57. The Enumeration Clause requires that decisions relating to the census bear a

12 “reasonable relationship” to the constitutional purpose of the enumeration. Wisconsin, 517 U.S. 13 at 20.

14

58. Similarly, the Census Act imposes a mandatory duty on the Secretary of

15 Commerce to “conduct a census that is accurate and that fairly accounts for the crucial

16 representational rights that depend on the census and the apportionment.” Dep’t of Commerce v.

17 New York, 139 S. Ct. 2551, 2569 (2019) (citation omitted).

18

59. Consequently, the Secretary of Commerce and the Census Bureau are

19 constitutionally obligated to make decisions in conducting the census that are reasonably related

20 to achieving a fair and accurate calculation of the population of the United States.

21 II. The Census Bureau’s Pre-COVID-19 Operational Plans for the 2020 Census.

22

60. For the 2020 Census, the Census Bureau spent the better part of a decade

23 designing operations to fulfill its constitutional and statutory mandate, including: soliciting and

24 incorporating feedback from seasoned experts, advisors, and community groups; testing various

25

26

27

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1 features of its data-collection and data-processing operations; and ensuring that its decisions for

2 conducting the census reflected sound, scientifically based judgment.

3

61. To this end, the Bureau created an operational plan to guide its efforts, including

4 its efforts to collect data from census respondents and to process that data into usable forms for

5 constitutionally and statutorily mandated purposes, including reapportionment and redistricting.

6

62. On December 31, 2018, the Bureau promulgated the final version of its

7 operational plan, which the Bureau called “Version 4.0” (hereinafter referred to as the “Final

8 Operational Plan”). See U.S. Census Bureau, Final Operational Plan (Dec. 2018), 9 https://www2.census.gov/programs-surveys/decennial/2020/program-management/planning-

10 docs/2020-oper-plan4.pdf. In the Final Operational Plan, the Census Bureau stated that its goal

11 for the 2020 Census is to “count everyone once, only once, and in the right place.”

12

63. Under the Paperwork Reduction Act, the Office of Management and Budget must

13 review and approve the plans for any federal survey, including the decennial census, to ensure

14 that those surveys meet government standards, minimize respondent burden, and maximize the

15 utility of the collected information. 44 U.S.C. § 3504(c).

16

64. The Office of Management and Budget formally reviewed and approved the

17 Census Bureau’s pre-COVID-19 plans for the decennial census, including the Final Operational

18 Plan.

19

65. The Final Operational Plan includes over 200 pages of detailed and transparent

20 conclusions for achieving the 2020 Census’s objective of an accurate count.

21

66. The Final Operational Plan reflects the conclusions of various experts including

22 survey methodologists, statisticians, demographers, geographers, linguists, and mathematicians.

23

67. The Final Operational Plan states that it “reflects and supports evidence-based

24 decision-making” about the operations necessary to gather and process census responses from

25 every household in the country.

26

68. The Final Operational Plan states that it was “informed through research, testing,

27 and analysis conducted from 2012 through 2018.”

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1

69. The Bureau conducted at least fifteen tests between 2012 and December 31, 2018,

2 when it published its Final Operational Plan.

3

70. Career Bureau staff developed the Final Operational Plan following substantial

4 consultation with outside experts and census stakeholders, including members of the Census

5 Scientific Advisory Committee and the National Advisory Committee.

6

71. The Census Bureau also produced a series of “detailed operational plans,” which

7 supplement the Final Operational Plan, and provide more parameters for the individual

8 operations that, together, comprise the 2020 Census.

9

72. The detailed operational plans likewise reflect the conclusions of various subject-

10 matter experts regarding how to complete an accurate count.

11

73. The Bureau’s Final Operational Plan contains several major categories of

12 operations. Two of those categories are particularly important for purposes of this lawsuit: data-

13 collection and data-processing.

14

74. “Data-collection” refers to operations through which the Bureau obtains

15 information from and about all the people living in the United States.

16

75. “Data-processing” refers to operations through which the Bureau fills in any gaps

17 in the personal information that it collects from people, transforms the resulting data into usable

18 forms, checks those results for accuracy and other aspects of data quality, and publishes those

19 results, among other things.

20

76. The Bureau must thoroughly, fully, and correctly perform both categories of

21 operations—collection and processing—to achieve its stated goal of counting everyone once,

22 only once, and in the right place.

23

A. Census Data Collection

24

77. During the census, the Bureau attempts both to determine the number of people in

25 the country and their characteristics, such as their race and ethnicity.

26

78. Although the Census Bureau planned to deploy many methods during the 2020

27 Census to collect counts and characteristics from households around the country, the Bureau

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contemplated, in both the Final Operational Plan, and in the supplemental detailed operational

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1 plans, that three methods would account for the overwhelming majority of census responses: the

2 “Self-Response” method; the “Update Leave” method; and the “Non-Response Follow Up”

3 method. See U.S. Census Bureau, 2020 Census Detailed Operational Plan for: 18. Non-

4 Response Follow Up Operation (July 15, 2019), https://www2.census.gov/programs-

5 surveys/decennial/2020/program-management/planning-docs/NRFU-detailed-operational-

6 plan_v20.pdf.

7

79. The Self-Response method was the “primary methodology for the 2020 Census.”

8 Under this method, heads of households would provide their 2020 Census responses directly to

9 the Census Bureau by mailing back a paper census form, filling out a digital form on the

10 Bureau’s online census portal, or calling into telephone hotlines to provide their responses to

11 Bureau employees operating those hotlines.

12

80. The Update Leave method was the methodology for reaching housing units that

13 could not receive physical mail or did not have verifiable mailing addresses. Under this method,

14 Bureau employees would travel throughout both rural and urban areas, leaving invitations to

15 participate and paper census questionnaires at these housing units, so that the people living in

16 those locations could respond themselves.

17

81. The Self-Response method and the Update Leave method are crucial for obtaining

18 accurate information about the number of people in the country and their characteristics, because

19 data people report about themselves and the members of their housing units is the highest quality

20 data that the census collects.

21

82. But for the tens of millions of households that do not report their personal data

22 through the Self-Response or Update Leave method, the Bureau’s next-best source of personal

23 data is data it collects directly from people through the Non-Response Follow Up method.

24

83. As part of the Non-Response Follow Up method, the Bureau sends its employee

25 enumerators directly to housing units so that they can attempt to speak with a person occupying

26 each unit and obtain information about everyone who should be counted in that unit.

27

84. The Bureau requires enumerators to record their responses for each household

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through iPhones that the Bureau specifically contracted and customized for this purpose. The

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1 enumerators’ iPhones include software designed to lead enumerators consistently and reliably to

2 solicit information from people at their doors. The enumerators’ iPhones also include software to

3 ensure that any data collected from housing units remains confidential as it is being transmitted

4 to the Bureau. The limited supply of these customized iPhones places a limit on the number of

5 enumerators that the Bureau can deploy in the field.

6

85. The Bureau’s Detailed Operational Plan for Non-Response Follow Up, which

7 supplements the Final Operational Plan, sets out a specific protocol for conducting Non-

8 Response Follow Up.

9

86. Under the Detailed Operational Plan, each housing unit assigned for a visit from

10 an enumerator was eligible for up to six “contact days.” A “contact day” could include more than

11 one attempted contact per day.

12

87. The Bureau concluded it could pursue less than six contact days only under

13 certain scenarios.

14

88. One scenario that would allow the Bureau to pursue fewer than six contact days

15 was the existence of high-quality administrative records for the housing unit. The Census Bureau

16 has collected data from federal administrative agencies, such as the Social Security

17 Administration, the Internal Revenue Service, and the Department of Housing and Urban

18 Renewal, among others, as well as data from states, which it uses to provide information about

19 the count and characteristics of non-responsive households.

20

89. If the Bureau had located administrative data from federal and/or state

21 administrative records and concluded that those records contained accurate demographic data for

22 the occupants of a housing unit, the Bureau’s enumerators would attempt only one contact with

23 that unit. If—during that contact attempt—the enumerator did not succeed in finding a live

24 person at the unit, then the Bureau would use the information in the administrative records to fill

25 in the census responses for that unit during the data-processing phase of the 2020 Census.

26

90. A second scenario that would allow the Bureau to pursue less than six contact

27 days would arise if the Bureau identified a proxy—a person such as a neighbor or landlord that

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the enumerator could ask for information about the occupants of the housing unit in question.

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1 After a third failed contact attempt, a unit would become eligible for being counted through

2 proxy.

3

91. Proxies can produce many types of data. For instance, proxies are useful for

4 helping the Bureau identify whether a housing unit is vacant—and thus should be marked

5 “vacant” in the Master Address File that the Bureau uses to keep track of the overwhelming

6 majority of housing units that it must enumerate—or non-existent—and thus should be deleted

7 from the Master Address File. For the 2020 Census, the Bureau is planning to use administrative

8 records, such as the United States Postal Service’s directory of non-deliverable addresses, to

9 identify vacant housing, but proxies are generally more accurate for this purpose. Finally, proxies

10 provide vital data for other operations that the Bureau undertakes during its data-processing

11 phase, described further below.

12

92. If the Bureau is unable to enumerate a household after six contact days, in most

13 cases, it will resort to less accurate methods for determining the count and characteristics of the

14 household during its data-processing phase, described below.

15

93. The Bureau performs several other vital operations in addition to door-knocking

16 during the Non-Response Follow Up period, including a series of operations to ensure the quality

17 of the data that it collects in the field.

18

94. During the Non-Response Follow Up process, the Bureau: follows up with people

19 who self-responded to the census online but did not enter their unique census identification

20 number to ensure that they are counted in the right place (a process known as “Field

21 Verification”); and corrects information reported erroneously or omitted from previously

22 submitted census forms (a process known as “Coverage Improvement”).

23

95. In addition, the Bureau re-collects census responses in select instances to ensure

24 that the original submissions were accurate (a process known as “Self-Response Quality

25 Assurance”). This operation protects against enumerators falsifying the information that they

26 provide to the Bureau. Specifically, the Bureau conducts quality control reinterviews of a sample

27 of households. This component is designed to deter and detect cases where enumerators have

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provided false information about the housing units they are assigned to canvass.

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96. Quality control reinterviews are part of a broader set of protocols that the Bureau

2 has developed to guard against factors that endanger the accuracy of the count. Non-Response

3 Follow Up is thus important not only for collecting information, but also for ensuring that the

4 information that is collected is accurate. These two components—gathering data and ensuring its

5 accuracy—must both occur for the Bureau to get a fair and accurate count.

6

97. The Bureau anticipated that approximately 60% of housing units nationally would

7 respond to the 2020 Census through Self-Response and Update Leave, potentially making up to

8 40% of housing units targets for Non-Response Follow Up.

9

98. A Non-Response Follow Up universe of 40% of the housing units in the country

10 would have been the largest follow up universe on a percentage basis since at least 1970.

11

99. The Census Bureau did not anticipate that the Non-Response Follow Up universe

12 in 2020 would mirror the demographic makeup of the nation’s population as a whole.

13

100. Instead, the Census Bureau anticipated that the Non-Response Follow Up

14 universe in 2020 would contain a disproportionate number of people who belong to communities

15 that the Bureau calls “hard-to-count.”

16

101. The Final Operational Plan describes hard-to-count populations as including, but

17 not limited to, the following populations: young children; highly mobile persons; racial and

18 ethnic minorities; non-English speakers; low-income persons; persons experiencing

19 homelessness; undocumented immigrants; persons who have distrust in the government; lesbian,

20 gay, bisexual, transgender, and questioning/queer (LGBTQ) persons; persons with mental and

21 physical disabilities; and persons who do not live in traditional housing.

22

102. Historically, these populations have had low self-response rates and have, thus,

23 made up disproportionate shares of households that must receive contact days during Non-

24 Response Follow Up.

25

103. Consequently, the Final Operational Plan acknowledges, “[t]he NRFU Operation

26 is entirely about hard-to-count populations.”

27

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104. The Final Operational Plan also acknowledges that hard-to-count populations may

2 require more outreach than the Non-Response Follow Up method would normally provide, and

3 the Bureau designed its Final Operational Plan accordingly.

4

105. The Final Operational Plan states that “[w]hile most cases receive a maximum of

5 six attempts, cases in hard-to-count areas may receive more than six attempts to achieve a

6 consistent response rate for all geographic areas.”

7

106. Accurate data about the size, location, and characteristics of communities of color

8 is necessary to equitably distribute political power through congressional reapportionment and

9 redistricting at the state and local levels, enforce civil-rights laws that affect basic needs like

10 housing and employment, and conduct effective research, including on pressing issues like

11 public health.

12

B. Census Data-Processing

13

107. After collection activities are complete, the Census Bureau must process the data.

14

108. Census data-processing cannot begin until census data-collection concludes.

15

109. Census data is unusable for its intended purposes until it has been processed.

16

110. The Census Bureau’s data-processing operations transform tens of millions of

17 census responses into usable products, including the population totals used to reapportion seats in

18 the U.S. House of Representatives and to create electoral districts.

19

111. The Bureau uses its data-processing operations to, among other things, ensure that

20 data received from different data-collection methods are all in a single format allowing them to

21 be processed together.

22

112. The Bureau uses its data-processing operations to “unduplicate responses”—

23 meaning to resolve conflicts of information among multiple forms attributable to the same

24 housing unit.

25

113. The Bureau uses its data-processing operations to determine the final status of a

26 housing unit—such as vacant or inhabited—and determine the total number of people that should

27 be attributed to any apparently inhabited unit that was not counted through Self-Response,

28 Update Leave, or Non-Response Follow Up.

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114. The Bureau also uses its data-processing operations to ensure that Bureau data

2 products accurately report respondents’ characteristics, such as age, race, and ethnicity.

3

115. The Bureau uses administrative records and statistical imputation during the data-

4 processing phase to fill in both missing people and their characteristics. But administrative

5 records—especially low-quality administrative records—and statistical imputation are generally

6 less accurate than self-response data.

7

116. For many households, administrative data provides only low quality information,

8 replete with inaccuracies and incomplete information. This is especially the case for particular

9 communities that are underrepresented in administrative records, including communities of

10 color, immigrants, and low-income families. Use of this low-quality data to fill in missing

11 information for non-responsive households produces less accurate information.

12

117. Imputation involves the Bureau using information from surrounding responsive

13 households to infer the count and characteristics of a non-responsive household. Imputation thus

14 assumes the existence of other data points gathered through other data-collection methods—such

15 as self-response, proxies, and administrative records—and generates more accurate results when

16 it can be triangulated against those data points. The processes that the Bureau uses to collect and

17 process self-response data, proxy data, and administrative records are thus critical and

18 inextricably linked to the Bureau’s ability to impute data accurately.

19

118. At various phases of the Bureau’s data-processing operations, Census Bureau

20 personnel must review the quality of files in-process before those files can be sent to the

21 subsequent steps in the data-processing operation. These reviews include personnel with subject-

22 matter expertise from several different divisions of the Bureau.

23

119. The Bureau’s data-processing operations help ensure that people are not missed,

24 that other people are not counted multiple times, and that people’s characteristics are accurately

25 reported. These processes help eliminate or reduce undercounts, among other kinds of data-

26 quality issues.

27

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1

C. The Final Operational Plan’s Original Timeline for the 2020 Census

2

120. The Bureau’s Final Operational Plan called for data-collection to run from

3 January 21, 2020, to July 31, 2020, for a total of more than six months.

4

121. In that window, the Self Response method was scheduled to run from March 12,

5 2020 to July 31, 2020, and the Update Leave method was scheduled for March 15, 2020 to April

6 17, 2020.

7

122. The Bureau also scheduled several special operations to occur early in its census

8 taking process. The Service-Based Enumeration, which counts people experiencing

9 homelessness, was scheduled for March 30, 2020 to April 1, 2020, and Group Quarters

10 Enumeration, which counts people living in group housing such as nursing homes, was

11 scheduled from April 2, 2020 to June 5, 2020.

12

123. The Bureau scheduled the Non-Response Follow Up method to run from May 13,

13 2020 to July 31, 2020, for a total of approximately eleven and a half weeks.

14

124. The Bureau scheduled up to five months—from July 31, 2020 to December 31,

15 2020—to process census data for the congressional reapportionment report.

16

125. The Bureau also scheduled an additional three months—from January 1, 2021 to

17 March 30, 2021—to process census data for redistricting.

18

126. The Bureau’s timelines for implementing the Final Operational Plan reflect the

19 Bureau’s scientifically informed understanding of the time necessary to complete its operations

20 and generate an accurate count.

21 III. The Census Bureau’s COVID-19 Plan.

22

A. COVID-19 Disrupts the 2020 Census

23

127. On January 21, 2020, the Bureau began 2020 Census data-collection in remote

24 Alaska.

25

128. On March 10, 2020, the Bureau began to accept self-responses on its website.

26

129. Shortly thereafter, many parts of the nation rapidly began to shut down due to the

27 COVID-19 pandemic.

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130. The Census Bureau quickly concluded that it could not continue to engage in

2 operations safely. On March 18, 2020, the Bureau announced that it would suspend all field

3 operations for two weeks in order to “help protect the health and safety of the American public.”

4 Press Release, U.S. Census Bureau, U.S. Census Bureau Director Steven Dillingham on

5 Operational Updates (Mar. 18, 2020), https://www.census.gov/newsroom/press-

6 releases/2020/operational-update.html.

7

131. On March 28, 2020, the Bureau announced yet another two-week suspension until

8 April 15, 2020, as the coronavirus pandemic made it impossible to engage in operations.

9

132. The suspension disrupted several field operations, including Update/Leave

10 method, the Service Based Enumeration counting people experiencing homelessness, and the

11 Group Quarters Enumeration counting people living in group housing.

12

133. In addition, the Bureau halted all hiring and training of the hundreds of thousands

13 of enumerators it needs to conduct Non-Response Follow Up. This included halting any and all

14 background checks and fingerprinting of enumerators that were conditionally hired at that time.

15

134. The Bureau also decreased office staff at regional centers responsible for

16 processing mail-in self-response forms and at the Bureau’s call centers.

17

B. Changes to the Final Operational Plan in the COVID-19 Plan

18

135. On April 13, 2020, the Bureau issued an adjustment to its Final Operational Plan

19 to account for the long-term impact of the COVID-19 pandemic. The new plan included a shifted

20 timeline for data-collection and data-processing operations that corresponded with the delays in

21 operations that the pandemic has caused (the “COVID-19 Plan”).

22

136. Adjustments to plans approved by the Office of Management and Budget under

23 the Paperwork Reduction Act must be re-submitted for approval. 44 U.S.C. § 3507(h)(3). The

24 Census Bureau submitted the COVID-19 Plan to the Office of Management and Budget on April

25 30, 2020. The changes were approved on May 11, 2020.

26

137. The COVID-19 Plan was designed to “[e]nsure a complete and accurate count of

27 all communities,” “[p]rotect the health and safety of the American public and Census Bureau

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employees,” and “[i]mplement guidance from federal, state, and local authorities regarding

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1 COVID-19.” Press Release, U.S. Census Bureau, 2020 Census Operational Adjustments Due to

2 COVID-19 Fact Sheet (Apr. 27, 2020).

3

138. The COVID-19 Plan reflected the conclusions of various experts for how best to

4 proceed with completing an accurate count during the current pandemic. These experts include

5 survey methodologists, statisticians, demographers, geographers, linguists, and mathematicians.

6

139. Under the COVID-19 Plan, the Bureau suspended 2020 Census field operations

7 for several months, including those operations that were designed to ensure a full count of

8 traditionally undercounted communities.

9

140. The COVID-19 Plan provided that the Bureau would start the nationwide Non-

10 Response Follow Up operation on August 11, 2020, and continue the door-knocking process

11 through October 31, 2020.

12

141. Thus, the COVID-19 Plan delayed the start of most door-knocking by three

13 months while maintaining the same amount of time spent undertaking the process—

14 approximately eleven and a half weeks—as the Final Operational Plan had required.

15

142. Under the COVID-19 Plan, the Bureau also delayed the start of other operations

16 that enumerate traditionally undercounted populations, including the enumeration of the

17 country’s homeless population, which the Bureau shifted from March 30, 2020 to September 22,

18 2020.

19

143. And the COVID-19 Plan permitted households to submit self-response data to the

20 Bureau until October 31, 2020, extending the deadline under which private persons were able to

21 submit their responses to be counted by more than one month.

22

144. The Bureau also granted itself one additional month to process data under its

23 COVID-19 Plan, extending the data-processing leg of its operations to nine months given the

24 pandemic. Under this plan, the Bureau would have up to six months to process the data for the

25 apportionment count (between October 31, 2020 and April 30, 2021) and three months to process

26 the data for redistricting (between April 30, 2021 and July 31, 2021).

27

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1

145. The Bureau’s timelines for implementing the COVID-19 Plan reflect a

2 scientifically informed understanding of the time necessary to appropriately and fully complete

3 its operations and generate an accurate count.

4

C. Expert and Stakeholder Response to the COVID-19 Plan

5

146. The Census Bureau solicited feedback on the COVID-19 Plan from relevant area

6 experts and interested stakeholders, including state and local governments and national and

7 community-based non-profit partners.

8

147. For instance, four former Census Bureau Directors—who served under both

9 Democratic and Republican administrations—issued a statement saying that they had “discussed

10 these operational and schedule adjustments with senior career leadership at the Census Bureau.”

11 Press Release, Vincent Barabba et al., Statement by Former U.S. Census Bureau Directors (Apr. 12 14, 2020), https://www.documentcloud.org/documents/6838166-Statement-by-Former-Census-

13 Bureau-Directors-04.html.

14

148. These four former Census Bureau Directors further asserted: “Based on (1) our

15 extensive experience in planning, executing, and often adjusting operations of previous decennial

16 censuses, and (2) our firm conclusion that the extension of the field operations reflect careful

17 analysis by the technical, scientific, and operational staff at the Census Bureau, we support the

18 decision and urge Congress to act in concert with it.” Press Release, Vincent Barabba et al.,

19 Statement by Former U.S. Census Bureau Directors (Apr. 14, 2020), 20 https://www.documentcloud.org/documents/6838166-Statement-by-Former-Census-Bureau-

21 Directors-04.html.

22

149. Prominent civil-rights groups endorsed the COVID-19 Plan. Vanita Gupta,

23 President and CEO of The Leadership Conference on Civil and Human Rights and The

24 Leadership Conference Education Fund, stated that her organization “support[ed] the Census

25 Bureau’s updated timeline.” Press Release, Leadership Conference Education Fund, Census 26 Timeline Must Protect Health, Ensure Fair Count (Apr. 13, 2020), 27 https://civilrights.org/edfund/2020/04/13/census-timeline-must-protect-health-ensure-fair-count/.

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D. Implementation of the COVID-19 Plan

2

150. When announcing the COVID-19 Plan, Secretary Ross and Director Dillingham

3 issued a statement indicating that the Bureau requested that Congress extend by 120 days the

4 December 31, 2020 statutory deadline for reporting the state-population totals to the President

5 for purposes of calculating the state apportionments, and extend by 120 days the March 30, 2021

6 statutory deadline for delivering redistricting data to the states.

7

151. That same day, President Trump suggested this request was unnecessary, stating:

8

152. “I don’t know that you even have to ask them. This is called an act of God. This is

9 called a situation that has to be. They have to give in. I think 120 days isn’t nearly enough.”

10 Hansi Lo Wang, Trump Officials Ask to Delay Census Data for Voting Districts, House Seats,

11 NPR (Apr. 13, 2020), https://www.npr.org/2020/04/13/833546675/trump-officials-ask-to-delay-

12 census-data-for-voting-districts-house-seats.

13

153. Indeed, the Census Bureau did not wait for Congress to act before beginning

14 implementation of the COVID-19 Plan. And the Bureau continued implementation of the

15 COVID-19 Plan for over three months through the end of July 2020.

16

154. For instance, the Census Bureau field operations remained suspended through

17 May 2020.

18

155. The Bureau only began re-opening a few limited operations, such as the Update

19 Leave method, on a phased basis through mid-June 2020, over two months after the operation

20 was originally planned to occur in the Final Operational Plan.

21

156. The Bureau did not undertake any Non-Response Follow Up operations in most

22 of the country between May 13, 2020 and July 31, 2020, the timeframe originally set out in the

23 Final Operational Plan.

24

157. Instead, while the Bureau “soft-launched” door-knocking in select regions of the

25 country in mid-July 2020, the COVID-19 Plan did not call for door-knocking across the country

26 until August 11, 2020, at the earliest.

27

158. The Bureau ultimately opened six area census offices for Non-Response Follow

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Up on July 16, 2020, six more on July 23, 2020, thirty-five on July 30, 2020, and forty additional

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1 offices on August 6, 2020.

2

159. The remaining 161 stateside offices remained unopened until August 9, 2020,

3 including offices in many states and localities with relatively low response rates such as the

4 entire southeastern United States, Texas, New Mexico, Arizona, and Southern California.

5

160. All along the Bureau continually communicated to the public, and to important

6 local partners, including local governments and national and community based non-profit

7 organizations, that self-responses would be accepted until October 31, 2020, and that Non-

8 Response Follow Up would continue until at least that date.

9

161. Census partners, stakeholders, and state and local governments relied on the new

10 deadlines set forth in the COVID-19 Plan to redirect their outreach efforts.

11

162. For example, Plaintiffs Urban League and BAJI, publicized the October 31, 2020

12 deadline, letting their constituents, members and local organizations know that households had

13 until that time to self-respond. Urban League representatives informed coalition partners

14 participating in the Black Census Roundtable of the new deadlines, and spoke of the deadlines on

15 webinars and other public events. Officials at BAJI publicized the deadlines at public events,

16 including webinars in July 2020, and as part of the organization’s social media campaign.

17

163. Similarly, officials in City of Los Angeles, Harris County, King County, City of

18 San Jose, and City of Salinas, publicized the new deadline while conducting 2020 Census

19 outreach efforts.

20

164. These public education efforts were significant because they were directed at the

21 general public and at local non-profits that do not primarily work on census issues. The latter

22 often rely on information about the census provided by Plaintiff national non-profits and local

23 governments when communicating with their constituents. Plaintiffs, by disseminating the

24 October 31, 2020 deadline for nearly three months to the public, were largely successful in

25 spreading the understanding that communities had until at least that time to complete the count.

26

165. For example, the City of Los Angeles announced this date on its own social media

27 platforms and in a social media toolkit that it developed for partner organizations. Los Angeles is

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deeply concerned that residents have already received information about the October 31, 2020

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1 self-response date and, as a result, will fail to respond before the newly shortened deadline,

2 especially given the Bureau’s own minimal efforts at explanation and outreach around the new

3 deadline.

4

166. Finally, the level of self-response during the 2020 Census, and the ongoing

5 COVID-19 pandemic, provided further evidence for the necessity of continued implementation

6 of the COVID-19 Plan.

7

167. Under its Final Operational Plan, for example, the Census Bureau had planned to

8 spend eleven and a half weeks canvassing a Non-Response Follow Up universe comprised of

9 39.5% of households nationally.

10

168. As of August 9, 2020, the first date of nationwide Non-Response Follow Up, the

11 national self-response rate was 63.2%, meaning that nearly 37% of households nationwide had

12 not yet responded to the census.

13

169. Several cities with large percentages of traditionally undercounted populations,

14 have even lower response rates. For instance, as of August 14, 2020, the response rate in the City

15 of Detroit was 48.9%, Miami was 49.9%, Philadelphia was 52.3%, Los Angeles was 53.8%,

16 Houston was 54.4%, and New York City was 55.6%.

17

170. The United States had 24,156 new coronavirus cases on April 13, 2020, the day

18 the Bureau announced its COVID-19 Plan. On August 3, 2020, the United States had

19 approximately 50,000 new coronavirus cases.

20

171. With COVID-19 limiting the willingness of people to apply for enumerator

21 positions, the areas where the Bureau can safely send enumerators to knock on doors, and the

22 willingness of the public to interact with enumerators, the Non-Response Follow Up operation

23 continues to face far more complications than the Final Operational Plan anticipated.

24

172. Given these conditions of low response rates and increased coronavirus spread,

25 the Bureau can reasonably expect that it will need to engage in a Non-Response Follow Up

26 operation at least as comprehensive and time-consuming as the operation laid out in the Final

27 Operational Plan.

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173. Due to significant delays in operations resulting from the implementation of the

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1 COVID-19 Plan, the Bureau itself has recognized that it would be impossible to produce fair and

2 accurate apportionment numbers to the President by December 31, 2020.

3

174. On May 27, 2020, Tim Olson, head of field operations for the 2020 Census, stated

4 during a May 26, 2020 webinar organized by the National Congress of American Indians that,

5 “[w]e have passed the point where we could even meet the current legislative requirement of

6 December 31st. We can’t do that anymore.” Nat’l Conf. of Am. Indians, 2020 Census Webinar:

7 American Indian/Alaska Native, YouTube (May 26, 2020), https://www.youtube.com/

8 watch?v=F6IyJMtDDgY&feature=youtu.be&t=4689.

9

175. On July 8, 2020, Al Fontenot, Jr., Associate Director for Decennial Census

10 Programs and a top Census Bureau official, affirmed that the Bureau is “past the window of

11 being able to get” accurate counts to the President by December 31, 2020. U.S. Census Bureau,

12 Operational Press Briefing – 2020 Census Update at 21 (July 8, 2020),

13 https://www.census.gov/content/dam/Census/newsroom/press-kits/2020/news-briefing-program-

14 transcript-july8.pdf.

15 IV. The Census Bureau’s New Rush Plan.

16

A. The Announcement of the Rush Plan

17

176. On August 3, 2020, at the behest of the Secretary of Commerce, Director

18 Dillingham abruptly and without explanation abandoned the COVID-19 Plan and announced the

19 Rush Plan.

20

177. The Rush Plan drastically shortens the timelines for multiple operations set out in

21 the COVID-19 Plan.

22

178. The Rush Plan took the form of a short press release on the Census Bureau’s

23 website. The press release included a statement from Director Dillingham, which did not provide

24 an explanation for Defendants’ decision to suddenly abandon the COVID-19 Plan that the

25 Bureau had adopted and implemented for approximately three and a half months. Nor did it

26 provide any specifics as to why the Bureau no longer believed the timelines called for in the

27 COVID-19 Plan were necessary to ensure an accurate count.

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179. The statement noted that the Bureau was taking this action at the direction of the

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1 Secretary of Commerce. But the Secretary made no statement explaining his reason for giving

2 this directive.

3

180. The Director’s statement was largely silent on specific adjustments the Bureau

4 would need to make in order to reengineer its field operations to meet its new, artificially

5 compressed schedule. The statement included proposals for enumerator “awards” and

6 maximizing enumerators’ phone and tablet usage, but it did not provide any details about

7 adjustments to the detailed operations provided in the Final Operational Plan.

8

181. The only adjustments announced under the Rush Plan were severely truncated

9 timelines for conducting data-collection and data-processing operations.

10

182. Under the Rush Plan, data-collection is now set to end on September 30, 2020,

11 one month earlier than contemplated in the Bureau’s COVID-19 Plan.

12

183. While the Bureau’s pre-COVID-19 Final Operational Plan provided 79 days for

13 the nationwide door-knocking stage of the census, and the COVID-19 Plan provided 81 days, the

14 Rush Plan provides just 52 days of nationwide door-knocking.

15

184. The Rush Plan also cuts post-collection data processing for the apportionment

16 report from up to 6 months as provided in the COVID-19 Plan, and up to 5 months as originally

17 provided in the Final Operational Plan, to less than 3 months.

18

185. The Rush Plan also shortened the time under which households can self-respond,

19 providing that self-responses delivered after September 30, 2020—which previously would have

20 been timely under the October 31, 2020 deadline—will no longer be counted.

21

186. While the Rush Plan requires the Bureau to accelerate its operations to complete

22 the 2020 Census by the same deadline contemplated in the Final Operational Plan, it ignores the

23 multiple-month pause in operations, beginning in mid-March 2020, caused by the initial outbreak

24 of COVID-19 in the United States.

25

187. The decision to rescind the COVID-19 Plan and adopt the Rush Plan was

26 announced without consultation with important stakeholders.

27

188. As noted above, as late as July 8, 2020, senior Bureau officials were still

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confirming that it was impossible to complete an accurate count by December 31, 2020.

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1

189. In addition, until July 30, 2020, just four days before the Bureau announced its

2 decision to abandon the COVID-19 Plan, the Bureau was informing respondents on its website

3 that it would engage in Non-Response Follow-Up until October 31, 2020 and that non-

4 responsive households would have until that date to self-respond. Those references were deleted

5 from the website on or about July 31, 2020 and were replaced with the shortened timeframe after

6 the August 3, 2020 announcement.

7

190. An official at the Government Accountability Office confirmed that Bureau

8 officials told his office that they were given “hours rather than days or weeks” to adjust their

9 plans to finish counting by September 2020. Hansi Lo Wang, ‘Not Enough Time’: Census

10 Workers Fear Rushing Count Could Botch Results, NPR (Aug. 11, 2020),

11 https://www.npr.org/2020/08/11/901202892/not-enough-time-census-workers-fear-rushing-

12 count-could-botch-results.

13

191. While the Census Bureau’s decisions, even during the COVID-19 emergency,

14 have often involved consultations with scientific advisory committees, the Committee on

15 National Statistics in the National Academies of Science, other external experts and local

16 government officials, and the thousands of organizations partnering with the Bureau to conduct

17 crucial outreach to historically undercounted communities, no such consultation was made

18 before the Bureau announced its abandonment of the COVID-19 Plan.

19

192. Census stakeholders immediately denounced the Rush Plan, including

20 stakeholders who had endorsed the COVID-19 Plan.

21

193. The same four former Census Bureau Directors who endorsed the COVID-19

22 Plan issued a statement saying that “our expert opinion is that failing to extend the deadlines to

23 April 30, 2021 will result in seriously incomplete enumerations in many areas across our

24 country.” Press Release, Former Census Bureau Directors, On the Importance of Extending the

25 2020 Census Statutory Deadlines to Achieve a Fair and Accurate Enumeration of the United

26 States (Aug. 4, 2020), https://www.documentcloud.org/documents/7013550-Aug-4-2020-

27 Statement-By-Former-U-S-Census-Bureau.html.

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194. These four former Census Bureau Directors further asserted: “The Census Bureau

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1 will not be able to carry out the NRFU fully and will be forced to take steps such as fewer in-

2 person visits and rely instead on the use of administrative records or statistical techniques on a

3 much larger scale tha[n] in previous census. The end result will be under-representation of those

4 persons that NRFU was expected to reach and, at even greater rates for traditionally hard-to-

5 count populations and over-representation of all other populations with potentially extreme

6 differential undercounts.” Press Release, Former Census Bureau Directors, On the Importance

7 of Extending the 2020 Census Statutory Deadlines to Achieve a Fair and Accurate Enumeration

8 of the United States (Aug. 4, 2020), https://www.documentcloud.org/documents/7013550-Aug-

9 4-2020-Statement-By-Former-U-S-Census-Bureau.html.

10

195. The President of the American Statistical Association, the world’s largest

11 professional organization of statisticians, issued a statement saying “[t]here is no scientific

12 rationale to curtail the data-collection period for this constitutionally mandated activity, and the

13 premature cessation of census enumeration will produce flawed counts.” Letter from Rob

14 Santos, President of the American Statistical Association, to Mitch McConnell, U.S. Senate

15 Majority Leader (Apr. 5, 2020), https://www.amstat.org/asa/files/pdfs/POL-

16 CensusSenateAugust.pdf.

17

196. Nearly 450 nonpartisan philanthropic organizations who “rely on accurate census

18 data to help identify community needs and to prioritize grantmaking” issued a letter to Secretary

19 Ross and Director Dillingham urging the Bureau to revert to its COVID-19 Plan. Letter from

20 U.S. Philanthropy Leaders to Wilbur Ross, Secretary of the U.S. Dep’t of Commerce (Aug. 5,

21 2020), https://funderscommittee.org/wp-content/uploads/2020/08/Letter-Philanthropic-Leaders-

22 on-Census-Being-Cut-Short-8-5.pdf.

23

197. Prominent civil-rights groups condemned the Rush Plan. Vanita Gupta, President

24 and CEO of The Leadership Conference on Civil and Human Rights and The Leadership

25 Conference Education Fund, stated that “[c]urtailing operations is an obvious ploy to guarantee

26 the Census Bureau won’t be able to finish counting millions of people—especially those hit

27 hardest by the pandemic.” Press Release, Leadership Conference on Civil and Human Rights,

28
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Trump Plans to Sabotage 2020 Census by Cutting Short Operations (July 31, 2020),

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1 https://civilrights.org/2020/07/31/trump-plans-to-sabotage-2020-census-by-cutting-short-

2 operations/.

3

198. And the Census Bureau’s own field workers have confirmed the impossibility of

4 this new timeline, explaining that the Rush Plan means that it will not be an accurate count for

5 the next 10 years.

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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B. The Rush Plan Fails to Appropriately Account for Key Factors Affecting the 2020 Census
199. The Rush Plan fails to account for several important factors that affect the 2020 Census Non-Response Follow Up operation.
200. First, the Rush Plan does not adequately account for the large number of households in the Non-Response Follow Up universe.
201. Under the Rush Plan, the Census Bureau must attempt to count approximately the same number of households during Non-Response Follow Up as it anticipated counting in its pre-COVID-19 Final Operational Plan, but the Bureau will have four weeks less than provided in that plan to complete the operation. In other words, the Bureau must now try to complete the same amount of work in just 65% of the time it had originally scheduled to complete that work.
202. Over 37% of households nationwide are non-responsive, and several states have even higher percentages of households in the Non-Response Follow Up universe, including New Mexico (46.1%), South Carolina (42.4%), Texas (41.3%), and Georgia (40.8%).
203. While soft-launches of Non-Response Follow Up began in select locations in mid-July 2020, the operation did not begin in any of these states, with large amounts of nonresponsive households, until August 9, 2020.
204. Within states, and in particular cities and localities, there are even higher NonResponse Follow Up workloads. For instance, in Plaintiff Harris County, enumerators must still visit over 41% of households. In the City of Los Angeles, over 46% of households remain to be enumerated. The self-response rate in Los Angeles is approximately 14 percentage points below the final self-response rate the City attained during the 2010 Census. Counting in these jurisdictions also did not begin until August 9, 2020.

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1

205. Moreover, given the time constraints placed by the Rush Plan, counting will need

2 to be conducted while these jurisdictions, in many places, struggle to control a surge in COVID-

3 19 cases.

4

206. While the Bureau announced on August 11, 2020 that it is now “training census

5 takers to follow up with households by phone” in light of the pandemic, that change in Non-

6 Response Follow Up operations was not anticipated in the Final Operational Plan. Press

7 Release, U.S. Census Bureau, Door-to-Door Visits Begin Nationwide for 2020 Census (Aug. 11,

8 2020), https://www.census.gov/newsroom/press-releases/2020/door-to-door-visits-begin-

9 nationwide.html.

10

207. Given the traditionally low response rates for phone surveys in the wireless era,

11 following up by phone is unlikely to materially increase response rates.

12

208. A recent Census Bureau survey running in parallel with the 2020 Census

13 demonstrates the difficulty in obtaining responses via phone or email. This spring, the Bureau

14 began conducting a “Household Pulse Survey” to measure household experiences under the

15 COVID-19 pandemic. This survey solicited participation through emails and text messages. Over

16 the first twelve weeks of this survey, response rates were meager, ranging from 1.3% to 3.8%.

17

209. Second, the Rush Plan does not account for the staffing challenges that the Bureau

18 is currently experiencing, many of which are directly related to the ongoing pandemic.

19

210. As demonstrated in the soft-launch of Non-Response Follow Up in select locales,

20 the Bureau is already experiencing staffing shortages and retention problems with enumerators.

21

211. In the midst of the ongoing pandemic, prospective enumerators, many of whom

22 are elderly and at high risk of contracting a severe COVID-19 related illness, are less willing to

23 engage in the required door-to-door canvassing.

24

212. Indeed, Tim Olson, head of field operations for the 2020 Census, stated at a July

25 8, 2020 press briefing that “[a]bout a third of our [enumerator] applicants [are] older persons

26 considered high risk of the virus.” U.S. Census Bureau, Operational Press Briefing – 2020

27 Census Update at 21 (July 8, 2020), https://www.census.gov/content/dam/Census/

28
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newsroom/press-kits/2020/news-briefing-program-transcript-july8.pdf.

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1

213. And Deborah Stempowski, the Census Bureau’s Assistant Director for Decennial

2 Programs, noted the Bureau’s difficulty retaining enumerators in early August 2020, confirming

3 that potential enumerators were “a little hesitant because of the COVID environment.” Mike

4 Schneider, Census Bureau Drop-Outs Complicate Door-Knocking Efforts, Associated Press

5 (Aug. 8, 2020), https://www.usnews.com/news/us/articles/2020-08-08/census-bureau-drop-outs-

6 complicate-door-knocking-efforts.

7

214. In testimony before Congress on July 28, 2020, Director Dillingham confirmed

8 that the Bureau believed that “the pandemic is estimated to increase the number of no shows to

9 training sessions, as well as the number of employees who complete training but decline to show

10 up for work.” Id.

11

215. According to reports from census-operations staff working in the field, these

12 predictions have come to pass. One census field supervisor working in the mid-Atlantic noted

13 that, given the new rushed timeline and lack of sufficient staff, “[w]e’re just sending bodies out

14 regardless of whether they’re ready or not.” Hansi Lo Wang, ‘Not Enough Time’: Census

15 Workers Fear Rushing Count Could Botch Results, NPR (Aug. 11, 2020), https://www.npr.org/

16 2020/08/11/901202892/not-enough-time-census-workers-fear-rushing-count-could-botch-results.

17

216. In addition to enumerator low-count and hesitancy, another source of staffing

18 issues involves delays in processing background checks on enumerator applicants and in

19 enumerator onboarding.

20

217. A June 2020 GAO report on the 2020 Census delays COVID-19 has caused, and

21 the risks the pandemic has exacerbated, noted that the Bureau “will have to quickly hire and

22 onboard sufficient staff to conduct its operations” to reach adequate staffing levels. U.S. Gov’t

23 Accountability Office, COVID-19 Presents Delays and Risks to Census Count (June 2020),

24 https://www.gao.gov/assets/710/707456.pdf.

25

218. That same report also noted that, once potential enumerators accept a job offer

26 from the Bureau, the new hires “must wait a minimum of 60 days before they can begin training,

27 a time period during which they must complete fingerprinting and a background check.” Id.

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219. Reports from recently hired enumerators confirm that the Bureau is facing these

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1 technical challenges as well, under the compressed timeline. One recent hire in Boulder,

2 Colorado noted that he lost six potential days of door-knocking because he was unable to

3 complete the Bureau’s online training module.

4

220. Thus, under the Rush Plan, the Bureau will not be able to hire and train sufficient

5 enumerators.

6

221. Even if it were possible for the Bureau to hire all of the enumerators it will need,

7 the Bureau would also need time and funding to obtain additional equipment for any additional

8 enumerators it hires beyond its initial estimates of equipment. For example, the Bureau would

9 need more of the iPhones discussed above that the Bureau specifically contracted and

10 customized for 2020 Census enumerators.

11

222. With fewer enumerators in the field, in addition to training and equipment issues,

12 the Bureau cannot ensure that non-responsive households receive the requisite number of visits,

13 as contemplated in the Final Operational Plan.

14

223. While the Bureau had a $2 billion contingency fund prior to the existence of the

15 COVID-19 pandemic, it has already used $1.5 billion of that fund addressing pandemic-related

16 issues. The remaining $500 million will be needed to further respond to the pandemic, and, in

17 any event, is nowhere near the $1 billion that the administration claims that the Bureau would

18 need to conduct adequate Non-Response Follow Up operations under the Rush Plan.

19

224. Thus, instead of providing additional enumerators, the Bureau’s Rush Plan will

20 likely result in a smaller number of enumerators shouldering larger-than-planned workloads.

21 Increasing workloads for enumerators over a short period of time can result in errors and

22 inaccuracies in counting but it cannot make up for the time lost to the Rush Plan.

23

225. Third, the Rush Plan fails to account for factors relevant to efficient enumeration,

24 such as the time when enumerators visit households.

25

226. For instance, under the Final Operational Plan, enumerators visit households at

26 specific times of day and on specific days of the week, depending on when residents are likely to

27 answer.

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227. Under the Rush Plan, enumerators will be under pressure to complete their work

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1 in a tightly constrained timeframe. As a result, ensuring that non-responsive households receive

2 the requisite number of enumerator visits at the most opportune times for enumeration may

3 become exceedingly difficult, if not impossible. Instead, the Rush Plan increases the likelihood

4 that households will either receive visits at less opportune times, or simply receive fewer visits

5 altogether.

6

228. Fourth, the Rush Plan fails to account for the additional crucial operations that

7 enumerators must conduct, as contemplated in the Bureau’s final plans for the 2020 Census.

8 Apart from visiting households upwards of six times, enumerators also engage in a host of

9 additional quality control activities.

10

229. As noted above, enumerators are expected to visit the households of persons that

11 self-responded to the census online but did not enter the unique identifier provided on census

12 mailers. This “non-ID processing” is necessary to verify the address information provided by

13 respondents. While this process only requires a single visit to a household, it nevertheless must

14 be completed in the compressed timeline provided for under the Rush Plan.

15

230. Similarly, the Bureau must conduct quality control reinterviews of a sample of

16 households during Non-Response Follow Up. This operation is designed to deter and detect

17 enumerator falsification. Detecting such falsifications will be especially important under the

18 Rush Plan where individual enumerators must shoulder a heavier workload. The use of

19 enumerators to conduct these reinterviews will, under the Rush Plan, place additional strain on

20 the Bureau’s already stretched labor resources.

21

231. Cutting any one of these functions will cause errors and inaccuracies to affect the

22 final 2020 Census data. By reversing the COVID-19 Plan and shortening the timeframe for

23 conducting Non-Response Follow Up by a month, the Bureau will likely need to make cuts to

24 one or more of these operations.

25

232. By reducing the amount of time and resources necessary to perform the kinds of

26 quality-control measures that the Bureau originally planned for Non-Response Follow Up, the

27 Rush Plan actively dismantles processes that the Bureau has specifically developed over the

28
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course of time as checks against falsified census responses. The Rush Plan thus threatens census

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1 accuracy not only by reducing the Bureau’s time to collect data, but also by reducing the

2 Bureau’s time to ensure that the data it has collected has been collected properly and truthfully.

3

233. Fifth, the Rush Plan fails to account for the other field operations enumerators

4 will need to conduct at the same time as they attempt to speed through door-knocking operations.

5

234. Under the Final Operational Plan, the Bureau planned to finish specialized

6 operations for counting people experiencing homelessness, and people living in group housing in

7 April 2020, before engaging in nationwide door-knocking. After suspending operations due to

8 COVID-19, the Bureau moved these operations to September 2020, well-before the October 31,

9 2020 deadline the Bureau set for completing the Non-Response Follow Up operation.

10

235. The new Rush Plan requires the Bureau to conduct these specialized operations at

11 the same time as it is scrambling to complete Non-Response Follow Up. This will further stretch

12 the Bureau’s limited resources and increase the likelihood of missing information.

13

C. The Rush Plan Also Fails to Appropriately Account for Factors that Will Affect

14

Post-Collection Data Processing

15

236. The Rush Plan fails to account for the additional strain on data-processing

16 operations resulting from the consequences of the COVID-19 pandemic.

17

237. Following the outbreak of COVID-19 in the United States in mid-March 2020,

18 colleges and universities across the country closed, and students moved out of campus and off-

19 campus housing. Similarly, many residents of cities, especially those living in COVID-19

20 hotspots, moved to locations where the virus was less prevalent. In a recent study, three percent

21 of people surveyed reported that they had moved permanently or temporarily as a result of the

22 pandemic.

23

238. This significant movement of people coincided with Census Day, April 1, 2020,

24 and will lead to confusion about what residence should be listed on responses.

25

239. It is likely that the Bureau will receive an increased amount of duplicate

26 responses, which will, in turn, require more time and Bureau resources to review and correct.

27

240. The Rush Plan also fails to account for the Bureau’s inability to timely obtain and

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process all the administrative-records data crucial for completing an accurate count.

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1

241. The Bureau relies principally on Title 26 data—that is, tax returns that individuals

2 file with the Internal Revenue Service (“IRS”)—for the administrative records it uses to fill in

3 missing people and their characteristics.

4

242. Because this year’s tax filing deadline was July 15, 2020, and the IRS generally

5 requires three months to transfer Title 26 data to the Census Bureau, the Bureau will not possess

6 all the Title 26 data it is planning to use until mid-October 2020, at the earliest. Once the Bureau

7 has possession of that Title 26 data, it will have to undertake a time-consuming round of

8 additional review and processing, further delaying its ability to use the data for its planned

9 purposes. These delays will compel the data-processing phase of 2020 Census operations to

10 proceed more slowly than the Rush Plan contemplates or would allow.

11

243. Ultimately, the solution to alleviate each of these problems was articulated in the

12 COVID-19 Plan: provide the Bureau’s limited number of enumerators with additional time to

13 conduct the data-collection operations necessary to ensure a complete and accurate census, and

14 provide Bureau staff with additional time to conduct the data-processing operations necessary to

15 ensuring the same. The Rush Plan fails to address these issues or explain why the Bureau's prior

16 conclusions were incorrect..

17

D. The Rush Plan Does Not Account for Federal Statistical Guidelines

18

244. In replacing the COVID-19 Plan with the Rush Plan, Defendants departed from

19 federal government statistical standards that promote the accuracy of information collected and

20 disseminated by the agencies.

21

245. The Bureau’s failure to follow these standards further emphasizes its inability to

22 conduct an adequate count in the time and under the conditions that the Rush Plan provides.

23

246. Under the Paperwork Reduction Act, the Office of Management and Budget is

24 responsible for coordinating the federal statistical system, including the development and

25 implementation of “Governmentwide policies, principles, standards, and guidelines” “concerning

26 [] statistical collection procedures and methods.” 44 U.S.C. § 3504(e)(3) (A).

27

247. The Office of Management and Budget is responsible for issuing guidelines that

28
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provide “procedural guidance to Federal agencies for ensuring and maximizing the quality,

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1 objectivity, utility and integrity of information (including statistical information) disseminated by

2 Federal agencies.” Consolidated Appropriations Act, FY 2001, Pub. L. No. 106-554, § 515,

3 114 Stat. 2763 (2000).

4

248. One such guideline issued by the Office of Management and Budget provides

5 specific standards to agencies like the Census Bureau, in ensuring the quality and utility of

6 federal statistical surveys, such as the decennial census. Office of Mgmt. & Budget, Standards

7 and Guidelines for Statistical Surveys § 2 (2006).

8

249. Under these standards, agencies are required to develop “realistic timetable[s]”

9 for surveys. Id. § 1.2.

10

250. The Bureau failed to take this basic requirement into account when it decided to

11 implement the Rush Plan. The Rush Plan compresses the timeline for counting operations despite

12 evidence of staffing shortages and heavier workload. The Plan attempts to accomplish a task—

13 speedy delivery of results by December 31, 2020—that the Bureau has already deemed

14 “impossible.”

15

251. The standards also require agencies, including the Census Bureau, to “[e]ncourage

16 respondents to participate to maximize response rates and improve data quality.” Office of

17 Mgmt. & Budget, Standards and Guidelines for Statistical Surveys § 2.3.2. This standard

18 requires that the Census Bureau “[e]nsure that the data collection period is of adequate and

19 reasonable length.”

20

252. Again, the Rush Plan does not account for this standard. The Final Operational

21 Plan and the COVID-19 Plan provided for over eleven weeks of Non-Response Follow Up, and

22 up to five and six months, respectively, of post-collection data processing for the apportionment

23 report. The Rush Plan, on the other hand, cuts the time allotted for counting by four weeks,

24 without explaining how it will encourage more efficiency in collecting responses than the plan it

25 reversed.

26

253. The standards also require the Bureau to plan for “an adequate number of contact

27 attempts” to the respondent and to establish protocols for minimizing enumerator falsification,

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including “reinterviewing respondents.” Office of Mgmt. & Budget, Standards and Guidelines

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1 for Statistical Surveys, Directive No. 2, § 2.3.3.

2

254. With the Rush Plan significantly cutting the time available to conduct Non-

3 Response Follow Up, it is expected that the Bureau will need to cut particular Non-Response

4 Follow Up processes. This includes reducing the number of housing unit visits it earlier deemed

5 necessary to enumerate a non-responsive household, or cutting back on enumerator reinterviews.

6 Either decision will conflict with the Bureau’s obligation to abide by federal statistical standards.

7

E. The Rush Plan Will Produce Low Quality and Inaccurate Data

8

255. Ultimately, Defendants’ decision to rush completion of the 2020 Census will

9 produce a significantly less accurate census than the COVID-19 Plan.

10

256. By cutting down the time allotted for door-knocking, the Rush Plan will result in

11 fewer contact days by enumerators to non-responsive households, and less data collected by

12 enumerators about those households.

13

257. The concerns about inaccuracy resulting from shortening time for Non-Response

14 Follow Up are real and verified. A GAO review of the 2010 Non-Response Follow Up operation

15 determined that local census offices with “higher percentages” of “less complete house-hold

16 data” were more likely to have completed their Non-Response Follow Up in 53 days or less as

17 compared to those offices that took a longer period of time. U.S. Gov’t Accountability Office,

18 2010 Census: Data Collection Operations Were Generally Completed as Planned, but Long-

19 Standing Challenges Suggest Need for Fundamental Reforms (Dec. 2010),

20 https://www.gao.gov/new.items/d11193.pdf.

21

258. As noted above, after the Bureau exhausts attempts to enumerate households

22 through methods that render more accurate results, such as self-response and enumerator

23 interviews, the Bureau turns to less accurate sources of data and statistical methods as a last

24 resort to fill in missing information.

25

259. By curtailing Non-Response Follow Up, the Rush Plan will force the Bureau to

26 resort to less accurate methods of data collection, well before the exhaustion of more accurate

27 methods. Consequently, the Rush Plan will lead to the production of lower-quality information.

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260. For instance, under the Final Operational Plan, the Bureau would not consider

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1 low-quality administrative data before conducting the requisite number of contact days for a

2 particular type of housing unit. By reducing the number of enumerator contact days, the Rush

3 Plan will lead to reliance on these types of lower-quality data sources prior to exhausting the

4 more accurate methods contemplated in the Final Operational Plan. Consequently, the Rush Plan

5 will lead to more inaccuracies in the data.

6

261. Based upon past practices, the Bureau may also use whole-count imputation to

7 calculate missing household data but to an extent and in ways not used previously. Imputation

8 involves the Bureau using information from surrounding responsive households to infer the

9 count and characteristics of a non-responsive household.

10

262. In previous censuses, the Bureau imputed upwards of 2.0% of households left

11 over after exhausting its Non-Response Follow Up efforts. Under the time constraints of the

12 Rush Plan, the Bureau will need to turn to imputation before exhausting its in-person

13 enumeration efforts. One former Census Bureau Director estimates that, under the Rush Plan, the

14 Bureau may end up imputing up to 10% of households.

15

263. Since data produced through the Bureau’s current imputation methods are less

16 accurate than data collected from enumerator interviews, Defendants’ decision to rush

17 completion of the 2020 Census will result in significantly less accurate total-population data than

18 would have been produced under the COVID-19 Plan. This decline in accuracy will affect both

19 the census’s calculations of the total number of people living in the country and the census’s

20 recording of the characteristics of those people, and such inaccurate data will not meet the

21 constitutional minimum for conducting the decennial enumeration or satisfy the “strong

22 constitutional interest in accuracy” of the Census. Utah v. Evans, 536 U.S. 452, 478 (2002).

23

264. The Rush Plan will likely exacerbate the quality problems associated with

24 imputation by compromising the Bureau’s ability to collect the other kinds of data—such as self-

25 responses, proxies, and administrative records—that it requires to impute most accurately. As

26 noted above, imputation does not occur in isolation from the Bureau’s other data sources, but in

27 concert with them. With less data drawn from these other sources and less accurate data drawn

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from these other sources, the quality of the Bureau’s imputation will decline.

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1

265. The Rush Plan will also disrupt the post-collection data processing operations,

2 described above. As noted by Secretary Ross and Director Dillingham in mid-April 2020,

3 following Non-Response Follow Up the Bureau engages in “lengthy, thorough and scientifically

4 rigorous” data processing, which is essential to ensuring an accurate census.

5

266. In announcing the new plan to rush the completion of the 2020 Census, Director

6 Dillingham stated that the Bureau would “streamline” these operations in order to meet the

7 December 31, 2020 deadline.

8

267. While the Director has not specified what this “streamlining” means for post-

9 collection operations, the bottom line is that the Bureau cannot fully engage in the operations as

10 contemplated in its Final Operational Plan on the shortened timeframe. As a result, the Bureau

11 will have to cut or reduce its efforts to review and process collected data to ensure accuracy.

12

F. The New “Rush” Plan Will Create Confusion that Plaintiffs Will Be Forced to

13

Spend Time and Money Counteracting

14

268. The new plan to rush completion of the 2020 Census also creates additional

15 confusion about census operations at a critical moment in the census-taking process.

16

269. The Census Bureau’s abrupt change will require groups and local governments

17 engaging in Get Out the Count campaigns, including Plaintiff localities and Plaintiff

18 organizations, to expend resources to correct confusion about the last date for counting in the

19 2020 Census.

20

270. As noted above, Plaintiff organizations and localities engaged in extensive public

21 information campaigns that publicized the October 31, 2020 deadline.

22

271. The Rush Plan requires Plaintiffs to expend additional resources in order to

23 update existing public materials, distribute new materials, and engage in more public-facing

24 efforts to educate the public, their constituents, their members and/or constituents, and local

25 organizations that the self-response period for the census ends on September 30, 2020.

26

272. For instance, in Harris County, officials ordered a mailing to constituents

27 informing them that they had until October 31, 2020 to respond to the census. That order

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occurred before the August 3, 2020 decision to implement the Rush Plan. In light of the new

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1 plan, the officials were forced to order stickers to cover the reference to October 31, 2020 on the

2 mailer and to dedicate office staff to spend time affixing those stickers and updating the mailer.

3 Similarly, Plaintiffs the City of Los Angeles, BAJI, and Urban League must update

4 advertisements on social media to correct previous communications that referenced the October

5 31, 2020 deadline.

6

273. Apart from correcting misinterpretations arising from earlier statements Plaintiffs

7 made in reliance on the Bureau’s COVID-19 Plan, Plaintiffs must now also engage in more,

8 unanticipated outreach to educate the public about the Census Bureau’s Rush Plan decision. With

9 one month less of counting, there is now increased urgency for non-responsive households to

10 self-respond. As a result, Plaintiffs are developing new plans to reach more households and

11 encourage more census participation.

12

G. The New “Rush” Plan Will Lead to Undercounting of Minorities

13

274. The new plan to rush completion of the 2020 Census will exacerbate

14 undercounting of Black, Latino, and Native American communities.

15

275. As noted above, Non-Response Follow Up, is specifically designed to ensure that

16 traditionally hard-to-count communities, including Black, Latino, and Native American

17 communities are fully counted. By cutting Non-Response Follow Up short, the administration is

18 disrupting the operation most essential to ensuring an accurate count for these communities.

19

276. For the 2020 Census, Black, Latino and Native American populations make up a

20 disproportionate share of the population in tracts with the lowest self-response rates in the United

21 States. For instance, as of July 23, 2020, one in five residents living in census tracts with the

22 lowest self-response rates was Black, and one in four was Hispanic, far larger proportions than

23 Black and Hispanic shares of the general population.

24

277. Consequently, Black, Latino, and Native American households will make up a

25 disproportionate share of the Non-Response Follow Up universe.

26

278. Given the challenges of the shortened Non-Response Follow Up timeline, Black,

27 Latino, and Native American households have a high likelihood of being missed, or inaccurately

28
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enumerated through administrative records and imputation. As noted above, these alternative

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1 methods for enumeration will result in lower quality data for these groups.

2

279. The problem, however, is even more serious because it replicates and exacerbates

3 problems the Census Bureau has found in prior censuses and has striven to correct in subsequent

4 censuses. Data from previous censuses shows that Black, Latino, and Native Americans have

5 historically been undercounted. Over-reliance on alternative methods of data to enumerate a

6 disproportionate share of the population in these groups will further exacerbate potential

7 undercounting in these groups during the 2020 Census.

8

280. Accurate data about the size, location, and characteristics of communities of color

9 is necessary to equitably distribute political power through congressional reapportionment and

10 redistricting at the state and local levels, enforce civil-rights laws that affect basic needs like

11 housing and employment, and conduct effective research, including on pressing issues like

12 public health.

13

281. Truncating Non-Response Follow Up will exacerbate undercounts of

14 communities of color in at least two ways: first, by missing members of those communities

15 entirely; or, second, by recording their characteristics incorrectly, such that the census results

16 will not register them as members of communities of color. In either instance, data regarding

17 communities of color will be inaccurate. This inaccuracy then deprives communities of color of

18 federal funding, all the material support that flows from federal funding, the protections of the

19 law, and political power at the federal, state, and local levels.

20

H. The New Rush Plan Has No Legitimate Justification

21

282. In announcing the Rush Plan, Defendants provided no express justification.

22 Defendants stated in passing, however, that reporting of apportionment data to the President by

23 December 31, 2020 is required by statute.

24

283. But there is “nothing sacred in the due date of the filing [of apportionment data],

25 especially when the work of the Census Bureau . . . is incomplete.” Carey v. Klutznick, 637 F. 2d

26 834, 837 (2d Cir. 1980).

27

284. The Supreme Court thus determined that the government can and should

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substitute apportionment counts that have already been filed and certified with “newer, more

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1 accurate version[s].” Utah v. Evans, 536 U.S. 452, 462 (2002).

2

285. Defendants have also recognized that, in the event of a conflict between the two,

3 the constitutional requirement of a fair and accurate enumeration, rather than the statutory

4 deadline, is the controlling legal requirement. With the COVID-19 pandemic threatening the

5 health and safety of communities across the country, Defendants adjusted 2020 Census

6 operations in the COVID-19 Plan, shifting the timeline by several months. Defendants did not

7 wait for Congress to act to implement this plan, recognizing that the Plan was necessary to

8 protect enumerators and respondents, and to ensure an accurate count.

9

286. Because of those delays, as the Bureau itself recognized, it was no longer possible

10 for Defendants to produce data by December 31, 2020 that fulfilled their constitutional and

11 statutory mandate. Specifically, the Bureau could not simultaneously pursue an accurate 2020

12 Census, and speed through completion of census-taking in order to report numbers to the

13 President by the end of the year.

14

287. Several senior officials charged with actually conducting the 2020 Census

15 confirmed the impossibility of this task throughout the summer, including approximately four

16 weeks before Defendants’ abruptly announced their decision to adopt the Rush Plan.

17

288. The statutory deadline at issue is not mandated by the Constitution. Taking the

18 modest additional time necessary to ensure an accurate census, should not prevent a timely

19 reapportionment, as elections for congressional seats impacted by reapportionment will not occur

20 until 2022.

21

289. Ultimately, Defendants cannot sacrifice their mandatory constitutional obligation

22 to make decisions reasonably related to producing an accurate count in order to comply with a

23 pro forma statutory deadline. Congress clearly could not, for instance, satisfy its constitutional

24 obligations by providing the Census Bureau with a single week in which to conduct the census.

25 Strictly adhering to the December 31, 2020 deadline, as applied in extraordinary circumstances

26 of the ongoing pandemic, would be equally unconstitutional.

27

I. Implementation of the Apportionment Exclusion Order

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290. Defendants have not yet sought to justify their motivation for adopting the Rush

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1 Plan, and it cannot be justified on the basis of artificial statutory deadlines. Instead, the timing of

2 the abandonment suggests that the decision was influenced by a desire to implement the

3 President’s Executive Memorandum excluding undocumented immigrants from the

4 apportionment count, thereby undercutting the contribution of communities of color to the

5 calculations for equal representation for purposes of congressional apportionment

6 (the “Apportionment Exclusion Order”).

7

291. In late June 2020, the White House took the unprecedented step of adding two

8 political appointees to Census Bureau staff with unspecified job duties. Neither appointee had an

9 expertise in statistics, and both had a demonstrated history of partisan activity. These unusual

10 appointees had previously engaged with the Census Bureau on questions about changing

11 operations and methodology.

12

292. In mid-July 2020, White House officials reportedly asked congressional

13 appropriators to include $1 billion in the next coronavirus stimulus bill for the purpose of

14 completing the 2020 Census by the December 31, 2020 deadline.

15

293. This abrupt change in policy coincided with and was motivated by the President’s

16 July 21, 2020 issuance of the unconstitutional Apportionment Exclusion Order declaring that it is

17 the policy of the United States to remove undocumented persons from the apportionment count,

18 and requiring the Secretary of Commerce to produce estimates of the number of undocumented

19 persons in the United States when reporting total population counts to the President. As noted,

20 the Apportionment Exclusion Order is currently being challenged as unconstitutional and

21 unlawful in a number of lawsuits filed in jurisdictions around the country, including in this

22 District.

23

294. Shortening the census timeline increases the likelihood that, regardless of the

24 outcome of the November 2020 election, this President will have the opportunity to implement

25 his Apportionment Exclusion Order. Delaying reporting until spring—as the COVID-19 Plan

26 issued by the Census Bureau and Department of Commerce previously did—leaves open the

27 possibility that the President will no longer be in office when data is provided, and thus will be

28 unable to effectuate the Apportionment Exclusion Order.

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1

295. Defendants did not justify their sudden, unexplained reversal of position with any

2 evidence that Bureau officials had been wrong in stating, repeatedly, that it would be impossible

3 to produce accurate counts by December 31, 2020. There is also no evidence that the decision to

4 cut short counting operations was driven by the scientifically based judgment of Bureau

5 personnel or external experts.

6

296. To the extent that Defendants’ are motivated by a desire to implement the

7 President’s Apportionment Exclusion Order, that motivation is improper. It bears no reasonable

8 relationship to the achievement of a fair and accurate census, and, under the circumstances

9 currently facing the count, implementing the Apportionment Exclusion Order will undermine

10 that goal.

11

297. Moreover, that Memorandum is just the latest attempt by the President and

12 Secretary Ross to manipulate the census along racial and ethnic lines. Beginning in 2017,

13 Secretary Ross attempted to add an untested citizenship question to the 2020 Census, claiming

14 that the question was necessary to better enforce the Voting Rights Act. In reality, the

15 administration was seeking block-level citizenship data so states could draw district lines in a

16 manner that would disadvantage Black and Latino communities.

17

298. Defendant Ross’s decision was litigated, and enjoined by three district courts.

18 One of those cases ultimately ended up before the Supreme Court. There the Court found that

19 Defendant Ross’s stated Voting Rights Act rationale to support the addition of a citizenship

20 question to the 2020 Census was “contrived” and vacated Defendant Ross’s decision. Dep’t of

21 Commerce v. New York, 139 S. Ct. 2551, 2575-76 (2019).

22

299. On July 5, 2019, following the Supreme Court’s decision, President Trump

23 confirmed the real rationale—and fully justified the Supreme Court’s holding that the

24 administration’s rationale for this census decision was pretextual—when he stated that the

25 administration sought a citizenship question, not to enforce the Voting Rights Act, but rather “for

26 districting” and “for appropriations.” Remarks by President Trump Before Marine One

27 Departure (July 5, 2019), https://www.whitehouse.gov/briefings-statements/remarks-president-

28 trump-marine-one-departure-51/.

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1

300. Indeed, further evidence that Defendants’ actions were pretextual arose from files

2 of a prominent redistricting strategist, Thomas Hofeller. In 2015, Hofeller prepared a study titled

3 “The Use of Citizen Voting Age Population in Redistricting.” In the study, Hofeller

4 recommended adding a citizenship question to the census so that states could use citizen voting-

5 age population rather than total population to redistrict. This change in the redistricting base, in

6 Hofeller’s words, would be advantageous to “Non-Hispanic Whites” and would undercut the

7 political power of Hispanics.

8

301. It was later revealed that Hofeller was involved in drafting portions of the

9 memorandum from the Department of Justice to Defendant Commerce seeking addition of a

10 citizenship question on the 2020 Census, including sections relating to the pretextual reason for

11 requesting the question. See Ex. 8 to NYIC Pls.’ Mot. for Sanctions at 124-31, New York v. U.S.

12 Dep’t of Commerce, No. 1:18-cv-2921-JMF (S.D.N.Y. July 16, 2019), ECF No. 635-1; Defs.’

13 Opp. to Letter Mot. to Compel at 3, New York v. U.S. Dep’t of Commerce, No. 1:18-cv-2921-

14 JMF (S.D.N.Y. Oct. 30, 2018), ECF No. 451.

15

302. Shortly after the Supreme Court’s decision, President Trump issued an executive

16 order, demanding executive agencies provide the Census Bureau with administrative records

17 sufficient to allow the Bureau to determine “the number of citizens and noncitizens in the

18 country.” Exec. Order No. 13,880, § 1, 84 Fed. Reg. 33,821, 33,821 (July 16, 2019). The

19 Executive Order explicitly states that the reason this data is necessary is to design “legislative

20 districts based on the population of voter-eligible citizens,” instead of total population. Id. at

21 33,823-84.

22

303. In light of that history, the Apportionment Exclusion Order, and the near-

23 contemporaneous decision to cut counting operations short represent yet another attempt by the

24 administration to manipulate the 2020 Census and potentially undercut the political power of

25 communities of color. Defendants cannot rely on this memorandum as justification to support

26 their decision to undermine the accuracy of the census.

27 V. Harm to Plaintiffs.

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304. Plaintiffs and Plaintiff non-profits’ members and/or constituents reside in locales

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1 that will suffer harm as a result of Defendants’ decision because that decision is very likely to

2 cause these locales to be more disproportionately undercounted in the 2020 Census than they

3 otherwise would have been.

4

305. On August 9, 2020, at the beginning of the Non-Response Follow Up operation,

5 Plaintiff City of Los Angeles, had a response rate of just 53.1%, which was significantly lower

6 than the 64.5% statewide response rate in California on that same date.

7

306. The Urban League, League of Women Voters, and BAJI have affiliates,

8 constituents, and members in major cities across the United States. This includes cities where

9 response rates were lower than their corresponding statewide response rates on the first day of

10 Non-Response Follow Up including San Francisco (61.4%) and Monterey (60.5%) as compared

11 to California (64.5%), Miami (49.6%) as compared to Florida (60.1%), Philadelphia (52%) as

12 compared to Pennsylvania (65.5%), Detroit (48.7%) as compared to Michigan (68.9%), and New

13 York City (54.9%) as compared to New York State (58.9%).

14

307. Plaintiffs Ellis and Garcia are residents of Houston, Texas. The response rate in

15 Houston at the beginning of Non-Response Follow Up was 54%, which was lower than the

16 statewide response rate for Texas on that date, 58.2%.

17

308. As noted above, Defendants’ decision will result in fewer enumerations through

18 Non-Response Follow Up, increased reliance on low-quality administrative data, and increased

19 imputation. Consequently, Defendants’ decision will result in cities’ with higher rates of non-

20 response (1) having less accurate data; and (2) experiencing higher rates of undercounting.

21

309. Because these cities have a higher proportion of households in the Non-Response

22 Follow Up universe than their corresponding states, these cities have a substantially higher

23 likelihood of being undercounted because of Defendants’ decision than surrounding communities

24 in their states. These disproportionate undercounts will cause Plaintiffs to suffer both fiscal and

25 representational harm.

26

A. Funding Harms

27

310. The Rush Plan will result in loss of federal funding for Plaintiffs Harris County,

28
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City of Salinas, and the City of Los Angeles and the communities where members of Plaintiff

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1 non-profits reside, including Miami, Detroit, Philadelphia and New York.

2

311. Over 130 programs and 675 billion dollars are allocated to states and localities on

3 the basis of census-derived information. This includes funding to states for federal transportation

4 planning purposes, education, and healthcare.

5

312. Many important federal programs, including Title I Grants under the Every

6 Student Succeeds Act, require states to distribute funds to localities on the basis of census-

7 derived information.

8

313. State Education Agencies must allocate Title I Grants, at least in part, on the

9 number of children aged 5-17 living in poverty in a local education agency’s jurisdiction.

10

314. Given that members of Plaintiff non-profits reside in cities that are likely to be

11 more undercounted under the Rush Plan relative to surrounding communities in their states,

12 including San Francisco, Miami, Detroit, Philadelphia, and New York City, Defendants’ decision

13 will likely deprive the communities where these members reside of Title I Grant funding they

14 would have otherwise received. Similarly, Defendants’ decision places Plaintiffs Ellis and

15 Garcia’s community at higher risk of deprivation of Title I Grant funding.

16

315. Several additional federal programs require states to use census-derived

17 information to distribute funds directly to cities and counties, based on their share of a relevant

18 population. For instance, the Low Income Home Energy Assistance Program, the Workforce

19 Innovation and Opportunity Act program, and the Community Services Block Grant Program, all

20 require states to distribute funds to cities and counties, at least in part, on the proportion of a

21 state’s low-income residents living in those cities and counties. This data is derived from

22 information collected during the decennial census.

23

316. Both Harris County and the City of Los Angeles receive funds under these

24 programs. Consequently, disproportionate undercounting of Harris County and the City of Los

25 Angeles, as compared to their states, is likely to result in loss of funds under these and similar

26 programs.

27

317. Several federal funding programs provide funding directly to cities and counties

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based on census-derived information. For instance, the Community Development Block Grant

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1 program, and the Emergency Solutions Grant, allocate funding to cities and counties based, at

2 least in part, on their share of the overall population count relative to other metropolitan areas.

3

318. Of cities with over 500,000 people, the City of Los Angeles had the fourth lowest

4 response rate in the country, just behind Detroit and Philadelphia. Consequently, Los Angeles

5 will likely lose Community Development Block Grant funds because of Defendants’ decision.

6

319. Similarly, members of Plaintiff non-profits live in major metropolitan areas with

7 some of the lowest response rates in the country, such as Miami, Detroit and Philadelphia.

8 Defendants’ decision will likely deprive these members’ communities of funding under the

9 Community Development Block Grant program.

10

320. Finally, the allocation of federal transportation including the Surface

11 Transportation Block Grant Program, and the Metropolitan and Statewide Nonmetropolitan

12 Transportation Planning Programs are based on the population of urbanized areas in a state

13 compared to those of other states, as determined by the decennial census.

14

321. Plaintiffs Ellis and Garcia regularly drive on highways and roads in Texas.

15 Disproportionate undercounting of urbanized areas in Texas during the 2020 Census will result

16 in reduced transportation funding for Texas under federal transportation programs.

17

B. Representational Harm

18

322. Defendants’ decision will also likely result in representational harm to individual

19 Plaintiffs and to the members of Plaintiff organizations.

20

323. Plaintiffs Ellis and Garcia reside in Houston, Texas. In terms of self-response

21 rates, Texas ranks 39th in the United States. Approximately four million Texas households are in

22 the Non-Response Follow Up universe, which is more households than any state other than

23 California.

24

324. Consequently, Defendants’ decision will not only cause a substantial undercount

25 in Texas, but that undercount will likely be disproportionate as compared to other states. Texas

26 will likely be deprived of its fair share of representation in the next congressional apportionment.

27

325. As a result, Defendants’ decision is likely to result in reduction of voting power

28
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and representation for Plaintiffs Ellis and Garcia, because it will likely cause the loss of a seat in

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1 Texas, and will result in fewer Representatives spread out over the state of Texas.

2

326. As for Plaintiff City of Los Angeles, at least one study has predicted that, were

3 California to lose a congressional seat because of the final census count, that seat is very likely to

4 come from a district that includes portions of South Los Angeles, thus reducing the city’s

5 representational delegation.

6

327. Defendants’ decision will also cause Plaintiff Ellis and members of Plaintiff non-

7 profits to experience a loss of intrastate voting power.

8

328. By causing disproportionate undercounting of communities in Houston, Detroit,

9 Philadelphia, and Miami, as compared to their corresponding states, Defendants’ decision will

10 result in drawing of district lines that do not accurately represent the population of the state, and

11 disadvantage Plaintiffs Ellis and Garcia, and members of Plaintiff organizations that live in

12 undercounted communities.

13

C. Inaccurate Data

14

329. Plaintiff local governments will suffer harm from the adverse impact Defendants’

15 decision will have the accuracy of population counts produced by the Census Bureau. Plaintiff

16 local governments often rely on accurate information collected by the Census Bureau for crucial

17 public planning purposes, including planning for how to respond to emergencies.

18

330. For example, local governments often rely on a Social Vulnerability Index to

19 identify communities that are at high risk during a particular emergency. Government officials

20 rely on this index to determine where to allocate resources before and during emergencies. A

21 Social Vulnerability Index use census data to identify specific populations that may be

22 vulnerable to a particular emergency, including data relating to age, housing density, income

23 status, and race and ethnicity. Inaccurate census data would make disaster planning and

24 emergency response more difficult, and could disrupt important public programs.

25

331. In Harris County, officials used the Center for Disease Control’s Social

26 Vulnerability Index to inform decisions about proper distribution of COVID-19 Relief Funds.

27 The funds were allocated to provide relief to Harris County residents most impacted by the

28
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global pandemic. That Social Vulnerability Index, which was based on census data, was used to

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1 identify census tracts with the most vulnerable residents, and applications from residents from

2 those tracts were prioritized and given higher chances of acceptance for funds. Without accurate

3 census data, Harris County would struggle to ensure that crucial relief funds were reaching the

4 communities most in need of them.

5

332. Similarly, King County relies on accurate census data to inform its public-policy

6 decision making. For instance, the county uses census data to plan public-transit service, and to

7 ensure priority populations have transit access, and to site public health clinics.

8

333. The low-quality data and undercounting that Defendants’ decision will cause will

9 also harm Plaintiffs. For instance, undercounting of Black, Latino, Native American, and

10 immigrant communities will negatively affect the Urban League, League of Women Voters and

11 BAJI by undermining these organizations’ core missions of promoting equal and just laws and

12 empowering vulnerable communities through building coalitions and initiating campaigns with

13 African Americans and Black immigrants, and fostering racial, economic, and social equality for

14 the communities they serve.

15

D. Expending Additional Resources

16

334. Plaintiff organizations, the Urban League, the League of Women Voters, and

17 BAJI, and Plaintiff local governments, City of San Jose, Harris County, King County, City of

18 Salinas, and City of Los Angeles will need to expend additional resources and divert resources

19 from planned programs and projects in order to address the adverse consequences of Defendants’

20 decision to abandon the COVID-19 Plan, and implement the Rush Plan.

21

335. Plaintiffs’ planned efforts to ensure the effective enumeration of historically

22 undercounted communities were based on the understanding that the Census Bureau would

23 implement the Non-Response Follow Up operation contemplated in the Final Operational Plan

24 and adjusted in the COVID-19 Plan.

25

336. The abrupt reversal of the COVID-19 Plan, and the implementation of curtailed

26 Non-Response Follow Up in the Bureau’s Rush Plan will adversely affect Plaintiffs’ plans.

27

337. Plaintiff organizations and local governments will likely need to adjust plans, and

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divert resources from other planned activities and programs in order to ensure the communities

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1 they serve are adequately counted. Specifically, Plaintiffs will need to recruit and train staff to

2 engage in increased and expanded outreach to potential non-responsive households in order to

3 make up for fewer enumerator visits, or to other aspects of the Non-Response Follow Up

4 program, such as the reinterview process.

5

338. For instance, Plaintiff BAJI is planning significant adjustments to its 2020 Census

6 outreach plans in light of Defendants’ decision, that include diversion of resources from other

7 sources, and significant expenditures. In order to engage in effective outreach, BAJI needs

8 organizing staff dedicated to civic engagement. With Non-Response Follow Up occurring from

9 August 11, 2020 through October 31, 2020, BAJI anticipated that it could spread its staffing

10 resources over that timeframe to ensure it was meeting its goals within the organization’s budget.

11 However, on a shorter timeframe, BAJI needs additional staff on a shorter timeframe, which will

12 require adjusting the organization’s budget and priorities for the next several months.

13

339. The adjustment is also challenging for BAJI as the organization caters to

14 immigrant communities with a variety of language needs. Increasing staffing on a short

15 timeframe poses significant challenges for the organization, because it must locate staff that can

16 communicate with the particular community that the organization is targeting for outreach

17 18 19 20 21 22 23 24 25 26 27 28
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efforts.

CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF Violation of the Enumeration Clause, and Fourteenth Amendment
(U.S. Const. art. I, § 2; U.S. Const. amend. XIV, § 2)
340. Plaintiffs incorporate by reference the allegations set forth in the preceding

paragraphs.

341. Under the Enumeration Clause of the U.S. Constitution, Congress, and, by

delegation, the Secretary of Commerce, must conduct an “actual Enumeration” of the population.

This clause requires that decisions relating to census-taking “bear a reasonable relationship to the

accomplishment of an actual enumeration of the population.” Wisconsin v. City of N.Y., 517 U.S.

1, 20 (1996).

342. The COVID-19 pandemic severely disrupted the 2020 Census, resulting in

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1 months of suspended operations and significant delays in crucial counting processes. Moreover,

2 the public-health crisis continues to impact census operations, as the Bureau struggles to retain

3 enumerators and engage in door-knocking in communities experiencing surges of the virus.

4

343. To navigate this emergency, the Bureau took necessary action to adjust its

5 operational timelines in the COVID-19 Plan while seeking to maintain the operations and

6 processes included in the Final Operational Plan that had been designed to help ensure a

7 complete and accurate count.

8

344. Abruptly and without explanation, on August 3, 2020, Defendants abandoned the

9 COVID-19 Plan and implemented the Rush Plan. The Rush Plan does not “bear a reasonable

10 relationship to the accomplishment of an actual enumeration of the population.” After delaying

11 all operations for months, the Bureau and its staff repeatedly recognized that it was impossible to

12 produce counts consistent with their duties to ensure a full, fair, and accurate count by December

13 31, 2020. Indeed, current conditions demonstrate that it is infeasible to obtain a fair and accurate

14 count by the end of the year. Nevertheless, the Defendants abandoned their constitutionally

15 mandated pursuit of fair and accurate data, in favor of the speed of the Rush Plan, and the

16 inaccurate data it will produce.

17

345. Under these circumstances, the decision to curtail crucial 2020 Census operations

18 violates the Enumeration Clause of the United States Constitution.

19

346. These constitutional violations have caused, are causing, and will continue to

20 cause harm to Plaintiffs as alleged above, and there is a substantial likelihood that the requested

21 relief will redress this harm.

22

SECOND CLAIM FOR RELIEF Violation of Administrative Procedure Act—Arbitrary and Capricious

23

(5 U.S.C. § 706(2)(A))

24

347. Plaintiffs incorporate by reference the allegations set forth in the preceding

25 paragraphs.

26

348. The APA, 5 U.S.C. § 706(2), provides that a court shall hold unlawful and set

27 aside agency action found to be arbitrary, capricious, an abuse of discretion, or otherwise not in

28
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accordance with law. The Rush Plan is final agency action because it marks the consummation

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1 of the agency’s decision-making process, and it is one by which rights or obligations have been

2 determined, or from which legal consequences will flow. Bennett v. Spear, 520 U.S. 154, 177-78

3 (1997).

4

349. In determining whether an action violates the APA, courts consider whether the

5 agency examined relevant data and articulated a satisfactory explanation for its decision,

6 including formulating a rational connection between the facts found and the choice made. Motor

7 Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

8 Where an agency wishes to depart from an earlier decision, it must acknowledge that change and

9 any reliance interests its previous actions engendered. See Perez v. Mortg. Bankers Ass’n, 575

10 U.S. 92, 105-06 (2015).

11

350. The Bureau spent several years developing its Final Operational Plan for the 2020

12 Census. That plan carefully determined the required length of each operation, including the

13 appropriate length for data-collection and data-processing. It also included details about the

14 implementation of the various operations.

15

351. The COVID-19 pandemic disrupted census operations, and the Bureau responded

16 by adjusting its operations in its COVID-19 Plan. That plan involved retaining the details and the

17 length of time of various operations laid out in the Final Operational Plan, but shifting the

18 timeline for counting several months into the future to account for both the necessity of those

19 operations and the public-health emergency.

20

352. The Bureau began implementing the plan, and critical operations were suspended

21 and delayed through the summer. Bureau officials publicly and expressly recognized that it was

22 no longer possible to comply with the December 31, 2020 deadline if the Bureau intended to

23 fulfill its constitutional and statutory obligation of producing reasonably accurate population

24 counts.

25

353. Without explanation and without citing any evidence, Defendants suddenly

26 changed their position and issued a new plan with shortened timelines. Among other things, that

27 change conclusively changed the legal rights and obligations of private households, who now

28
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have substantially less time to respond if they wish to be counted in the 2020 Census. Defendants

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1 have provided no evidence to support rescinding the COVID-19 Plan, have failed to

2 acknowledge or explain their departure from their previous conclusions as to the length of time

3 necessary for an accurate census, and have cited no evidence that they could obtain accurate

4 counts on the shortened timeframe. Defendants’ unexplained and unjustifiable reversal is

5 precisely the sort of arbitrary and capricious agency action that the Administrative Procedure Act

6 forbids.

7

354. Defendants’ decision also fails to account for several factors relevant to the

8 decision, including the multiple-month long suspension in operations and delay of crucial census

9 operations, the staffing shortages facing the Bureau, the meticulously designed and tested

10 technical requirements for effective enumeration included in the Bureau’s Final Operational

11 Plan, and the various quality-control measures the Bureau must engage in to ensure that its

12 reported data is accurate.

13

355. Consequently, Defendants’ action is arbitrary and capricious.

14

356. This unlawful action has caused, is causing, and will continue to cause harm to

15 Plaintiffs as alleged above, and there is a substantial likelihood that the requested relief will

16 redress this harm. 17 18

THIRD CLAIM FOR RELIEF Violation of Administrative Procedure Act—Pretext
(5 U.S.C. § 706)

19

357. Plaintiffs incorporate by reference the allegations set forth in the preceding

20 paragraphs.

21

358. Under the Administrative Procedure Act, agencies are required to disclose the

22 “genuine justification[] for important decisions.” Dep’t of Commerce, 139 S. Ct. at 2569, 2575-

23 76. Courts will not accept “contrived reasons” provided by agencies as that would defeat the

24 purpose of judicial review. Id. at 2576. Moreover, agencies cannot simply avoid providing

25 reasoning for their decision-making altogether.

26

359. Defendants have decided to cut crucial operations in order to produce 2020

27 Census population results to the President by December 31, 2020. In announcing that decision,

28
ATTORNEYS AT LAW SAN FRANCISCO

Defendants provided no legitimate justification for abandoning the COVID-19 Plan and

CASE NO. 20-CV-05799-LHK

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1 implementing the Rush Plan.

2

360. Any attempt by the Defendants to rely on the reporting deadline provided under

3 the Census Act as justification for their decision is mere pretext. 13 U.S.C § 141(b).

4

361. For months, Defendants implemented the COVID-19 Plan, the timeline for which

5 necessarily assumed the statutory deadlines could not defeat the constitutional duty to conduct an

6 accurate enumeration, as applied to the extraordinary circumstances at hand. Defendants made

7 significant adjustments, including months-long delays of census operations, on the assumption

8 that the Bureau could and would conduct a full and robust count through the end of October 31,

9 2020. Since mid-April 2020, Defendants have expressly and publicly recognized that the Bureau

10 could not provide a complete and accurate count by December 31, 2020. And President Trump

11 maintained that the statutory deadlines need not be followed.

12

362. Defendants’ reversal of position on the 2020 Census timeline appears driven by

13 Defendants’ efforts to ensure implementation of the President’s unconstitutional Apportionment

14 Exclusion Order, which attempts to exclude undocumented persons from the apportionment

15 count and continues a long-running pattern of racially discriminatory and improperly politically

16 motivated conduct of the 2020 Census.

17

363. In light of these considerations, Defendants’ purported justification is pretextual

18 and, thus, arbitrary and capricious under the Administrative Procedure Act.

19

364. Defendants’ unlawful action has caused, is causing, and will continue to cause

20 harm to Plaintiffs as alleged above, and there is a substantial likelihood that the requested relief

21 will redress this harm.

22

PRAYER FOR RELIEF

23

365. Plaintiffs respectfully request that this Court:

24

366. Declare that Defendants’ promulgation of the Rush Plan, and corresponding

25 revocation of the COVID-19 Plan is unconstitutional under the Enumeration Clause, and

26 unlawful under the Administrative Procedure Act.

27

367. Vacate the Rush Plan, thereby reinstating the COVID-19 Plan.

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ATTORNEYS AT LAW SAN FRANCISCO

368. Enjoin Defendants from implementing the Rush Plan or otherwise unlawfully

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1 interfering with the COVID-19 Plan.

2

369. Award Plaintiffs costs, expenses, and reasonable attorneys’ fees.

3

370. Award any other relief the Court deems just and proper.

4 5 Dated: September 1, 2020 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

LATHAM & WATKINS LLP
By: /s/ Sadik Huseny Steven M. Bauer (Bar No. 135067) Sadik Huseny (Bar No. 224659) Amit Makker (Bar No. 280747) Shannon D. Lankenau (Bar. No. 294263) 505 Montgomery Street, Suite 2000 San Francisco, CA 94111 Telephone: 415.391.0600 Facsimile: 415.395.8095
Richard P. Bress (admitted pro hac vice) Melissa Arbus Sherry (admitted pro hac vice) Anne W. Robinson (admitted pro hac vice) Tyce R. Walters (admitted pro hac vice) Genevieve P. Hoffman (admitted pro hac vice) Gemma Donofrio (admitted pro hac vice) 555 Eleventh Street NW, Suite 1000 Washington, D.C. 20004 Telephone: 202.637.2200 Facsimile: 202.637.2201
Attorneys for Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just Immigration; Harris County, Texas; King County, Washington; City of San Jose, California; Rodney Ellis; Adrian Garcia; and the NAACP

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CASE NO. 20-CV-05799-LHK

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ATTORNEYS AT LAW SAN FRANCISCO

LAWYERS’ COMMITTEE FOR CIVIL CITY ATTORNEY FOR THE CITY OF

RIGHTS UNDER LAW

LOS ANGELES

By: /s/ Jon M. Greenbaum Kristen Clarke (pro hac vice forthcoming) Jon M. Greenbaum (Bar No. 166733) Ezra D. Rosenberg (admitted pro hac vice) Dorian L. Spence (pro hac vice
forthcoming) Ajay P. Saini (admitted pro hac vice) Maryum Jordan (Bar No. 325447) Pooja Chaudhuri (Bar No. 314847) 1500 K Street NW, Suite 900 Washington, DC 20005 Telephone: 202.662.8600 Facsimile: 202.783.0857

By: /s/ Danielle Goldstein Michael N. Feuer (Bar No. 111529)
mike.feuer@lacity.org Kathleen Kenealy (Bar No. 212289)
kathleen.kenealy@lacity.org Danielle Goldstein (Bar No. 257486)
danielle.goldstein@lacity.org Michael Dundas (Bar No. 226930)
mike.dundas@lacity.org 200 N. Main Street, 8th Floor Los Angeles, CA 90012 Telephone: 213.473.3231 Facsimile: 213.978.8312

Attorneys for Plaintiffs National Urban League; City of San Jose, California; Harris County, Texas; League of Women Voters; King County, Washington; Black Alliance for Just Immigration; Rodney Ellis; Adrian Garcia; the NAACP; and Navajo Nation

Attorneys for Plaintiff City of Los Angeles

BRENNAN CENTER FOR JUSTICE

CITY OF SALINAS

By: /s/ Wendy R. Weiser
Wendy R. Weiser (admitted pro hac vice) weiserw@brennan.law.nyu.edu
Thomas P. Wolf (admitted pro hac vice) wolf@brennan.law.nyu.edu
Kelly M. Percival (admitted pro hac vice) percivalk@brennan.law.nyu.edu
120 Broadway, Suite 1750
New York, NY 10271
Telephone: 646.292.8310
Facsimile: 212.463.7308

By: /s/ Christopher A. Callihan Christopher A. Callihan (Bar No. 203010)
legalwebmail@ci.salinas.ca.us Michael Mutalipassi (Bar No. 274858)
michaelmu@ci.salinas.ca.us 200 Lincoln Avenue Salinas, CA 93901 Telephone: 831.758.7256 Facsimile: 831.758.7257
Attorneys for Plaintiff City of Salinas

Attorneys for Plaintiffs National Urban League; City of San Jose, California; Harris County, Texas; League of Women Voters; King County, Washington; Black Alliance for Just Immigration; Rodney Ellis; Adrian Garcia; the NAACP and Navajo Nation

CASE NO. 20-CV-05799-LHK

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ATTORNEYS AT LAW SAN FRANCISCO

NAVAJO NATION DEPARTMENT OF JUSTICE By: /s/ Jason Searle Doreen McPaul, Attorney General
dmcpaul@nndoj.org Jason Searle (pro hac vice forthcoming)
jasearle@nndoj.org P.O. Box 2010 Window Rock, AZ 86515 Telephone (928) 871-6345 Attorneys for Navajo Nation EDELSON PC By: /s/ Rafey S. Balabanian Rafey S. Balabanian (Bar No. 315962)
rbalabanian@edelson.com Lily E. Hough (Bar No. 315277)
lhough@edelson.com Edelson P.C. 123 Townsend Street, Suite 100 San Francisco, CA 94107 Telephone: 415.212.9300 Facsimile: 415.373.9435 Attorneys for Plaintiff City of Chicago
CORPORATION COUNSEL FOR THE CITY OF CHICAGO By: /s/ Rebecca Hirsch Rebecca Hirsch (pro hac vice forthcoming)
Rebecca.hirsch2@cityofchicago.org Mark A. Flessner Stephen J. Kane 121 N. LaSalle Street, Room 600 Chicago, IL 60602 Telephone: (312) 744-8143 Facsimile: (312) 744-5185 Attorneys for Plaintiff City of Chicago

PUBLIC COUNSEL
By: /s/ Mark Rosenbaum Mark Rosenbaum (Bar No. 59940)
mrosenbaum@publiccounsel.org 610 South Ardmore Avenue Los Angeles, CA 90005 Telephone: 213.385.2977 Facsimile: 213.385.9089
Attorneys for Plaintiff City of San Jose
AKIN GUMP STRAUSS HAUER & FELD LLP
By: /s/ Donald R. Pongrace Donald R. Pongrace (pro hac vice forthcoming)
dpongrace@akingump.com 2001 K St., N.W. Washington, D.C. 20006 Telephone: (202) 887-4000 Facsimile: 202-887-4288
Dario J. Frommer (Bar No. 161248) dfrommer@akingump.com
Akin Gump Strauss Hauer & Feld LLP 1999 Avenue of the Stars, Suite 600 Los Angeles, CA 90067-6022 Phone: 213.254.1270 Fax: 310.229.1001
Attorneys for Plaintiff Gila River Indian Community
HOLLAND & KNIGHT LLP
By: /s David I. Holtzman David I. Holtzman (Bar No. 299287)
David.Holtzman@hklaw.com Daniel P. Kappes Jacqueline N. Harvey 50 California Street, 28th Floor San Francisco, CA 94111 Telephone: (415) 743-6970 Fax: (415) 743-6910
Attorneys for Plaintiff County of Los Angeles

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1

ATTESTATION

2

I, Sadik Huseny, am the ECF user whose user ID and password authorized the filing of this

3 document. Under Civil L.R. 5-1(i)(3), I attest that all signatories to this document have concurred
4 in this filing. 5

6 Dated: September 1, 2020

LATHAM & WATKINS LLP

7

By: /s/ Sadik Huseny

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Sadik Huseny

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CASE NO. 20-CV-05799-LHK

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United States District Court Northern District of California

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UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA
10 SAN JOSE DIVISION
11

12

NATIONAL URBAN LEAGUE, et al.,

13

Plaintiffs,

14

v.

15

WILBUR L. ROSS, et al.,

16

Defendants.

Case No. 20-CV-05799-LHK
ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER
Re: Dkt. No. 66

17

18

Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just

19 Immigration; Harris County, Texas; King County, Washington; City of Los Angeles, California;

20 City of Salinas, California; City of San Jose, California; Rodney Ellis; Adrian Garcia; National

21 Association for the Advancement of Colored People; City of Chicago, Illinois; County of Los

22 Angeles, California; Navajo Nation; and Gila River Indian Community (collectively, “Plaintiffs”)

23 sue Defendants Commerce Secretary Wilbur L. Ross, Jr.; the U.S. Department of Commerce; the

24 Director of the U.S. Census Bureau Steven Dillingham, and the U.S. Census Bureau (“Bureau”)

25 (collectively, “Defendants”) for violations of the Enumeration Clause and Administrative

26 Procedure Act.

27

Before the Court is Plaintiffs’ September 3, 2020 motion for a temporary restraining order

28

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United States District Court Northern District of California

1 (“TRO motion”), enjoining Defendants from implementing Defendants’ August 3, 2020 Replan,

2 which shortens census data collection and processing timelines from the eight months set forth in

3 the Defendants’ April 13, 2020 COVID-19 Plan to four months. Plaintiffs claim that the Replan’s

4 shortened timelines will unlawfully harm the accuracy of crucial census data. Plaintiffs request

5 that the TRO remain in effect for twelve days, until the September 17, 2020 hearing on Plaintiffs’

6 motion for stay and preliminary injunction (“PI motion”).

7

Temporary restraining orders “serv[e] the[] underlying purpose of preserving the status quo

8 and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer.”

9 Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of Alameda

10 Cty., 415 U.S. 423, 439 (1974); accord, e.g., E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742,

11 779 (9th Cir. 2018) (“a TRO ‘should be restricted to . . . preserving the status quo and preventing

12 irreparable harm just so long as is necessary to hold a hearing and no longer”) (ellipsis in original).

13

“‘[S]erious questions going to the merits’ and a balance of hardships that tips sharply

14 towards the plaintiff can support issuance of a preliminary injunction [or TRO], so long as the

15 plaintiff also shows that there is a likelihood of irreparable injury and that the injunction [or TRO]

16 is in the public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011);

17 accord Short v. Brown, 893 F.3d 671,675 (9th Cir. 2018) (holding that these factors are “on a

18 sliding scale”). Thus, “when the balance of hardships tips sharply in the plaintiff’s favor, the

19 plaintiff need demonstrate only ‘serious questions going to the merits.’” hiQ Labs, Inc. v.

20 LinkedIn Corp., 938 F.3d 985, 992 (9th Cir. 2019) (quoting All. for the Wild Rockies, 632 F.3d at

21 1135). The issuance of a TRO is at the Court’s discretion. See All. for the Wild Rockies, 632 F.3d

22 at 1131.

23

The Court has considered the TRO motion, opposition, and reply; the parties’ oral

24 arguments at the September 4, 2020 TRO hearing; the PI motion and opposition; the relevant law;

25 and the record in this case. Below the Court analyzes in turn (1) the presence of serious questions

26 going to the merits; (2) irreparable harm; (3) the balance of hardships; and (4) the public interest.

27 All. for the Wild Rockies, 632 F.3d at 1135.

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United States District Court Northern District of California

1

The Court finds that Plaintiffs have presented serious questions going to the merits at least

2 as to Plaintiffs’ claims under the Administrative Procedure Act (“APA”). The Court does not

3 prejudge these claims, but merely recognizes that the Plaintiffs have presented serious questions

4 going to the merits of these claims.

5

For example, there are serious questions as to whether the Replan is reviewable by this

6 Court. There is a serious question as to whether Plaintiffs have standing to challenge the Replan.

7 See Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2565–66 (2019) (holding that Plaintiffs had

8 standing because an undercount of “as little as 2%” of noncitizen households constituted an injury

9 in fact and was traceable to the Defendants’ actions). Additionally, there is a serious question as to

10 whether the Replan constitutes final agency action. Although the United States Supreme Court

11 decided in Franklin v. Massachusetts that the Secretary of Commerce’s transmission of a final

12 Census report to the President is not final agency action, there is a serious question as to whether

13 Franklin governs the facts in the instant case. 505 U.S. 788, 798 (1992) (explaining that the

14 transmission was not final agency action because it “carries no direct consequences for the

15 apportionment”). Finally, there is a serious question as to whether the Replan is committed to

16 agency discretion by law. See Dep’t of Commerce v. New York, 139 S. Ct. at 2568 (noting that

17 “census-related decisionmaking” is traditionally reviewable under the Administrative Procedure

18 Act).

19

There are also serious questions as to whether the Replan was arbitrary and capricious in

20 violation of the APA. See 5 U.S.C. § 706(2)(A). The APA requires that Defendants consider the

21 “important aspect[s] of the problem” before them. Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

22 Ins. Co., 463 U.S. 29, 43 (1983). Although Defendants justify the Replan based on the statutory

23 deadline, Plaintiffs suggest that Defendants have failed to consider their other statutory

24 obligations, including the statutory requirement that Defendants “conduct a census that is accurate

25 and that fairly accounts for the crucial representational rights that depend on the census and the

26 apportionment.” Dep’t of Commerce v. New York, 139 S. Ct. at 2569 (quoting Franklin, 505 U.S.

27 at 819–20 (Stevens, J., concurring in part and concurring in the judgment)). Thus, there are

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1 serious questions going to the merits of the Plaintiffs’ APA claims.

2

As to irreparable harm, Plaintiffs identify and support with affidavits four potential

3 irreparable harms that Plaintiffs will suffer as a result of inaccurate census data. First, Plaintiffs

4 state that an inaccurate apportionment will violate their constitutional rights to political

5 representation. Mot. 29. Second, Plaintiffs risk losing important federal funding from

6 undercounting. Mot. 30. Third, Plaintiffs will need to expend resources to mitigate the

7 undercounting that will result from the Replan. Mot. 31. Lastly, local government Plaintiffs’ costs

8 will increase because those Plaintiffs rely on accurate granular census data to deploy services and

9 allocate capital.

10

These harms are potentially irreparable in two ways. To start, at least part of the harms

11 may be constitutional in nature, and “the deprivation of constitutional rights ‘unquestionably

12 constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting

13 Elrod v. Burns, 427 U.S. 347, 373 (1976)). Moreover, to the extent the harm involves expending

14 money or resources, “[i]f those expenditures cannot be recouped, the resulting loss may be

15 irreparable.” Philip Morris USA Inc. v. Scott, 561 U.S. 1301, 1304 (2010) (Scalia, J., in

16 chambers). Because the decennial census is at issue here, an inaccurate count would not be

17 remedied for another decade, which would affect the distribution of federal and state funding, the

18 deployment of services, and the allocation of local resources for a decade. Similar harms have

19 thus justified equitable relief in previous census litigation. See, e.g., Dep’t of Commerce v. U.S.

20 House of Representatives, 525 U.S. 316, 328–34 (1999) (affirming injunction against the planned

21 use of statistical sampling in census and citing apportionment harms, among others); New York v.

22 United States Dep’t of Commerce, 351 F. Supp. 3d 502, 675 (S.D.N.Y.) (issuing injunction and

23 finding irreparable “the loss of political representation and the degradation of information”), aff’d

24 in part, rev’d in part and remanded sub nom. Dep’t of Commerce v. New York, 139 S. Ct. 2551.

25 Plaintiffs attached to their TRO motion an internal Bureau document indicating that the Replan’s

26 compressed deadlines increase the risk of inaccuracy in the census count. ECF No. 66-3.

27 Plaintiffs aver that each day that the Census does not conduct its field operations to reach and

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1 count hard to reach populations increases the inaccuracy of the census count and thus increases

2 their irreparable harm.

3

By contrast, a temporary restraining order would merely require Defendants to do what

4 Defendants had planned to do and were doing since April 13, 2020, when Defendants adopted the

5 COVID-19 Plan, through August 3, 2020, when Defendants adopted the Replan. Moreover, the

6 sole evidence Defendants submit in opposition to the TRO motion and the PI motion is the

7 declaration of Albert E. Fontenot, Jr., Associate Director for Decennial Census Programs at the

8 U.S. Census Bureau (hereafter, “Fontenot”). In his September 5, 2020 declaration, Fontenot

9 declares that:

10

Lack of field staff would be a barrier to reverting to the COVID Schedule were the Court

to rule later in September. The Census Bureau begins terminating staff as operations wind

11

down, even prior to closeout. Based on progress to date, as is standard in prior censuses,

12

we have already begun terminating some of our temporary field staff in areas that have

completed their work. It is difficult to bring back field staff once we have terminated their

13

employment. Were the Court to enjoin us tomorrow we would be able to keep more staff

14

on board than were the Court to enjoin us on September 29, at which point we will have terminated many more employees.

15 Font. Decl. at ¶ 98. Thus, Fontenot’s declaration underscores Plaintiffs’ claims of irreparable harm

16 because the Bureau is terminating field staff now and will have difficulty rehiring such staff.

17 Moreover, Fontenot’s declaration suggests that the burden of an injunction on Defendants is far

18 less now than later in September.

19

Furthermore, Defendants’ stated reason for the August 3, 2020 Replan is to get the Census

20 count to the President by December 31, 2020 instead of April 30, 2021 as scheduled in the

21 Bureau’s COVID-19 Plan. Font. Decl. at ¶ 81. However, Defendants’ sole declarant, Fontenot,

22 acknowledged publicly less than two months ago that the Bureau is “past the window of being

23 able to get accurate counts to the President by December 31, 2020.” U.S. Census Bureau,

24 Operational Press Briefing – 2020 Census Update at 21 (July 8, 2020),

25 https://www.census.gov/content/dam/Census/newsroom/press-kits/2020/news-briefing-

26 programtranscript-july8.pdf. Similarly, on May 27, 2020, Tim Olson, head of field operations for

27 the 2020 Census, stated during a May 26, 2020 webinar organized by the National Congress of

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United States District Court Northern District of California

1 American Indians that, “we have passed the point where we could even meet the current

2 legislative requirement of December 31st. We can’t do that anymore.” Nat’l Conf. of Am.

3 Indians, 2020 Census Webinar: American Indian/Alaska Native, YouTube (May 26, 2020),

4 https://www.youtube.com/watch?v=F6IyJMtDDgY&feature=youtu.be&t=4689. These statements

5 support Plaintiffs’ claims of irreparable harm arising from an inaccurate census count. On

6 balance, the Court finds that the balance of hardships tips sharply in favor of Plaintiffs.

7

As to the public interest, when the government is a party, the analysis of the balance of the

8 hardships and the public interest merge. See Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073,

9 1092 (9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). As the United States

10 Supreme Court recognized, Congress has codified the public’s interest in “a census that is accurate

11 and that fairly accounts for the crucial representational rights that depend on the census and the

12 apportionment.” Dep’t of Commerce v. New York, 139 S. Ct. at 2569 (quoting Franklin, 505 U.S.

13 at 819–820 (Stevens, J., concurring in part and concurring in judgment)) (discussing the Census

14 Act, 2 U.S.C. § 2a). Other courts have held that “the public interest . . . requires obedience to the

15 Constitution and to the requirement that Congress be fairly apportioned, based on accurate census

16 figures” and that “it is in the public interest that the federal government distribute its funds . . . on

17 the basis of accurate census data.” Carey v. Klutznick, 637 F.2d 834, 839 (2d Cir. 1980) (per

18 curiam). Thus, the balance of the hardships and public interest tip sharply in Plaintiffs’ favor.

19

Accordingly, having considered the TRO motion, opposition, and reply; the parties’ oral

20 arguments at the September 4, 2020 TRO hearing; the PI motion and opposition; the relevant law;

21 and the record in this case, the Court GRANTS Plaintiffs’ motion for a temporary restraining

22 order. The Court finds that no security is necessary. See Jorgensen v. Cassiday, 320 F.3d 906, 919

23 (9th Cir. 2003) (“Rule 65(c) invests the district court ‘with discretion as to the amount of security

24 required, if any.’” (quoting Barahona–Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir. 1999)).

25

IT IS HEREBY ORDERED THAT, effective as of the date of this Order, Defendants

26 Commerce Secretary Wilbur L. Ross, Jr.; the U.S. Department of Commerce; the Director of the

27 U.S. Census Bureau Steven Dillingham, and the U.S. Census Bureau are enjoined from

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United States District Court Northern District of California

1 implementing the August 3, 2020 Replan or allowing to be implemented any actions as a result of

2 the shortened timelines in the August 3, 2020 Replan, including but not limited to winding down

3 or altering any Census field operations, until the Court conducts its September 17, 2020 hearing on

4 Plaintiffs’ PI motion.

5 IT IS SO ORDERED.

6

7 Dated: September 5, 2020

8

______________________________________

LUCY H. KOH

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United States District Judge

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UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10 SAN JOSE DIVISION
11

12

NATIONAL URBAN LEAGUE, et al.,

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Plaintiffs,

14

v.

15

WILBUR L. ROSS, et al.,

16

Defendants.

Case No. 20-CV-05799-LHK
ORDER EXTENDING TEMPORARY RESTRAINING ORDER FOR DEFENDANTS’ PARTIAL PRODUCTION OF THE ADMINISTRATIVE RECORD

17

18

Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just

19 Immigration; Harris County, Texas; King County, Washington; City of Los Angeles, California;

20 City of Salinas, California; City of San Jose, California; Rodney Ellis; Adrian Garcia; National

21 Association for the Advancement of Colored People; City of Chicago, Illinois; County of Los

22 Angeles, California; Navajo Nation; and Gila River Indian Community (collectively, “Plaintiffs”)

23 sue Defendants Commerce Secretary Wilbur L. Ross, Jr.; the U.S. Department of Commerce; the

24 Director of the U.S. Census Bureau Steven Dillingham, and the U.S. Census Bureau (“Bureau”)

25 (collectively, “Defendants”) for violations of the Enumeration Clause and Administrative

26 Procedure Act (“APA”).

27 1
28 Case No. 20-CV-05799-LHK
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United States District Court Northern District of California

1

Plaintiffs seek to preliminarily enjoin Defendants from implementing Defendants’ August

2 3, 2020 Replan. The Replan shortens census data collection and processing timelines from the

3 eight months set forth in the Defendants’ April 13, 2020 COVID-19 Plan to four months. The first

4 approaching Replan deadline is the September 30, 2020 deadline for the end of data collection,

5 which consists of both self-responses to Census questionnaires and Non-Response Follow Up

6 (“NRFU”) field operations. Under the COVID-19 Plan, data collection would end on October 31,

7 2020. Plaintiffs claim that the Replan’s shortened timelines will unlawfully harm the accuracy of

8 crucial census data.

9

On September 5, 2020, the Court granted Plaintiffs’ motion for a Temporary Restraining

10 Order (“TRO”) in order to preserve the status quo until the September 17, 2020 hearing on

11 Plaintiffs’ motion for stay and preliminary injunction (“preliminary injunction motion”). ECF

12 No. 84 at 2.

13

On September 10, 2020, the Court ordered Defendants to produce the administrative

14 record on September 13 and 16, 2020. ECF No. 96. Defendants have failed to comply with that

15 order. As of today, September 17, 2020, Defendants have failed to produce the administrative

16 record. Because of Defendants’ failure to comply with the Court’s Order to Produce the

17 Administrative Record and the need for the Court to rule on Plaintiffs’ preliminary injunction

18 motion quickly, the parties and the Court agreed that on September 18, 2020 Defendants shall

19 produce the documents that Defendants produced to the United States Department of Commerce

20 Office of the Inspector General (“OIG production”) regarding the Defendants’ decision to adopt

21 the Replan. ECF No. 132. Defendants have represented that the OIG production includes about

22 1,800 documents totaling about 15,000 pages. ECF No. 141 at 26:15–16. Defendants have

23 represented that they may assert the deliberative process, attorney-client, attorney work product,

24 and White House privileges as to the OIG production. Id. at 35:25–36:18.

25

Accordingly, Defendants’ September 18, 2020 OIG production has necessitated a

26 continuance of the preliminary injunction hearing from September 17, 2020 to September 22,

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1 2020 to allow for the following:

2

• September 18, 2020: Defendants to produce the OIG production and a privilege log

3

• September 19, 2020: Plaintiffs to file any objections to Defendants’ assertions of

4

privilege

5

• September 20, 2020: Defendants to file responses to Plaintiffs’ privilege objections

6

and the parties to file supplemental briefs on the motion for preliminary injunction

7

addressing the OIG production

8

• September 21, 2020: United States Magistrate Judges to rule on the parties’

9

privilege disputes

10

• September 22, 2020: Hearing on motion for preliminary injunction

11 ECF No. 140. The Court understands the urgency of issuing a ruling on the motion for preliminary

12 injunction. To that end, the Court has issued rulings within 24 hours and 48 hours throughout this

13 case thus far. The Court will issue its reasoned decision on the motion for preliminary injunction

14 as soon as possible after the September 22, 2020 hearing. However, because of the complexity of

15 the issues and the fact that 1,800 documents may be produced three days before the hearing, the

16 Court finds good cause to extend the TRO until the Court issues its decision on the preliminary

17 injunction motion or through September 24, 2020, whichever is sooner.

18 I. PROCEDURAL HISTORY

19

The procedural history of this case is necessary to understand why there is good cause to

20 extend the TRO. The Court thus recounts the events leading up to the TRO, the issuance of the

21 TRO, and Defendants’ subsequent failure to produce the administrative record. In brief, the

22 timeline below is as follows: (1) at first, Defendants denied the existence of an administrative

23 record; (2) Defendants then disclosed that there are documents that were considered by agency

24 decisionmakers at the time of the decision to adopt the Replan and that field operations are already

25 winding down; (3) the Court issued a TRO that expires on September 17, 2020; (4) the Court

26 ordered production of the administrative record; and (5) despite that order, Defendants failed to

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1 produce the administrative record. The Court details each event in turn.

2

A. At First, Defendants Repeatedly Denied the Existence of an Administrative Record.

3

On August 18, 2020, Plaintiffs filed suit to challenge the Census Bureau’s August 3, 2020

4 Replan which advanced the 2020 Census deadlines for self-responses to Census questionnaires,

5 Non-Response Follow-Up (“NRFU”) field operations, data processing, and deadlines for reporting

6 Census counts to the President and the states.

7

To allow Plaintiffs to effectively challenge the Replan, including the September 30, 2020

8 end of data collection, the parties stipulated to a briefing schedule and hearing date of September

9 17, 2020 on Plaintiffs’ motion for stay and preliminary injunction (hereafter, “motion for

10 preliminary injunction”). ECF No. 35. Pursuant to that schedule, Plaintiffs filed a motion for a

11 preliminary injunction on August 25, 2020 based on their claims under the Enumeration Clause

12 and the APA. ECF No. 36.

13

On August 26, 2020, the Court held a case management conference. At that conference, the

14 Court asked Defendants whether there was an administrative record for the purposes of APA

15 review. Defendants repeatedly denied the existence of an administrative record. E.g., ECF No. 65

16 at 9:22–24 (Q: “Is there an administrative record in this case?” A: “No, Your Honor. On behalf of

17 the Defendants, no, there’s not.”), 10:17–18 (“[A]t this point there is no administrative record.”).

18 Rather, Defendants suggested that the only document that provided the contemporaneous reasons

19 for the Replan was the Bureau’s August 3, 2020 press release. Id. at 20:6–7 (“[A]t this point I’m

20 not aware of any other documents, but I would propose that I check with my client . . . .”). Even

21 so, the Court instructed Defendants that “[i]f there’s an administrative record, it should be

22 produced. [The Court] will need it to make a decision in this case.” Id. at 10:13–14.

23

B. Defendants Disclosed That There Are Documents Considered by Agency

Decisionmakers at the Time the Replan Was Adopted and that Field Operations are

24

Already Concluding.

25

To assist the Court in determining by what date a ruling on Plaintiffs’ motion for

26 preliminary injunction must be issued, Defendants agreed to file a statement by September 2, 2020

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1 as to when the winding down of field operations would begin relative to the September 30, 2020

2 deadline for ending data collection. Defendants filed the following statement:

3

[T]he Census Bureau has already begun taking steps to conclude field operations. Those

operations are scheduled to be wound-down throughout September by geographic regions

4

based on response rates within those regions. As will be described in Defendants’

5

forthcoming filing on Friday, September 4, 2020, any order by the Court to extend field

operations, regardless of whether those operations in a particular geographic location are

6

scheduled to be wound-down by September 30 or by a date before then, could not be

7

implemented at this point without significant costs and burdens to the Census Bureau.

8 ECF No. 63. Based on Defendants’ statement, Plaintiffs moved on September 3, 2020 for a TRO

9 to preserve the status quo for 12 days until the September 17, 2020 preliminary injunction hearing.

10 ECF No. 66. On September 4, 2020, Defendants opposed the motion, ECF No. 74, and the Court

11 held a hearing on the motion. During the hearing, Defendants relied upon a declaration that would

12 be filed later that evening in opposition to Plaintiffs’ motion for preliminary injunction. ECF No.

13 81-1. On September 5, 2020, Plaintiffs filed a reply. ECF No. 83.

14

At the September 4, 2020 hearing on the motion for a TRO, Defendants reiterated their

15 position that no administrative record existed, ECF No. 82 at 33:13–15, but disclosed that there

16 were documents considered by agency decisionmakers at the time the Replan was adopted.

17 Defendants stated:

18

The Census Bureau generates documents as part of its analysis and as part of its decisions

and as part of its deliberations. And there are documents that the Replan was not cooked up

19

in a vacuum, it was part of the agency’s ongoing deliberations. And so certainly there are

20

going to be documents that reflect those documents [sic].

21 Id. at 33:2–7. That said, Defendants said no administrative record technically existed because “the

22 documents that fed into the operational plans and the operational decisions are internal documents

23 that are subject to the deliberative process privilege.” Id. at 32:14–16.

24

Only a few minutes later, however, Defendants retracted their assertion of deliberative

25 process privilege. Id. at 36:15–:17 (“[T]o be clear, we are not asserting the deliberative process

26 privilege because there is no record and there’s nothing to consider.”). Defendants conceded that

27 “[i]f there is final agency action that is reviewable and the APA applies, we would have an 5
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1 obligation to produce the administrative record.” Id. at 35:24–36:1. However, Defendants urged

2 the Court to rely solely on the declaration that Defendants would file that evening with

3 Defendants’ opposition to the motion for preliminary injunction. E.g., id. at 16:21–23 (“We will

4 not be filing documents in addition to the declaration.”). Indeed, when Defendants filed their

5 opposition that night, Defendants’ only evidence was the declaration of Albert E. Fontenot, Jr.,

6 Associate Director for Decennial Census Programs at the U.S. Census Bureau. ECF No. 81.

7

C. The Court Issued a TRO That Expires on the September 17 Hearing Date.

8

On September 5, 2020, the Court issued a TRO after full briefing and a hearing on the

9 motion. ECF No. 84. The Court made the requisite TRO findings. Specifically, the Court found

10 that the balance of the hardships tipped sharply in Plaintiffs’ favor; that Plaintiffs presented serious

11 questions going to the merits at least as to Plaintiffs’ claims under the APA; that Plaintiffs would

12 likely suffer irreparable harm without a TRO; and that a TRO would further the public interest.

13 ECF No. 84.

14

The Court also expressly recognized that TROs “serv[e] the[] underlying purpose of

15 preserving the status quo and preventing irreparable harm just so long as is necessary to hold a

16 hearing, and no longer.” Id. at 2 (quoting Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto

17 Truck Drivers Local No. 70 of Alameda Cty., 415 U.S. 423, 439 (1974)). Thus, the Court ordered

18 that the TRO expire after the “September 17, 2020 hearing on Plaintiffs’ PI motion.” Id. at 7. The

19 Court incorporates its TRO, ECF No. 84, herein by reference.

20

D. The Court Ordered Production of the Administrative Record.

21

On September 8, 2020, three days after issuing the TRO, the Court held a case

22 management conference and inquired into Defendants’ earlier statements about documents

23 considered by the agency decisionmakers when the Replan was adopted. Defendants again stated

24 that “there is no administrative record in this case because there is no APA action.” ECF No. 98 at

25 62:15–16.

26

Even so, Defendants confirmed their statements from the TRO hearing that the Replan is

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1 “indeed codified.” Id. at 21:7. The Replan simply was “not necessarily codified in one particular

2 document.” Id. at 21:9–10. Accordingly, Plaintiffs asked the Court to order Defendants to produce

3 the administrative record. E.g., id. at 43:16–17. The parties briefed the issue on September 8 and

4 9, 2020. See ECF Nos. 88–89, 92.

5

On September 10, 2020 at 2:46 a.m., the Court issued its Order to Produce the

6 Administrative Record. ECF No. 96. In response to Defendants’ claim that the Court needed to

7 address threshold arguments before ordering production, the Court addressed those arguments to

8 avoid any doubt about its authority to compel production. Specifically, the Court addressed

9 whether the Replan presented a political question, whether Plaintiffs have standing to challenge

10 the Replan, whether the Replan constitutes final agency action, and whether the Replan is not

11 committed to agency discretion by law. Id. at 9. The Court ruled in Plaintiffs’ favor on each

12 threshold issue. Thus, the Court concluded that the instant case was reviewable. The Court noted,

13 though, that its conclusions in this APA case were necessarily “provisional” and “subject to

14 change after production of Defendants’ administrative record.” Id. at 8; see id. at 9–17.

15

The Court then explained why the Court could not rely solely on Associate Director

16 Fontenot’s declaration, as Defendants so insisted. Id. at 19–21. In short, for APA claims, “the

17 focal point for judicial review should be the administrative record.” Id. at 20 (quoting Camp v.

18 Pitts, 411 U.S. 138, 142 (1973)). Litigation affidavits such as Associate Director Fontenot’s are

19 thus impermissible “post hoc rationalizations” that are “manifestly inappropriate” bases for the

20 Court’s review. Id. (first quoting Overton Park, Inc. v. Volpe, 401 U.S. 402, 419 (1972); then

21 quoting Cmty. for Creative Non-Violence v. Lujan, 908 F.2d 992, 998 (D.C. Cir. 1990) (R.

22 Ginsburg, Thomas, Sentelle, JJ.)).

23

For all those reasons, the Court concluded that Defendants must produce the administrative

24 record. However, because of the competing need to resolve the motion for preliminary injunction

25 as quickly as possible, the Court split the production into three stages. The first two stages (the

26 “September 13 Production” and the “September 16 Production”) would be completed before the

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1 September 17, 2020 preliminary injunction hearing and would be limited to documents with

2 certain subject matters, date range, and custodians. Specifically, the Court’s order for the first two

3 stages of production was:

4

By September 13, 2020, Defendants Bureau Director Steven Dillingham and Secretary of

Commerce Wilbur Ross and all of their direct reports/subordinates shall file the following,

5

and a privilege log for any privileged documents: All documents comprising the Replan

6

and its various components for conducting the 2020 Census in a shortened time period,

including guidance, directives, and communications regarding same. The date range of the

7

documents is April 13, 2020 to August 3, 2020. These custodians can limit their review to

8

documents and materials directly or indirectly considered during these four months.

9

By September 16, 2020, Associate Director Fontenot, his subordinates, and the individuals

engaged with Fontenot to consider and prepare the Replan shall file the following, and a

10

privilege log for any privileged documents: All documents and materials directly or

11

indirectly considered when making the decision to replace the COVID-19 Plan with the

Replan. The date range of the documents is April 13, 2020 to August 3, 2020. These

12

custodians can limit their review to documents and materials directly or indirectly

13

considered during these four months.

14 Id. at 21. As for the final stage of production, the Court specified it would consult with the parties

15 on a schedule after the preliminary injunction ruling. Id. at 22. Moreover, given these production

16 deadlines, the Court continued the deadline for Plaintiffs’ reply in support of their preliminary

17 injunction motion from September 10 to September 15, 2020. The Court incorporates the Order to

18 Produce the Administrative Record, ECF No. 96, herein by reference.

19

E. Despite the Court’s Order, Defendants Failed to Produce the Administrative Record.

20

On September 13, 2020 at 11:45 a.m. Pacific Time, twelve hours before the production

21 deadline, Defendants filed a notice stating that they had identified more than 8,800 documents as

22 responsive for the September 13 Production, but that Defendants had reviewed only 2,484 of those

23 documents. ECF No. 104 at 2. Defendants stated that “[r]eview of the remaining documents

24 remains ongoing” and that “[b]ecause review of the remaining documents remains ongoing, and

25 due to the volume of documents involved, Defendants will be unable to produce or log any

26 additional documents today.” Id. Moreover, Defendants did not identify when they would

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1 complete the September 13 Production.

2

At the September 14, 2020 case management conference, Defendants stated that their next

3 production would be on September 16, 2020, but that they “d[id] not anticipate” completing the

4 September 13, 2020 Production on September 16, 2020. ECF No. 126 at 22:6. Moreover,

5 Defendants stated that they were still collecting documents for the September 16 Production and

6 did not know how many documents would be responsive. See, e.g., id. at 20:6–10. Overall,

7 Defendants stated that they would be unable to comply with the Court’s Order to Produce the

8 Administrative Record because compliance would be “a physical impossibility.” Id. at 41:16–17.

9

In response to Defendants’ failure to comply with the Court’s order on September 13,

10 2020, Plaintiffs filed the Department of Commerce Inspector General’s August 13, 2020

11 Information Memorandum for Secretary of Commerce Wilbur Ross, which included the following

12 Request for Information:

13

To assist the OIG [“Office of Inspector General”] in its oversight responsibilities, please

provide all documents or communications, including but not limited to email, instant

14

messages, and text messages:

15

1. Discussing or referring in any manner to the decision to accelerate the 2020

16

Census schedule as described in the August 3, 2020 press release.

17

2. Detailing the persons involved, and their respective involvement, in the

decision to accelerate the 2020 Census schedule. 18

3. Detailing the reasons for the decision to accelerate the 2020 Census

19

schedule.

20

Please provide all requested documents and communications by close of business

21

Monday, August 17, 2020. You may also produce any additional documentation or

information you deem relevant to this request for information.

22

ECF No. 111-2 at 5. Plaintiffs also noted that Associate Director Fontenot had averred that the

23

Census Bureau had produced many documents to the OIG. ECF No. 111 at 5 (citing Fontenot

24

Decl., ECF No. 81-1 at 36 ¶ 103). Associate Director Fontenot did not disclose the OIG’s Request

25

for Information about the Replan, but rather spoke in more general terms: “We produce a massive

26

amount of documents and other information to the Office of the Inspector General and the General

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1 Accounting Office every week, and these organizations interview Census Bureau staff on almost a

2 daily basis.” ECF No. 81-1 at 36 ¶ 103. In other words, Defendants had neither disclosed to the

3 Court the OIG’s Request for Information nor produced the OIG documents in response to the

4 Court’s Order to Produce the Administrative Record. See ECF No. 111-2 at 5.

5

Given that Defendants had already produced documents to the OIG—and that Defendants

6 would fail to produce even a partial administrative record before the September 17, 2020

7 preliminary injunction hearing—the Court asked Defendants two questions: (1) if Defendants had

8 “complied in whole or in part” with the OIG’s Request for Information; and (2) if Defendants

9 would agree to producing in camera “the documents Defendants [had] produced to the Inspector

10 General that would constitute the administrative record or would be included in the administrative

11 record.” ECF No. 119 at 3. The Court further proposed that it “would treat all such documents as

12 privileged and conduct an in camera review. If the Court determines that a document is not

13 privileged, Defendants shall have an opportunity to object to the Court’s determination. The Court

14 would not consider in its determination of Plaintiffs’ motion for stay and preliminary injunction

15 any privileged documents.” Id.

16

Defendants’ September 14, 2020 response represented that Defendants had “complied with

17 the OIG request at issue.” ECF No. 122 at 2. As to producing the OIG production in the instant

18 case, Defendants’ September 14, 2020 response, ECF No. 122 at 2, agreed that Defendants “would

19 be willing to provide to the Court all of the documents that the Census Bureau and the Department

20 of Commerce provided to the Department of Commerce Office of Inspector General . . . on the

21 understanding that:”

22

1. The Court would treat all such documents as privileged and conduct an in camera

review. If the Court determines that a document is not privileged, Defendants shall

23

have a reasonable opportunity to object to the Court’s determination;

24

2. The Court would not base its resolution of the preliminary injunction on privileged

25

documents; and

26

3. The documents that the Court finds to be non-privileged, along with the nonprivileged

documents that Defendants have already produced, shall be deemed by the Court to

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constitute the entire record in this matter. Defendants will not be required to conduct

1

further document searches, reviews, or productions, or respond to any discovery, to

2

develop a record in this case.

3 Id.

4

On September 15, 2020, Plaintiffs replied with three major points. First, Plaintiffs stated

5 that “Defendants must ultimately produce the complete AR [administrative record].” ECF No. 129

6 at 2. Second, to assess to what extent the OIG production comprises a complete record, Plaintiffs

7 asked the Court to order Defendants “to file a declaration from a knowledgeable source attesting

8 to the following:”

9

(1) whether the production included materials from the Secretary and his subordinates, in

addition to the Census Bureau; (2) what time frame was searched for these documents; (3)

10

what custodians were searched; (4) whether the Department complied fully with the scope

11

of the production request; (5) the exact date on which the documents were produced to

OIG; (6) whether any portion of the production to OIG is still outstanding; and (7) how

12

many documents were produced.

13 Id. Third, Plaintiffs asked that within two days after the production and review of the OIG

14 production, the parties would have the opportunity to file simultaneous briefs addressing the OIG

15 production.

16

The Court inquired further into producing the OIG documents at the September 15, 2020

17 hearing on allegations of Defendants’ potential non-compliance with the TRO. At that hearing,

18 Defendants at first reiterated that they were “very confident” that they had complied with the OIG

19 request and that they had completed their production to the OIG. ECF No. 141 at 32:9. However,

20 Defendants later clarified that Defendants had not completed their production to the OIG and that

21 Defendants’ production was “substantially complete.” Id. at 35:10. “One document” remained

22 “outstanding that is still undergoing review.” Id. at 34:11–14. Moreover, Defendants did not know

23 the OIG production’s custodians (such as whether the Secretary Ross’s office was included),

24 timeframe searched, or dates of production. See, e.g., id. at 29:14 –15 (Defendants: “I, off the top

25 of my head, do not know all the custodians whose files were pulled for the OIG production.”); id.

26 at 30:6–7 (The Court: “What timeframe was searched for these documents?” Defendants: “So I

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1 also don’t have the precise timeframe, Your Honor.”); id. at 31:4–9 (The Court: “So when were

2 they produced?” Defendants: “Over the course of weeks, Your Honor.” The Court: “I know. From

3 what date to what date? From when to when?” Defendants: “I don’t have the specifics, Your

4 Honor.”).

5

Defendants did, however, represent that the OIG production comprised of about 1,800

6 documents totaling about 15,000 pages. Id. at 26:15–16. Defendants further stated that they

7 “would anticipate” asserting four different privileges over the OIG production, including

8 deliberative process, attorney-client, attorney work product, and White House privileges. Id. at

9 35:25–36:18. In addition, even though Defendants did not have a confirmed method of producing

10 the documents to the Court, Defendants continued to oppose the Court’s proposed extension of the

11 TRO. See id. at 51:13–25. Without an extension, the TRO would expire on September 17, 2020.

12

Given the exigency, both parties agreed that “in the short term, focusing on the OIG

13 documents for purposes of getting to a PI ruling and whatever appeal follows makes sense.” Id. at

14 72:19–21; see id. at 33:14–22, 41:6–9 (Defendants’ agreement). The Court thus ordered

15 Defendants to produce the OIG documents that would constitute the administrative record or

16 would be included in the administrative record, stayed the Order to Produce the Administrative

17 Record until a case management conference after the impending preliminary injunction decision,

18 and continued the preliminary injunction hearing to Tuesday, September 22, 2020. Id. at 71–77;

19 see ECF No. 132. As the Court found, both the parties and the Court were “running out of time.”

20 ECF No. 141 at 38:6, 71:14. The Court’s Order to Produce Inspector General Document

21 Production, ECF No. 132, is incorporated herein by reference.

22 II. DISCUSSION

23

Plaintiffs argue that “the record demonstrates good cause to extend the TRO for two

24 independent reasons.” ECF No. 111 at 4. “First, good cause exists because Defendants have not

25 complied with the Court’s order requiring production of the [administrative record] in this case.”

26 Id. “Second, good cause exists if the Court needs ‘more time’ to ‘fully . . . consider the parties’

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1 arguments and motions.’” Id. (quoting Costa v. Bazron, 2020 WL 2410502, at *2 (D.D.C. May 11,

2 2020)). The Court agrees.

3

A. Defendants’ Violation of the Court’s Order to Produce the Administrative Record

Has Necessitated Delay of the Preliminary Injunction Hearing and Extension of

4

the TRO.

5

As detailed above, Defendants failed to complete even the first stage of ordered production

6 of the administrative record. Nor did Defendants expect to complete the first production by the

7 September 17, 2020 preliminary injunction hearing date and TRO expiration date. Specifically, on

8 September 13, 2020, Defendants produced only a quarter of the September 13, 2020 Production

9 with more than 12 hours to spare and refused to produce more that day. See ECF No. 104 at 2

10 (stating that Defendants had reviewed only 2,484 of more than 8,800 documents, but that

11 “Defendants will be unable to produce or log any additional documents today.”) Then, at the

12 September 14, 2020 case management conference, Defendants stated that they “d[id] not

13 anticipate” completing the September 13, 2020 Production on September 16, 2020. ECF No. 126

14 at 22:6.

15

As for the September 16 Production, Defendants stated that they were still collecting

16 documents for it and did not know how many documents would be responsive. See, e.g., id. at

17 20:6–10. Overall, Defendants stated that they would be unable to comply with the Court’s Order to

18 Produce the Administrative Record because compliance would be “a physical impossibility.” Id. at

19 41:16–17. Much of this asserted “physical impossibility” the Court suspects is of Defendants’ own

20 making. The instant case has been, from its very start on August 18, 2020, a case arising under the

21 APA. In an APA case, it is settled that “review is to be based on the full administrative record that

22 was before the Secretary at the time he made his decision.” Overton Park, Inc. v. Volpe, 401 U.S.

23 402, 420 (1972); accord, e.g., Camp, 411 U.S. at 142 (explaining that “[t]he focal point for

24 judicial review [of APA claims] should be the administrative record”); Creative Non-Violence v.

25 Lujan, 908 F.2d at 998 (holding that relying on litigation affidavits rather than the administrative

26 record is “manifestly inappropriate”). Defendants’ repeated denial of the existence of an

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1 administrative record and failure to make any attempt to collect the administrative record over the

2 past month have necessitated delay of the preliminary injunction hearing and extension of the

3 TRO.

4

B. The Need for Partial Production of the Administrative Record and to Preserve the

Status Quo Constitutes “Good Cause” for an Extension of the TRO.

5

In any event, to expeditiously resolve Plaintiffs’ motion for preliminary injunction, the

6

Court has ordered Defendants to produce a stipulated partial administrative record that Defendants

7

already produced (or is about to produce) to the United States Department of Commerce Office of

8

Inspector General. See 5 U.S.C. § 706 (providing that “the court shall review the whole record or

9

those parts of it cited by a party”); ECF No. 141 at 33:14–22 (Defendants’ agreement), 72:19–21

10

(Plaintiffs’ agreement); cf. Walter O. Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788, 793 (D.C. Cir.

11

1984) (holding that “in the circumstances of this case”—an appeal resolved more than a year after

12

a district court decision that was neither expedited nor interlocutory—the district court should

13

have considered the “whole record”).1 Defendants must either produce or add to their privilege log

14

about 1,800 documents. Defendants have represented that they may assert deliberative due

15

process, attorney-client, attorney work product, and White House privileges as to these documents.

16

Plaintiffs must review the production and file any privilege objections. Defendants must respond

17

to the objections. United States Magistrate Judges must resolve the parties’ privilege disputes. The

18

19 1 As the Court has repeatedly stated and the parties understand, the Court may need to review the
20 “whole record” after deciding the motion for preliminary injunction. 5 U.S.C. § 705. “The ‘whole’
21 administrative record [] consists of all documents and materials directly or indirectly considered by agency decision-makers and includes evidence contrary to the agency’s position.” Thompson v.
22 U.S. Dept. of Labor, 885 F.2d 551, 555 (9th Cir. 1989) (emphasis in original) (quoting Exxon
23 Corp. v. Department of Energy, 91 F.R.D. 26, 32 (N.D. Tex. 1981)); see also IMS, P.C. v. Alvarez, 129 F.3d 618, 623–624 (D.C. Cir. 1997) (“It is a widely accepted principle of administrative law
24 that the courts base their review of an agency's actions on the materials that were before the
25 agency at the time its decision was made.”); 33 Wright & Miller’s Federal Practice & Procedure: Judicial Review § 8391 & n.8 (2d ed. Apr. 2020 update) (“[T]he ‘record’ for informal proceedings
26 [i]s, in essence, including all the relevant material that the decision-maker considered before
27 taking action.”). 14
28 Case No. 20-CV-05799-LHK
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United States District Court Northern District of California

1 parties must file supplemental briefs on the motion for preliminary injunction addressing the OIG

2 production. The Court must hold a hearing and issue a reasoned decision. Clearly, all this will not

3 happen when the TRO expires on September 17, 2020, the day before Defendants produce the

4 OIG production on September 18, 2020.

5

If the TRO expires, Plaintiffs would face hardships that tip sharply in their favor and would

6 likely suffer irreparable harm. Moreover, Plaintiffs have shown serious questions going to the

7 merits and that a TRO is in the public interest. See ECF No. 84. All told, the same conditions that

8 warranted a TRO on September 5, 2020 still hold true today. See 11A Wright & Miller’s Federal

9 Practice & Procedure: Civil § 2953 (3d ed. Apr. 2020 update) (“Although there does not seem to

10 be any case law on what constitutes ‘good cause’ for purposes of extending a Rule 65(b) order, a

11 showing that the grounds for originally granting the temporary restraining order continue to exist

12 should be sufficient.”).

13

Even Associate Director Fontenot stated in his declaration that field staff are terminated

14 when field operations stop, and it is difficult to bring back field staff once they are terminated.

15 Associate Director Fontenot in effect requested that if the Court were to enjoin the Defendants, the

16 Court should do so sooner rather than later, so that Defendants would not terminate field staff.

17 Specifically, Associate Director Fontenot stated:

18

Lack of field staff would be a barrier to reverting to the COVID Schedule were the Court

to rule later in September. The Census Bureau begins terminating staff as operations wind

19

down, even prior to closeout. Based on progress to date, as is standard in prior censuses,

20

we have already begun terminating some of our temporary field staff in areas that have

completed their work. It is difficult to bring back field staff once we have terminated their

21

employment. Were the Court to enjoin us tomorrow we would be able to keep more staff

22

on board than were the Court to enjoin us on September 29, at which point we will have

terminated many more employees. 23
ECF No. 81-1 at 35 ¶ 98. 24
Accordingly, like other courts in analogous circumstances, the Court finds good cause to 25
extend the TRO. In fact, the Federal Rules of Civil Procedure authorize the Court to grant a TRO 26
for 14 days without hearing from Defendants and to extend that TRO an additional 14 days for 27
15 28 Case No. 20-CV-05799-LHK
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United States District Court Northern District of California

1 good cause for a total of 28 days. See Fed. R. Civ. P. 65(b)(2) (“The order expires at the time after

2 entry—not to exceed 14 days—that the court sets, unless before that time the court, for good

3 cause, extends it for a like period or the adverse party consents to a longer extension.”); see

4 generally 11A Federal Practice & Procedure, supra, § 2953 (collecting cases on 28-day limit). In

5 the instant case, the duration of the Court’s TRO was 12 days, and the Court’s extension in the

6 instant case is seven days or fewer.

7

Other courts have found good cause to extend TROs on the same grounds present in the

8 instant case. See, e.g., H-D Michigan, LLC v. Hellenic Duty Free Shops S.A., 694 F.3d 827, 843–

9 45 (7th Cir. 2012) (allowing TRO extensions “to give the parties sufficient time to prepare for a

10 preliminary injunction hearing” so long as the TRO does not last longer than 28 days); Costa,

11 2020 WL 2410502, at *2 (finding good cause “because the parties need time to brief, and the

12 Court needs time to consider, the forthcoming motion for a preliminary injunction”); Acosta

13 Ginger Green, Inc., No. 2:18-CV-4098, 2018 WL 3361397, at *1 (C.D. Cal. May 18, 2018)

14 (extending TRO for good cause because, among other things, the restrained party failed to comply

15 with a subpoena for documents).

16

Moreover, failing to extend the TRO would fail to “preserv[e] the status quo.” Granny

17 Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of Alameda Cty., 415

18 U.S. 423, 439 (1974); accord, e.g., E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 779 (9th

19 Cir. 2018) (“a TRO ‘should be restricted to . . . preserving the status quo and preventing

20 irreparable harm just so long as is necessary to hold a hearing and no longer”) (ellipsis in original).

21

To be sure, Defendants have asserted that an extended TRO may effectively become an

22 appealable preliminary injunction. That assertion, however, is inapt here. A TRO only becomes a

23 preliminary injunction in “extraordinary circumstances.” Washington v. Trump, 847 F.3d 1151,

24 1158 (9th Cir. 2017) (per curiam). In Washington, for example, “[t]he district court’s order has no

25 expiration date, and no [preliminary injunction] hearing has been scheduled.” Id. The Government

26 also “argued that emergency relief is necessary to support its efforts to prevent terrorism.” Id.; see

27 16
28 Case No. 20-CV-05799-LHK
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United States District Court Northern District of California

1 also Serv. Employees Int'l Union v. Nat'l Union of Healthcare Workers, 598 F.3d 1061, 1067 (9th

2 Cir. 2010) (appealable “TRO” lasted longer than three months until preliminary injunction

3 hearing, and the district court had held two-day evidentiary hearing). Here, the TRO has an

4 expiration date. A hearing on the motion for preliminary injunction is scheduled on September 22,

5 2020. The Government does not allege that extending the TRO in the instant case puts our national

6 security at risk. Thus, extending the TRO to allow Defendants to produce a partial administrative

7 record will enable the Court to evaluate Plaintiffs’ APA claims when ruling on the motion for

8 preliminary injunction.

9

Thus, the Court exercises its discretion to extend the TRO up to seven days until the Court

10 issues its decision on the preliminary injunction motion or through September 24, 2020, whichever

11 is sooner. The Court understands the gravity of the situation and the parties’ need for a prompt

12 ruling on the Plaintiffs’ motion for preliminary injunction to allow for appellate review. To that

13 end, the Court has ruled expeditiously on motions thus far. The Court ruled on Plaintiffs’ motion

14 for TRO within 48 hours. The Court likewise ordered production of the administrative record at

15 2:46 a.m. on September 10, 2020—also within 48 hours after Defendants confirmed that the

16 Replan was “codified” and Plaintiffs moved for production of the administrative record. The Court

17 issued the Order to Produce Inspector General Document Production within 24 hours of Plaintiffs’

18 identification of the OIG production and Defendants’ agreement to produce it in the instant case.

19

In sum, based on Defendants’ violation of the Court’s Order to Produce the Administrative

20 Record as discussed above, an extension of the TRO is necessary for Defendants to produce the

21 OIG production and a privilege log; for the parties to litigate objections to at least four different

22 grounds of privilege; for United States Magistrate Judges to resolve the parties’ privilege disputes;

23 for the parties to file supplemental briefs on the motion for preliminary injunction addressing the

24 OIG production; and for the Court to hold a hearing on the motion for preliminary injunction and

25 to issue a reasoned decision. Accordingly, the Court extends the TRO until the Court issues its

26 decision on the preliminary injunction motion or through September 24, 2020, whichever is

27 17
28 Case No. 20-CV-05799-LHK
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United States District Court Northern District of California

1 sooner.

2 IT IS SO ORDERED.

3

4 Dated: September 17, 2020

5

______________________________________

6

LUCY H. KOH United States District Judge

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28 Case No. 20-CV-05799-LHK
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 Case 5:20-cv-05799-LHK Document 204 Filed 09/23/20 Page 1 of 13

1 JEFF LANDRY ATTORNEY GENERAL OF LOUISIANA
2 JOSEPH S. ST. JOHN (pro hac vice pending) Deputy Solicitor General
3 LOUISIANA DEPARTMENT OF JUSTICE 1885 N. Third Street
4 Baton Rouge, LA 70804 Tel: (225) 485-2458
5 stjohnj@ag.louisiana.gov@ag.louisiana.gov Attorney for the State of Louisiana
6
LYNN FITCH 7 ATTORNEY GENERAL OF MISSISSIPPI
KRISSY C. NOBILE (pro hac vice forthcoming) 8 Deputy Solicitor General
OFFICE OF MISSISSIPPI ATTORNEY 9 GENERAL LYNN FITCH
P.O. Box 220 10 Jackson, MS 39205
Tel: (601) 359-3680 11 krissy.nobile@ago.ms.gov
Attorney for the State of Mississippi 12

BENBROOK LAW GROUP, P.C. BRADLEY A. BENBROOK (CA 177786) STEPHEN M. DUVERNAY (CA 250957) 400 Capitol Mall, Suite 2530 Sacramento, CA 95814 Tel: (916) 447-4900 brad@benbrooklawgroup.com steve@benbrooklawgroup.com Counsel for State Intervenors

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15

SAN JOSE DIVISION

16
NATIONAL URBAN LEAGUE et al 17

18

Plaintiffs,

19

v.

20 WILBUR L. ROSS et al,

21

Defendants.

22

23

No. 5:20-cv-05799-LHK
NOTICE OF MOTION AND MOTION TO INTERVENE BY STATES OF LOUISIANA AND MISSISSIPPI
Hr’g Date: TBD Hr’g Time: TBD Judge: Hon. Lucy H. Koh Location: San Jose Courthouse, Courtroom 8
Action Filed: Aug. 18, 2020

24

25

26

27

28 1
MOTION TO INTERVENE BY LOUISIANA AND MISSISSIPPI

Case 5:20-cv-05799-LHK Document 204 Filed 09/23/20 Page 2 of 13

1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE that pursuant to Local Rule 7-1(b), the States of Louisiana and

3 Mississippi (collectively, “State Intervenors”) respectfully move to intervene as Defendants in the

4 above-captioned litigation without oral argument and on an expedited basis. Alternatively, the State

5 Intervenors notice that on October 29, 2020, at 1:30 p.m., before the Hon. Lucy H. Koh, 280 South

6 1st Street, San Jose, or such other time as the Court may order, the State Intervenors will and do

7 hereby move for the same relief.

8

This motion is brought pursuant to Federal Rule of Civil Procedure 24. As more fully set

9 forth in the accompanying memorandum, the grounds for the motion are: (a) the motion is timely;

10 (b) the State Intervenors have significant protectable interests; (c) this action has already impeded the

11 State Intervenors’ ability to protect those interests, and the disposition of this action could further

12 impede the State Intervenors’ ability to protect those interests; (d) the current parties do not

13 adequately represent the interests of the State Intervenors; and (e) a separate lawsuit to protect the

14 State Intervenors’ interests would plainly involves common questions of law and fact with this action,

15 and their direct opposition to Plaintiffs’ claims satisfies the “common question” requirement for

16 permissive intervention. Federal Courts have repeatedly permitted States to intervene in disputes

17 over the census, see, e.g., Utah v. Evans, 536 U.S. 452, 459 (2002), and this Court should do so here.

18

This motion is based on this motion and the supporting memorandum below; the

19 accompanying Declaration of Joseph S. St. John; and any further papers filed in support of this

20 motion, the argument of counsel, and all pleadings and records on file in this matter.

21

PLEASE TAKE FURTHER NOTICE that counsel for Louisiana contacted counsel for

22 the parties via email on September 22, 2020. Defendants responded: “Defendants consent, but

23 respectfully urge the Court not to delay resolution of Plaintiffs' motion for a preliminary injunction.”

24 Plaintiffs responded but did not provide a position. See Exh. 16.

25

PLEASE TAKE FURTHER NOTICE that State Intervenors urge that this motion

26 not delay the Court’s issuance or denial of a preliminary injunction.

27

PLEASE TAKE FURTHER NOTICE that State Intervenors’ proposed answer is

28 attached.

2
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Case 5:20-cv-05799-LHK Document 204 Filed 09/23/20 Page 3 of 13

1

MEMORANDUM IN SUPPORT

2

BACKGROUND

3

THE DECENNIAL CENSUS

4

The Constitution requires the federal government to conduct a census every ten years:

5

Representatives and direct Taxes shall be apportioned among the several States which

may be included within this Union, according to their respective Numbers, which

6

shall be determined by adding to the whole Number of free Persons, including those

bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of

7

all other Persons. The actual Enumeration shall be made within three Years after the

first Meeting of the Congress of the United States, and within every subsequent Term

8

of ten Years, in such Manner as they shall by Law direct.

9 U.S. Const. art. I, § 2.

10

Consistent with its express constitutional authority to regulate the “manner” of the census,

11 Congress requires that the Secretary of Commerce, with the aid of the Census Bureau, “shall, in the

12 year 1980 and every 10 years thereafter, take a decennial census of population as of the first day of

13 April.” 13 U.S.C. § 141(a) (emphasis added). The resulting “tabulation of total population by States . .

14 . shall be completed within 9 months after the census date and reported by the Secretary to the

15 President of the United States.” Id. at § 141(b) (emphasis added). The President must then transmit

16 to Congress the tabulation of total population and the number of representatives to which each State

17 is entitled:

18

On the first day, or within one week thereafter, of the first regular session of the

Eighty-second Congress and of each fifth Congress thereafter, the President shall

19

transmit to the Congress a statement showing the whole number of persons in each

State, excluding Indians not taxed, as ascertained under the seventeenth and each

20

subsequent decennial census of the population, and the number of Representatives to

which each State would be entitled under an apportionment of the then existing

21

number of Representatives by the method known as the method of equal

proportions, no State to receive less than one Member. 22

2 U.S.C. § 2a (emphasis added). Additional apportionment and redistricting-related tabulations “shall

23

. . . be completed, reported, and transmitted to each respective State within one year after the

24

decennial census date.” 13 U.S.C. § 141(c) (emphasis added). In short, Congress has imposed a series

25

of clear, mandatory deadlines, starting December 31, 2020, for the Secretary and the President to

26

provide census tabulations to Congress and the States.

27

28 3
MOTION TO INTERVENE BY LOUISIANA AND MISSISSIPPI

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1

THE 2020 CENSUS

2

On or about December 31, 2018, the Census Bureau released Version 4.0 of its Operation

3 Plan. Exh. 1. The plan contemplated ceasing census data collection at the end of July 2020, id. at 108,

4 129, followed by post-processing. But the plan also contemplated “late operational design changes,”

5 i.e., “design changes [that] are required following the completion of key planning and development

6 milestones.” Id. at 175. The announced mitigation strategies for such late design changes included

7 “[p]repar[ing] for rapid response to address potential changes and make decisions based on the

8 results of the change-control process.” Id. at 176. The plan further contemplated impacts from

9 exogenous limitations on staffing and operations, and included mitigation strategies for those

10 limitations, too. Id. at 141, 176.

11

Consistent with its Operation Plan, the Census Bureau began data collection in 2020. But on

12 March 13, the President declared a national emergency based on the outbreak of COVID-19 and the

13 resulting strain on the Nation’s healthcare system. Declaring a National Emergency Concerning the Novel

14 Coronavirus Disease (COVID–19) Outbreak, 85 Fed. Reg. 15337 (Mar. 18, 2020). On March 15, the

15 Census Bureau announced it was “adjusting some operations” to protect “the health and safety of

16 our staff and the public” while fulfilling its “statutory requirement to deliver the 2020 Census counts

17 to the President on schedule.” Exh. 2. The Census Bureau noted the “planned completion date for

18 data collection for the 2020 Census is July 31, 2020,” but “that date can and will be adjusted if

19 necessary as the situation evolves . . . .” Id. (emphasis added).

20

A few days later, the Census Bureau announced that “2020 Census field operations [would]

21 be suspended” due to the ongoing COVID-19 pandemic. Exh. 3. The Census Bureau explained it

22 was doing so “to protect the health and safety of the American public, Census Bureau employees,

23 and everyone going through the hiring process for temporary census taker positions.” Id. Then, on

24 April 13, the Census Bureau announced:

25

[T]he Census Bureau is seeking statutory relief from Congress of 120 additional

calendar days to deliver final apportionment counts. 26

Under this plan, the Census Bureau would extend the window for field data collection

27

and self-response to October 31, 2020, which will allow for apportionment counts to

be delivered to the President by April 30, 2021, and redistricting data to be delivered

28

to the states no later than July 31, 2021.

4

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Case 5:20-cv-05799-LHK Document 204 Filed 09/23/20 Page 5 of 13

1 Exh. 5. Such a delay would cause significant downstream disruption to States vis-à-vis redistricting

2 and upcoming elections, would likely trigger costly special legislative sessions, and would yield a

3 morass of litigation. See Exhs. 6, 7, 14, 15, 16. Not surprisingly, although legislation was introduced,

4 see, e.g., H.R. 6800 § 70201, Congress has thus-far declined to provide relief from the statutory

5 deadlines it had previously established.1 Accordingly, on August 3, the Census Bureau announced a

6 further update to its plan that includes “enumerator awards and the hiring of more employees to

7 accelerate the completion of data collection and apportionment counts by [the] statutory deadline of

8 December 31, 2020 . . . .” Exh. 8. To satisfy they statutory deadline, the Census Bureau announced

9 that it would end field data collection by September 30, 2020. Id.

10

PLAINTIFFS SEEK TO PAD THE CENSUS COUNT IN CERTAIN JURISDICTIONS

11

On August 18, 2020, Plaintiffs — represented by a platoon of attorneys — filed suit seeking

12 to vacate the Census Bureau’s August 3 plan, reinstate the April plan, and enjoin various federal

13 Defendants from implementing the August 3 plan. Compl. (ECF 1). Plaintiffs’ theories are that the

14 August 3 plan violates the Enumeration Clause, Section 2 of the Fourteenth Amendment, and the

15 Administrative Procedure Act. Id. ¶¶ 330-354. Plaintiffs proceed under the remarkable theory that a

16 federal district court can command federal officers to violate clear statutory law on a subject that the

17 Constitution expressly assigns to Congressional regulation. Id. ¶ 13. In terms of the Administrative

18 Procedure Act, Plaintiffs urge that a federal district court can set aside an agency action that it finds

19 arbitrary and capricious and mandate an agency action that is clearly contrary to law.

20

On September 5, the Court granted Plaintiffs’ motion for a temporary restraining order until

21 a September 17 hearing on Plaintiffs’ motion for a preliminary injunction. Order (ECF 84) (“TRO”).

22 The TRO enjoined the federal Defendants from implementing their current plan for the census. Id. at

23 6-7. The status quo would have been an orderly wind-down of census operations in jurisdictions with

24 adequate enumeration rates, with Census Bureau resources re-directed to jurisdictions — like

25 Louisiana and Mississippi — that have lagging enumeration rates, followed by cessation of data

26

27

1 The Census Bureau also sought $1 billion in additional funding. To the extent the cost

census operations exceed the authorized appropriation, the responsible officers or employee of the

28 United States Government may be subject to criminal sanctions. 31 U.S.C. §§ 1341, 1350.

5

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1 collection so as to facilitate post-processing of the collected data. Fontenot Decl. (ECF 81-1) ¶¶ 66-

2 67, 95-97.

3

That status quo has now been upended. See id. at ¶¶ 93-97. The Census Bureau made clear

4 that if data collection is extended beyond September 30, “the Census Bureau would be unable to

5 meet its statutory deadlines to produce apportionment counts prior to December 31, 2020 and

6 redistricting data prior to April 1, 2021.” Id. ¶ 100. Yet the TRO included no analysis of the impact

7 on non-parties, including the vast financial impact of special legislative sessions and litigation

8 resulting from delayed census reporting and corresponding delays in reapportionment and

9 redistricting. More pointedly, time has marched toward the Secretary’s statutory deadlines, and

10 Census Bureau resources have been expended in jurisdictions that have acceptable enumeration rates

11 rather than redirected to Louisiana and Mississippi. The effective result – even if the Court vacates

12 the TRO or the Court is reversed on appeal – is the picking of jurisdictional winners by inflating the

13 enumeration in certain jurisdictions while suppressing the enumeration in others by preventing the

14 planned shift in Census Bureau resources.

15

On September 17, the Court extended the TRO “until the Court issues its decision on the

16 preliminary injunction motion or through September 24, 2020, whichever is sooner.” Order (ECF

17 142) (“TRO Extension”). Once again, the Court included no analysis of the impact on non-parties.

18 See id. Louisiana learned of this suit and the TRO Extension that afternoon, retained local counsel,

19 and appeared the same day. See Notice of Appearance (ECF 144). Recognizing the fast pace of this

20 litigation, Louisiana filed a Notice of Intent to Intervene the next morning. Notice (ECF 146).2 That

21 Notice detailed certain of the harms to Louisiana resulting from the Court’s order; generally set forth

22 grounds for intervention; and directed the Court to analogous cases in which the Supreme Court

23 made clear that district courts should not disrupt complex government operations with last-minute

24 injunctions, even when fundamental rights are at stake. Id. Given the rapid pace of this litigation,

25

2 Rule 24(c) requires that a motion to intervene “be accompanied by a pleading that sets out

26 the claim or defense for which intervention is sought.” Fed. R. Civ. P. 24; see also Fed. R. Civ. P. 24(a) (listing pleadings). It was impracticable for Louisiana to prepare an answer to Plaintiffs’ 370

27 paragraph Amended Complaint prior to the September 18 status conference. Louisiana therefore

filed an abbreviated Notice of Intent to Intervene and asked to participate in order to protect its

28 interests.

6

MOTION TO INTERVENE BY LOUISIANA AND MISSISSIPPI

Case 5:20-cv-05799-LHK Document 204 Filed 09/23/20 Page 7 of 13

1 Louisiana also requested permission to participate in a Status Conference and any subsequent

2 conferences or hearings until it could formally move to intervene. Id.

3

At a status conference later that day, the Court implicitly denied Louisiana’s request to

4 participate. See St. John Decl. ¶¶ 10-11. When the federal Defendants attempted to raise the harms

5 apparent from Louisiana’s Notice, the Court stated that Louisiana had neither a motion to intervene

6 nor an amicus brief pending. This motion to intervene follows.

7

LEGAL STANDARDS

8

With respect to intervention as of right, “[o]n timely motion, the court must permit anyone to

9 intervene who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an

10 interest relating to the property or transaction that is the subject of the action, and is so situated that

11 disposing of the action may as a practical matter impair or impede the movant’s ability to protect its

12 interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a). “An applicant

13 seeking to intervene as of right under Rule 24 must demonstrate that four requirements are met: (1)

14 the intervention application is timely; (2) the applicant has a significant protectable interest relating to

15 the property or transaction that is the subject of the action; (3) the disposition of the action may, as a

16 practical matter, impair or impede the applicant’s ability to protect its interest; and (4) the existing

17 parties may not adequately represent the applicant’s interest.” Citizens for Balanced Use v. Montana

18 Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir. 2011). “[T]he requirements are broadly interpreted in

19 favor of intervention.” Id.

20

With respect to permissive intervention, “[o]n timely motion, the court may permit anyone to

21 intervene who. . . has a claim or defense that shares with the main action a common question of law

22 or fact.” Fed. R. Civ. P. 24(b)(1). Additionally, “the court may permit a federal or state governmental

23 officer or agency to intervene if a party’s claim or defense is based on . . . a statute or executive order

24 administered by the officer or agency.” Id. at 24(b)(2). Thus, “permissive intervention requires (1) an

25 independent ground for jurisdiction; (2) a timely motion; and (3) a common question of law and fact

26 between the movant's claim or defense and the main action.” Freedom from Religion Found. v. Geithner,

27 644 F.3d 836, 843 (9th Cir. 2011).

28 7
MOTION TO INTERVENE BY LOUISIANA AND MISSISSIPPI

Case 5:20-cv-05799-LHK Document 204 Filed 09/23/20 Page 8 of 13

1

INTERESTS AND GROUNDS FOR INTERVENTION

2 I. 3 4

The Court should grant intervention as of right. A. The motion is timely. Plaintiffs filed their complaint last month. See Citizens for Balanced Use v. Montana Wilderness

5 Ass’n, 647 F.3d 893, 897 (9th Cir. 2011) (finding a motion was timely when filed three months after

6 plaintiff’s complaint). The proposed intervention poses no prejudice to the parties, and the State

7 Intervenors have acted promptly after learning of this litigation and the orders imperiling their

8 interests. This motion is therefore timely. See United States v. Oregon, 745 F.2d 550, 552 (9th Cir. 1984)

9 (listing considerations for timeliness and finding district court abused its discretion in denying

10 intervention in fifteen year old litigation where litigant’s actions and court order implicated changed

11 circumstances); see also United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1182-83 (3d Cir. 1994)

12 (finding intervention in four year old litigation timely where intervention was sought 43 days after

13 intervenor became aware its interests were imperiled).

14 B. The State Intervenors have significant protectable interests.
15

16

The State Intervenors have clear and substantial protectable interests at stake in this action.

17 The “property” that is the subject of this action — particularly given Plaintiffs’ request for

18 nationwide relief — includes the size of the State Intervenors’ Congressional delegations, their

19 proportionate allocation of limited federal resources, and the Equal Protection rights of their citizens.

20 See Am. Compl. ¶¶ 304-333. In particular, Plaintiffs seek to boost the census enumeration of their

21 own jurisdictions at the expense of jurisdictions – like Louisiana and Mississippi – with lagging

22 enumeration. Cf. Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1496 n.8 (9th Cir. 1995)

23 (abrogated on other grounds) (“By allowing parties with a practical interest in the outcome of a

24 particular case to intervene, we often prevent or simplify future litigation involving related issues; at

25 the same time, we allow an additional interested party to express its views before the court.”).

26

27

28 8
MOTION TO INTERVENE BY LOUISIANA AND MISSISSIPPI

Case 5:20-cv-05799-LHK Document 204 Filed 09/23/20 Page 9 of 13

1

C. The disposition of this action could impede the State Intervenors’ ability to

protect their interests.

2

The risk this action poses to the State Intervenors’ interests is readily apparent. According to

3 the Census Bureau, Mississippi’s self-response rate as of September 19 is only 59.6%, and Louisiana’s

4 is only 59.3% (placing Mississippi and Louisiana 44th and 46th of the 50 States, respectively). Exh.

5 10. Likewise, Mississippi’s overall enumeration rate is only 89.6%, and Louisiana’s overall

6 enumeration rate is only 89.1% (placing them 46th and 48th of the 50 states, respectively). Id.

7 That lagging enumeration is compounded by the Intervenor States’ demographics. Census

8 Bureau estimates that Mississippi’s population is 37.8% African American, with 19.6% of

9 Mississippi’s population living in poverty.3 Louisiana’s population is similar: 32.8% African American,

10 with 19.0% of Louisiana’s population living in poverty.4 And 26% of Mississippi’s population and

11 25.5% of Louisiana’s population did not self-report in the 2010 Census, representing hard to count

12 populations. Exhs. 12, 13. Plaintiffs allege those populations are underrepresented in administrative

13 records, such that using administrative data to fill in missing information for non-responsive

14 households will produce a less accurate census. See Compl. ¶ 106. Further, Plaintiffs argue that

15 jurisdictions — like Mississippi and Louisiana — with high numbers of hard-to-count citizens suffer

16 disproportionately when compared to areas with low numbers of these same groups. Reply (ECF

17 130) at ECF p.11. Under Plaintiffs’ theory, diversion of Census Bureau resources to increase the

18 count in jurisdictions with adequate enumeration directly imperils the interests of the Intervenor

19 States and their residents, who are lagging in enumeration.

20 As explained in Louisiana’s Notice, last-minute interference with large government

21 undertakings itself creates serious disruption and harm. Not surprisingly, the Supreme Court has

22 repeatedly rejected such last-minute judicial disruption, especially on a PI or TRO record, even when

23 fundamental rights are affected. See, e.g., Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006); Williams v. Rhodes,

24 393 U.S. 23, 34-35 (1968). The COVID-19 pandemic has not changed that rule. See Republican Nat’l

25 Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020). And the census is a vastly larger and more

26

27 3 https://www.census.gov/quickfacts/fact/table/MS/BZA210218
28 4 https://www.census.gov/quickfacts/LA
9
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1 complex operation than the elections where the rule is most commonly applied. See Fontenot Decl.

2 (ECF 81-1) ¶ 66-67, 101. Indeed, the Intervenor States respectfully submit that the relief demanded

3 by the Plaintiffs (and to an extent granted by the TRO) will largely serve to deplete Census Bureau

4 resources that could otherwise be expended finalizing the census in the Intervenor States, see id. ¶ 96,

5 and that continued micromanagement and delay irreparably harm those States. Indeed, this Court’s

6 TRO itself implicates serious Equal Protection concerns vis-à-vis the Intervenor States’ citizens. See

7 Bush v. Gore, 531 U.S. 98, 105 (2000). And even if this Court is reversed on appeal, those harms will

8 have occurred and be irremediable. On the other hand, if Plaintiffs succeed, any significant delay in

9 enumeration will necessarily have major impacts on states like Louisiana that have state constitutional

10 or statutory deadlines for redistricting. Exhs. 6, 7, 11, 14-17; see also, e.g., La. Const. art. I sec. 6.

11 Indeed, massive amounts of litigation — including by Plaintiffs — is likely to follow any such delay.

12

D. The parties do not adequately represent the interests of the State Intervenors.

13

1. Neither Plaintiffs nor the federal Government represent the interests of

the State Intervenors. 14

15

Unlike Plaintiffs, the State Intervenors believe the December 31, 2020, statutory deadline is

16 clear, mandatory, and constitutional; and that the April COVID Plan was contrary to law to the

17 extent it would necessarily require violation of that deadline. To that end, the State Intervenors

18 believe the August Re-Plan is adequately supported and was effectively required once it became clear

19 that Congress was unlikely to grant relief from the December 31 deadline. Plaintiffs attacking the

20 August Re-Plan clearly do not represent the State Intervenors’ interests.

21

The federal Defendants do not represent the State Intervenors’ interests, either. Although the

22 federal Defendants have urged the Court to reject the Am. Complaint, they have made only passing

23 reference to the vast and irreparable harm the TRO and any PI are likely to cause the States vis-à-vis

24 suppressed enumeration and impacts to State deadlines. The federal Defendants also cannot respond

25 to the Plaintiffs’ arguments in the same manner the State Intervenors can: as sovereign States in our

26 federal form of government. See Sagebrush Rebellion, 713 F.2d at 528 (stating that courts assessing the

27 adequacy of representation consider whether the intervenor offers a necessary element to the

28 proceedings that would be neglected). 10
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1

“In assessing the adequacy of representation, the focus should be on the ‘subject of the

2 action,’ not just the particular issues before the court at the time of the motion.” Sw. Ctr. for Biological

3 Diversity v. Berg, 268 F.3d 810, 823 (9th Cir. 2001) (citing Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525,

4 528 (9th Cir. 1983)). “[T]he burden of showing inadequacy is ‘minimal,’ and the applicant[s] need

5 only show that representation of its interests by existing parties ‘may be’ inadequate.” Id. (quoting

6 Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972)). The Intervenor States and their

7 distinct sovereign interests easily satisfy that standard.

8

2. This Court’s findings regarding the conduct of the federal Defendants

compellingly reinforce that they are inadequate to represent the

9

interests of the State Intervenors.

10

This Court’s findings vis-à-vis the federal Defendants make clear that their representation is

11 inadequate in-fact. This Court faulted the federal Defendants for the lack of progress in this case, and

12 – implicitly – the corresponding harm to the State Intervenors from the resulting delay. Indeed, this

13 Court found that the federal “Defendants’ repeated denial of the existence of an administrative

14 record and failure to make any attempt to collect the administrative record . . . have necessitated

15 delay of the preliminary injunction hearing and extension of the TRO.” TRO Extension at 13-14.

16 The Court concluded:

17

based on Defendants’ violation of the Court’s Order to Produce the Administrative

Record as discussed above, an extension of the TRO is necessary for Defendants to

18

produce the OIG production and a privilege log; for the parties to litigate objections

to at least four different grounds of privilege; for United States Magistrate Judges to

19

resolve the parties’ privilege disputes; for the parties to file supplemental briefs on the

motion for preliminary injunction addressing the OIG production; and for the Court

20

to hold a hearing on the motion for preliminary injunction and to issue a reasoned

decision. 21

TRO Extension at 17. The Court made a similar finding at yesterday’s preliminary injunction hearing,

22

concluding that any delay in the preliminary injunction hearing was caused by the federal Defendants’

23

non-compliance with the Court’s orders. Where the State Intervenors are suffering irreparable harm

24

as a result of delay and the Court has attributed that delay to the federal Defendants’ non-compliance

25

with Court orders, those same federal Defendants clearly cannot be said to adequately represent the

26

State Intervenors’ interests.

27

28 11
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1 II. 2

Alternatively, the Court should permit permissive intervention pursuant to Rule 24(b). Even if this Court does not grant intervention as of right, the Court should permit the State

3 Intervenors to intervene permissively pursuant Rule 24(b). Because the Court’s jurisdiction is based

4 on federal questions raised by Plaintiffs and the applicants for intervention do not assert additional 5 claims, the requirement for an independent ground for jurisdiction does not apply. Freedom from 6 Religion Found., 644 F.3d at 844. This application is timely for the reasons argued above.

7

Louisiana and Mississippi could partially protect their interests by filing a separate action to

8 compel compliance with the statutory deadline for completing the census and the existing

9 enumeration plan. See Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 599-600 (2020) (Gorsuch, J.,

10 concurring) (reviewing multiple district court litigations and noting that “[u]niversal injunctions have

11 little basis in traditional equitable practice”). But such relief would inherently be partial given the 12 effect of the TRO on other localities, which necessarily depletes Census Bureau resources.

13 Additionally, the delay inherent in pursuing a separate action would adversely affect Louisiana’s and

14 Mississippi’s interests while census resources continue to be misallocated or depleted. Such an action

15 would, however, clearly involve common questions of law and fact with this one.

16

Moreover, with respect to remedies, the lagging enumeration in the State Intervenors’

17 jurisdictions and the harms articulated by State Intervenors will provide a “helpful, alternative

18 viewpoint” to those offered by Plaintiffs that have pursued litigation causing those very harms, 19 thereby “contribut[ing] to full development of the underlying factual issues and to the just and 20 equitable adjudication of the legal questions presented.” Pickup v. Brown, 2012 WL 6024387, at *4

21 (E.D. Cal. Dec. 4, 2012). 22

CONCLUSION

23 Federal Courts have repeatedly permitted States to intervene in disputes over the census. See,
24 e.g., Utah v. Evans, 536 U.S. 452, 459 (2002). For the foregoing reasons, the State Intervenors request
25 the Court do so here and grant their motion to intervene as a matter of right under Rule 24(a) or,
26 alternatively for permissive intervention under Rule 24(b).
27

28 12
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1 Dated: September 23, 2020

Respectfully submitted,

2

BENBROOK LAW GROUP, P.C.

3

/s/ Bradley A. Benbrook

_______________________________

4

BRADLEY A. BENBROOK (CA 177786)

STEPHEN M. DUVERNAY (CA 250957)

5

BENBROOK LAW GROUP, P.C.

400 Capitol Mall, Suite 2530

6

Sacramento, CA 95814

Tel: (916) 447-4900

7

brad@benbrooklawgroup.com

steve@benbrooklawgroup.com 8

Counsel for State Intervenors 9

10

JEFF LANDRY

ATTORNEY GENERAL OF LOUISIANA 11

/s/ Joseph S. St. John

12

________________________________

JOSEPH S. ST. JOHN (pro hac vice pending)

13

Deputy Solicitor General

LOUISIANA DEPARTMENT OF JUSTICE

14

1885 N. Third Street

Baton Rouge, LA 70804

15

Tel: (225) 326-6766

stjohnj@ag.louisiana.gov 16

Attorney for the State of Louisiana 17

18

LYNN FITCH

ATTORNEY GENERAL OF MISSISSIPPI 19

/s/ Krissy C. Nobile

20

________________________________

KRISSY C. NOBILE (pro hac vice forthcoming)

21

Deputy Solicitor General

OFFICE OF MISSISSIPPI ATTORNEY

22

GENERAL LYNN FITCH

P.O. Box 220

23

Jackson, MS 39205

Tel: (601) 359-3680

24

krissy.nobile@ago.ms.gov

25

Attorney for the State of Mississippi

26

27

28 13
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 Case 5:20-cv-05799-LHK Document 208 Filed 09/24/20 Page 1 of 78

United States District Court Northern District of California

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7 SAN JOSE DIVISION
8

9

NATIONAL URBAN LEAGUE, et al.,

10

Plaintiffs,

11

v.

12

WILBUR L. ROSS, et al.,

13

Defendants.

Case No. 20-CV-05799-LHK
ORDER GRANTING PLAINTIFFS’ MOTION FOR STAY AND PRELIMINARY INJUNCTION
Re: Dkt. No. 36

14

15

Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just

16 Immigration; Harris County, Texas; King County, Washington; City of Los Angeles, California;

17 City of Salinas, California; City of San Jose, California; Rodney Ellis; Adrian Garcia; National

18 Association for the Advancement of Colored People; City of Chicago, Illinois; County of Los

19 Angeles, California; Navajo Nation; and Gila River Indian Community (collectively, “Plaintiffs”)

20 sue Defendants Commerce Secretary Wilbur L. Ross, Jr.; the U.S. Department of Commerce; the 21 Director of the U.S. Census Bureau Steven Dillingham, and the U.S. Census Bureau (“Bureau”)

22 (collectively, “Defendants”) for violations of the Enumeration Clause and the Administrative

23 Procedure Act (“APA”).

24

Before the Court is Plaintiffs’ motion for stay and preliminary injunction (“motion for

25 preliminary injunction”). Having considered the parties’ submissions; the parties’ oral arguments 26 at the September 22, 2020 hearing and numerous case management conferences; the relevant law;

27 and the record in this case, the Court GRANTS Plaintiffs’ motion, STAYS the Replan’s September

28

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1 30, 2020 and December 31, 2020 deadlines, and preliminarily ENJOINS Defendants from

2 implementing these deadlines.

3 I. BACKGROUND

4

A. Factual Background

5

The 2020 Census is “a 15.6 billion dollar operation years in the making.” Defendants’ Opp.

6 to Plaintiffs’ Motion for Stay and Preliminary Injunction at 1 (“PI Opp.”). As a result, after nearly

7 a decade of preparation, Defendants adopted a final operational plan for the 2020 Census in

8 December 2018 called the Operational Plan Version 4.0. However, in March 2020, shortly after the

9 beginning of data collection, the COVID-19 pandemic upended Defendants’ Operational Plan and

10 necessitated more time for census operations. Accordingly, on April 13, 2020, Defendants adopted 11 the COVID-19 Plan, which elongated the schedule for data collection and processing and the 12 Secretary of Commerce’s reports of population “tabulations” to the President and the states. See 13 13 U.S.C. § 141(b), (c). On August 3, 2020, Defendants announced the Replan, which reduced the 14 COVID-19 timeframes for data collection and processing by half.

15

Below, the Court first describes census data collection, data processing, and reporting in

16 general terms. The Court then details the deadlines for these operations under the Operational Plan

17 Version 4.0; the COVID-19 Plan; and the Replan.

18

1. Deadlines for data collection, data processing, and the Secretary’s reports to

the President and the states.

19 As relevant here, there are four key deadlines in the 2020 Census. First is the deadline for

20 self-responses to census questionnaires. At the end of the self-response period, the Census Bureau

21 stops accepting responses to the census.

22 Second is the deadline on which Non-Response Follow-Up (“NRFU”) ceases. NRFU

23 refers to the process of “conduct[ing] in-person contact attempts at each and every housing unit

24 that did not self-respond to the decennial census questionnaire.” Fontenot Decl. ¶ 48. “The NRFU

25 Operation is entirely about hard-to-count populations.” ECF No. 37-5 at 219. NRFU is thus “the

26 most important census operation to ensuring a fair and accurate count.” Thompson Decl. ¶ 15.

27

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1 Together, self-responses and NRFU comprise the census’s data collection.

2

Third is the deadline for data processing after data collection. Data processing refers to the

3 Bureau’s “procedures to summarize the individual and household data that [the Bureau] collect[s]

4 into usable, high quality tabulated data products.” Fontenot Decl. ¶ 66.

5

Lastly, at the end of data collection and processing, the Secretary of Commerce issues two

6 reports pursuant to the Census Act: (1) “the tabulation of total population by States” for

7 congressional apportionment to the President by December 31, 2020, see 13 U.S.C. § 141(b); and

8 (2) a tabulation of population for redistricting to the states by April 1, 2021, see id. § 141(c).

9

2. The Operational Plan Version 4.0, adopted in December 2018, provided a total

of 54 weeks for the 2020 Census.

10

Defendants’ sole declarant, Albert E. Fontenot, Jr., Associate Director for Decennial

11 Census Programs at the U.S. Census Bureau,1 describes the Bureau’s extensive work over nearly a

12

decade to develop the Operational Plan Version 4.0 (hereafter, “Operational Plan”). For example,

13

Associate Director Fontenot discusses eight significant census tests the Bureau performed in 2013,

14

2014, 2015, 2016, and 2018 to improve their field operations. Fontenot Decl. ¶ 71. Associate

15

Director Fontenot describes partnerships with stakeholders such as organizations, tribes, and local

16

governments. E.g., Fontenot Decl. ¶¶ 12, 28. The Operational Plan reflects the conclusions of

17

subject-matter experts such as statisticians, demographers, geographers, and linguists. See, e.g.,

18

ECF No. 37-5 at 79, 144 (2020 Census Operational Plan—Version 4.0).

19

Under the Operational Plan adopted in December 2018, self-responses spanned 20.5 weeks

20

from March 12 to July 31, 2020. NRFU spanned 11.5 weeks from May 13 to July 31, 2020. Data

21

processing spanned 22 weeks from August 1 to December 31, 2020. These operational dates

22

would culminate in the Secretary of Commerce issuing his reports by the statutory deadlines.

23

Specifically, by December 31, 2020, the Secretary would report “the tabulation of total population

24

25

26 1 For an organizational chart of the Census Bureau, see Census Bureau Organizational Chart,

https://www.census.gov/about/who.html, ECF No. 150-3. Director Steven Dillingham and Deputy 27 Director Ron Jarmin head the Bureau, and their direct reports are Associate Directors.

28

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1 by States” to the President for the purpose of Congressional apportionment. By April 31, 2021, the

2 Secretary would report the tabulation of population to the states for the purpose of redistricting. 13

3 U.S.C. § 141(b).

4

3. COVID-19 pandemic causes suspension of census operations.

5

Six days after the self-response period began on March 12, 2020, the Bureau announced on

6 March 18, 2020 that it would suspend all field operations for two weeks because of the COVID-19

7 pandemic. See Press Release, U.S. Census Bureau, U.S. Census Bureau Director Steven

8 Dillingham on Operational Updates (Mar. 18, 2020), https://www.census.gov/newsroom/press-

9 releases/2020/operational-update.html.

10

The Bureau foresaw an eight-week operational delay, according to an internal Bureau

11 document dated March 24, 2020 and sent by the Bureau Deputy Director’s Chief Advisor, Enrique

12 Lamas, to senior staff. The document stressed the importance of maintaining an uncompressed

13 schedule. Reasons for maintaining an uncompressed schedule included completing the workload

14 remaining and operations that ensured a complete count of all population groups:

15

• The document stated that “staff had covered only about 10% of the workload when [the

Bureau] had to stop.” DOC_7087. 16

• The document further noted that operations “focused on counting populations not living in

17

traditional housing, such as nursing home residents, college students, the military,

18

prisoners, the homeless, and the transitory populations are being planned and will be

conducted as it is safe for Census employees and the public to engage in face-to-face

19

activities. These operations and our nonresponse follow-up operation, all need to be

20

completed before the Census Bureau can begin processing the data to ensure that we have

a complete count of the population and not undercount specific population groups.”

21

DOC_7088.

22 In line with the Bureau’s expectation of a long delay, the Bureau announced another two-week
23 suspension on March 28, 2020. Press Release, Census Bureau Update on 2020 Census Field
24 Operations (Mar. 28, 2020), https://www.census.gov/newsroom/press-releases/2020/update-on-
25 2020-census-field-operations.html. Further delays followed.
26 Ultimately, the Bureau’s projected eight-week delay was nine weeks plus phased restarts.
27

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1 The Chief of Staff to Secretary Ross, Michael Walsh, analyzed the issues for the Secretary on May

2 8, 2020. He wrote that “[p]ursuant to OMB guidance, the Census Bureau completely suspended

3 decennial field operations for 47 days between March 18 and May 4,” and then resumed

4 operations in phases thereafter. DOC_2287 (emphasis in original) (“Operational Timeline”

5 memo). Walsh flagged issues with two operations especially important to avoiding undercounts,

6 enumerator onboarding and “Update Leave”:

7

• Onboarding enumerators “entails recruitment, selection, acceptance and gathering of any

additional information, fingerprinting, background checks, onboarding, and training”

8

approximately 340,000–500,000 enumerators. Id. “The suspension of field operations

9

curtailed preparation for this [onboarding], as much of it required personal contact.” Id.

After onboarding, enumerators “visit non-responding households and conduct in-person

10

interview to obtain census responses.” DOC_2287.

11

• Update Leave, as Walsh wrote, “helps reach 5 million homes in the USA in rural and

12

remote areas that lack city-style mail.” Id. Update Leave reaches those homes by having

Census “field staff hand-deliver questionnaires,” id. at 6, to “areas where the majority of

13

the housing units do not have mail delivery . . . or the mail delivery information for the

14

housing unit cannot be verified.” Fontenot Decl. ¶ 46. Before the complete suspension of

operations, “approximately 10% of the initial [Update Leave] workload had been

15

completed.” DOC_2287. By contrast, “[u]nder initial projections, 100% of the Update

16

Leave workload should have been completed by April 17.” Id.

17 The May 8, 2020 Operational Timeline memo also foresaw problems with “[d]ata processing and

18 integrity.” Id. (emphasis omitted). “[T]he pandemic has made impacts that will require additional

19 processing and expertise because populations have temporarily shifted.” Id. As a result, the memo

20 suggested that the 2018 Operational Plan’s provision of 152 days (about 22 weeks) for data

21 processing was not enough. Id.

22

As field operations began restarting under the COVID-19 Plan detailed below, the Bureau

23 encountered COVID-related challenges. In particular, the Bureau had trouble retaining

24 enumerators and conducting in-person visits in NRFU. On retaining enumerators, Associate

25 Director for Field Operations Tim Olson wrote to other senior officials on July 23, 2020 that “[the

26 Bureau] had a huge quit rate from training to deployed in field (and this does not mirror past

27 censuses at all – it is MUCH higher, almost a debilitating higher quit rate). And this translate[d]

28

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1 into much slower production in the field because we have less than half the number of

2 enumerators (38%) we need to get the job done.” DOC_7737.

3

Issues with NRFU visits were flagged in a June 10, 2020 presentation sent by the Chief of

4 Staff to Director Dillingham, Christa Jones, to Deputy Director Jarmin and the Chief of Staff to

5 the Deputy Secretary of Commerce, Dan Risko. DOC_6545. On a slide titled “Risks and

6 Challenges Due to COVID-19,” the presentation stated that COVID-19 had “le[]d to new risks and

7 unknowns for the operation.” Id. Four risks stood out: (1) a lower case resolution rate because

8 respondents “may be less likely to answer their door”; (2) challenges with staffing and training;

9 (3) a complex schedule; (4) and a “de-scoped” early NRFU operation that presumably had been

10 delayed by COVID. Id.

11

By July 30, 2020—by which time the Bureau had already been directed to create the

12 Replan, as discussed below—enumerator staffing was still low. DOC_8623. Many cities across

13 several Area Census Offices had roughly 50% shortfalls in enumerator staffing compared to the

14 Bureau’s internal target. Id. Plaintiffs’ affidavits allude to similar issues with finding enumerators.

15 In Monterey County, California, for instance, the pandemic made it harder to hire and retain

16 enumerators “because traditional applicant groups like senior citizens have concerns about the risk

17 of catching COVID-19.” Gurmilan Decl. ¶ 13.

18

4. The COVID-19 Plan, adopted on April 13, 2020, provided 71.5 weeks for the

2020 Census.

19

As a result, on April 13, 2020, the Bureau issued an adjustment to its Operational Plan to

20

account for the impact of COVID-19 (the “COVID-19 Plan”). ECF No. 37-3 (April 13, 2020

21

statement of Secretary of Commerce Wilbur Ross and Census Bureau Director Steven

22

Dillingham). The COVID-19 Plan extended the deadlines. Specifically, first, the COVID-19 Plan

23

expanded the deadlines for self-responses from 20.5 weeks to 33.5 weeks (March 12 to October

24

31, 2020) to account for the pandemic’s disruptions to Bureau operations and the public’s ability

25

to respond to the census. Second, NRFU likewise expanded from 11.5 weeks (May 13 to July 31,

26

2020) to 12 weeks (August 11 to October 31, 2020).

27

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1

Third, given the pandemic’s effects on “the quality of the data, especially for groups that

2 are less likely to self-respond (often hard to count populations),” post-data collection quality

3 control was deemed especially important. ECF No. 37-7 at 18. Data processing for congressional

4 apportionment thus expanded from 22 weeks (August 1 to December 31, 2020) to 26 weeks

5 (November 1, 2020 to April 30, 2021). The processing was to include an independent review of

6 the final address list, analysis by subject-matter experts, and the remediation of software errors.

7 Fontenot Decl. ¶ 89.

8

Lastly, the press release announcing the COVID-19 Plan stated that “the Census Bureau is

9 seeking statutory relief from Congress of 120 additional calendar days to deliver final

10 apportionment counts.” ECF No. 37-3 at 3. The COVID-19 Plan would thus “extend the window

11 for field data collection and self-response to October 31, 2020, which will allow for apportionment

12 counts to be delivered to the President by April 30, 2021, and redistricting data to be delivered to

13 the states no later than July 31, 2021.” Id.

14

Although these delays would result in the Bureau missing statutory deadlines, the President

15 of the United States and Bureau officials publicly stated that meeting the December 31, 2020

16 deadline would be impossible in any event. On the day the COVID-19 Plan was announced,

17 President Donald J. Trump stated, “I don’t know that you even have to ask [Congress]. This is

18 called an act of God. This is called a situation that has to be. They have to give it. I think 120 days

19 isn’t nearly enough.” ECF No. 131-16 at 4.

20

On May 26, 2020, the Bureau’s Associate Director for Field Operations, Timothy Olson,

21 stated that “[w]e have passed the point where we could even meet the current legislative

22 requirement of December 31. We can’t do that anymore. We -- we’ve passed that for quite a while

23 now.” Nat’l Conf. of Am. Indians, 2020 Census Webinar: American Indian/Alaska Native at

24 1:17:30–1:18:30, YouTube (May 26, 2020), https://www.youtube.com/watch?v=F6IyJMtDDgY.

25

Likewise, on July 8, Associate Director Fontenot, Defendants’ sole declarant, confirmed

26 that the Bureau is “past the window of being able to get” accurate counts to the President by

27 December 31, 2020. U.S. Census Bureau, Operational Press Briefing – 2020 Census Update at

28

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1 20–21 (July 8, 2020), https://www.census.gov/content/dam/Census/newsroom/press-

2 kits/2020/news-briefing-program-transcript-july8.pdf.

3

The Bureau’s internal view on missing the statutory deadlines was similar. Days after

4 announcing the COVID-19 Plan, the Bureau prepared for a call on April 28, 2020 with

5 Congressman Jamie Raskin, Chair of the House Oversight Subcommittee on Civil Rights and

6 Civil Liberties, which has jurisdiction over the census. In preparation for that call, the Bureau’s

7 Chief of Congressional Affairs, Christopher Stanley, circulated a memo to Director Dillingham

8 and other senior officials. See DOC_2224. The memo answered possible questions about missed

9 deadlines.

10

Two questions and answers (“Q&As”) stood out. The first Q&A contemplated that any

11 data collection after August 14 would make meeting the deadlines infeasible. The Q&A asked why

12 the Bureau couldn’t “collect data after August 14 and still deliver redistricting data on time?”

13 DOC_2227. The answer was that the Bureau had “examined [the] schedule and compressed it as

14 much as [the Bureau] c[ould] without risking significant impacts on data quality. Given the

15 important uses of census data collection processing, it is vital that [the Bureau] not shortcut these

16 efforts or quality assurance steps.” Id.

17

The second Q&A asked whether “delaying the apportionment data [was] constitutional?”

18 The answer was that “[t]he proposal underwent a constitutional review, and we believe it is

19 constitutional and that the adjusted schedule will help us fulfill the constitutional requirement of a

20 complete and accurate census. . . . In history, especially for the many of the earlier censuses, data

21 collection and reporting the counts shifted beyond the zero year.” DOC_2228. By “counts shifted

22 beyond the zero year,” the Bureau presumably was referring to census reports that had been made

23 in the calendar year after the statutory deadline. Those reports were for the censuses of 1810,

24 1820, 1830, and 1840. ECF No. 203 (explaining examples); see, e.g., Act of Sept. 1, 1841, ch. 15,

25 § 1, 5 Stat. 452, 452 (second post hoc extension of September 1, 1841 for original deadline missed

26 by over nine months). In those censuses, after one or more deadlines had passed without the

27 enumeration having been completed, Congress extended the relevant deadlines after the fact. See

28

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1 ECF No. 203.

2

On May 8, 2020, Secretary Ross’s Chief of Staff, Michael Walsh, sent the “Operational

3 Timeline” memo to the Secretary. The Operational Timeline memo found that:

4

If the Census Bureau could fully restart today, under ideal conditions . . . the

earliest you could finish NRFU, even with the ability to restart immediately every

5

state, is approximately September 1, 2020. By finishing NRFU on September 1,

6

2020, apportionment counts could not be delivered until January 31, 2021, already

after the statutory deadline. Redistricting information would be provided to states

7

by April 30, 2021, already after the statutory deadline.

8

Based on the initial suspension of field activities in line with OMB guidance,

9

the Census Bureau can no longer meet its statutory deadlines for delivering

apportionment and redistricting data, even conducting operations under

10

unrealistically ideal conditions.

11 DOC_2288 (emphasis in original) (bullet points omitted).

12

All the above operational concerns were ultimately reflected in the census response data.

13 As of June 2020, “self-response rates var[ied] widely across states and counties,” with “markedly

14 different operational environments and challenges” facing the Bureau “from one locale to

15 another.” ECF No. 37-7 at 6 (citing self-response rates “below 3 percent” in counties in Alaska,

16 Texas, Utah, and South Dakota).

17

5. The Replan, adopted on August 3, 2020, reduced the time for the 2020 Census

from 71.5 weeks to 49.5 weeks. 18

On July 21, 2020, President Trump issued a memorandum declaring the United States’ 19

policy to exclude undocumented immigrants from the congressional apportionment base. 20

On July 23, 2020, Associate Director Fontenot started an email thread with several senior 21

Bureau officials, including Deputy Director Ron Jarmin and Associate Director for Field 22

Operations Timothy Olson. Associate Director Fontenot began the thread by stating that on July 23

27, he would tell the Department of Commerce about the “reality of the COVID Impacts and 24

challenges”: 25

On Monday at DOC [Department of Commerce] I plan to talk about the difference

26

between goal and actual case enumeration (Currently a shortfall (11 % goal vs 7%

27

actual) and attribute it to the higher drop out rate and (ideally with reasons) and

28

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what we are going to do to address the technology drop outs.) 1

I think it is critical to lay the groundwork for the reality of the COVID Impacts and

2

challenges.

3

Does anyone have any problems with my approach?

4 DOC_7737. In response, Associate Director Olson “agree[d] that elevating the reality is critical,

5 especially in light of the push to complete NRFU asap for all the reasons we know about.”

6 DOC_7738. Those reasons are not in the administrative record.

7

Associate Director Olson then “sound[ed] the alarm” on “deliver[ing] apportionment by

8 12/31” in the strongest possible terms:

9

We need to sound the alarm to realities on the ground – people are afraid to work

10

for us and it is reflected in the number of enumerators working in the 1a ACOs

[Area Census Offices]. And this means it is ludicrous to think we can complete

11

100% of the nation’s data collection earlier than 10/31 and any thinking person who

12

would believe we can deliver apportionment by 12/31 has either a mental

deficiency or a political motivation.

13 Id. One reason that accelerating the schedule would be “ludicrous,” Associate Director Olson

14 stated, was the “awful deploy rate” of enumerators about 62% below target. Id. Driving that

15 shortfall was “almost a debilitating higher quit rate”:

16

Another tack is to provide crystal clear numbers by the 1a ACOs that shows the

17

awful deploy rate - field selected the right number (big number) to training, training

show rate was on par with prior censuses (albeit a few points lower ... but overall in

18

line with past censuses). And then we had a huge quit rate from training to

19

deployed in field (and this does not mirror past censuses at all - it is MUCH higher,

almost a debilitating higher quit rate). And this translates into much slower

20

production in the field because we have less than half the number of enumerators

21

(38%) we need to get the job done.

22 DOC_7737.

23

On the same day as Associate Director Olson’s email (July 23, 2020), the Chief of

24 Decennial Communications and Stakeholder Relationships, Kathleen Styles, shared a so-called

25 “Elevator Speech” memo with GAO official Ty Mitchell and senior Bureau officials. See

26 DOC_8026 (sending to GAO). The purpose of the Elevator Speech, Chief Styles wrote, was “to

27 explain, in layman’s terms, why we need a schedule extension.” The Speech begins with a “High

28

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1 Level Message,” which in its entirety reads:

2

Curtailing census operations will result in a census that is of unacceptable quality.

The Census Bureau needs the full 120 days that the Administration originally

3

requested from Congress to have the best chance to produce high quality, usable

4

census results in this difficult time. Shortening the time period to meet the original

statutory deadlines for apportionment and redistricting data will result in a census

5

that has fatal data quality flaws that are unacceptable for a Constitutionally-

6

mandated activity.

7 DOC_8070.

8

On July 31, 2020, the Bureau removed from its website the October 31, 2020 deadline for

9 data collection without any announcement or explanation. Compare ECF No. 37-8 (July 30

10 Operational Adjustments Timeline), with ECF No. 37-9 (July 31 Operational Adjustments

11 Timeline).

12

By August 1, 2020, the Bureau had prepared several versions for a presentation to

13 Secretary Ross on Monday, August 3, 2020 (“August 3 Presentation”). The parties identify one

14 version as a key document. ECF Nos. 161 at 2 (Defendants’ identification of DOC_10275), 190 at

15 6 (Plaintiffs’ identification of same). The Presentation’s very first slide, titled “Overview,”

16 concludes that “to achieve an acceptable level of accuracy, at least 99% of Housing Units in every

17 state must be resolved”:

18

Due to COVID-19 impacts, the conclusion of field operations for the 2020 Census

was previously scheduled to end on October 31. In order to meet the statutory date

19

of December 31, 2020 for apportionment, field operations must now conclude no

20

later than September 30, 2020. Accelerating the schedule by 30 days introduces

significant risk to the accuracy of the census data. In order to achieve an acceptable

21

level of accuracy, at least 99% of Housing Units in every state must be resolved.

22 DOC_10275–76.

23

On August 3, 2020, the Bureau issued a press release announcing a “new plan,” which the

24 Bureau called the “Replan.” U.S. Census Bureau, Statement from U.S. Census Bureau Director

25 Steven Dillingham: Delivering a Complete and Accurate 2020 Census Count (Aug. 3, 2020), ECF

26 No. 37-1 (“August 3 Press Release”). In his declaration, Associate Director Fontenot avers that the

27 Secretary approved the Replan on the day it was announced. Fontenot Decl. ¶ 85.

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1

In the words of the August 3 Press release, the Replan “accelerate[d] the completion of

2 data collection and apportionment counts by our statutory deadline of December 31, 2020, as

3 required by law and directed by the Secretary of Commerce.” ECF No. 37-1. The time for the

4 2020 Census was reduced from 71.5 weeks to 49.5 weeks. Specifically, self-response compressed

5 from 33.5 weeks to 29 weeks, with the deadline advancing from October 31 to September 30.

6 Fontenot Decl. ¶ 100. NRFU compressed from 11.5 weeks to 7.5 weeks, with the deadline

7 advancing from October 31 to September 30. Lastly, data processing was halved from 26 weeks to

8 13 weeks, with the deadline advancing from April 30, 2021 to December 31, 2020.

9

As of August 3, 2020, less than 63% of households had responded to the 2020 Census.

10 ECF No. 37-1.

11

6. The Government Accountability Office found that the Replan increases the

risks to obtaining a complete and accurate 2020 Census.

12

In June 2020, the Government Accountability Office (“GAO”) issued a Report on the 2020

13

Census entitled, “COVID-19 Presents Delays and Risks to Census Count,” in which the GAO

14

noted, among other things, that staffing shortages were experienced at the Bureau’s call centers

15 and at the Bureau’s contractor responsible for printing the six mail-in self-response forms.2 ECF

16

No. 37-7 at 8 (GAO, COVID-19 Presents Delays and Risks to Census Count (June 2020)). The

17

Report also noted that as of June 1, 2020, counties in Alaska, Texas, Utah, and South Dakota had

18

19 2 The Court may take judicial notice of matters that are either “generally known within the trial

20 court’s territorial jurisdiction” or “can be accurately and readily determined from sources whose

21 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Courts take judicial notice of information, such as reports of the Government Accountability Office (“GAO”), Census Scientific

22 Advisory Committee (“CSAC”), and Department of Commerce Office of Inspector General

23 (“OIG”), which are found on government agency websites. See Paralyzed Veterans of Am. v. McPherson, 2008 WL 4183981, at *5–6 (N.D. Cal. Sept. 9, 2008) (citing circuit and district court

24 cases). However, to the extent any facts in the documents subject to judicial notice are subject to

25

reasonable dispute, the Court will not take judicial notice of those facts. See Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir. 2001) (“A court may take judicial notice of matters of public record

26 . . . . But a court may not take judicial notice of a fact that is subject to reasonable dispute.”)

(internal quotation marks omitted), overruled on other grounds by Galbraith v. Cty. of Santa 27 Clara, 307 F.3d 1119 (9th Cir. 2002).

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1 reported self-response rates below 3 percent. Id. at 9.3

2

In August 2020, the GAO issued a Report on the 2020 Census entitled “Recent Decision to

3 Compress Census Timeframes Poses Additional Risks to an Accurate Count.”

4 https://www.gao.gov/assets/710/709015.pdf. The Report stated: “Delays to data collection

5 operations, public reluctance to participate in door-to-door interviews, and compressed timeframes

6 for data collection and processing response data may affect the accuracy, completeness, and

7 quality of the count.” Id. at ii (cover memo). The Report also noted that implementation of

8 untested procedures and continuing challenges such as COVID-19 could “undermine the overall

9 quality of the count.” Id. at 1.

10

7. The Bureau’s Scientific Advisory Committee unanimously supports extension

of the census schedule.

11

Associate Director Fontenot’s September 22, 2020 declaration states: “In the midst of

12

major West Coast fires and air quality issues that have accelerated since September 11, and the

13

current impacts of Hurricane Sally across the states of Louisiana, Mississippi, Alabama, the

14

Florida panhandle area, parts of Georgia, and South Carolina, I stated publicly on September 17,

15

2020 in the Census Scientific Advisory Committee meeting that I did not know whether Mother

16

Nature would allow us to meet the September 30 date.” ECF No. 196-1 ¶ 14.

17

The next day, on September 18, 2020, the Census Scientific Advisory Committee

18

(“CSAC”) unanimously concluded that the Census schedule should be extended. See Allison

19

Plyer, Census Scientific Advisory Committee Chair, Recommendations and Comments to the

20

Census Bureau from the Census Scientific Advisory Committee Fall 2020 Meeting (September 18,

21

2020), https://www.documentcloud.org/documents/7213520-Recommendations-and-Comments-

22

23

24 3 The reports of the GAO, CSAC, and OIG are not in the administrative record. However, the

25

Court is permitted to go outside the administrative record “for the limited purpose of background information.” Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555 (9th Cir. 1989). The Court thus

26 considers those reports for background information alone. The Court does not consider the reports

for APA analysis. That said, many of the documents on which the OIG Report is based are 27 included in the partial administrative record, which is the basis of the Court’s APA analysis.

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1 to-the-Census.html#document/p2/a581794. Specifically, the CSAC found the following:

2

To ensure a successful completion of the 2020 Census in a way that is consistent

with its mandate of counting everyone once and in the right place, and based on its

3

scientific and methodological expertise, CSAC recommends that the 2020 Census

4

operational timeline be extended per the Bureau’s April 2020 request. Counting

everyone once and in the right place, using untested and never‐before‐used

5

technologies, that must work together with precision, requires time. When the

6

weather isn’t right, we postpone the launching of rockets into space. The same

should be true of the decennial enumeration, the results of which will impact

7

apportionment, redistricting, funding decisions, legal mandates and regulatory uses

8

of decennial Census data over the next decade.

9 Id. at 2.

10

8. The Commerce Department’s Office of Inspector General found that the Replan increases the risks to obtaining a complete and accurate 2020 Census.

11

On September 21, 2020, the Department of Commerce’s Office of Inspector General

12 (“OIG”) released a report entitled “The Acceleration of the Census Schedule Increases the Risks to

13 a Complete and Accurate 2020 Census.” Final Management Alert No. OIG-20-050-M (Sept. 18,

14 2020), https://www.oig.doc.gov/OIGPublications/OIG-20-050-M.pdf. The Report drew upon

15 Bureau and Commerce Department documents that were produced to the OIG (the “OIG

16 production” stated below), as well as interviews with senior Bureau officials and Director Steven

17 Dillingham. Id. at 2. The report made two findings. First, “[t]he decision to accelerate the Census

18 schedule was not made by the Census Bureau.” Information Memorandum for Secretary Ross

19 from Peggy E. Gustafson at 1 (Sept. 18, 2020). Second, “[t]he accelerated schedule increases the

20 risks to obtaining a complete and accurate 2020 Census.” Id.

21

On the first finding, the report detailed that:

22

As of mid-July 2020, the Bureau still viewed the statutory extension as necessary in

23

order to conduct the 2020 Census completely and accurately. This view is

consistent with previous public statements made by senior Bureau officials that the

24

Bureau would no longer be able to meet the December 31, 2020, statutory deadline.

25

Then, in the late afternoon of Wednesday, July 29, 2020, a senior Department

26

official told the Bureau to put together options for meeting the apportionment

deadline of December 31, 2020, and brief the Secretary on those options on

27

Monday morning, August 3, 2020.

28

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1 Id. at 7. On the second finding, the report detailed that “senior Bureau officials believed that the

2 largest risk to data collection posed by the accelerated plan was the decreased time to recover from

3 possible external contingencies affecting local areas or regions.” Id. at 8.

4

As of September 21, 2020, the Census Bureau had resolved 99% of housing units in only

5 four states. ECF No. 196-1 ¶ 13. The Bureau had stated internally in its August 3 Presentation that

6 “[i]n order to achieve an acceptable level of accuracy, at least 99% of Housing Units in every state 7 must be resolved.” DOC_1026.4

8

B. Procedural History

9

The procedural history of this case highlights why the instant Order is based on a stipulated

10 but incomplete administrative record. At first, Defendants stated that no administrative record

11 existed. Defendants then disclosed that there are documents that were considered by agency

12 decisionmakers at the time of the decision to adopt the Replan. The Court subsequently ordered

13 production of the administrative record. Despite the order, Defendants did not produce the

14 administrative record. Because of the exigency of the motion for preliminary injunction and the

15 imminent September 30, 2020 deadline for data collection, the parties stipulated to an incomplete

16 administrative record for purposes of the instant motion. The Court details each event in turn.

17

1. At first, Defendants stated that no administrative record existed.

18

On August 18, 2020, Plaintiffs filed suit to challenge the Census Bureau’s August 3, 2020

19 Replan, which advanced the 2020 Census deadlines for self-responses to Census questionnaires,

20 Non-Response Follow-Up (“NRFU”) field operations, data processing, and reporting Census

21 counts to the President and the states.

22

To allow Plaintiffs to effectively challenge the Replan, including the September 30, 2020

23 end of data collection, the parties stipulated to a briefing schedule and hearing date of September

24

4 The Court notes these later extra-record developments for context, but does not weigh them in its 25
APA analysis. But cf. Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2575 (2019) (“It is rare to

26 review a record as extensive as the one before us when evaluating informal agency action—and it

should be. . . . [B]ut we are ‘not required to exhibit a naiveté from which ordinary citizens are 27 free.’” (quoting United States v. Stanchich, 550 F.2d 1294, 1300 (2d Cir. 1977) (Friendly, J.))).

28

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1 17, 2020 on Plaintiffs’ motion for preliminary injunction. ECF No. 35. Pursuant to that schedule,

2 Plaintiffs filed a motion for a preliminary injunction on August 25, 2020 based on their claims

3 under the Enumeration Clause and the APA. ECF No. 36.

4

On August 26, 2020, the Court held a case management conference, at which Defendants

5 repeatedly denied the existence of an administrative record. E.g., ECF No. 65 at 9:22–24 (The

6 Court: “Is there an administrative record in this case?” Defendants: “No, Your Honor. On behalf of

7 the Defendants, no, there’s not.”), 10:17–18 (“[A]t this point there is no administrative record.”).

8 Rather, Defendants suggested that the only document that provided the contemporaneous reasons

9 for the Replan was the Bureau’s August 3, 2020 press release. Id. at 20:6–7 (“[A]t this point I’m

10 not aware of any other documents, but I would propose that I check with my client . . . .”). Even

11 so, the Court instructed Defendants that “[i]f there’s an administrative record, it should be

12 produced. [The Court] will need it to make a decision in this case.” Id. at 10:13–14.

13

2. Defendants then disclosed that there are documents considered by agency

decisionmakers at the time the Replan was adopted.

14

At the September 4, 2020 hearing on the September 3, 2020 motion for a temporary

15

restraining order (“TRO”), ECF No. 66, Defendants reiterated their position that no administrative

16

record existed. ECF No. 82 at 10:21–23, 33:13–15. However, Defendants disclosed that there were

17

documents considered by agency decisionmakers at the time the Replan was adopted. Defendants

18

stated:

19 The Census Bureau generates documents as part of its analysis and as part of its

20

decisions and as part of its deliberations. And there are documents that the Replan

21

was not cooked up in a vacuum, it was part of the agency’s ongoing deliberations.

And so certainly there are going to be documents that reflect those documents [sic].

22 Id. at 33:2–7. That said, Defendants stated they would only have to submit the documents “if there

23 is an administrative record on final agency action, which is there is [sic] none here.” Id. at 33:14–

24 16. In Defendants’ view, the lack of final agency action meant that “the documents that fed into the

25 operational plans and the operational decisions are internal documents that are subject to the

26 deliberative process privilege.” Id. at 32:13–16.

27

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1

Only a few minutes later, however, Defendants retracted their assertion of deliberative

2 process privilege. Id. at 36:15–17 (“[T]o be clear, we are not asserting the deliberative process

3 privilege because there is no record and there’s nothing to consider.”). Defendants conceded that

4 “[i]f there is final agency action that is reviewable and the APA applies, we would have an

5 obligation to produce the administrative record.” Id. at 35:24–36:1. However, Defendants urged

6 the Court to rely solely on Associate Director Fontenot’s declaration that Defendants would file

7 that evening with Defendants’ opposition to the motion for preliminary injunction. E.g., id. at

8 16:21–23 (“We will not be filing documents in addition to the declaration.”). Indeed, when

9 Defendants filed their opposition that night, Defendants’ only evidence was Associate Director

10 Fontenot’s declaration. ECF No. 81. After full briefing and the hearing, the Court issued a TRO on

11 September 5, 2020. ECF No. 84.

12

3. The Court ordered production of the administrative record.

13

At the September 8, 2020 case management conference, Defendants again stated that

14 “there is no administrative record in this case because there is no APA action.” ECF No. 98 at

15 62:15–16. Even so, Defendants confirmed their statements from the TRO hearing that the Replan

16 is “indeed codified.” Id. at 21:7. The Replan simply was “not necessarily codified in one particular

17 document.” Id. at 21:9–10. Accordingly, Plaintiffs asked the Court to order Defendants to produce

18 the administrative record. E.g., id. at 44:10–13.

19

After full briefing, the Court issued its Order to Produce the Administrative Record, which

20 addressed threshold arguments before ordering production. ECF No. 96. However, because of the

21 competing need to resolve the motion for preliminary injunction as quickly as possible, the Court

22 ordered a narrowed portion of the administrative record to be produced on September 13 and 16,

23 2020, before the September 17, 2020 preliminary injunction hearing. Id. at 21. Given these

24 production deadlines, the Court continued the deadline for Plaintiffs’ reply in support of their

25 motion for preliminary injunction from September 10 to September 15, 2020.

26

27

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4. Despite the Court’s order, Defendants did not produce the administrative

1

record.

2

Twelve hours before the production deadline on September 13, 2020, Defendants produced

3 58 unredacted documents and 14 heavily redacted documents. ECF No. 105; see ECF No. 177

4 (providing number of documents in September 13 Production). Many of the redacted documents

5 contained little information other than the email metadata that Defendants included in their

6 privilege log. See, e.g., ECF No. 105-1 at 37 (DOC_225: heavily redacted email); id. at 65

7 (DOC_253: same); id. at 173 (DOC_361: same); id. at 177 (DOC_365: same). Defendants also

8 stated that “[r]eview of the remaining documents remains ongoing” and that “[b]ecause review of

9 the remaining documents remains ongoing, and due to the volume of documents involved,

10 Defendants will be unable to produce or log any additional documents today.” Id. Moreover,

11 Defendants did not identify when they would complete the September 13 Production.

12

At the September 14, 2020 case management conference, Defendants stated that their next

13 production would be on September 16, 2020, but that they “d[id] not anticipate” completing the

14 September 13, 2020 Production on September 16, 2020. ECF No. 126 at 22:6. Moreover,

15 Defendants stated that they were still collecting documents for the September 16 Production and

16 did not know how many documents would be responsive. See, e.g., id. at 20:6–10. Overall,

17 Defendants stated that they would be unable to comply with the Court’s Order to Produce the

18 Administrative Record because compliance would be “a physical impossibility.” Id. at 41:16–17.

19

5. The parties stipulated to an incomplete administrative record for purposes of

the motion for preliminary injunction. 20

In response to Defendants’ failure to comply with the Court’s order on September 13, 21

2020, Plaintiffs filed the Department of Commerce Inspector General’s August 13, 2020 22

Information Memorandum for Secretary of Commerce Wilbur Ross, which included the following 23

Request for Information: 24

To assist the OIG [“Office of Inspector General”] in its oversight responsibilities,

25

please provide all documents or communications, including but not limited to

26

email, instant messages, and text messages:

27

1. Discussing or referring in any manner to the decision to accelerate the

28

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2020 Census schedule as described in the August 3, 2020 press release. 1

2. Detailing the persons involved, and their respective involvement, in the

2

decision to accelerate the 2020 Census schedule.

3

3. Detailing the reasons for the decision to accelerate the 2020 Census

4

schedule.

5

Please provide all requested documents and communications by close of business

Monday, August 17, 2020. You may also produce any additional documentation or

6

information you deem relevant to this request for information.

7 ECF No. 111-2 at 5. Plaintiffs also noted that Associate Director Fontenot’s declaration had

8 averred that the Census Bureau had produced many documents to the OIG. ECF No. 111 at 5

9 (citing Fontenot Decl., ECF No. 81-1 at 36 ¶ 103). Associate Director Fontenot did not disclose

10 the OIG’s Request for Information about the Replan, but rather spoke in more general terms: “We

11 produce a massive amount of documents and other information to the Office of Inspector General

12 and the General Accounting Office every week, and these organizations interview Census Bureau

13 staff on almost a daily basis.” ECF No. 81-1 at 36 ¶ 103. In other words, Defendants had neither

14 disclosed to the Court the OIG’s Request for Information nor produced the OIG documents in

15 response to the Court’s Order to Produce the Administrative Record. See ECF No. 111-2 at 5.

16

Given the exigency, both parties ultimately agreed that “in the short term, focusing on the

17 OIG documents for purposes of getting to a PI ruling and whatever appeal follows makes sense.”

18 Id. at 72:19–21; see id. at 33:14–22, 41:6–9 (Defendants’ agreement). The Court thus ordered

19 Defendants to produce the OIG documents that would constitute the administrative record or

20 would be included in the administrative record, stayed the Order to Produce the Administrative

21 Record until a case management conference after the impending preliminary injunction decision,

22 and continued the preliminary injunction hearing to Tuesday, September 22, 2020. Id. at 71–77;

23 see ECF No. 132. As the Court found, both the parties and the Court were “running out of time.”

24 ECF No. 141 at 38:6, 71:14.

25

On September 15, 2020, Plaintiffs filed their reply, for which they only had the benefit of

26 Defendants’ incomplete September 13, 2020 production of the administrative record as described

27 above. ECF No. 130 (“Reply”).

28

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1

On September 18, 2020, Defendants produced the OIG documents. Over the weekend on

2 September 19 and 20, 2020, after full briefing, United States Magistrate Judges Nathanael

3 Cousins, Susan van Keulen, and Thomas Hixson resolved the parties’ privilege disputes.

4 Defendants produced the documents that the judges had deemed non-privileged on September 19, 5 20, and 21, 2020.5 The resulting set of all non-privileged OIG documents comprise the

6 administrative record for the instant motion.

7

The Court allowed the parties to file supplemental briefs on the motion for preliminary

8 injunction to address Defendants’ productions. Specifically, on September 20, 2020, the parties

9 filed supplemental briefs that addressed Defendants’ September 18, 2020 production. See ECF No.

10 176 (“Defs. 1st Supp. Br.”); ECF No. 178 (“Pls. 1st Supp. Br.”). On September 22, 2020, the

11 parties filed supplemental briefs that addressed Defendants’ September 19, 20, and 21, 2020

12 productions. ECF Nos. 196 (“Defs. 2nd Supp. Br.”); ECF No. 197 (“Pls. 1st Supp. Br.”). However,

13 on September 22, 2020, Defendants also filed another Associate Director Fontenot declaration that

14 discussed injunction harms to Defendants that Associate Director Fontenot did not include in his

15 September 5, 2020 declaration in support of Defendants’ opposition to the motion for preliminary

16 injunction. ECF No. 196-1. The Court held a hearing on the motion for preliminary injunction on

17 September 22, 2020.

18 II. LEGAL STANDARD

19

“A plaintiff seeking a preliminary injunction must establish that [she] is likely to succeed

20 on the merits, that [she] is likely to suffer irreparable harm in the absence of preliminary relief,

21 that the balance of equities tips in [her] favor, and that an injunction is in the public interest.”

22 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The party seeking the injunction

23 bears the burden of proving these elements. Klein v. City of San Clemente, 584 F.3d 1196, 1201

24 (9th Cir. 2009). “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should

25

26 5 To minimize any intrusion into Defendants’ privileges, this Court only reviewed documents in

the OIG Production that the United States Magistrate Judges deemed non-privileged. The Court 27 did not itself review in camera the OIG Production.

28

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1 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” Lopez v.

2 Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012).

3 III. REVIEWABILITY

4

Defendants argue that Plaintiffs are not entitled to a preliminary injunction both because

5 the instant case is unreviewable due to a number of threshold issues, PI Opp. at 4–23, and because

6 the four relevant factors weigh against issuance of a preliminary injunction, id. at 23–35. The

7 Court first considers the threshold reviewability questions before turning to the four preliminary

8 injunction factors.

9

Defendants argue that the instant case is unreviewable on five grounds: (1) the Replan

10 presents a political question; (2) Plaintiffs lack standing; (3) the Replan is not agency action;

11 (4) the Replan is not “final”; and (5) the Replan is committed to agency discretion by law. The

12 Court addresses each ground in turn and then briefly addresses the APA requirements that

13 Defendants do not address, namely that Plaintiffs lack an adequate alternative to judicial review

14 and suffer prejudice from the Replan.

15

A. The Replan does not present a political question.

16

Defendants argue that Plaintiff’s Administrative Procedure Act claim is not justiciable

17 because it presents a political question. PI Opp. at 4–9. The Court disagrees.

18

A “political question” is one which is “outside the courts’ competence and therefore

19 beyond the courts’ jurisdiction.” Rucho v. Common Cause, 139 S. Ct. 2484, 2494 (2019). Tellingly,

20 Defendants fail to offer a case that finds that the political question doctrine bars review of

21 decisions regarding the administration of the census. Instead, Defendants point the Court to two

22 defining hallmarks of a political question: “[1] a textually demonstrable constitutional

23 commitment of the issue to a coordinate political department; or [2] a lack of judicially

24 discoverable and manageable standards for resolving” the dispute. Baker v. Carr, 369 U.S. 186,

25 217 (1962); accord Vieth v. Jubelirer, 541 U.S. 267, 277–78 (2004). Defendants argue that both

26 are present here because (1) the Enumeration Clause vests Congress with the authority to conduct

27 “actual Enumeration,” PI Opp. at 5–6, and (2) there is no evident standard by which the Court

28

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1 could evaluate the Bureau’s decision. PI Opp. at 6–7. Neither argument is convincing.

2

First, Defendants cite no case—and the Court is aware of none—in which a court declined

3 jurisdiction over a census case on political question grounds. To the contrary, the Supreme Court

4 and lower courts have repeatedly rejected the argument that the political question doctrine bars

5 review of census-related decisionmaking. See, e.g., U.S. Dep’t of Commerce v. Montana, 503 U.S.

6 442, 458–59 (1992) (holding that the “political question doctrine presents no bar”); Franklin v.

7 Massachusetts, 505 U.S. 788, 801 n.2 (1992) (noting that the Court “recently rejected a similar

8 argument” in Montana that “the courts have no subject-matter jurisdiction over this case because it

9 involves a ‘political question’”); Carey v. Klutznick, 637 F.2d 834, 838 (2d Cir. 1980) (per curiam)

10 (rejecting the Census Bureau’s argument that “allegations as to mismanagement of the census

11 made in the complaint involve a political question,” and holding the case reviewable under the

12 Constitution and APA) (quotation omitted); New York v. U.S. Dep’t of Commerce, 315 F. Supp. 3d

13 766, 791 (S.D.N.Y. 2018) (rejecting political question doctrine in citizenship question litigation;

14 and collecting cases); Young v. Klutznick, 497 F. Supp. 1318, 1326 (E.D. Mich. 1980) (rejecting

15 political question doctrine), rev’d on other grounds, 652 F.2d 617 (6th Cir. 1981); City of

16 Philadelphia v. Klutznick, 503 F. Supp. 663, 674 (E.D. Pa. 1980) (same); Texas v. Mosbacher, 783

17 F. Supp. 308, 312 (S.D. Tex. 1992) (same); District of Columbia v. U.S. Dep’t of Commerce, 789 F.

18 Supp. 1179, 1185 (D.D.C. 1992) (same); City of N.Y. v. U.S. Dep’t of Commerce, 739 F. Supp. 761,

19 764 (E.D.N.Y. 1990) (same); U.S. House of Representatives v. U.S. Dep’t of Commerce, 11 F.

20 Supp. 2d 76, 95 (D.D.C. 1998) (three-judge court) (same; and stating “the court sees no reason to

21 withdraw from litigation concerning the census”), aff’d, 525 U.S. 316 (1999); see also Utah v.

22 Evans, 536 U.S. 452 (2002) (engaging in review without noting any jurisdictional defect

23 stemming from political question doctrine); Wisconsin v. City of N.Y., 517 U.S. 1 (1996) (same);

24 Morales v. Daley, 116 F. Supp. 2d 801 (S.D. Tex. 2000) (same), aff’d sub nom. Morales v. Evans,

25 275 F.3d 45 (5th Cir. 2001) (unpublished); Prieto v. Stans, 321 F. Supp. 420, 421 (N.D. Cal. 1970)

26 (finding jurisdiction over a motion to preliminarily enjoin the census’s “mail-out, mail-back

27 procedure” and “community education and follow-up procedures”).

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1

Second, precedent supports the determination that there is a discoverable and manageable

2 standard by which the Court can review the agency action at issue here. For example, the Census

3 Act “imposes ‘a duty to conduct a census that is accurate and that fairly accounts for the crucial

4 representational rights that depend on the census and the apportionment.’” Dep’t of Commerce v.

5 New York, 139 S. Ct. 2551, 2569 (2019) (quoting Franklin, 505 U.S. at 819–820 (Stevens, J.,

6 concurring in part and concurring in judgment)) (discussing 2 U.S.C. § 2a). Similarly, the text,

7 structure, and history of the Constitution evinces “a strong constitutional interest in accuracy.”

8 Utah, 536 U.S. at 455–56.

9

Thus, in its decision on the census citizenship question last year, the Supreme Court

10 rejected Defendants’ claim that there is “no meaningful standard against which to judge the

11 agency’s exercise of discretion.” Dep’t of Commerce v. New York, 139 S. Ct. at 2568 (quoting

12 Weyerhaeuser Co. v. United States Fish and Wildlife Serv., 139 S. Ct. 361, 370 (2018)). The

13 standard is provided by the Census Act, the Constitution, and APA. Accordingly, it is no surprise

14 that Defendants do not cite, and the Court could not find, a case in which the political question

15 doctrine barred judicial review of census-related decisionmaking.

16

In sum, the political question doctrine does not bar the Court from reviewing the instant

17 case.

18

B. Plaintiffs have standing to challenge the Replan.

19

“To have standing, a plaintiff must ‘present an injury that is concrete, particularized, and

20 actual or imminent; fairly traceable to the defendant’s challenged behavior; and likely to be

21 redressed by a favorable ruling.’” Dep’t of Commerce v. New York, 139 S. Ct. at 2565. Plaintiffs

22 here allege—and support with affidavits—the same four injuries that the Supreme Court found

23 supported standing in the citizenship question case: “diminishment of political representation, loss

24 of federal funds, degradation of census data, and diversion of resources.” Id. at 2565 (upholding

25 findings as not clearly erroneous). The Court discusses each of Plaintiffs’ four alleged injuries.

26

1. Plaintiffs are likely to lose federal funds that turn on census data.

27

The administrative record shows that the Replan will likely lead to an undercount that

28

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1 results in “loss of crucial federal funds for programs that affect [Plaintiffs’] daily life.” A. Garcia

2 Decl. ¶ 4. The Supreme Court has specifically agreed that the loss of federal funding “is a

3 sufficiently concrete and imminent injury to satisfy Article III.” Dep’t of Commerce v. New York,

4 139 S. Ct. at 2565. Thus, the Court agrees that the possible loss of federal funds is a sufficient

5 injury to establish Article III standing as explained below.

6

Local government Plaintiffs are recipients of multiple sources of federal funding that turn

7 on census data. King County, Washington; the City of Los Angeles; and Harris County, Texas are

8 leading examples. The Replan’s shortened schedule for data collection and processing will likely

9 diminish each locality’s funding because each locality has many hard to count persons who risk

10 being undercounted. M. Garcia Decl. ¶¶ 7–8; Dively Decl. ¶ 5; Briggs Decl. ¶¶ 7, 11; see also

11 Hillygus Decl. ¶¶ 12, 19, 39 (explaining the statistics of undercounting subpopulations).

12 Specifically, the Court notes the following:

13

• In King County, three-quarters of the County’s record population growth of 15% since

2010 is attributable to “populations that are less likely to self-respond to the census.”

14

Dively Decl. ¶ 5. As a result, “[s]hortening the enumeration period risks creating a

15

population undercount.” Id. Any undercount would reduce King County’s allocation of

funds “proportionately disbursed by census population counts.” Id. ¶ 7. These funds

16

include Community Development Block Grants, HOME Investment Partnership Program,

17

and Emergency Solutions Grants from the U.S. Department of Housing and Urban

Development. Id. ¶ 7. Transit Formula Grants to the Seattle region, of which King County

18

is a part, also turn on census data, and totaled $108 million in fiscal year 2019.

19

• Los Angeles County is “the hardest to count in the nation.” M. Garcia Decl. ¶ 7. 57% of

20

the residents in the City of Los Angeles, which is home to roughly 4 million people, live in

census block groups that are hard or very hard to count. Id. As a result, Los Angeles’ self-

21

response rate of 54.5% (as of August 19, 2020) is well below the city’s 2010 response rate

22

of 68% and the state’s 2020 response rate of 65.9%.

23

• “[T]he City of Los Angeles receives tens of millions of dollars from the federal

government each year based upon the ratio of population derived from the decennial

24

census.” Westall Decl. ¶ 35. In times of national emergency, cities such as Los Angeles

25

receive relief based on census population. Id. ¶ 34 (discussing $20 million received under

the Coronavirus Aid, Relief, and Economic Security Act, or CARES Act).

26 • In Harris County, the Replan’s shortening of the self-response and NRFU timelines risks

27

causing “unprecedented undercounts in the 2020 Census.” Briggs Decl. ¶ 11.

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“[A]pproximately $90,529,359 of the grants expended by Harris County in FY2019

1

depended on accurate census data.” Wilden Decl. ¶ 5. Among the grants affected are those

2

that enable “sustainable financing of local health departments” such as Harris County

Public Health, which has helped manage COVID-19 for approximately 4.7 million people.

3

Shah Decl. ¶¶ 4, 8.

4

An undercount in any locality matters greatly. Even a small undercount of a subset of the 5

hard to count population would result in the loss of federal funding. See Dep’t of Commerce v. New 6

York, 139 S. Ct. at 2565 (“[I]f noncitizen households are undercounted by as little as 2% . . . 7

[states] will lose out on federal funds”). Thus, like in Department of Commerce v. New York, 8

Plaintiffs that receive federal funds based on census population suffer “a sufficiently concrete and 9

imminent injury to satisfy Article III.” Id. 10

2. Plaintiffs will likely be deprived of their fair share of political representation. 11

Plaintiffs allege that the undercount resulting from the Replan will likely result in an unfair 12

apportionment that will deprive local government Plaintiffs, individual Plaintiffs, and members of 13

organizational Plaintiffs of their fair share of representation. The resulting “threat of vote 14

dilution,” whether Congressional or intrastate, is an injury in fact. Dep’t of Commerce v. U.S. 15

House of Representatives, 525 U.S. 316, 331–32 (1999). 16

For example, given the historically low census response rates in the City of Los Angeles 17

and City of Salinas in California, the Replan creates a substantial risk that their residents will not 18

be counted, and a substantial risk of diminished political representation. See M. Garcia Decl. ¶¶ 8– 19

15; Gurmilan Decl. ¶¶ 6, 8–14. Specifically: 20

• In the City of Los Angeles, the Replan “will result in extreme inaccuracy” because it would

21

leave “just over six weeks to complete enumeration of roughly half of the exceptionally

22

diverse households of the nation’s second-most-populous city—in the midst of a once-in-a-

lifetime pandemic.” M. Garcia Decl. ¶ 8; see Westall Decl. ¶ 36 (stating it is “likely” that

23

undercounts will “disproportionally impact Los Angeles” and “cause the City to miss out

24

on a portion of [] funding for an entire decade”).

25

• Similarly, the City of Salinas comprises 38.5% of Monterey County’s hard to count

population, and the City’s response rate is 9.5% below its response rate from the 2010

26

Census and 8% below the current state average. Gurmilan Decl. ¶ 6.

27

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1

The undercount wrought by the Replan will not only “compromise the success of the

2 apportionment count” for Congressional representation, but also “severely compromise the quality

3 of the redistricting data” for state and local representation. Louis Decl. ¶ 43; see Thompson Decl.

4 ¶ 23. In fact, it is undisputed that census data is used to redraw district boundaries for federal,

5 state, and local legislatures, and that drawing districts with unequal population can be unlawful.

6 See, e.g., Westall Decl. ¶¶ 14–29. An undercount from a truncated self-response period, lower-

7 quality NRFU, and rushed data processing all mean that Plaintiffs’ federal, state, and local political

8 representation will be diminished. See, e.g., Westall Decl. ¶¶ 27 (“[R]esidents in Council Districts

9 with large concentrations of undercounted residents would be denied equal representation.”); Soto

10 Decl. ¶ 11 (same); Ellis ¶ 12 (“An undercount on the 2020 Census will also put me at serious risk

11 of political underrepresentation in the U.S. Congress, and in the Texas legislature.”).

12

3. The Replan will likely degrade census data that Plaintiffs use to deploy

services and allocate capital.

13

The local government Plaintiffs allege that the Replan will degrade granular census data

14

that they rely on to deploy services and allocate capital. “[B]y virtue of the Constitution and the

15

Census Act, it is, of course, the federal government’s job to collect and distribute accurate federal

16

decennial census data.” New York v. Trump, No. 20-CV-5770, 2020 WL 5422959, at *18 (S.D.N.Y.

17

Sept. 10, 2020) (three-judge court); see also Departments of Commerce, Justice, and State, The

18

Judiciary, and Related Agencies Appropriations Act, 1998, § 209, Pub. L. No. 105-119, 111 Stat.

19

2440, 2481 (1997) (“1998 Appropriations Act”) (codified at 13 U.S.C. § 141 note) (“Congress

20

finds that . . . it is essential that the decennial enumeration of the population be as accurate as

21

possible, consistent with the Constitution and laws of the United States . . . .”).

22

The degradation of data is thus an informational injury analogous to those that have

23

supported Article III standing. See New York v. U.S. Dep’t of Commerce, 351 F. Supp. 3d 502, 611

24

(S.D.N.Y. 2019) (finding that “degradation in the quality of census data” supported standing),

25

aff’d in part, rev’d in part and remanded sub nom. Dep’t of Commerce v. New York, 139 S. Ct.

26

2551 (2019); see also, e.g., Fed. Election Comm’n v. Akins, 524 U.S. 11, 21 (1998) (collecting

27

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1 cases finding that “deprivation of information” supports standing); Robins v. Spokeo, Inc., 867

2 F.3d 1108, 1114 (9th Cir. 2017) (finding standing partly because a statute, 15 U.S.C. § 1681e(b),

3 requires “follow[ing] reasonable procedures to assure maximum possible accuracy” of

4 information). For instance, King County, Los Angeles, and Harris County all rely on granular

5 census data:

6

• King County, Washington uses census data to place public health clinics, plan

transportation routes, and mitigate hazards. Dively Decl. ¶ 6. 7

• The City of Los Angeles uses “reliable, precise, and accurate population count data” to

8

deploy the fire department, schedule trash-pickups, and acquire or improve park properties.

9

Westall Decl. ¶ 32.

10

• Recently, Harris County has used census data “to estimate the impact of COVID-19 to

specific communities at a granular level,” which has helped the county tailor

11

“communications in multiple languages with audience and age-specific prevention

12

messaging and share information about availability of testing or vaccine sites.” Shah Decl.

¶ 7. Inaccurate or incomplete data would “increase risk of misinterpreting the prevalence

13

of the disease in disproportionately impacted communities.” Id.

14 In sum, the Replan’s harm to the accuracy of census data will harm Plaintiffs’ concrete uses of the

15 data.

16 4. Plaintiffs have diverted and will continue diverting resources to mitigate the

17

undercount that will likely result from the Replan.

18

Plaintiffs will divert resources to mitigate the undercounting that will likely result from the

19 Replan. The result is “concrete and demonstrable injury to [Plaintiffs’] activities—with the

20 consequent drain on [their] resources.” New York, 2020 WL 5422959, at *19 (quoting Havens

21 Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)); see also Am. Diabetes Ass’n v. U.S. Dep’t of

22 Army, 938 F.3d 1147, 1154 (9th Cir. 2019) (discussing Havens Realty, and finding injury in fact

23 where plaintiffs “had altered their resource allocation” that they would have spent on some other

24 organizational purpose).

25

The City of Salinas, Harris County, Black Alliance for Just Immigration, League of

26 Women Voters, and National Urban League detail many examples of diverted resources:

27

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1

• The City of Salinas already promoted the October 31 deadline “on social media and in

thousands of paper flyers.” Gurmilan Decl. ¶¶ 11–12. Thus, “some residents who received

2

the City’s messaging will fail to respond before the R[eplan] deadline because the City has

3

limited remaining resources to correct what is now misinformation.” Id. ¶ 12. Moreover, the City “is still advertising for census enumerator job listings because traditional applicant

4

groups like senior citizens have concerns about the risk of catching COVID-19. With fewer

enumerators working, every extra day the City has to use [] existing staff to support the

5

count . . . .” Id. ¶ 13.

6

• Harris County “participated in over 150 events,” including “food distribution events,”

7

during which it “announced the October 31, 2020 deadline for the 2020 Census.” Briggs

Decl. ¶ 12. Consequently, “Harris County will be forced to expend additional resources to

8

clear confusion about the last date for self-response during the Census, to ensure that

9

people who have not responded are counted in time.” Id. ¶ 16.

10

• The Black Alliance for Just Immigration already “publicized the October 31 deadline for

self-response during digital events between April and July” and is diverting resources to

11

publicize the new September 30 deadline. Gyamfi Decl. ¶¶ 13–14.

12

• The League of Women Voters “has already had to spend time and financial resources”

13

developing and distributing public education materials on the Replan timeline. Stewart

Decl. ¶ 12.

14 • The National Urban League has similarly had “to divert resources from other programs and

15

projects” to “alleviate the confusion” about the change in deadlines. Green Decl. ¶ 15.

16

Indeed, even now, the Census Bureau boasts of how its communications program was

17 “more integrated than ever before” with Plaintiffs such as National Urban League. Fontenot Decl.

18 ¶ 40. Mitigating those now-counterproductive education campaigns and a likely undercount will

19 only be harder in the midst of a pandemic. E.g., M. Garcia Decl. ¶¶ 14–15; Gurmilan Decl. ¶¶ 11–

20 14; Briggs Decl. ¶¶ 11–12, 15–17. The result that Plaintiffs have diverted and will continue to

21 divert resources from their organization mission to mitigate the effects of the Replan.

22

5. Plaintiffs’ injuries are fairly traceable to the Replan and redressable by a stay

23

of the Replan.

24

The above harms are “concrete, particularized, and actual or imminent.” Dep’t of

25 Commerce v. New York, 139 S. Ct. at 2565 (quoting Davis v. Fed. Election Comm’n, 554 U.S. 724,

26 733 (2008)). They are also “fairly traceable to the defendant’s challenged behavior; and likely to

27 be redressed by a favorable ruling.’” Id. (quoting Davis, 554 U.S. at 733). As the Supreme Court

28

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1 stressed last year, “Article III ‘requires no more than de facto causality.’” Id. at 2566 (quoting

2 Block v. Meese, 793 F.2d 1303, 1309 (D.C. Cir. 1986) (Scalia, J.)). “[T]he defendant’s conduct

3 need not be ‘the very last step in the chain of causation.’” New York, 2020 WL 5422959, at *21

4 (quoting Bennett v. Spear, 520 U.S. 154, 169 (1997)).

5

Here, Plaintiffs’ theory of standing rests “on the predictable effect of Government action on

6 the decisions of third parties”—specifically, the predictable harms of accelerating census deadlines

7 and curtailing key operations, without warning, after months of publicly operating under a plan

8 tailored to COVID-19. Id. Accordingly, enjoining the implementation of the Replan’s September

9 30, 2020 deadline for data collection and December 31, 2020 deadline for reporting the population

10 tabulations to the President would redress those harms. See, e.g., Dep’t of Commerce v. U.S. House

11 of Representatives, 525 U.S. at 328–34 (affirming injunction against the planned use of statistical

12 sampling to prevent apportionment harms, among others); New York v. United States Dep’t of

13 Commerce, 351 F. Supp. 3d at 675 (issuing injunction to prevent “the loss of political

14 representation and the degradation of information”).

15

All told, Plaintiffs suffer injuries in fact that are fairly traceable to the Replan and

16 redressable by the relief Plaintiffs seek. Plaintiffs thus have Article III standing.

17

C. The Replan constitutes agency action.

18

Defendants’ three remaining arguments against reviewability arise under the APA, not the

19 Constitution. To start, Defendants argue that the Replan is not reviewable because it is not a

20 discrete “agency action.” PI Opp. at 17. They thus claim that Plaintiffs’ suit is “an improper,

21 programmatic attack on the Bureau’s efforts to conduct the 2020 Census.” Id. The Court disagrees.

22 The Replan is agency action.

23

“The bite in the phrase ‘final action’ . . . is not in the word ‘action,’ which is meant to cover

24 comprehensively every manner in which an agency may exercise its power.” Whitman v. Am.

25 Trucking Associations, 531 U.S. 457, 478 (2001) (citations omitted). Thus, agency action is

26 broadly defined to include “the whole or part of an agency rule, order, license, sanction, relief, or

27 the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). Each word in that definition

28

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1 has its own expansive definition. A “rule,” for example, includes “the whole or a part of an agency

2 statement of general or particular applicability and future effect designed to implement, interpret,

3 or prescribe law or policy or describing the organization, procedure, or practice requirements of an

4 agency.” Id. § 551(4).

5

To be sure, a reviewable agency action must be one that is “circumscribed” and “discrete.”

6 Norton v. S. Utah Wilderness All., 542 U.S. 55, 62–63 (2004). This requirement “precludes [a]

7 broad programmatic attack” on an agency’s operations. Id. at 64. Defendants thus analogize this

8 case to NAACP v. Bureau of the Census, 945 F.3d 183 (4th Cir. 2019), and Lujan v. National

9 Wildlife Federation, 497 U.S. 871, 893 (1990).

10

In NAACP, the plaintiffs brought a challenge in 2018 to the census “methods and means,”

11 and “design choices.” NAACP, 945 F.3d at 186. The NAACP plaintiffs challenged as insufficient

12 the numbers of enumerators, the networks of area census offices, the Bureau’s plan to rely on

13 administrative records, and partnership program staffing. Id. at 190. The Fourth Circuit found that

14 “‘[s]etting aside’ one or more of these ‘choices’ necessarily would impact the efficacy of the

15 others, and inevitably would lead to court involvement in ‘hands-on’ management of the Census

16 Bureau’s operations.” Id. (citing S. Utah Wilderness All., 542 U.S. at 66–67). In concluding that

17 there was not final agency action, the Fourth Circuit emphasized that its holding was “based on the

18 broad, sweeping nature of the allegations that the plaintiffs have elected to assert under the APA.”

19 Id. at 192.

20

NAACP is inapposite for two reasons. First, the relief Plaintiffs seek here would not

21 “inevitably [] lead to court involvement in ‘hands-on’ management of the Census Bureau[].” Id. at

22 191. Plaintiffs do not ask the Court to manage the Bureau’s day-to-day operations or to enforce

23 free-floating standards of “sufficiency.” See NAACP, 945 F.3d at 191 (quoting claims of

24 “insufficient network of area census offices,” “insufficient partnership program staffing,”

25 “insufficient testing of ‘new protocols,’” and more). Rather, Plaintiffs challenge the Defendants’

26 failure to consider important aspects of the problem and lack of reasoned explanation for the

27 Bureau’s change in position. Reply at 14. See, e.g., Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State

28

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1 Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52 (1983) (finding that agency’s explanation for rescission

2 was not the product of reasoned decisionmaking); Encino Motorcars, LLC v. Navarro, 136 S. Ct.

3 2117, 2126 (2016) (setting aside agency’s “change in position” for lacking reasoned explanation).

4

Second, the Replan is a circumscribed, discrete agency action. Indeed, Defendants treated

5 the Replan accordingly. Defendants named it the “Replan” or “Replanned Operational Schedule.”

6 E.g., DOC_10276 (version of August 3, 2020 slide deck identified as key by the parties);

7 DOC_8929 (July 30, 2020 email from Barbara LoPresti, Chief of the Decennial Information

8 Technology Division, to senior officials discussing “this proposed replan”); DOC_10066 (email

9 thread titled “Replan” with senior officials); DOC_11918 (August 3, 2020 email to the Chief of

10 Staff for the Deputy Secretary of Commerce with subject “Revised Replan Deck”).

11

The Secretary directed the Bureau to develop the Replan. See, e.g., August 3 Press Release,

12 ECF No. 37-1 (“directed by the Secretary”). In response to the Secretary’s direction, the Bureau

13 presented the Replan to the Secretary in a single slide deck. See, e.g., DOC_10276. The Secretary

14 made an explicit decision to adopt the Replan. Fontenot Decl. ¶ 85. Census Bureau Director

15 Dillingham announced the Replan in a single press release on August 3, 2020. ECF No. 37-1.

16 Defendants consistently treated the Replan as a circumscribed, discrete agency action.

17

Defendants’ comparison to Lujan v. National Wildlife Federation is also misplaced. See PI

18 Opp. at 17. In Lujan, plaintiffs challenged a “so-called ‘land withdrawal review program’”—“so-

19 called” because the term “land withdrawal review program” was “simply the name by which [the

20 agency] [] occasionally referred to the continuing (and thus constantly changing) operations of

21 the” agency. Lujan, 497 U.S. at 890. The term was “not derived from any authoritative text.” Any

22 “land withdrawal review program” in fact comprised at least “1250 or so individual classification

23 terminations and withdrawal revocations.” Id.

24

The Lujan plaintiffs recognized as much. In their complaint, the Lujan plaintiffs

25 challenged: (1) reclassification of some withdrawn lands; (2) the return of other lands to the public

26 domain; (3) petitioners’ failure to develop, maintain, and revise land use plans; (4) petitioners’

27 failure to submit recommendations as to withdrawals in the 11 Western States to the President;

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1 (5) petitioner’s failure to consider multiple uses for disputed lands; (6) petitioners’ failure to

2 provide public notice of decisions; and (7) petitioners’ failure to provide a detailed environmental

3 impact statement in every recommendation or report on major federal actions significantly

4 affecting the quality of the human environment. Id. at 879. Moreover, the Lujan plaintiffs

5 “[a]ppended to the amended complaint . . . a schedule of specific land-status determinations” that

6 listed several land status-determinations that were each identified by a listing in the Federal

7 Register. Id.

8

By contrast, Plaintiffs here challenge a circumscribed, discrete agency action: the Replan.

9 “Replan” is not an “occasional[]” informal name for “constantly changing” operations, id. at 890,

10 but is a codified term for the agency action directed and adopted by the Secretary. E.g.,

11 DOC_11918. Nor is the Replan a disconnected series of hundreds of individual determinations

12 with enough independent significance to be published in the Federal Register like the program in

13 Lujan. Rather, the Replan is a census operational plan that replaced the COVID-19 Plan. As Lujan

14 held plainly, though, judicial “intervention may ultimately have the effect of requiring a

15 regulation, a series of regulations, or even a whole ‘program’ to be revised by the agency in order

16 to avoid the unlawful result that the court discerns.” Lujan, 497 U.S. at 894.

17

Again, in sum, as Justice Scalia stated: “[t]he bite in the phrase ‘final action’ . . . is not in

18 the word ‘action,’ which is meant to cover comprehensively every manner in which an agency

19 may exercise its power. It is rather in the word ‘final.’” Whitman, 531 U.S. at 478 (citations

20 omitted). It is to that finality requirement that the Court now turns.

21

D. The Replan constitutes final agency action.

22

Defendants argue that even if the Replan were agency action, “it is not ‘final’ agency

23 action that is subject to judicial review under § 704.” PI Opp. at 19. “To maintain a cause of action

24 under the APA, a plaintiff must challenge ‘agency action’ that is ‘final.’” Wild Fish Conservancy v.

25 Jewell, 730 F.3d 791, 800 (9th Cir. 2013) (citing Norton, 542 U.S. at 61–62).

26

An agency’s action is final if two conditions are met. First, the action “must mark the

27 consummation of the agency’s decisionmaking process—it must not be of a merely tentative or

28

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1 interlocutory nature.” Bennett, 520 U.S. at 177–78. Second, the action “must be one by which

2 ‘rights or obligations have been determined,’ or from ‘which legal consequences will flow.’” Id.

3 (quoting Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62,

4 71 (1970)). Five years earlier, the Supreme Court found that the same two requirements applied in

5 a census case. Franklin, 505 U.S. at 797 (the central question “is [1] whether the agency has

6 completed its decisionmaking process, and [2] whether the result of that process is one that will

7 directly affect the parties.”). Courts should take a “‘pragmatic’ approach” to finality. U.S. Army

8 Corps of Engineers v. Hawkes Co., Inc., 136 S. Ct. 1807, 1815 (2016) (quoting Abbott

9 Laboratories v. Gardner, 387 U.S. 136, 149 (1967)).

10

The Court finds the Replan is final agency action for purposes of APA review because the

11 Replan meets both criteria, each of which the Court addresses in turn.6

12

1. The Census Bureau completed its decisionmaking process: Defendants have

adopted and implemented the Replan.

13

As to the first factor of final agency action, which is “whether the agency has completed its

14

decisionmaking process,” Franklin, 505 U.S. at 797, the Replan marks the consummation of the

15

Bureau’s and Department of Commerce’s decisionmaking process because the Replan is “not

16

subject to further agency review.” Sackett v. EPA., 566 U.S. 120, 127 (2012); see also Hawkes, 136

17

S. Ct. at 1813–14 (holding that an agency action was final because the determination was

18

“typically not revisited”); Fairbanks North Star Borough v. U.S. Army Corps of Engineers, 543

19

F.3d 586, 593 (9th Cir. 2008) (holding that an agency’s action was final where “[n]o further

20

agency decisionmaking on the issue can be expected”). The Secretary made an explicit decision to

21

adopt the Replan. August 3 Press Release; see Fontenot Decl. ¶ 85. The Bureau has implemented

22

23

24 6 In Hawkes Co., the Supreme Court expressly reserved whether an agency action that satisfies

25

only the first condition—consummation of the agency’s decisionmaking process—can still be final. 136 S. Ct. at 1813 n.2. The Court did not reach that question in Hawkes Co. because the

26 agency action under review “satisfie[d] both prongs of Bennett.” Id. Similarly, the Replan satisfies

both prongs. Thus, the Court need not decide whether the first condition alone would suffice to 27 constitute a “final” agency action.

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1 the Replan. No further agency decisionmaking will be conducted on the Replan.

2

Norton v. Southern Utah Wilderness Alliance, a decision cited by Defendants, is readily

3 distinguishable from the instant case. See Defs. 1st Supp. Br. at 1 (citing Norton, 542 U.S. at 61–

4 62). In Norton, the United States Supreme Court found that the plaintiffs’ challenges to the Bureau

5 of Land Management’s land use plans failed. The Norton Court reasoned that the plans were not a

6 “legally binding commitment” that were enforceable under the APA. 542 U.S. at 72. Specifically,

7 the plaintiffs claimed that BLM “failed to comply with certain provisions in its land use plans,”

8 which “describe[], for a particular area, allowable uses, goals for future condition of the land, and

9 specific next steps.” 542 U.S. at 59, 67. The Federal Land Policy and Management Act of 1976

10 “describes land use plans as tools by which ‘present and future use is projected.’” Id. at 69

11 (emphasis in original) (quoting 43 U.S.C. § 1701(a)(2)).

12

Thus, the Norton Court observed that “[t]he implementing regulations make clear that land

13 use plans are a preliminary step in the overall process of managing public lands—designed to

14 guide and control future management actions and the development of subsequent, more detailed

15 and limited scope plans for resources and uses.” Id. (emphasis added). As a result, “a land use plan

16 is not ordinarily the medium for affirmative decisions that implement the agency’s

17 ‘project[ions].’” Id. (quoting 43 U.S.C. § 1712(e)). Similarly, “the regulation defining a land use

18 plan declares that a plan ‘is not a final implementation decision on actions which require further

19 specific plans, process steps, or decisions under specific provisions of law and regulations.’” Id. at

20 69–70. In sum, by contrast to a “final” agency action, the type of land use plan challenged by the

21 Norton plaintiff “is generally a statement of priorities; it guides and constrains actions, but does

22 not (at least in the usual case) prescribe them.” Id. at 71.

23

Here, the Replan was not a “preliminary step” toward deciding the Census schedule. Nor

24 was the Replan a “statement of priorities” that merely “guides and constrains actions.” See id. at

25 69, 71. Instead, the Replan constitutes a commitment to terminate the collection of data, analyze

26 that data, and report “[t]he tabulation of total population” to the President by December 31, 2020.

27 13 U.S.C. § 141(b).

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1

Moreover, termination of data collection is practically irreversible. In his September 5,

2 2020 declaration, Defendants’ own declarant, Associate Director Fontenot, requests that if the

3 Court enjoins Defendants, the Court do so earlier than later because it is difficult to rehire field

4 staff who have been terminated:

5

Lack of field staff would be a barrier to reverting to the COVID Schedule were the

Court to rule later in September. The Census Bureau begins terminating staff as

6

operations wind down, even prior to closeout. Based on progress to date, as is

7

standard in prior censuses, we have already begun terminating some of our

temporary field staff in areas that have completed their work. It is difficult to bring

8

back field staff once we have terminated their employment. Were the Court to

9

enjoin us tomorrow we would be able to keep more staff on board than were the

Court to enjoin us on September 29, at which point we will have terminated many

10

more employees.

11 Fontenot Decl. at ¶ 98.

12

In sum, the Replan provides that all data collection, including field operations, cease by

13 September 30, and truncated data processing begin the next day. Absent a preliminary injunction,

14 those practically irrevocable steps are only days away. The Replan is thus the completion of

15 Defendants’ decisionmaking process on how the 2020 Census will be conducted.

16

2. The Replan directly affects the parties.

17

As to the second factor of final agency action, which is whether an agency action “will

18 directly affect the parties,” the Replan certainly does affect the parties and will continue to do so.

19 Franklin, 505 U.S. at 797; see also Bennett, 520 U.S. at 177–78 (holding that, “[a]s a general

20 matter,” a final action “must be one by which ‘rights or obligations have been determined,’ or from

21 which ‘legal consequences will flow’” (citation omitted)). The Court analyzes the Replan’s effect

22 on the Plaintiffs and Defendants then distinguishes Defendants’ main case, Franklin v.

23 Massachusetts.

24

a. The Replan’s undercount will directly affect and harm Plaintiffs.

25

The Replan “will directly affect” Plaintiffs and result in “legal consequences.” Franklin,

26 505 U.S. at 797; Bennett, 520 U.S. at 177–78. Specifically, the Replan will directly affect

27 Plaintiffs in three ways: (1) by undercounting hard to count populations; (2) barring governmental

28

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1 Plaintiffs’ constituents and organizational Plaintiffs’ members from participating in the 2020

2 Census after September 30, 2020; and (3) exposing those same people to violations of federal law

3 and fines.

4

First, the Replan will likely undercount hard to count populations in the decennial census.

5 This undercount necessarily affects the Secretary’s “tabulation of total population by States” and

6 the President’s apportionment calculations, which “must be based on decennial census data alone.”

7 New York, 2020 WL 5422959, at *26 (discussing text, legislative history, and the Executive’s

8 longstanding understanding of 13 U.SC. § 141(a) and 2 U.S.C. § 2a(a)). In other words, the

9 Replan will likely result in an undercount in both the numbers that the Secretary reports to the

10 States and the numbers that the President—who must draw on “decennial census data”—reports to

11 Congress.

12

That undercount, as discussed in the Court’s standing analysis above, injures Plaintiffs in

13 legally cognizable ways. For instance, an undercount harms the “crucial representational rights

14 that depend on the census,” Dep’t of Commerce v. New York, 139 S. Ct. at 2569, and deprives local

15 government Plaintiffs of federal funds they are entitled to, cf. City of Kansas City, Mo. v. U.S.

16 Dep’t of Hous. & Urban Dev., 861 F.2d 739, 745 (D.C. Cir. 1988) (discussing procedural rights

17 arising under Community Development Block Grants, which at least King County and Los

18 Angeles receive). These harms and others will last through 2030, if not later. Congress has

19 determined as much by finding that:

20

the decennial enumeration of the population is a complex and vast undertaking, and

if such enumeration is conducted in a manner that does not comply with the

21

requirements of the Constitution or laws of the United States, it would be

22

impracticable for the States to obtain, and the courts of the United States to

provide, meaningful relief after such enumeration has been conducted.

23

1998 Appropriations Act, § 209(a)(8), 111 Stat. at 2480–81. Thus, because the Replan will likely

24

result in an inaccurate enumeration, the Replan is an action from which legal consequences will

25

flow.

26

Second, the Replan bars people who seek to participate in the Census—such as

27

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1 governmental Plaintiffs’ constituents and organizational Plaintiffs’ members—from participating

2 after September 30, 2020. See Sackett, 566 U.S. at 126 (holding that an agency action determined

3 rights and obligations of property owners where it “severely limit[ed] [the owners’] ability to

4 obtain a permit . . . from [the agency]”); Alaska, Dep’t of Environmental Conservation v. EPA, 244

5 F.3d 748, 750 (9th Cir. 2001) (holding that an agency action determined rights and obligations

6 where its effect was to halt construction at a mine facility). These people will be unable to

7 participate despite their potential reliance on the Census Bureau’s previous, widely publicized

8 representations that they could participate until October 31, 2020. For example:

9

• The League of Women Voters has over 65,000 members across 800 state and local

affiliates. Stewart Decl. ¶ 4. Thus, “[w]hen the Census Bureau extended the deadline for

10

counting operations to October 31, 2020,” the League of Women Voters “published blog

11

posts advertising the new timeline,” “shared numerous letters with [] state and local

affiliates providing information about the new timeline,” and “publicized the deadline in

12

letters and [emails].” Id. ¶ 11.

13

• The City of Los Angeles is home to about 4 million people. M. Garcia Decl. ¶ 7. The City

14

“conducted a public education campaign publicizing the October 31, 2020 date for self-

response.” Id. ¶ 14. For example, the City announced the date in bus shelter posters and

15

social media toolkits. Id.

16

• National Urban League has 11,000 volunteers across 90 affiliates in 37 states. Green Decl.

17

¶ 4. “[W]hen the Census Bureau announced its extension of the timeline for collecting

responses to the 2020 Census, the National Urban league informed all members of the

18

2020 Census Black Roundtable that the deadline had become October 31, 2020. The

19

members in turn conveyed to their own networks and constituents, causing a cascading

effect.” Id. ¶ 14.

20

21

Third, the Replan exposes the same people—people who believe that October 31, 2020 is

22 still the Census deadline—to fines and violations of federal law. By way of background, the

23 Census Act imposes a “clear legal duty to participate in the decennial census.” California v. Ross,

24 362 F. Supp. 3d 727, 739 (N.D. Cal. 2018) (Seeborg, J.) (citing 13 U.S.C. § 221). Specifically, 13

25 U.S.C. § 221(a) provides that any adult who “refuses or willfully neglects . . . to answer, to the

26 best of his knowledge, any of the questions on” the census “shall be fined not more than $100.” 13

27 U.S.C. § 221(a). “[E]ach unanswered question” risks an additional fine. Morales v. Daley, 116 F.

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1 Supp. 2d at 809; accord United States v. Little, 317 F. Supp. 1308, 1309 (D. Del. 1970)

2 (“Presumably there could be a separate violation for each unanswered question.”). The 2020

3 Census form has nine questions for the first person in a household and seven questions for each

4 additional person. See U.S. Census Bureau, 2020 Census Questionnaire (last revised Mar. 7,

5 2020), https://www.census.gov/programs-surveys/decennial-census/technical-

6 documentation/questionnaires/2020.html. The resulting liability for “refus[ing] or willfully

7 neglect[ing]” to answer an entire Census questionnaire is thus significant. 13 U.S.C. § 221(a).

8

Because of the excellent publicizing of the COVID-19 Plan, the Replan increases the risk

9 that people will incur that liability. Before the Replan was announced on August 3, 2020, the

10 Bureau and its partners (such as Plaintiff National Urban League) advertised for months that the

11 deadline for census responses was October 31, not September 30, 2020. See supra Section III-B-4.

12 Now, some people may refuse to respond to the questionnaire—or an enumerator’s non-response

13 follow-up—on the misunderstanding that they still have another month to comply. This “increase

14 [in] risk of incurring penalties in a future enforcement proceeding” still “constitute[s] ‘legal

15 consequences’ under Bennett.” Ipsen Biopharmaceuticals, Inc. v. Azar, 943 F.3d 953, 957–59

16 (D.C. Cir. 2019) (emphasis in original) (holding also that “the agency’s exercise of prosecutorial

17 discretion” is not enough to render agency action non-final).

18

b. The Replan directly affects Defendants by binding them for 10 years to a

less accurate tabulation of total population.

19

For Defendants, the Replan gives rise to legal consequences because it effectively binds

20

Defendants—for the next decade—to a less accurate “tabulation of total population by States”

21

under the “decennial census.” 13 U.S.C. § 141(b). The Replan does this by committing Defendants

22

to compressing census self-response from 33.5 weeks to 29 weeks; Non-Response Follow Up

23

(“NRFU”) from 11.5 weeks to 7.5 weeks; and data processing from 26 weeks to 13 weeks. See,

24

e.g., Nat. Res. Def. Council v. EPA, 643 F.3d 311, 319–20 (D.C. Cir. 2011) (“[T]he Guidance binds

25

EPA regional directors and thus qualifies as final agency action.”).

26

The result of this significant compression in these extraordinary times will be inaccuracies

27

28

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1 in the “tabulation of total population.” Inaccuracies in the tabulation harm constitutional and

2 statutory interests. See, e.g., Evans, 536 U.S. at 478 (finding a “strong constitutional interest in

3 accuracy”); 1998 Appropriations Act, § 209, 111 Stat. at 2481 (“Congress finds that . . . it is

4 essential that the decennial enumeration of the population be as accurate as possible . . . .”). Those

5 constitutional and statutory harms—and Defendants’ choice of speed over accuracy—will endure

6 until 2030.

7

A less weighty and more easily revocable constraint on the Government was found final in

8 Hawkes Co., 136 S. Ct. at 1814. There, an internal memorandum of agreement between two

9 federal agencies provided that the Army Corps of Engineers could issue “jurisdictional

10 determinations” (“JDs”) that were generally “binding on the Government” for five years. Id. The

11 Supreme Court held that the JDs were final agency action under Bennett v. Spear even though

12 (1) the JDs could be appealed and “revisited,” see id. at 1813–14; and (2) the JDs’ source of

13 authority, the memorandum of agreement, never went through notice and comment and was

14 represented as non-binding by the United States. See id. at 1817 (opinions of Kennedy, J.,

15 concurring; and Ginsburg, J., concurring in part and concurring in the judgment). By contrast, here

16 (1) Defendants do not waver in their commitment to end data collection by September 30, 2020

17 and to report population data to the President by December 31, 2020; and (2) there is no doubt that

18 the Replan will bind the United States to this Census and “tabulation of total population” until

19 2030.

20

Thus, because the Replan determines rights and obligations and gives rise to legal

21 consequences, the Replan constitutes final agency action.

22

c. Franklin v. Massachusetts shows why the Replan is final agency action.

23

To argue that the Replan does not constitute final agency action, Defendants rely on the

24 Supreme Court’s decision in Franklin v. Massachusetts, 505 U.S. 788 (1992). PI Opp. 19–20. That

25 case concerned the Secretary of Commerce’s transmission of the census report to the President.

26 Franklin, 505 U.S. at 797–98. There, the data presented to the President—the allocation of

27 overseas military personnel to states based on their “home of record”—was still subject to

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1 correction by the Secretary. Id. In addition, the President could instruct the Secretary to reform the

2 census. Id. at 798. The Secretary’s report to the President thus was a “moving [target]” or a

3 “tentative recommendation,” rather than a “final and binding determination.” Id. It carried “no

4 direct consequences for the reapportionment.” Id. Based on these characteristics, the transmission

5 of the census report was not final agency action. Id. at 798.

6

Franklin underscores why the Replan constitutes final agency action. The Replan is neither

7 a “tentative recommendation” nor a decision that will be reviewed by a higher official. Id. Rather,

8 the Secretary directed the Bureau to develop the Replan on July 29, 2020 and approved the Replan

9 on August 3, 2020. Moreover, as a practical matter, no time remains for agency reconsideration.

10 The Replan’s field operations will irreversibly wind down on September 30, 2020. Fontenot Decl.

11 ¶ 98.

12

The Replan also has “direct consequences for the reapportionment.” Id. The Replan

13 determines when data collection will end—past which people can no longer participate in the

14 census—and solidifies an undercount that will carry through to Congressional reapportionment,

15 federal funding, and more for a decade. By contrast, in Franklin, the data the Secretary reported

16 could have had zero effect. The President could have “reform[ed] the census” and allocated

17 already-counted servicemembers not by “home of record,” but by “legal residence,” “last duty

18 station,” or no “particular State[].” Id. at 792, 794; see also U.S. House of Reps. v. U.S. Dep’t of

19 Commerce, 11 F. Supp. 2d at 93 (distinguishing Franklin on the same ground).

20

In any event, “[e]ven in the [Franklin] Court’s view, the Secretary’s report of census

21 information to recipients other than the President would certainly constitute ‘final agency action.’”

22 Franklin, 505 U.S. at 815 n.14 (Stevens, J., concurring in part and concurring in the judgment).

23 That is because only the President may order the Secretary “to reform the census, even after the

24 data are submitted to him.” Id. at 798. Data recipients such as the states can do no such thing.

25 Accordingly, the Secretary’s reporting of “counts as they are used for intra-state redistricting and

26 for federal fund allocation . . . is final agency action for purposes of APA review.” City of New

27 York v. U.S. Dep’t of Commerce, 822 F. Supp. 906, 918–19 (E.D.N.Y. 1993) (emphasis in original)

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1 (challenging guidelines that led Secretary not to adjust undercount), vacated on non-APA grounds,

2 34 F.3d 1114 (2d Cir. 1994), rev’d sub nom. Wisconsin v. City of New York, 517 U.S. at 12 n.7

3 (noting that “[plaintiffs] did not appeal the District Court’s treatment of their statutory claims” to

4 the Second Circuit). Plaintiffs here likewise challenge the Replan’s undercount as it will be used in

5 intra-state redistricting and federal fund allocation.

6

Last year’s citizenship question cases further underscore why the Replan is final agency

7 action. In those cases, the United States conceded that adding the citizenship question to the

8 census questionnaire constituted final agency action. See New York, 351 F. Supp. 3d at 645;

9 Kravitz v. Dep’t of Commerce, 336 F. Supp. 3d 545, 566 n.13 (D. Md. 2018). There is no reason

10 that a memorandum announcing the addition of a question would mark the agency “complet[ing]

11 its decisionmaking process” and “directly affect[ing] the parties,” Franklin, 505 U.S. at 797, but

12 the Replan would not. In both cases, the Secretary directed the development of and adopted the

13 Replan; the Bureau viewed the Secretary’s decision as binding; and the decision directly affects

14 the parties. In sum, the Replan is final agency action.

15

E. The Replan is not committed to agency discretion by law.

16

Defendant’s last argument on reviewability is that the administration of the census—

17 including the Replan—is “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). The

18 Court disagrees.

19

The APA creates a “strong presumption favoring judicial review of administrative action.”

20 Mach Mining, LLC v. EEOC, 575 U.S. 480, 489 (2015). One exception includes those actions that

21 are “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). However, courts have read this

22 exception quite narrowly. This exception encompasses situations where Congress explicitly

23 precludes review, or “‘those rare circumstances where the relevant statute is drawn so that a court

24 would have no meaningful standard against which to judge the agency’s exercise of discretion.’”

25 Weyerhaeuser, 139 S. Ct. at 370 (quoting Lincoln v. Vigil, 508 U.S. 182, 191 (1993)). This latter

26 exception has generally been limited to “certain categories of administrative decisions that courts

27 traditionally have regarded as committed to agency discretion . . . such as a decision not to

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1 institute enforcement proceedings . . . or a decision by an intelligence agency to terminate an

2 employee in the interest of national security.” Dep’t of Commerce, 139 S. Ct. at 2568 (citations and

3 quotation marks omitted) (citing Hecker v. Chaney, 470 U.S. 821, 831–32 (1985) and Webster v.

4 Doe, 486 U.S. 592, 600–01 (1988)).

5

Department of Commerce v. New York controls. There, the Supreme Court concluded that

6 “[t]he taking of the census is not one of those areas traditionally committed to agency discretion.”

7 139 S. Ct. at 2568. Collecting case law, the Supreme Court noted that “courts have entertained

8 both constitutional and statutory challenges to census-related decisionmaking.” Id. (citing, e.g.,

9 Carey, 637 F.2d at 839, in which the Second Circuit concluded that the Bureau’s decision not to

10 use “Were You Counted” forms or to compare census records with records of Medicaid-eligible

11 people “was not one of those ‘rare instances’ where agency action was committed to agency

12 discretion”); see also City of Los Angeles v. U.S. Dep’t of Commerce, 307 F.3d 859, 869 n.6 (9th

13 Cir. 2002) (rejecting argument that the Bureau’s decision not to adopt statistically adjusted

14 population data was committed to agency discretion by law). The Supreme Court explained that

15 there were meaningful standards against which to judge the taking of the census, including the

16 Census Act, which requires that the agency “conduct a census that is accurate and that fairly

17 accounts for the crucial representational rights that depend on the census and the apportionment.”

18 Id. at 2568–69 (quoting Franklin, 505 U.S. at 819–20 (Stevens, J., concurring in part and

19 concurring in judgment)).

20

Here, Plaintiffs challenge the Replan—a set of deadlines for “the taking of the census.” Id.

21 at 2568. Plaintiffs’ claims, like those in Department of Commerce v. New York, arise under the

22 Enumeration Clause and the APA. Here too, the Census Act provides a meaningful standard

23 against which to judge Defendants’ action. The Replan’s change in deadlines affects the accuracy

24 of the enumeration, as did the decision to omit certain records in Carey or reinstate the citizenship

25 question in New York. Accordingly, the Replan is not committed to agency discretion.

26

27

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F. Plaintiffs lack an adequate alternative to judicial review and suffer prejudice from

1

the Replan.

2

To avoid any doubt that the instant case is reviewable, the Court briefly addresses two

3 remaining APA requirements even though Defendants waive one and forfeit the other. See

4 generally United States v. Olano, 507 U.S. 725, 733 (1993) (“[F]orfeiture is the failure to make the

5 timely assertion of a right; waiver is the ‘intentional relinquishment or abandonment of a known

6 right.’” (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938))).

7

The first is that “an agency action is reviewable under the APA only if there are no

8 adequate alternatives to APA review in court.” Hawkes Co., 136 S. Ct. at 1815 (citing 5 U.S.C.

9 § 704). Defendants waived this argument at the September 22, 2020 preliminary injunction

10 hearing, and for good reason. Tr. of Sept. 22, 2020 Preliminary Injunction Hearing, ECF No. 207,

11 at 41:13–17 (The Court: “But you are not arguing that they have an adequate alternative to APA

12 review in Court; is that correct?” Defendants: “That is not an argument that we have presented in

13 our papers, Your Honor.”). The effects of a census undercount now would irrevocably reverberate

14 for a decade. Congress has reached the same conclusion. See 1998 Appropriations Act, § 209, 111

15 Stat. at 2481 (providing that if “enumeration is conducted in a manner that” is unlawful, it would

16 be impracticable for the “courts of the United States to provide[] meaningful relief after such

17 enumeration has been conducted”).

18

The second APA requirement is that “due account shall be taken of the rule of prejudicial

19 error.” 5 U.S.C. § 706; accord Organized Vill. of Kake v. Dep’t of Agric., 795 F.3d 956, 968 (9th

20 Cir. 2015) (en banc) (“[N]ot every violation of the APA invalidates an agency action; rather, it is

21 the burden of the opponent of the action to demonstrate that an error is prejudicial.”). Defendants

22 do not raise this argument in their briefs and so forfeit it. In any event, as the above analysis of

23 Plaintiffs’ injuries shows, see supra Section III-B, the Replan’s violation of the APA prejudices

24 Plaintiffs in four ways. First, Plaintiffs risk losing important federal funding from undercounting.

25 Second, Plaintiffs state that an inaccurate apportionment will violate their constitutional rights to

26 political representation. Third, Plaintiffs will need to expend resources to mitigate the

27 undercounting that will result from the Replan. Lastly, local government Plaintiffs’ costs will

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1 increase because those Plaintiffs rely on accurate granular census data to deploy services and

2 allocate capital. Thus, an APA error would be prejudicial.

3 IV. MERITS

4

A party seeking a preliminary injunction must show (1) a likelihood of success on the

5 merits; (2) irreparable harm in the absence of preliminary relief; (3) that the balance of equities

6 tips in the party’s favor; and (4) that an injunction is in the public interest. Winter, 555 U.S. at 20. 7 The Court concludes that Plaintiffs meet all four factors and discusses each factor in turn below.7

8

A. Plaintiffs are likely to succeed on the merits of their claim that the Replan was

arbitrary and capricious in violation of the APA.

9

Plaintiffs argue that they are likely to succeed on the merits with respect to their

10

constitutional claim, which is brought under the Enumeration Clause, Mot. at 25–28, as well as

11

their statutory arbitrary and capricious claim and pretext claim, which are both brought under the

12

APA, id. at 14–25. Although Plaintiffs’ constitutional and statutory claims overlap substantially

13

because they both challenge the extent to which the Replan can accomplish a “full, fair, and

14

accurate” count, Plaintiffs’ constitutional and statutory claims present distinct bases on which the

15

Court may grant injunctive relief.

16

Because the Court holds below that Plaintiffs are likely to succeed on the merits of their

17

APA arbitrary and capricious claim, the Court need not reach Plaintiffs’ Enumeration Clause claim

18

or APA pretext claim. See, e.g., New York, 2020 WL 5422959, at *2 (finding that the plaintiffs

19

were entitled to a permanent injunction on their statutory claim and thus declining to “reach the

20

21 7 Under Ninth Circuit precedent, “‘serious questions going to the merits’ and a balance of

22 hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction,

23 so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th

24 Cir. 2011); accord Short v. Brown, 893 F.3d 671675 (9th Cir. 2018) (holding that these factors are

25

“on a sliding scale”). Thus, “when the balance of hardships tips sharply in the plaintiff’s favor, the plaintiff need demonstrate only ‘serious questions going to the merits.’” hiQ Labs, Inc. v. LinkedIn

26 Corp., 938 F.3d 985, 992 (9th Cir. 2019) (quoting All. for the Wild Rockies, 632 F.3d at 1135). In

the instant case, the Court finds not only serious questions going to the merits, but also a 27 likelihood of success on the merits.

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1 overlapping, albeit distinct, question of whether the [challenged action] constitutes a violation of

2 the Constitution itself”).

3

Before discussing Plaintiffs’ APA arbitrary and capricious claim, though, the Court

4 addresses the scope of its review. As the procedural history sets forth, Defendants have resisted

5 producing the administrative record. Defendants also have explicitly conceded that if the Court

6 finds that the Replan constitutes final agency action, then Defendants lose on likelihood of success

7 on the merits. ECF No. 88 at 4. Defendants even “ask[ed] that the Court simply enter the TRO as a

8 preliminary injunction” on September 8, 2020. ECF No. 98 at 65:18–20. Defendants have made

9 these statements repeatedly:

10

• September 8, 2020 brief regarding whether Defendants must produce the

administrative record: 11

o “[W]ere the Court to brush past the threshold justiciability and jurisdiction

12

bars, and conclude, contrary to the Fourth Circuit’s holding in NAACP, that

13

the Replan is discrete, circumscribed final agency action subject to the

APA—then the appropriate course would be to consider Mr. Fontenot’s

14

declaration, and to find against the Defendants on the likelihood of success

15

on the merits prong if that declaration is insufficient.” ECF No. 88 at 4.

16

• September 8, 2020 further case management conference:

17

o “Your Honor, we ask that the Court simply enter the TRO as a preliminary

injunction at this point. I think that will serve everybody’s interests best.” ECF

18

No. 98 at 65:18–20.

19

o “Our position is that if the Court rejects the five threshold arguments that we have

made, determines that there was final agency action and determines that an

20

explanation was required under the APA and finds that Mr. Fontenot’s declaration

21

does not provide that explanation, then the conclusion would have to be that the

Government loses on the likelihood of success on the merits prong of the PI.” ECF

22

No. 98 at 55:6–13.

23 Accord Tr. of Sept. 14, 2020 Further Case Management Conference, ECF No. 126 at 35:20–36:6
24 (conceding same); Tr. of Sept 15, 2020 Hearing on Allegations of Potential Non-Compliance with
25 TRO, ECF No. 141 at 52:24–53:8, 62:10–13 (conceding same).
26 The Court has found that the Replan is reviewable final agency action. Thus, if the Court
27

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1 finds that Associate Director Fontenot’s declaration is insufficient, Defendants have conceded that

2 Defendants lose on likelihood of success on the merits.

3

Associate Director Fontenot’s declaration is facially insufficient to serve as a basis for APA

4 review of whether the agency action was arbitrary and capricious. APA review “is limited to ‘the

5 grounds that the agency invoked when it took the action.’” Dep’t of Homeland Sec. v. Regents of

6 the Univ. of Ca., 140 S. Ct. 1891, 1913 (2020). To assess those grounds, “the focal point for

7 judicial review should be the administrative record.” Camp v. Pitts, 411 U.S. 138, 142 (1973).

8 Litigation affidavits are “merely ‘post hoc’ rationalizations which have traditionally been found to

9 be an inadequate basis for review.” Overton Park, Inc. v. Volpe, 401 U.S. 402, 419 (1972) (quoting

10 Burlington Truck Lines v. United States, 371 U.S. 156, 168–169 (1962)); accord Cmty. for

11 Creative Non-Violence v. Lujan, 908 F.2d 992, 998 (D.C. Cir. 1990) (R. Ginsburg, Thomas,

12 Sentelle, JJ.)) (holding that “[t]he use of an affidavit by the agency decisionmaker was manifestly

13 inappropriate for a case” under the APA); see also Regents, 140 S. Ct. at 1909 (rejecting Secretary

14 of Homeland Security’s post-litigation memorandum). The Court thus views Plaintiffs’ claims 15 through the lens of the administrative record.8

16

On review of the administrative record, the Court agrees that Plaintiffs are likely to

17 succeed on the merits of their APA arbitrary and capricious claim for five reasons: (1) Defendants

18 failed to consider important aspects of the problem, including their constitutional and statutory

19 obligations to produce an accurate census; (2) Defendants offered an explanation that runs counter

20 to the evidence before them; (3) Defendants failed to consider alternatives; (4) Defendants failed

21 to articulate a satisfactory explanation for the Replan; and (5) Defendants failed to consider

22 reliance interests. Although likelihood of success on the merits of one of the five reasons would

23 support a preliminary injunction, the Court finds that Plaintiffs are likely to succeed on all five.

24 Below, the Court analyzes the five reasons in turn.

25

26 8 As stated in the procedural history, the administrative record for the purposes of the preliminary

injunction comprises Defendants’ non-privileged OIG documents. United States Magistrate Judges 27 adjudicated Defendants’ assertions of privilege after in camera review.

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1. Plaintiffs are likely to succeed on the merits of their claim that Defendants

1

failed to consider important aspects of the problem.

2

Plaintiffs argue that, by failing to adequately provide for the fulfillment of its constitutional

3 and statutory duty to conduct an accurate enumeration, Defendants neglected to consider

4 important aspects of the problem in violation of the APA. Mot. at 18–21.

5

The arbitrary and capricious standard requires an agency to “examine the relevant data and

6 articulate a satisfactory explanation for its action including a ‘rational connection between the

7 facts found and the choice made.’” State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines v.

8 United States, 371 U.S. 156, 168 (1962)). In order to meet this requirement, the agency must

9 consider the “important aspect[s]” of the problem before it. State Farm, 463 U.S. at 43.

10

The Court concludes that Defendants failed to consider “important aspect[s]” of the

11 problem before them. State Farm, 463 U.S. at 43. Rather, Defendants adopted the Replan to

12 further one alleged goal alone: meeting the Census Act’s statutory deadline of December 31, 2020

13 for reporting congressional apportionment numbers to the President. In the process, Defendants

14 failed to consider how Defendants would fulfill their statutory and constitutional duties to

15 accomplish an accurate count on such an abbreviated timeline.

16

Defendants’ constitutional and statutory obligations are “important aspects” of the problem

17 before them. See Oregon Natural Resources Council v. Thomas, 92 F.3d 792, 798 (9th Cir. 1996)

18 (“Whether an agency has overlooked ‘an important aspect of the problem,’ . . . turns on what [the]

19 relevant substantive statute makes ‘important.’”); see, e.g., Little Sisters of the Poor Saints Peter

20 & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2383–84 (2020) (“If the Department did not look

21 to [the Religious Freedom Restoration Act’s] requirements or discuss [RFRA] at all when

22 formulating their solution, they would certainly be susceptible to claims that the rules were

23 arbitrary and capricious for failing to consider an important aspect of the problem.”). Here, the

24 relevant constitutional and statutory provisions focus first and foremost on the obligation to

25 produce an accurate census.

26

As a constitutional matter, the Enumeration Clause evinces a “strong constitutional interest

27 in [the] accuracy” of the census. Evans, 536 U.S. at 478. This interest in accuracy is driven by “the

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1 constitutional purpose of the census, [which is] to determine the apportionment of the

2 Representatives among the States.” Wisconsin v. City of New York, 517 U.S. at 20.

3

In turn, the Census Act imposes a statutory duty of accuracy. “[B]y mandating a population

4 count that will be used to apportion representatives, see § 141(b), 2 U.S.C. § 2(a), the [Census] Act

5 imposes ‘a duty to conduct a census that is accurate and that fairly accounts for the crucial

6 representational rights that depend on the census and the apportionment.’” Dep’t of Commerce v.

7 New York, 139 S. Ct. at 2568–69 (quoting Franklin, 505 U.S. at 819–20 (Stevens, J., concurring in

8 part and concurring in the judgment)). Congress has underscored this duty in legislation amending

9 the Census Act. See 1998 Appropriations Act, § 209(a), 111 Stat. at 2480–81 (codified at 13

10 U.S.C. § 141 note) (finding that “it is essential that the decennial enumeration of the population be

11 as accurate as possible, consistent with the Constitution and laws of the United States”). Thus, the

12 Census Act requires the Defendants to produce an accurate census.

13

Defendants failed to sufficiently consider these constitutional and statutory obligations

14 when adopting the Replan. As the administrative record shows, the Replan will decrease the

15 census’s accuracy and undercount historically undercounted individuals. The Replan cuts Non-

16 Response Follow Up (“NRFU”) from 11.5 weeks to 7.5 weeks. The Replan cuts data processing

17 from 26 weeks to 13 weeks. The effect of this shorter timeframe will be particularly pronounced

18 due to the pandemic. COVID-19 has not only made it more difficult to hire enumerators, but also

19 made it more difficult for enumerators to conduct safe and effective NRFU. ECF No. 37-7 at 8, 18.

20 After all, the goal of NRFU is to “conduct in-person contact attempts at each and every housing

21 unit that did not self-respond to the decennial census questionnaire.” Fontenot Decl. ¶ 48.

22

The record before the agency demonstrates the effect of these significant cuts on census

23 accuracy. Several internal Bureau documents are especially illustrative.

24

First, a March 24, 2020 set of talking points explained the effect of reducing operations on

25 accuracy. These talking points were circulated by Enrique Lamas, Chief Advisor to Deputy

26 Director Ron Jarmin, to senior Bureau officials as late as July 21, 2020 on “urgent” notice.

27 DOC_7085–86. “Call me please,” he wrote to Senior Advisor for Decennial Affairs, James B.

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1 Treat. DOC_7075. The talking points stated: “The 2020 Census operations are designed to cover

2 specific populations for a complete count of the population. If specific operation are cut or

3 reduced, the effect would be to miss specific parts of the population [and] lead to an undercount of

4 specific groups. That is why operations like Update Leave targeting rural populations or group

5 quarters enumeration are critical to full coverage and need to be done in specific orders.”

6 DOC_7086.

7

A set of April 17, 2020 talking points regarding the COVID-19 Plan, which were drafted

8 by Assistant Director for Decennial Programs Deborah Stempowski, stated: “We have examined

9 our schedule and compressed it as much as we can without risking significant impacts on data

10 quality.” DOC_265. Bureau officials repeated this statement to Congressman Jamie Raskin, who

11 chairs the House Subcommittee on Civil Rights and Civil Liberties, which has jurisdiction over

12 the census. See DOC_2224.

13

On July 23, 2020, the Chief of Decennial Communications and Stakeholder Relationships,

14 Kathleen Styles, shared a so-called “Elevator Speech” memo with GAO official Ty Mitchell and

15 senior Bureau officials. See DOC_8026 (sending to GAO). The purpose of the Elevator Speech,

16 Chief Styles wrote, was “to explain, in layman’s terms, why we need a schedule extension.” The

17 Speech begins with a “High Level Message,” which in its entirety reads:

18

Curtailing census operations will result in a census that is of unacceptable quality.

The Census Bureau needs the full 120 days that the Administration originally

19

requested from Congress to have the best chance to produce high quality, usable

20

census results in this difficult time. Shortening the time period to meet the original

statutory deadlines for apportionment and redistricting data will result in a census

21

that has fatal data quality flaws that are unacceptable for a Constitutionally-

22

mandated activity.

23 ECF No. 155-8 at 295, 332 (DOC_8070).

24

The rest of the Speech makes three overarching points that are similarly grim. The first

25 point is that “[s]hortening field data collection operations will diminish data quality and introduce

26 risk.” The main reason is that “COVID-19 presents an unprecedented challenge to field data

27 collection. . . . Areas that are now low risk for COVID will become high risk and vice versa, and

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1 the Census Bureau will need to adapt NRFU on an almost daily basis to conduct data collection

2 using the Administration’s gating criteria.” Id. Other necessary adaptations include “development

3 of systems for an outbound telephone operation,” “significantly increasing selections for field

4 positions to compensate for a much higher dropout rate from enumerator training,” and finding

5 ways to count people who lived in group quarters and in college. Id. “All of these adapted

6 operations are intended to produce the most accurate census possible, and cannot be rushed

7 without diminishing data quality or introducing unacceptable risk to either operations or field

8 staff.” Id.

9

The second point is that “[s]hortening post processing operations will diminish data quality

10 and introduce risk.” Id. “[I]t is not possible to shorten the schedule appreciably without directly

11 degrading the quality of the results and introducing great risk.” Id. The reason is that “[e]ach and

12 every step in post processing is necessary and eliminating any step would result in a diminished

13 data product. . . . [N]o step can be eliminated or overlap with another step.” For instance:

14

Some of these steps provide for quality reviews. While it may be tempting to think

that quality reviews can be shortened, through decades of experience[,] the Census

15

Bureau has learned that quality reviews are essential to producing data products

16

that do not need to be recalled, products that stand the test of time. [The Bureau]

routinely discover[s] items that need to be corrected during data review and

17

appreciably shortening data review would be extremely unwise.

18 Id. Furthermore, “[t]he Census Bureau needs 30 [more] days for risk mitigation.” Risks include

19 natural disasters, “e.g., a hurricane, or a COVID outbreak,” and “to account for additional

20 processing steps and reviews made necessary by the COVID adaptations (e.g., extra time for

21 processing responses related to college students).” Id.

22

The Elevator Speech’s last overarching point is that “[c]urtailing either field operations or

23 post-processing may result in loss of public confidence in the census results such that census

24 results would be unusable regardless of quality.” DOC_8071. Specifically, “[t]he administration

25 already requested 120 days and Census officials have repeatedly said we need this time.” Id.

26 Changing tack could “result in great skepticism about the numbers and unwillingness to use

27 them.” Id. That is because “[t]here are always winners and losers in census results.” Id. As a result,

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1 “[c]ensus results have always been about confidence . . . confidence in the Census Bureau’s ability

2 to produce high quality, impartial data, free from political interference. In this sense being seen to

3 produce politically-manipulated results is as much of a danger as low quality data.” Id.

4

Many of the fears expressed in the Elevator Speech were borne out by the time the Replan

5 was ordered, adopted, and announced:

6

• The Secretary directed the Bureau to develop a plan with an accelerated schedule within

days, which led to the drafting of the Replan. See DOC_10183. 7

• The Replan shortened both data collection and data processing.

8

• Four days before the Replan was announced, enumerator staffing was roughly 50 percent

9

of the Bureau’s target at some sites within major regions such as the Los Angeles Region.

10

See DOC_8631.

11

• On the date of the Replan’s announcement, COVID-19 had resurged in much of the

country, Hurricane Hanna had hit Texas, and Hurricane Isaias had almost made landfall in

12

North Carolina.9

13 On July 23, 2020, the same day that the Bureau circulated the Elevator Speech, several

14 senior Bureau officials, including Deputy Director Ron Jarmin, Defendants’ sole declarant

15 Associate Director Fontenot, and Associate Director for Field Operations Timothy Olson,

16 conferred in an email thread. Associate Director Fontenot began the thread by stating he would

17 soon tell the Department of Commerce about the “reality of the COVID Impacts and challenges”:

18

On Monday at DOC [Department of Commerce] I plan to talk about the difference

19

between goal and actual case enumeration (Currently a shortfall (11 % goal vs 7%

actual) and attribute it to the higher drop out rate and (ideally with reasons) and

20

what we are going to do to address the technology drop outs.)

21

22 9 The Court may take judicial notice of matters that are either “generally known within the trial

23 court’s territorial jurisdiction” or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Accordingly, the Court takes

24 judicial notice that Hurricane Hanna hit Texas on July 25, 2020, while Hurricane Isaias made

25

landfall on the coast of North Carolina on August 3, 2020 at 11 pm Eastern Time. See Hurricane Hanna, https://www.weather.gov/crp/Hurricane_Hanna; Hurricane Isaias,

26 https://www.weather.gov/mhx/HurricaneIsaias080420#:~:text=Isaias%20marked%20the%20earlie

st%20ninth,peak%20intensity%20of%2085%20mph.&text=Across%20eastern%20North%20Caro 27 lina%2C%20Isaias,minor%20storm%20surge%20and%20tornadoes.

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I think it is critical to lay the groundwork for the reality of the COVID Impacts and

1

challenges.

2

Does anyone have any problems with my approach?

3 DOC_7737. In response, Associate Director Olson “agree[d] that elevating the reality is critical,

4 especially in light of the push to complete NRFU asap for all the reasons we know about.”

5 DOC_7738.

6

“All the reasons we know about” are not described in the administrative record. Olson does

7 allude, however, to the reason of “political motivation.” DOC_7737. In doing so, he “sound[s] the

8 alarm” on “deliver[ing] apportionment by 12/31” in the strongest possible terms:

9

We need to sound the alarm to realities on the ground – people are afraid to work

10

for us and it is reflected in the number of enumerators working in the 1a ACOs.

And this means it is ludicrous to think we can complete 100% of the nation’s data

11

collection earlier than 10/31 and any thinking person who would believe we can

12

deliver apportionment by 12/31 has either a mental deficiency or a political

motivation.

13

Id. One reason that accelerating the schedule would be “ludicrous,” Associate Director Olson

14

stated, was the “awful deploy rate” of enumerators about 62% below target. Id. Driving that

15

shortfall was an “almost [] debilitating quit rate”:

16 Another tack is to provide crystal clear numbers by the 1a ACOs that shows the

17

awful deploy rate - field selected the right number (big number) to training, training

18

show rate was on par with prior censuses (albeit a few points lower ... but overall in

line with past censuses). And then we had a huge quit rate from training to

19

deployed in field (and this does not mirror past censuses at all - it is MUCH higher,

almost a debilitating higher quit rate). And this translates into much slower

20

production in the field because we have less than half the number of enumerators

21

(38%) we need to get the job done.

22 DOC_7559.10 The email thread thus showed senior Bureau officials’ serious concerns 23

24 10 At the preliminary injunction hearing, Defendants had no comment on Associate Director 25 Olson’s email or other documents in the administrative record. In response to Associate Director
Olson’s email, for instance, Defendants stated: “to the extent that the Court does undertake some 26 sort of APA or record review, then in an APA case the Court acts as an appellate tribunal and 27 reviews the record[,] and the record speaks for itself.” Tr. of Sept. 22, 2020 Preliminary Injunction

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1 about the Replan only days before July 29, 2020, the day Associate Director Fontenot

2 asserts that the Secretary ordered the development of the Replan. The staffing shortfall

3 persisted. In the Bureau’s July 30, 2020 Periodic Performance Management Reports

4 slideshow, the Bureau acknowledged that “[s]taffing remains a challenge.” DOC_9423.

5

Like field operations, data processing also needed more time in order to yield an accurate

6 census. On July 24, 2020, a memo titled “2020 Decennial Census – Apportionment Data

7 Processing” was circulated by Chief of Decennial Communciations Stakeholder Relationships

8 Kathleen Styles to senior staff, including Associate Director Fontenot and Assistant Director

9 Stempowski. DOC_8019. The Apportionment Data Processing memo explained that “[t]he time

10 spent on data processing is essential to ensuring an accurate and complete count.” DOC_8019. The

11 Bureau further acknowledged that “[t]he three month delay in the largest field data collection

12 operations, which impacted more than 35 percent of all responding households, will require

13 additional data processing to ensure people are accurately counted in the correct location.” Id. The

14 Bureau explained the shortfalls to accuracy that would result if data processing were cut short:

15

• Actions that would condense or remove parts of [data processing] run the risk

of: 16

o Incorrect geographic placement of housing units or missing units that

17

were added through peak field operations.

18

o Duplicative or conflicting data for certain households.

19

o Unreliable characteristic data for redistricting files.

20

o Additional legal challenges of apportionment counts, redistricting

results, or other data products as a result of diminished quality of

21

decennial data.

22 DOC_8019.

23

Despite the Bureau’s conclusions that it needed more time, the Bureau was directed just

24

25 Hearing, at 13:25–14:3, ECF No. 207; accord id. at 18:20–19:1 (The Court: “Would [Defendants]

26 like to comment on this document [the ‘Elevator Speech’]?” Defendants: “No, I don’t have any

further comment, Your Honor. I think for the reasons we said that the documents speak for 27 themselves.”).

28

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1 before or on July 30, 202011 to create the Replan and present it to the Secretary on August 3, 2020.

2 Cf. Fontenot Decl. ¶ 81 (“July 29, the Deputy Director informed us that the Secretary had directed

3 us . . . .”). Although the Bureau had taken nearly a decade to develop the Operational Plan Version

4 4.0 for the 2020 Census, the Bureau developed the Replan in the span of 4 or 5 days at most. On

5 July 30, 2020, the Chief of the Population Division, Karen Battle, sent an email with the subject

6 “EMERGENCY MEETING on 12_31 Delivery of Appo__.” DOC_8364. Thereafter, senior

7 Bureau officials met at 11 a.m., and again at 5:00 p.m. that day. The officials then conferred in an

8 email thread that extended to at least 10:57 p.m. DOC_8353. In the thread, the Chief of the

9 Geography Division, Deirdre Bishop, thanked fellow senior officials for “exhibiting patience and

10 kindness as we brainstormed and adjusted the schedule.” DOC_8356.

11

Even as the Bureau began to develop the Replan at the Secretary’s direction, the Bureau

12 continued to acknowledge that the Replan would present an unacceptable level of accuracy. On

13 July 31, 2020, the Chief of the Decennial Statistical Studies Division, Patrick Cantwell, sent an

14 email to senior Bureau officials that mentioned “global risks”:

15

• “Many of these changes delay activities required for developing the remaining data

products following apportionment, some of them (but not all) until after 12/31/20,

16

increasing the risk that they will not be completed on time, whatever that schedule

17

becomes.”

18

• “Many of these changes, separately or in combination, have not been previously studied or

analyzed for their effects on data quality. We risk decreasing the accuracy of apportionment

19

counts and other statistics released later.”

20

• “With these changes to the original operational plan and schedule, we increase the chance

21

of subsequent data concerns. For example, it may be necessary to release tabulations later

that are not all completely consistent.”

22

23 DOC_9073–74.

24

11 The administrative record does not contain any communications from Deputy Director Jarmin 25
on July 29, 2020, let alone a specific communication between Deputy Director Jarmin and

26 Associate Director Fontenot. Because Associate Director Fontenot’s declaration is not the

administrative record, the Court relies on the July 30 “EMERGENCY MEETING” email 27 discussed below and subsequent communications for the latest date of the Secretary’s order.

28

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1

In a later July 31, 2020 email chain, senior Bureau officials, including Victoria Velkoff, the

2 Associate Director for Demographic Programs; Christa Jones, the Chief of Staff to Director

3 Dillingham; John Maron Abowd, Associate Director for Research & Methodology; Michael T.

4 Thieme, Assistant Director for Decennial Census Programs (Systems & Contracts), and Benjamin

5 J. Page, Chief Financial Officer, signed off on the following document describing the Replan:

6

All of the changes below, taken together, reduce the time required for post-

7

processing such that, when combined with the operational changes above in this

document, make it possible to deliver the apportionment package in time to meet

8

the current statutory deadline. All of these activities represent abbreviated processes

9

or eliminated activities that will reduce the accuracy of the 2020 Census.

Additionally, the downstream effect of separating apportionment and redistricting

10

processing activities could not be assessed. This results in additional risk to the

11

delivery of the redistricting products in order to meet the statutory deadline and will

have a negative impact on the accuracy of the redistricting data.

12

DOC_9496.

13

Because of the Replan’s negative impact on accuracy, top Bureau staff hesitated to “own”

14

the Replan. On August 1, 2020, Christa Jones, Chief of Staff to Director Dillingham, wrote in an

15

email to other senior officials: “I REALLY think we need to say something on page 2 [of the

16

Bureau’s presentation on the Replan] that this is what we’ve been directed to do or that we are

17

presenting these in response to their direction/request. This is not our idea and we shouldn’t have

18

to own it.” DOC_10183. Jones also wrote that “I think we need to include the language about the

19

quality that we have on the Word document. We really shouldn’t give this as a presentation

20

without making this clear up front.” That Word document, “Options to meet September 30_v11,”

21

was circulated to senior Bureau officials by the Chief of the Decennial Census Management

22

Division, Jennifer Reichert. The document stated that “accelerating the schedule by 30 days

23

introduces significant risk to the accuracy of the census data. In order to achieve an acceptable

24

level of accuracy, at[ ]least 99% of Housing Units in every state must be resolved.” DOC_9951;

25

accord DOC_8779 (another version of “Options to meet September 30” circulated by Assistant

26

Director Stempowski on July 31, 2020, that states “[a]cceptable quality measure: 99% if HUs

27

28

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1 resolved (similar to 2010)”).

2

The same significant concerns were presented to Secretary Ross on August 3, 2020

3 (“August 3 Presentation”).12 That presentation began, like the Elevator Speech and the “Options to

4 meet September 30” document, with a tough assessment: “Accelerating the schedule by 30 days

5 introduces significant risk to the accuracy of the census data. In order to achieve an acceptable

6 level of accuracy, at least 99% of Housing Units in every state must be resolved.” DOC_10276.

7 The August 3 Presentation then described the many changes in field operations that the Replan

8 will necessitate, such as reducing the number of NRFU visits from six to three or one.13 See

9 DOC_10281–82.

10

In addition to detailing those changes in field operations, the August 3 Presentation also

11 details the Replan’s impact on data processing. Among these impacts is possible harm to a

12 different statutory deadline—the deadline for the Secretary’s report of redistricting data to the

13 states:

14

Additionally, the downstream effect of separating apportionment and redistricting

processing activities could not be assessed, but we anticipate it will, at a minimum,

15

reduce the efficiency in data processing and could further reduce the accuracy of

16

the redistricting data if there is a similar requirement to deliver that data by the

current statutory deadline of March 31, 2021 [sic; should be April 1, 2021].

17

DOC_10281. The August 3 Presentation thus contemplated sacrificing not only the accuracy of the

18

December 31, 2020 congressional apportionment figures, but also the accuracy and timeliness of

19

20

21 12 Like Defendants had done with the Elevator Speech, Defendants produced several versions of the August 3 Presentation as non-privileged and not pre-decisional. However, the parties identified

22 one version, DOC_10275, as a key document. ECF Nos. 161, 190. The Court thus mainly analyzes

23 that version of the document. See 5 U.S.C. § 706 (“[T]he court shall review the whole record or those parts of it cited by a party . . . .”).

24 13 On September 8, 2020, Defendants sua sponte filed a notice regarding compliance with the

25

Court’s September 5, 2020 TRO. ECF No. 86. The notice attached the “Guidance for Field Managers related to Action Required following the 9/5 Court Order” in which Defendants stated

26 that the Replan reduced the number of visits from six to one. ECF No. 86 Attachment C (“We will

resume making six contact attempts to confirm vacant housing units, instead of the one contact 27 attempt set forth in the Replan”).

28

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1 the April 1, 2021 redistricting numbers.

2

In sum, the Bureau concluded internally that trying to get the count done by the December

3 31, 2020 statutory deadline would be unacceptable to the Bureau’s statutory and constitutional

4 interests in accuracy. These conclusions were consistently and undisputedly reflected in

5 documents leading up to the August 3 Press Release, including in the contemporaneous August 3,

6 2020 Presentation.

7

However, Director Dillingham’s August 3 Press Release, which is less than one and a half

8 pages, did not consider how the Replan would feasibly protect the same essential interests that the

9 Bureau had identified. Rather, the August 3 Press Release based its decision on one statutory

10 deadline and the Secretary’s direction. The August 3 Press Release “accelerate[d] the completion

11 of data collection and apportionment counts by our statutory deadline of December 31, 2020, as

12 required by law and directed by the Secretary of Commerce.” Id. (emphasis added).

13

The August 3 Press Release then asserts that the Replan’s shortening of data collection and

14 processing will not affect census accuracy: “We will improve the speed of our count without

15 sacrificing completeness. . . . Under this plan, the Census Bureau intends to meet a similar level of

16 household responses as collected in prior censuses, including outreach to hard-to-count

17 communities.” Id. To support these assertions, the August 3 Press Release tersely mentions three

18 operational changes related to enumerators conducting NRFU; data processing; and staffing:

19

• [Enumerators conducting NRFU] “As part of our revised plan, we will conduct additional

training sessions and provide awards to enumerators in recognition of those who maximize

20

hours worked. We will also keep phone and tablet computer devices for enumeration in use

21

for the maximum time possible.”

22

• [Data processing] “Once we have the data from self-response and field data collection in

our secure systems, we plan to review it for completeness and accuracy, streamline its

23

processing, and prioritize apportionment counts to meet the statutory deadline.”

24

• [Staffing] “In addition, we plan to increase our staff to ensure operations are running at full

25

capacity.”

26 These announcements, and nothing more, comprised the August 3 Press Release’s explanation of

27 changes that would ensure an accurate count. The August 3 Press Release thus did not grapple

28

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1 with the Bureau’s contemporaneous, detailed, and unqualified internal concerns.

2

Moreover, the Bureau’s internal documents undermine the August 3 Press Release’s claims

3 of efficiency. As to enumerators and staffing, the Bureau’s head of field operations had “sound[ed]

4 the alarm” on July 23, 2020. DOC_7738. “Crystal clear numbers” showed that “people are afraid

5 to work for us.” DOC_7738. Specifically, the Bureau had an “awful deploy rate” and “less than

6 half the number of enumerators (38%) [it] need[ed] to get the job done.” Id. How “awards” and

7 “additional training sessions” in the midst of a pandemic would close that 62% gap was unclear. A

8 week later, the “High-Level Summary Status” dated July 30, 2020 confirmed the staffing shortfall.

9 In sites and Area Census Offices across the county, the Bureau lacked about half of the

10 enumerators “compared to [its] goal.” DOC_8623.

11

As for data processing, senior Bureau officials had received on July 29, 2020 a “High

12 Level Summary of the Post-Data Collection” from the Director’s Senior Advisor for Decennial

13 Affairs, James Treat. DOC_8337. The High Level Summary unambiguously concluded that:

14

Any effort to concatenate or eliminate processing and review steps to reduce the

timeframes will significantly reduce the accuracy of the apportionment counts and

15

the redistricting data products. Decades of experience have demonstrated that these

16

steps and time are necessary to produce data products that do not need to be

recalled, meet data user expectations and needs, [are] delivered on time, and stand

17

the test of time.

18 Id.; accord DOC_8086 (July 27, 2020 memo from Treat with similar language).

19

Similarly, in the very August 3 Presentation on the Replan, the Bureau found that a

20 “compressed review period creates risk for serious errors not being discovered in the data –

21 thereby significantly decreasing data quality. Additionally, serious errors discovered in the data

22 may not be fixed.” DOC_10285.

23

Although the Operational Plan Version 4.0 took nearly a decade to develop, the Replan was

24 developed in four to five days. All told, in the four or five days that the Bureau developed the

25 Replan, Defendants did not sufficiently consider how the Replan would fulfill their statutory and

26 constitutional duty to conduct an accurate census. Rather, the Bureau followed the Secretary’s

27 orders even though “[s]hortening the time period to meet the original statutory deadlines for

28

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1 apportionment and redistricting data w[ould] result in a census that has fatal data quality flaws that

2 are unacceptable for a Constitutionally-mandated activity.” DOC_8022.

3

2. Defendants offered an explanation that runs counter to the evidence before the

agency.

4

An agency action is “arbitrary and capricious if the agency has . . . offered an explanation

5

for its decision that runs counter to the evidence before the agency.” State Farm, 463 U.S. at 43.

6

“Reliance on facts that an agency knows are false at the time it relies on them is the essence of

7

arbitrary and capricious decisionmaking.” Mo. Pub. Serv. Comm’n v. FERC, 337 F.3d 1066, 1075

8

(D.C. Cir. 2003). If an agency has offered an explanation that runs counter to the evidence before

9

the agency, the agency’s action is arbitrary and capricious. E. Bay Sanctuary Covenant v. Barr,

10

964 F.3d 832, 851–52 (9th Cir. 2020) (concluding that an agency’s rule was arbitrary and

11

capricious because the agency’s reasoning “runs counter to the evidence before the agency”); Mo.

12

Pub. Serv. Comm’n., 337 F.3d at 1075 (concluding that the agency’s action was arbitrary and

13

capricious because the agency “had adopted a new rationale premised on old facts that were no

14

longer true”).

15

Defendants’ alleged justification for the Replan is the need to meet the December 31, 2020

16

statutory deadline for the Secretary of Commerce to report to the President “the tabulation of total

17

population by States” for congressional apportionment because Congress failed to grant an

18

extension. However, before the adoption of the Replan, the President and multiple Bureau officials

19

repeatedly stated, publicly and internally, that the Bureau could not meet the December 31, 2020

20

statutory deadline. For instance:

21

• On April 3, 2020, the day the COVID-19 Plan was announced, President Donald J. Trump

22

publicly stated, “I don’t know that you even have to ask [Congress]. This is called an act of

23

God. This is called a situation that has to be. They have to give it. I think 120 days isn’t

nearly enough.” ECF No. 131-16 at 4.

24 • On May 7 and 8, 2020, Associate Director for Communications Ali Ahmad wrote to

25

Secretary Ross’s Chief of Staff and other senior officials. Ahmad stated that “[his memo]

26

shows that if we could snap restart everywhere we would still need legislative fix. It also

then explains why we can’t [snap restart] and estimates when we can start in the last

27

places, getting us to the October 31, 2020 end date for data collection, and then explains

28

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why we need an additional 30 for risk mitigation.” DOC_365. Risks included “another

1

system shock, such as a Hurricane hitting the [S]outh during NRFU.” Id.

2

• On May 8, 2020, Secretary Ross’s Chief of Staff sent the Secretary a memo that among

3

other things stated, “Based on the initial suspension of field activities in line with OMB

guidance, the Census Bureau can no longer meet its statutory deadlines for delivering

4

apportionment and redistricting data, even conducting operations under

5

unrealistically ideal conditions.” DOC_2287 (emphasis in original).

6

• On May 26, 2020, the head of census field operations, Tim Olson, publicly stated that

“[w]e have passed the point where we could even meet the current legislative requirement

7

of December 31. We can’t do that anymore. We – we’ve passed that for quite a while now.”

8

Nat’l Conf. of Am. Indians, 2020 Census Webinar: American Indian/Alaska Native at

1:17:30–1:18:30, YouTube (May 26, 2020),

9

https://www.youtube.com/watch?v=F6IyJMtDDgY.

10

• On July 8, 2020, Associate Director Fontenot publicly confirmed that the Bureau is “past

11

the window of being able to get” accurate counts to the President by December 31, 2020.

U.S. Census Bureau, Operational Press Briefing – 2020 Census Update at 20–21 (July 8,

12

2020), https://www.census.gov/content/dam/Census/newsroom/press-kits/2020/news-

13

briefing-program-transcript-july8.pdf.

14

As the Replan’s adoption drew near, the Bureau found that they could potentially miss

15 even the COVID-19 Plan’s data collection deadline of October 31, 2020—to say nothing of the

16 Replan’s data collection deadline of September 30, 2020.

17

• On July 23, 2020, Chief of Decennial Communications and Stakeholder Relationships,

Kathleen Styles, shared the “Elevator Speech” memo with GAO. See DOC_8026 (sending

18

to GAO). The Elevator Speech echoed Associate Director Ahmad’s concerns about natural

19

disasters: “[t]he Census Bureau needs [] 30-days for risk mitigation[] in case we are not

able to complete data collection operations everywhere by October 31 (e.g., a hurricane, or

20

a COVID outbreak).” DOC_8022.

21

• Also on July 23, 2020, several senior officials stated internally that meeting the deadline

22

was impossible. Associate Director Fontenot identified “the difference between goal and

actual case enumeration[,] [c]urrently a shortfall (11% goal vs 7% actual).” DOC_7739. He

23

thus thought it “critical to lay the groundwork for the reality of the COVID Impacts and

24

challenges” in an upcoming meeting with the Department of Commerce. Associate

Director of Field Operations Olson agreed. He concluded that “any thinking person who

25

would believe we can deliver apportionment by 12/31 has either a mental deficiency or a

26

political motivation.” DOC_7737.

27

28

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1

• On July 27, 2020, the Director Dillingham’s Senior Advisor for Decennial Affairs, James

B. Treat, circulated a memo intended for Deputy Director Jarmin and authored by

2

Associate Director Fontenot. The memo stated that “appreciably shortening the quality

3

checks and reviews would be extremely unwise. Each and every step in post data collection processing is necessary.” DOC_8085. Furthermore, hurricane season, early snow

4

events, and COVID-19 all “increased the risk of our ability to complete the field data

collection operations by the [COVID-19 Plan] deadline of October 31, 2020.” DOC_8086. 5

• On July 29, 2020, the Senior Advisor for Decennial Affairs to Director Dillingham, James

6

Treat, circulated to Associate Director Fontenot and other senior officials a “High Level

7

Summary of the Post-Data Collection.” DOC_8337. The High Level Summary repeated

the Bureau’s strong concerns. It stressed that “[d]ecades of experience have demonstrated

8

that [processing and review] steps and time are necessary to produce data products that do

9

not need to be recalled, meet data user expectations and needs, [are] delivered on time, and

stand the test of time.” DOC_8337. 10

11

Even less than two weeks before the Replan’s September 30, 2020 data collection deadline,

12 the Bureau expressed uncertainty about its ability to meet the September 30 deadline. One reason

13 was that the natural disasters about which Bureau officials had warned had come to pass. On

14 September 17, 2020 at a meeting of the Census Scientific Advisory Committee, Associate Director

15 Fontenot, Defendants’ sole declarant, stated “that [he] did not know whether Mother Nature would

16 allow us to meet the September 30 date.” ECF No. 196-1 at ¶ 14 (Fontenot’s September 22, 2020

17 declaration). Mother Nature had wreaked “major West Coast fires,” “air quality issues,” and

18 “Hurricane Sally across the states of Louisiana, Mississippi, Alabama, the Florida panhandle area,

19 parts of Georgia, and South Carolina.” Id.

20

The timing of Congressional action further belies Defendants’ claim that Congressional

21 inaction on the deadline justified the Replan. In the weeks and days leading up to Secretary Ross’s

22 direction to develop the Replan, Congress took major steps toward extending statutory deadlines.

23 On May 15, 2020, the House passed a bill extending deadlines, The Heroes Act. See H.R. 6800,

24 https://www.congress.gov/bill/116th-congress/house-bill/6800.14 On June 1, 2020, the Senate

25

26 14 The Court takes judicial notice of the congressional hearing dates. The Court may take judicial 27 notice of matters that are either “generally known within the trial court’s territorial jurisdiction” or

28

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1 placed The Heroes Act on the legislative calendar. On July 23, 2020 at 10 a.m. Eastern, the

2 Senate’s Small Business and Entrepreneurship Committee held a hearing on The Heroes Act.

3

Yet during that hearing, senior Bureau officials were strategizing how to resist the

4 Department of Commerce’s ongoing pressure to accelerate census operations. On July 23, 2020,

5 Associate Director Fontenot wrote at 10:31 a.m. that “[o]n Monday at DOC I plan to talk about the

6 difference between goal and actual case enumeration[,] [c]urrently a shortfall (11% goal vs 7%

7 actual). . . . [I]t is critical to lay the groundwork for the reality of the COVID Impacts and

8 challenges.” DOC_7739. Associate Director Olson responded at 11:19 a.m., “agree[ing] that

9 elevating the reality is critical, especially in light of the push to complete NRFU asap for all the

10 reasons we know about.” DOC_7738. Lastly, by 11:48 a.m., Associate Director Olson “sound[ed]

11 the alarm to realities on the ground.” Id.

12

In fact, the Commerce Department’s pressure on the Bureau had started at least a few days

13 earlier. Three days before the July 23, 2020 Senate hearing, the Bureau’s Chief Financial Officer,

14 Ben Page, asked other senior officials whether the Bureau still supported Congressional extension

15 of the statutory deadlines. DOC_6852 (July 20, 2020 email to Director Dillingham et al.). Page

16 wrote:

17

Among the first questions I am getting is “Does the Census bureau still need the

change in the statutory dates?” Can we find a time to discuss how we should

18

respond to that question? Given that the Senate may introduce a bill today or

19

tomorrow, I anticipate we’ll need a set answer for discourse over the next 24-48

hours.

20

Id. The answer to Page’s question was, of course, no.

21

By July 28, 2020, the Bureau asked Congress for $448 million for a timely completion of

22

the Census without an extension of the statutory deadline. DOC_8037 (July 28, 2020 email from

23

Secretary Ross’s Director of Public Affairs, Meghan Burris, to Secretary Ross).

24

25 “can be accurately and readily determined from sources whose accuracy cannot reasonably be

26 questioned.” Fed. R. Evid. 201(b). As stated above, the Court is permitted to go outside the

administrative record “for the limited purpose of background information.” Thompson, 885 F.2d at 27 555.

28

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1

Moreover, at the House Oversight and Reform hearing on July 29, 2020, Director

2 Dillingham did not support extending the statutory deadline. Rather, he sidestepped questions

3 about whether the “Administration has [] reversed direction on [the extension], and is now

4 suggesting that they want the Census to be wrapped up quickly so that th[e] tabulation . . . could

5 actually happen before the end of the year.” Oversight Committee, Counting Every Person at

6 3:50:42–3:51:40, YouTube (July 29, 2020), https://youtu.be/SKXS8e1Ew7c?t=13880 (questions

7 by Congressman John Sarbanes). Director Dillingham’s response was that “I’m not aware of all

8 the many reasons except to say that the Census Bureau and others really want us to proceed as

9 rapidly as possible.” Id. at 3:51:48–3:52:02.

10

Accordingly, Defendants’ explanation—that the Replan was adopted in order to meet the

11 December 31, 2020 statutory deadline because Congress failed to act—runs counter to the facts.

12 Those facts show not only that the Bureau could not meet the statutory deadline, but also that the

13 Bureau had received pressure from the Commerce Department to cease seeking an extension of

14 the deadline. In other words, Defendants “adopted a new rationale premised on old facts that were

15 no longer true”: assumptions that the Bureau could possibly meet the deadline and that Congress

16 would not act. Mo. Pub. Serv. Comm’n., 337 F.3d at 1075. Thus, because Defendants “offered an

17 explanation for its decision that runs counter to the evidence before the agency,” Plaintiffs are

18 likely to succeed on the merits of their claim that Defendants’ decision is arbitrary and capricious.

19 State Farm, 463 U.S. at 43.

20

3. Defendants failed to consider an alternative.

21

In order to meet APA standards, an agency “must consider the ‘alternative[s]’ that are

22 ‘within the ambit of the existing [policy].’” Dep’t of Homeland Sec. v. Regents of the Univ. of

23 California, 140 S. Ct. 1891, 1913 (2020) (alterations in original) (quoting State Farm, 463 U.S. at

24 51). An agency that fails to consider alternatives may have acted arbitrarily and capriciously. See

25 Regents, 140 S. Ct. at 1913 (concluding that the DACA Termination was arbitrary and capricious

26 because the Secretary, confronted with DACA’s illegality, failed to consider alternative actions

27 short of terminating DACA, such as eliminating DACA benefits); State Farm, 463 U.S. at 43

28

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1 (holding that the National Highway Traffic Safety Administration had acted arbitrarily and

2 capriciously by not considering airbags as an alternative to automatic seatbelts).

3

Defendants similarly failed to consider an alternative here: not adopting the Replan while

4 striving in good faith to meet statutory deadlines. By adopting the Replan, Defendants sacrificed

5 adequate accuracy for an uncertain likelihood of meeting one statutory deadline. Defendants “did

6 not appear to appreciate the full scope of [their] discretion.” Regents, 140 S. Ct. at 1911.

7 Specifically, Defendants could have taken measures short of terminating the census early only to

8 possibly meet the deadline. These measures could have included good faith efforts to meet the

9 deadline coupled with an operational plan that would—at least in the Bureau’s view—generate

10 results that were not “fatal[ly]” or “unacceptabl[y]” inaccurate. Elevator Speech, DOC_8070.

11

Because agencies must often fulfill statutory obligations apart from deadlines, case law is

12 replete with agency actions that missed statutory deadlines but nevertheless survived judicial

13 review. See, e.g., Barnhart v. Peabody Coal Co., 537 U.S. 149, 157, 171–72 (2003) (upholding the

14 Social Security Commissioner’s late assignment of beneficiaries to coal companies despite the fact

15 that it “represent[ed] a default on a statutory duty, though it may well be a wholly blameless one”);

16 Newton Cty. Wildlife Ass’n v. U.S. Forest Serv., 113 F.3d 110, 112 (8th Cir. 1997) (“Absent specific

17 statutory direction, an agency’s failure to meet a mandatory time limit does not void subsequent

18 agency action”); Linemaster Switch Corp. v. EPA, 938 F.3d 1299, 1304 (D.C. Cir. 1991)

19 (explaining that the Court did not want to restrict the agency’s powers “when Congress . . . has

20 crafted less drastic remedies for the agency’s failure to act”).15

21

In fact, single-mindedly sacrificing statutory objectives to meet a statutory or judicial

22

23 15 Defendants cite Forest Guardians v. Babbitt, which explains that “when Congress . . . sets a specific deadline for agency action, neither the agency nor any court has discretion.” 174 F.3d

24 1178, 1190 (10th Cir. 1999). But Forest Guardians addresses the question of whether a court can

25

compel an agency’s late action, not the question of whether an agency’s late action can be upheld by a court. Under the Supreme Court’s reasoning in Barnhart, the Bureau’s action after the

26 deadline would be upheld by a court. See, e.g., Barnhart, 537 U.S. at 157, 171–72 (upholding the

Social Security Commissioner’s late assignment despite the fact that “represent[ed] a default on a 27 statutory duty, though it may well be a wholly blameless one”).

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1 deadline can itself violate the APA. Examples abound because the Census Act is far from the only

2 statute that sets a deadline for agency action. Environmental regulation and occupational safety are

3 just two illustrative examples.

4

Environmental statutes have set hundreds of deadlines, of which only a fraction have been

5 met. See Richard J. Lazarus, The Tragedy of Distrust in the Implementation of Federal

6 Environmental Law, Law & Contemp. Probs., Autumn 1991, at 311, 323–28 (noting that “EPA has

7 met only about 14 percent of the congressional deadlines imposed”). For example, in

8 Environmental Defense Fund v. Environmental Protection Agency, the D.C. Circuit set a “court-

9 imposed schedule” after the EPA violated statutory deadlines for studying and designating

10 hazardous mining wastes. 852 F.2d 1316, 1331 (D.C. Cir. 1988); see id. at 1319–31 (discussing

11 interlocking deadlines). The D.C. Circuit set judicial deadlines that were years after the missed

12 statutory deadlines. See id.16 The D.C. Circuit’s order thus allowed the EPA to continue violating

13 the statutory deadlines so that the EPA could fulfill its other statutory duties.

14

Moreover, when the EPA promulgated a rule to comply with the judicial deadlines—and to

15 stanch the ongoing violation of statutory deadlines—the D.C. Circuit set that rule aside. See Am.

16 Min. Cong. v. EPA, 907 F.2d 1179, 1191–92 (D.C. Cir. 1990). The D.C. Circuit reasoned that the

17 rule was unsupported by the data. See id. at 1191. It was immaterial that the rule lacked support

18 only because the EPA felt compelled to comply with the deadlines. “That an agency has only a

19 brief span of time in which to comply with a court order cannot excuse its obligation to engage in

20 reasoned decisionmaking under the APA.” Id. at 1192.

21

In the area of occupational safety, the Occupational Safety and Health Act of 1970 set a

22 “statutory timetable” in “mandatory language” for rulemaking. Nat’l Cong. of Hispanic Am.

23

24 16 The deadlines at issue in Environmental Defense Fund v. EPA were complicated. In simple

25

terms, the statutory deadlines were for the EPA to conduct studies by October 21, 1983, and to list wastes under Subtitle C of the Resource Conversation and Recovery Act within six months of

26 completing those studies. See 852 F.2d at 1319–20. The D.C. Circuit set deadlines of July 31, 1989

for completion of the studies, and August 31, 1988 for relisting of six specific wastes. See id. at 27 1331.

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1 Citizens (El Congreso) v. Marshall, 626 F.2d 882, 883–84 & n.3 (D.C. Cir. 1979) (discussing 29

2 U.S.C. § 655(b)(1)–(4), which provides that the Secretary “shall publish” rules within certain

3 numbers of days). When the Secretary of Labor missed those deadlines, a “14-year struggle to

4 compel the Secretary of Labor” to promulgate a rule ensued. Farmworker Justice Fund, Inc. v.

5 Brock, 811 F.2d 613, 614 (D.C. Cir.), vacated sub nom. as moot, Farmworkers Justice Fund, Inc.

6 v. Brock, 817 F.2d 890 (D.C. Cir. 1987).

7

As relevant here, when the Secretary of Labor first missed the deadlines, the district court

8 ordered him to follow them. See id. at 884. Despite even the “mandatory language” of the

9 statutory deadline, the D.C. Circuit reversed. The D.C. Circuit held that “the mandatory language

10 of the Act did not negate the ‘implicit acknowledgement that traditional agency discretion to alter

11 priorities and defer action due to legitimate statutory considerations was preserved.’” Id. (quoting

12 National Congress of Hispanic American Citizens v. Usery, 554 F.2d 1196, 1200 (D.C. Cir. 1977)

13 (Clark, J.)). The D.C. Circuit reasoned that the Secretary could “giv[e] priority to the most severe

14 hazards” rather than those demanded by the statutory deadline. Id. at 891 & n.44. Agencies cannot

15 and should not ignore their full range of legal obligations to prioritize meeting statutory deadlines

16 at all costs.

17

So too here. Secretary Ross and the Census Bureau could have given priority to avoiding

18 “fatal data quality flaws that are unacceptable for a Constitutionally-mandated national activity.”

19 ECF No. 155-8 at 332 (Bureau’s Elevator Speech). The Census Act’s “mandatory language” of

20 “shall” on deadlines did not displace Defendants’ duty to consider other express statutory and

21 constitutional interests. Compare, e.g., 1998 Appropriations Act, § 209, 111 Stat. at 2481

22 (“Congress finds that . . . it is essential that the decennial enumeration of the population be as

23 accurate as possible . . . .”), and Utah, 536 U.S. at 478 (finding a “strong constitutional interest in

24 [the] accuracy” of the census), with, e.g., 29 U.S.C. § 655(b)(1)–(4) (“shall publish” rules within

25 certain timetable), and Nat’l Cong. of Hispanic Am. Citizens, 554 F.2d at 1198 (reversing order to

26 follow deadlines and finding “traditional agency discretion to alter priorities” despite statutory

27 deadlines because the statute provided feebly that “in determining the priority for establishing

28

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1 standards . . . the Secretary shall give due regard to the urgency of the need” (quoting 29 U.S.C.

2 § 655(g))).

3

Indeed, in analyzing the COVID-19 Plan—but never the Replan—the Bureau itself

4 concluded that missing the statutory deadline was constitutional and in line with historical

5 precedent. Bureau officials included these conclusions in their notes for their April 28, 2020 call

6 with Congressman Jamie Raskin, Chair of the House Oversight Subcommittee on Civil Rights and

7 Civil Liberties, which has jurisdiction over the census. DOC_2224. The notes stated that the

8 COVID-19 proposal “underwent a constitutional review, and we believe it is constitutional.”

9 DOC_2228; see also DOC_1692 (preparation materials for April 19, 2020 briefing with House

10 Oversight Committee, stating that the COVID-19 plan “went through inter-agency review,

11 including review by the Department of Justice,” and “[t]heir view is that there is not a

12 constitutional issue with the proposal”).

13

The notes further stated that “in history, especially for [] many of the earlier censuses, data

14 collection and reporting in the counts shifted beyond the zero year.” DOC_2228. Officials in

15 charge of the census have previously missed statutory deadlines imposed by Congress. Assistants

16 conducting four different censuses failed to transmit returns to marshals or the Secretary of State

17 within the deadline imposed by Congress. In each case, only after the deadline had passed without

18 the required transmission did Congress act by extending the statutory deadlines. This post-

19 deadline extension took place in four censuses: the 1810, 1820, 1830, and 1840 Censuses. ECF

20 No. 203 (explaining examples); see, e.g., Act of Sept. 1, 1841, ch. 15, § 1, 5 Stat. 452, 452 (1841)

21 (post hoc extension of September 1, 1841 for original deadline missed by over nine months).

22

Defendants’ failure “to appreciate the full scope of [their] discretion” also resembles the

23 Secretary of Homeland Security’s decisionmaking in Regents, 140 S. Ct. 1891. There, the

24 Secretary terminated the DACA program by relying on the Attorney General’s determination that

25 DACA was unlawful. Id. at 1903. The government argued that the decision was not arbitrary and

26 capricious because it was based on the Attorney General’s binding legal conclusion. The Supreme

27 Court agreed that the Attorney General’s conclusion was binding but set aside the Secretary’s

28

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1 decision anyway. Id. at 1910. The Court held that the Secretary failed to consider the full scope of

2 her discretion, which would have permitted her to take measures short of terminating the program

3 to address the illegality of the program. Id. at 1911.

4

Like the Secretary in Regents, Defendants argue that binding law compels their decision.

5 Similarly, the Court agrees that the Census Act’s statutory deadlines bind Defendants. Even so,

6 Defendants should have “appreciate[d] the full scope of their discretion” to preserve other

7 statutory and constitutional objectives while striving to meet the deadlines in good faith. Regents,

8 140 S. Ct. at 1911. By not appreciating their discretion, Defendants failed to consider important

9 aspects of the problem before them. That failure was likely arbitrary and capricious under the

10 APA.

11

4. Plaintiffs are likely to succeed on the merits of their claim that Defendants

failed to articulate a satisfactory explanation for the Replan.

12

Plaintiffs argue that the Defendants failed to articulate a satisfactory explanation for its

13

decision to adopt the Replan. The Court concludes that Plaintiffs are likely to succeed on the

14

merits of this claim.

15

An agency must “examine the relevant data and articulate a rational connection between

16

the facts found and the choice made.” State Farm, 463 U.S. at 43. The agency must have

17

“considered the relevant factors, weighed [the] risks and benefits, and articulated a satisfactory

18

explanation for [its] decision.” Dep’t of Commerce, 139 S. Ct. at 2570. In evaluating agency

19

action, the Court must ensure that “the process by which [the agency] reache[d] its result [was]

20

logical and rational.” Michigan v. EPA, 135 S. Ct. 2699, 2706 (2015) (quoting Allentown Mack

21

Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998)). “[T]he agency’s explanation [must be]

22

clear enough that its ‘path may reasonably be discerned.’” Encino Motorcars, 136 S. Ct. at 2125

23

(quoting Bowman Transp., Inc. v. Arkansas–Best Freight System, Inc., 419 U.S. 281, 286 (1974)).

24

“[W]e may not supply a reasoned basis for the agency’s action that the agency itself has not

25

given.” Id. at 2127 (quoting State Farm, 463 U.S. at 43).

26

When an agency changes position, the agency must provide a “reasoned explanation” why

27

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1 it has done so. FCC v. Fox Television Stations, 556 U.S. 502, 515 (2009). At a minimum, this

2 explanation must “display awareness that [the agency] is changing position” and “show that there

3 are good reasons for the new policy.” Fox Television, 556 U.S. at 515. In addition, “sometimes [an

4 agency] must” “provide a more detailed justification than what would suffice for a new policy

5 created on a blank slate.” Id.

6

More detail is required “when, for example, [the agency’s] new policy rests upon factual

7 findings that contradict those which underlay its prior policy; or when its prior policy has

8 engendered serious reliance interests that must be taken into account.” Id. “In such cases it is not

9 that further justification is demanded by the mere fact of policy change; but that a reasoned

10 explanation is needed for disregarding facts and circumstances that underlay or were engendered

11 by the prior policy.” Encino Motorcars, 136 S. Ct. at 2126 (quoting Fox Television, 556 U.S. at

12 515–16); see also Organized Vill. of Kake, 795 F.3d at 968 (“[A]n agency may not simply discard

13 prior factual findings without a reasoned explanation.”). “It follows that an ‘[u]nexplained

14 inconsistency’ in agency policy is ‘a reason for holding an interpretation to be an arbitrary and

15 capricious change from agency practice.’” Encino Motorcars, 136 S. Ct. at 2126 (alteration in

16 original) (quoting Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S.

17 967, 981 (2005)); see, e.g., Humane Society v. Locke, 626 F.3d 1040, 1049–50 (9th Cir. 2010)

18 (concluding that an agency acted arbitrarily and capriciously where the agency took a “seemingly

19 inconsistent approach” with the approach it had taken previously).

20

Defendants took an inconsistent approach that failed to “articulate a rational connection

21 between the facts found and the choice made.” State Farm, 463 U.S. at 43. The facts before the

22 Defendants included the COVID-19 pandemic, its significant effect on census operations, and the

23 inability to conduct an accurate count by September 30, 2020. See supra Section IV-A-1

24 (contemporaneous statements from Bureau officials explaining how it was impossible to complete

25 an accurate count by the statutory deadline); Section IV-A-2 (contemporaneous statements from

26 Bureau officials explaining how they were past the point of being able to finish the count by the

27 statutory deadline, even if they replanned the census).

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1

Defendants never articulated a satisfactory explanation between these facts and the

2 decision to adopt the Replan. All Defendants offer is the August 3, 2020 Press Release, which is

3 less than one-and-a-half pages in length. See Tr. of August 26, 2020 Case Management

4 Conference, ECF No. 65 at 20 (The Court: “[T]he Plaintiffs point to a press release as the reason

5 for advancing the date and -- are there other documents that provide the contemporaneous reasons

6 for advancing the date, other than the press release?” Defendants: “Your Honor, at this point I’m

7 not aware of any other documents, but I would propose that I check with my client and answer that

8 in the September 2nd filing.”).17 In less than a page and a half, the August 3 Press Release simply

9 asserts that Defendants planned to deliver an accurate census in time for the statutory deadline. See

10 Section IV-A-1 (analyzing the assertions in the press release and determining that they

11 contradicted the facts before the Bureau). The August 3 Press Release never explains why

12 Defendants are “required by law” to follow a statutory deadline that would sacrifice

13 constitutionally and statutorily required interests in accuracy. ECF No. 37-1.

14

The August 3 Press Release stands in stark contrast to Secretary Ross’s memorandum on

15 adding a citizenship question to the 2020 Census. See Dep’t of Commerce, 139 S. Ct. at 2569. In

16 that memorandum, Secretary Ross outlined the four options available to him and the benefits and

17 drawbacks of each option. See Ross Memorandum at 2–5, New York v. U.S. Dep’t of Commerce,

18 351 F. Supp. 3d 502 (S.D.N.Y. 2019), ECF No. 173 at 1314–17. He also explained the potential

19 impact of each option on depressing 2020 Census response rates, drew on empirical evidence

20 available to the Bureau, and weighed concerns voiced by census partners. Id. at 1317–19. Finally,

21 he explained how his decision followed from the evidence and relevant considerations. Id. at

22 1319–20. The Supreme Court held that the memorandum provided adequate explanation because

23 the Secretary “considered the relevant factors, weighed risks and benefits, and articulated a

24 satisfactory explanation for his decision.” Dep’t of Commerce, 139 S. Ct. at 2570.

25

The August 3 Press Release contains nowhere close to the same level of reasoned

26

27 17 Defendants did not mention any other documents in their September 2, 2020 filing. ECF No. 63.

28

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1 explanation. Here, Defendants failed to explain the options before them, failed to weigh the risks

2 and benefits of the various options, and failed to articulate why they chose the Replan. In other

3 words, Defendants failed to “articulate a rational connection between the facts found and the

4 choice made.” State Farm, 463 U.S. at 43. Specifically, Defendants failed to explain why they

5 disregarded the facts and circumstances that underlay their previous policy: the COVID-19 Plan.

6 The facts underlaying the COVID-19 Plan include the rapid spread of the coronavirus pandemic

7 across the United States and its significant effect on Census operations, which are well-

8 documented throughout the record. See, e.g., DOC_2287 (“Operational Timeline” memo from

9 Secretary Ross’s Chief of Staff, Michael Walsh, to the Secretary on May 8, 2020).

10

In fact, in the August 3, 2020 Press Release, Defendants never acknowledged or mentioned

11 the COVID-19 Plan or COVID-19, let alone the ongoing pandemic. It follows that this

12 “‘[u]nexplained inconsistency’ in agency policy” renders the Replan arbitrary and capricious.

13 Encino Motorcars, 136 S. Ct. at 2126 (quoting Brand X, 545 U.S. at 981).

14

5. Plaintiffs are likely to succeed on the merits of their claim that Defendants

failed to consider reliance interests.

15

Plaintiffs also argue that the Replan was arbitrary and capricious in violation of the APA

16

because Defendants failed to consider the reliance interests of their own partners, who relied on

17

the October 31 deadline and publicized it to their communities. The Court concludes that Plaintiffs

18

are likely to succeed on the merits of this claim.

19

When an agency is reversing a prior policy, the agency must “be cognizant that

20

longstanding policies may have ‘engendered serious reliance interests that must be taken into

21

account.’” Encino Motorcars, 136 S. Ct. at 2126 (quoting Fox Television, 556 U.S. at 515). “It

22

would be arbitrary and capricious [for the agency] to ignore such matters.” Fox Television, 556

23

U.S. at 515. An agency reversing a prior policy must “assess whether there were reliance interests,

24

determine whether they were significant, and weigh any such interests against competing policy

25

concerns.” Regents, 140 S. Ct. at 1913.

26

Where an agency fails to consider reliance interests, its action is arbitrary and capricious.

27

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1 Regents, 140 S. Ct. at 1913 (holding that termination of the Deferred Action for Childhood

2 Arrivals (“DACA”) policy was arbitrary and capricious because the agency failed to consider

3 reliance interests); see also Encino Motorcars, 136 S. Ct. at 2126 (declining to defer to the

4 Department of Labor’s regulation because of failure to consider the reliance interests of car

5 dealerships when newly permitting service advisors to receive overtime pay). In fact, reliance

6 interests should be considered even where the document giving rise to reliance expressly disclaims

7 conferring any rights. See Regents, 140 S. Ct. at 1913–14 (holding that “disclaimers are surely

8 pertinent in considering the strength of any reliance interests, but that consideration must be

9 undertaken by the agency in the first instance”).

10

Defendants ignored reliance interests when Defendants developed and adopted the Replan.

11 Defendants’ COVID-19 Plan had engendered serious reliance interests on the part of

12 municipalities and organizations who encouraged people to be counted and publicized the

13 COVID-19 Plan’s October 31, 2020 deadline for data collection.

14

Defendants themselves acknowledge the important role that their partners play in

15 encouraging participation in the Census. Associate Director Fontenot describes at length the

16 Bureau’s partnerships with community organizations—including Plaintiffs such as National Urban

17 League. He explains that the Bureau “depend[s] on [its] partners to seal the deal with communities

18 that may be fearful or distrustful of the government”; to supplement and verify address lists; and

19 to identify locations to best count people experiencing homelessness. Fontenot Decl. ¶¶ 40–42; see

20 id. ¶¶ 12, 22. Overall, the Bureau engages in “[e]xtensive partnerships.” Id. ¶ 28.

21

Accordingly, when the COVID-19 pandemic began to spread in March 2020, Defendants

22 concluded that “[t]he virus will cause operational changes for the census, and may necessitate

23 changes in our planned communications approach.” DOC_970 (March 13, 2020 “COVID-19

24 Contingency Planning” sent by Program Analyst Christopher Denno to Director Dillingham et al.).

25 Defendants thus stated that they would “[d]evelop[] talking points to share with our partners”

26 about the pandemic. Id. Once Defendants adopted the COVID-19 Plan, Defendants’ partners

27 began to rely on the extended deadlines. For instance:

28

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1

• The City of Los Angeles is home to about 4 million people. M. Garcia Decl. ¶ 7. The City

“conducted a public education campaign publicizing the October 31, 2020 date for self-

2

response.” Id. ¶ 14. For example, the City announced the date in bus shelter posters and

3

social media toolkits. Id.

• Harris County, Texas “participated in over 150 events,” including “food distribution

4

events,” during which it “announced the October 31, 2020 deadline for the 2020 Census.”

5

Briggs Decl. ¶ 12.

6

• The City of Salinas promoted the October 31, 2020 deadline “on social media and in

thousands of paper flyers.” Gurmilan Decl. ¶¶ 11–12.

7

• The League of Women Voters has over 65,000 members across 800 state and local

8

affiliates. Stewart Decl. ¶ 4. Thus, “[w]hen the Census Bureau extended the deadline for

9

counting operations to October 31, 2020,” the League of Women Voters “published blog

posts advertising the new timeline,” “shared numerous letters with [] state and local

10

affiliates providing information about the new timeline,” and “publicized the deadline in

11

letters and [emails].” Id. ¶ 11.

12

• National Urban League has 11,000 volunteers across 90 affiliates in 37 states. Green Decl.

¶ 4. “[W]hen the Census Bureau announced its extension of the timeline for collecting

13

responses to the 2020 Census, the National Urban League informed all members of the

14

2020 Census Black Roundtable that the deadline had become October 31, 2020. The

members in turn conveyed to their own networks and constituents, causing a cascading

15

effect.” Id. ¶ 14.

16

However, Defendants quietly removed the October 31 deadline from its website on July

17 31, 2020 without any explanation or announcement. Compare ECF No. 37-8 (July 30 Operational

18 Adjustments Timeline), with ECF No. 37-9 (July 31 Operational Adjustments Timeline). Then on

19 August 3, 2020, the Bureau advanced data collection deadlines to September 30.

20

As a result, people who believe they could submit their census responses in October and

21 try to do so would not be counted. See, e.g., Gurmilan Decl. ¶ 12 (“some residents who received

22 the City [of Salinas]’s messaging will fail to respond before the R[eplan] deadline because the City

23 has limited remaining resources to correct what is now misinformation.”). Moreover, Plaintiffs’

24 efforts to mitigate the widely advertised the Bureau’s October 31 deadline and now-

25 counterproductive education campaigns will only be harder in the midst of a pandemic. E.g., M.

26 Garcia Decl. ¶¶ 14–14; Gurmilan Decl. ¶¶ 11–14; Briggs Decl. ¶¶ 11–12, 15–17.

27

Accordingly, “[i]n light of the serious reliance interests at stake, [Defendants’] conclusory

28

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1 statements do not suffice to explain [their] decision.” Encino Motorcars, 136 S. Ct. at 2127. The

2 Replan is thus arbitrary and capricious on this ground as well.

3

B. Plaintiffs will suffer irreparable harm without an injunction.

4

As to irreparable harm, Plaintiffs identify and support with affidavits four potential

5 irreparable harms that Plaintiffs will suffer as a result of inaccurate census data. First, Plaintiffs

6 risk losing important federal funding from undercounting. Second, Plaintiffs state that an

7 inaccurate apportionment will violate their constitutional rights to political representation. Third,

8 Plaintiffs will need to expend resources to mitigate the undercounting that will result from the

9 Replan. Lastly, local government Plaintiffs’ costs will increase because those Plaintiffs rely on

10 accurate granular census data to deploy services and allocate capital.

11

These harms are potentially irreparable in two ways. First, at least part of the harms may be

12 constitutional in nature, and “the deprivation of constitutional rights ‘unquestionably constitutes

13 irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v.

14 Burns, 427 U.S. 347, 373 (1976)). Second, to the extent the harm involves expending money or

15 resources, “[i]f those expenditures cannot be recouped, the resulting loss may be irreparable.”

16 Philip Morris USA Inc. v. Scott, 561 U.S. 1301, 1304 (2010) (Scalia, J., in chambers).

17

Plaintiffs aver that implementation of the Replan deadlines would lead to an undercount of

18 their communities. PI Mot. at 28. Because the decennial census is at issue here, an inaccurate

19 count would not be remedied for another decade. An inaccurate count would affect the distribution

20 of federal and state funding, the deployment of services, and the allocation of local resources.

21 Similar harms have thus justified equitable relief in previous census litigation. See, e.g., Dep’t of

22 Commerce v. U.S. House of Representatives, 525 U.S. at 328–34 (affirming injunction against the

23 planned use of statistical sampling in census and citing apportionment harms, among others); New

24 York v. United States Dep’t of Commerce, 351 F. Supp. 3d at 675 (issuing injunction and finding

25 irreparable “the loss of political representation and the degradation of information”). Accordingly,

26 the Court concludes that Plaintiffs have demonstrated that they are likely to suffer irreparable

27 harm in the absence of a stay of the Replan. Winter, 555 U.S. at 22.

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C. The balance of the hardships tips sharply in Plaintiffs’ favor. 1

Plaintiffs would suffer several irreparable harms without a preliminary injunction. In his 2

September 5, 2020 declaration, Defendants’ own declarant, Associate Director Fontenot, stated 3

that the sooner the Court enjoined Defendants, the fewer field staff Defendants would terminate 4

and not be able to rehire: 5

Lack of field staff would be a barrier to reverting to the COVID Schedule were the

6

Court to rule later in September. The Census Bureau begins terminating staff as

7

operations wind down, even prior to closeout. Based on progress to date, as is

standard in prior censuses, we have already begun terminating some of our

8

temporary field staff in areas that have completed their work. It is difficult to bring

9

back field staff once we have terminated their employment. Were the Court to

enjoin us tomorrow we would be able to keep more staff on board than were the

10

Court to enjoin us on September 29, at which point we will have terminated many

11

more employees.

12 Fontenot Decl. at ¶ 98. Thus, Fontenot’s declaration underscores Plaintiffs’ claims of irreparable 13 harm because Defendants would have difficulty rehiring terminated field staff.18

14

Furthermore, Defendants’ stated reason for the August 3, 2020 Replan is to get the Census

15 count to the President by December 31, 2020 instead of April 30, 2021 as scheduled in the

16 COVID-19 Plan. Fontenot Decl. ¶ 81. However, the President, Defendants’ sole declarant, and

17 other senior Bureau officials have stated, even as recently as September 17, 2020, that meeting the

18 statutory deadline is impossible. See supra Section IV-A-2; ECF No. 196-1 ¶ 14. These statements

19 show that the hardship imposed on Defendants from a stay—missing a statutory deadline they had

20 expected to miss anyway—would be significantly less than the hardship on Plaintiffs, who will

21 suffer irreparable harm from an inaccurate census count.

22

Thus, the Court finds that the balance of hardships tips sharply in favor of Plaintiffs.

23

D. A preliminary injunction is in the public interest.

24

As to the public interest, when the government is a party, the analysis of the balance of the

25

26 18 Associate Director Fontenot’s untimely September 22, 2020 declaration, ECF No. 196-1, claims

that the Court’s TRO dictates case assignments to enumerators. Neither the Court’s TRO nor the 27 instant Order dictate case assignments to enumerators.

28

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1 hardships and the public interest merge. See Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092

2 (9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). As the United States Supreme

3 Court recognized, Congress has codified the public’s interest in “a census that is accurate and that

4 fairly accounts for the crucial representational rights that depend on the census and the

5 apportionment.” Dep’t of Commerce v. New York, 139 S. Ct. at 2569 (quoting Franklin, 505 U.S. at

6 819–820 (Stevens, J., concurring in part and concurring in judgment)) (discussing the Census Act,

7 2 U.S.C. § 2a). Other courts have held that “the public interest . . . requires obedience to the

8 Constitution and to the requirement that Congress be fairly apportioned, based on accurate census

9 figures” and that “it is in the public interest that the federal government distribute its funds . . . on

10 the basis of accurate census data.” Carey, 637 F.2d at 839. Thus, an injunction is in the public

11 interest.

12

E. The scope of the injunction is narrowly tailored.

13

The Bureau has explained that data processing cannot begin until data collection operations

14 are completed nationwide. Because the steps are sequential, the Bureau cannot grant relief to

15 particular geographic regions and not others. Specifically, the Bureau explained in its Elevator

16 Speech, circulated to high level Bureau officials and to the GAO, “[n]or can post processing

17 operations begin until data collection operations are completed everywhere. There is no option,

18 e.g., to begin post processing in one region or state of the country while other areas are still

19 collecting data.” Elevator Speech, DOC_8071.

20

Associate Director Fontenot’s September 22, 2020 declaration affirmed this point: “[P]ost

21 data collection processing is a particularly complex operation, and the steps of the operation must

22 generally be performed consecutively. . . . It is not possible, however, to begin final census

23 response processing in one region of the country while another region is still collecting data.”

24 Fontenot Decl. ¶ 19–20.

25

The Court is aware of the ongoing debate regarding nationwide injunctions and their

26 scope. See U.S. Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J.,

27

28

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1 concurring) (criticizing the “routine issuance of universal injunctions”).19 Nevertheless, the

2 Supreme Court has upheld nationwide injunctions in the limited circumstance in which they are

3 necessary to provide relief to the parties. See, e.g., Trump v. International Refugee Assistance

4 Project, 137 S. Ct. 2080, 2088–89 (leaving in place a nationwide injunction with respect to the

5 parties and non-parties that are similarly situated). The Supreme Court has followed this practice

6 in past cases involving the census. See Dep’t of Commerce v. U.S. House of Representatives, 525

7 U.S. at 343–44 (affirming district court’s nationwide injunction against the Census Bureau’s

8 proposed use of statistical sampling for apportionment purposes in the 2000 Census). This reflects

9 the longstanding principle that “injunctive relief should be no more burdensome to the defendant

10 than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682,

11 702 (1979). The Court finds that this is an instance in which the injunction must be nationwide in

12 order to grant necessary relief to the Plaintiffs.

13

Moreover, although Plaintiffs’ motion for preliminary injunction sought to stay

14 Defendants’ August 3, 2020 Replan and to enjoin Defendants from implementing the August 3,

15 2020 Replan, at the September 22, 2020 preliminary injunction hearing, Plaintiffs narrowed their

16 request to a stay and injunction of the August 3, 2020 Replan’s September 30, 2020 and December

17 31, 2020 deadlines. Specifically, Plaintiffs stated:

18

So I want to be clear about this. Our APA action challenges the timelines in the

Replan. It is very discrete in that respect. 19

The final agency action is the announcement on August 3rd that they are going to

20

shorten the deadlines for completing the Census, two deadlines in particular,

21

leaving the October 31st one to September 30th for data collection and moving the

April date to December 31st for reporting to the President. That is our APA

22

23 19 Compare, e.g., Hon. Milan D. Smith Jr., Only Where Justified: Toward Limits and Explanatory

24 Requirements for Nationwide Injunctions, 95 Notre Dame L. Rev. 2013 (2020) (criticizing the rise

25

in universal injunctions, but acknowledging that they are justified in certain contexts), with Mila Sohoni, The Power to Vacate a Rule, 88 Geo. Wash. L. Rev. ___ (forthcoming 2020),

26 https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=3599266 (arguing that the APA § 706’s

provision that “[t]he reviewing court shall . . . hold unlawful and set aside agency action” permits 27 universal vacatur).

28

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challenge, the moving and shortening and accelerating of those particular deadlines. 1
Tr. of Sept. 22, 2020 Preliminary Injunction Hearing at 23:21–24:5, ECF No. 207. Plaintiffs may 2
narrow the scope of their requested injunctive relief. See Vasquez v. Rackauckas, 734 F.3d 1025, 3
1037 (9th Cir. 2013) (recognizing that plaintiffs “clarified and narrowed” the injunctive relief that 4
they sought). Thus, the Court grants Plaintiffs’ narrowed requested relief. By this order, the Court 5
in no way intends to manage or direct the day-to-day operations of Defendants. 6 7 V. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED THAT, effective as of the date of 8
this Order: The U.S. Census Bureau’s August 3, 2020 Replan’s September 30, 2020 deadline for 9
the completion of data collection and December 31, 2020 deadline for reporting the tabulation of 10
the total population to the President are stayed pursuant to 5 U.S.C. § 705; and Defendants 11
Commerce Secretary Wilbur L. Ross, Jr.; the U.S. Department of Commerce; the Director of the 12
U.S. Census Bureau Steven Dillingham, and the U.S. Census Bureau are enjoined from 13
implementing these two deadlines. 14
IT IS SO ORDERED. 15

16 Dated: September 24, 2020
17
18
19

______________________________________
LUCY H. KOH United States District Judge

20

21

22

23

24

25

26

27

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2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10 SAN JOSE DIVISION
11

12

NATIONAL URBAN LEAGUE, et al.,

13

Plaintiffs,

14

v.

Case No. 20-CV-05799-LHK
ORDER DENYING MOTION TO STAY PENDING APPEAL

15

WILBUR L. ROSS, et al.,

16

Defendants.

17

18

For the reasons stated in the Court’s Order Granting Plaintiffs’ Motion for Stay and

19 Preliminary Injunction, ECF No. 208, Defendants’ motion to stay pending appeal, ECF No. 211, is

20 DENIED.

21 IT IS SO ORDERED.

22

23 Dated: September 25, 2020

24

______________________________________

LUCY H. KOH

25

United States District Judge

26

27

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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11

12

NATIONAL URBAN LEAGUE, et al.,

13

Plaintiffs,

14

v.

Case No. 20-CV-05799-LHK
ORDER RE: CLARIFICATION OF STAY AND PRELIMINARY INJUNCTION

15

WILBUR L. ROSS, et al.,

16

Defendants.

Re: Dkt. No. 279

17

18

Plaintiffs National Urban League; League of Women Voters; Black Alliance for Just

19 Immigration; Harris County, Texas; King County, Washington; City of Los Angeles, California;

20 City of Salinas, California; City of San Jose, California; Rodney Ellis; Adrian Garcia; National

21 Association for the Advancement of Colored People; City of Chicago, Illinois; County of Los

22 Angeles, California; Navajo Nation; and Gila River Indian Community (collectively, “Plaintiffs”)

23 sue Defendants Commerce Secretary Wilbur L. Ross, Jr.; the U.S. Department of Commerce; the

24 Director of the U.S. Census Bureau Steven Dillingham, and the U.S. Census Bureau (“Bureau”)

25 (collectively, “Defendants”) for violations of the Enumeration Clause and the Administrative

26 Procedure Act (“APA”).

27

Before the Court are two motions: (1) Plaintiffs’ motion to compel and for sanctions

28

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1 (“motion to compel”); and (2) Plaintiffs’ motion for temporary restraining order pending ruling on

2 Plaintiffs’ motion to compel and for sanctions (“second TRO motion”). Having considered the

3 parties’ submissions on the motion to compel and the second TRO motion; the parties’ arguments

4 at the September 28 and 29, 2020 case management conferences; many briefs and court

5 proceedings discussing Defendants’ alleged violations of the Temporary Restraining Order and the

6 Court’s Order Granting Plaintiffs’ Motion for Stay and Preliminary Injunction (“Injunction Order,”

7 ECF No. 208); the relevant law; and the record in this case, the Court:

8

• CLARIFIES the scope of the Court’s Injunction Order;

9

• ORDERS Defendants 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

10

“target date” is not operative, and stating that data collection operations will continue

11

through October 31, 2020. On October 2, 2020, after the text message is sent, Defendants

shall file a copy of the text message with the Court;

12

• ORDERS Census Bureau Director Steven Dillingham to file, by Monday, October 5, 2020

13

at 2 p.m. Pacific Time, a declaration under penalty of perjury that unequivocally confirms

14

Defendants’ ongoing compliance with the Injunction Order and details the steps

Defendants have taken to prevent future violations of the Injunction Order; and

15 • DENIES AS MOOT Plaintiffs’ motion to compel and second TRO motion.

16 I.

BACKGROUND

17 On Thursday, September 24, 2020, the Court issued an Order Granting Plaintiffs’ Motion

18 for Stay and Preliminary Injunction (“Injunction Order”), ECF No. 208. In the Injunction Order,

19 the Court detailed how Defendants had violated the APA by adopting the “Replan”: a schedule for

20 the 2020 Census that accelerated the deadlines for Census self-responses, non-response follow-up,

21 data processing, and reports to the President and the states. Although the Census Bureau had taken

22 most of a decade to develop the December 2018 Operational Plan Version 4.0 for the 2020 Census,

23 the Bureau developed the Replan in the span of four or five days.

24 The Court found that Defendants had acted arbitrarily and capriciously in five independent

25 ways: (1) Defendants failed to consider important aspects of the problem, including their

26 constitutional and statutory obligations to produce an accurate census; (2) Defendants offered an

27

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1 explanation that runs counter to the evidence before them; (3) Defendants failed to consider an

2 alternative; (4) Defendants failed to articulate a satisfactory explanation for the Replan; and

3 (5) Defendants failed to consider reliance interests. Id. at 44–74. Although any one of the five

4 reasons would have supported a preliminary injunction, the Court found for Plaintiffs on all five.1

5

The Court also found that Plaintiffs would suffer irreparable injury; that the balance of

6 hardships tipped sharply in Plaintiffs’ favor; and that a preliminary injunction would serve the

7 public interest. Id. at 74–75. Accordingly, the Court ordered that, effective as of Thursday,

8 September 24, 2020:

9

The U.S. Census Bureau’s August 3, 2020 Replan’s September 30, 2020 deadline

for the completion of data collection and December 31, 2020 deadline for reporting

10

the tabulation of the total population to the President are stayed pursuant to 5

11

U.S.C. § 705; and Defendants Commerce Secretary Wilbur L. Ross, Jr.; the U.S.

Department of Commerce; the Director of the U.S. Census Bureau Steven

12

Dillingham, and the U.S. Census Bureau are enjoined from implementing these two

13

deadlines.

14 Id. at 78.

15 II. DISCUSSION

16

Below, the Court describes (1) the effect of the Injunction Order; (2) Defendants’ repeated

17 violations of the Injunction Order; and (3) the further relief needed to ensure Defendants’

18 compliance with the Injunction Order. Given the Bureau’s announcement that it will end field

19 operations on Monday, October 5, 2020, time is of the essence.

20

A. The Injunction Order enjoined Defendants from implementing the Replan’s

deadlines and reinstated the COVID-19 Plan’s deadlines.

21 The effect of staying the two Replan deadlines was to reinstate the rule previously in force.

22 See, e.g., Dep’t of Homeland Security v. Regents of the Univ. of California, 140 S. Ct. 1891, 1916

23 & n.7 (2020) (affirming judgment vacating recession and restoring Deferred Action for Childhood

24 Arrivals (“DACA”) program); Organized Village of Kake v. USDA, 795 F.3d 956, 970 (9th Cir.

25

26 1 Before reaching the merits, the Court found that Plaintiffs’ claims are reviewable. See Injunction
27 Order at 21–44. The Court’s Injunction Order is incorporated herein by reference.

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1 2015) (en banc) (“The effect of invalidating an agency rule is to reinstate the rule previously in

2 force.” (quoting Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005))).

3

The rule previously in force was the COVID-19 Plan—specifically, the COVID-19 Plan’s

4 deadline of October 31, 2020 for data collection (self-responses and non-response follow-up

5 (“NRFU”)) and deadline of April 30, 2021 for reporting the tabulation of total population to the

6 President. See, e.g., Injunction Order at 6–9 (discussing COVID-19 Plan); 29–32 (discussing the

7 broad scope of a “rule” under the APA). The injunction’s effect was to require Defendants to cure

8 the legal defects identified in the Injunction Order if Defendants were to insist on implementing

9 the two Replan deadlines. See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165–66

10 (2010) (“If a less drastic remedy (such as partial or complete vacatur of [the agency’s] decision)

11 was sufficient to redress [] injury, no recourse to the additional and extraordinary relief of an

12 injunction was warranted.”); New York v. United States Dep’t of Commerce, 351 F. Supp. 3d 502,

13 676–78, 679 (S.D.N.Y.) (analyzing Monsanto and enjoining Secretary Ross until he cured the legal

14 defects identified in opinion), aff’d in part, rev’d in part and remanded sub nom. Dep’t of

15 Commerce v. New York, 139 S. Ct. 2551 (2019). Until those legal defects are cured, the two

16 COVID-19 Plan deadlines remain in force.

17

B. Defendants violated the Injunction Order by implementing the Replan deadlines.

18

Despite the Injunction Order, Defendants continued to implement the Replan’s September

19 30, 2020 deadline for data collection. For instance, as recently as Monday, September 28, 2020,

20 four days after the Injunction Order, the Census Bureau’s website, which is updated daily, declared

21 that the “2020 Census will conclude data collection on September 30, 2020.” ECF No. 243

22 (attaching screenshot of https://2020census.gov/content/dam/2020census/news/daily-nrfu-

23 rates/nrfu-rates-report-09-28.pdf). Only after Plaintiffs raised this issue with the Court during the

24 September 28, 2020 case management conference did the Census Bureau finally remove the

25 erroneous statement from the Census Bureau’s website.

26

27

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1

As another example, on Saturday, September 26, 2020, a Census Bureau enumerator2

2 forwarded to the Court a text from the Census Bureau’s Regional Director in Dallas, Texas stating:

3

Team,

4

Even though the courts have made a decision; nothing has changed. Our deadline to

count everyone is still September 30, 2020. I will keep everyone as updated as

5

possible. DO NOT SPREAD RUMORS, OR MAKE ASSUMPTIONS. STICK TO

6

THE FACTS! The facts are, we are still moving forward with original plan to finish

by September 30, 2020.

7

ECF No. 214 at 4. Defendants responded to this text by confessing error: the Regional Director in

8

Dallas had in fact sent that text message to staff despite the Injunction Order. ECF No. 219-1

9

(Christy Decl. ¶ 6). According to James T. Christy, the Bureau’s Assistant Director for Field

10

Operations, the information in that text message was “not consistent with [his] understanding of

11

what field offices should be doing.” Id. ¶ 5.

12

The level of misinformation and confusion nationwide is not surprising given that the

13

Census Bureau’s own website continued to tout the September 30, 2020 end of data collection four

14

days after the Injunction Order. The Court has received a slew of emails from enumerators across

15

the country that include supervisor texts with erroneous information and that express concern

16

about the ending of field operations without adequate counts. The following are just a few

17

examples:

18 • On Monday, September 28, 2020, a Census Field Supervisor stated that he “learned of this

19

court’s September 5, 2020 TRO from media reports. As a Census Field Supervisor[,] I have

20

received zero notice from the Census Bureau about the existence of the TRO issued by this

court on September 5, 2020.” ECF No. 222. In response, Assistant Director Christy avers

21

that “[t]he implementation of the Court’s Temporary Restraining Order and the Preliminary

22

Injunction involved actions by Headquarters and Regional Management Staff.” ECF No.

244-1 (Christy Decl. ¶ 14). In the Los Angeles Region where the complainant works, the

23

24

25 2 Enumerators are Census Bureau employees who collect data in the field. Specifically,

26 enumerators conduct follow up with housing units that “did not self-respond to the decennial
census questionnaire.” Injunction Order at 2 (quoting Fontenot Decl. ¶ 48, ECF No. 81-1 and 27 Thompson Decl. ¶ 15, ECF No. 36-2).

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Regional Director did not email Census Field Supervisors about the TRO or Injunction

1

Order. Id. (Christy Decl. ¶ 16).

2

• On Tuesday, September 29, 2020, an individual claiming to be an attorney at the

3

Environmental Protection Agency wrote that he and his wife, who are working as

enumerators, have been told by their census supervisors “that we are wrapping up

4

tomorrow.” The individual attached a screenshot of text messages that show the Bureau’s

5

instructions “not to enter availability past tomorrow.” ECF No. 248.

6

• Again on Tuesday, September 29, 2020, an enumerator wrote that “in the last few days we

have been under strict instructions to close down remaining cases by whatever means

7

necessary.” ECF No. 238.

8 See also, e.g., ECF Nos. 214, 224, 229, 235, 254, 257, 263, 268, 270–73, 276, 285 (other

9 allegations).

10

Perhaps the most egregious violation of the Injunction Order occurred on Monday,

11 September 28, 2020. At 1:58 p.m., two minutes before the Court’s case management conference,

12 the Census Bureau tweeted one sentence: “The Secretary of Commerce has announced a target

13 date of October 5, 2020 to conclude 2020 Census self-response and field data collection

14 operations.” @USCensusBureau,

15 https://twitter.com/uscensusbureau/status/1310685274104569856. Later, the Census Bureau issued

16 a one sentence press release with the exact same sentence. See U.S. Census Bureau, 2020 Census

17 Update (Sept. 28, 2020), https://www.census.gov/newsroom/press-releases/2020/2020-census-

18 update.html.

19

Neither the one sentence tweet nor the one sentence press release provided any explanation

20 or information. The Court thus ordered Defendants to produce the administrative record of this

21 announcement. ECF No. 225. The Court notes that Defendants deny that the October 5 end date

22 for data collection constitutes final agency action. For example, minutes after the October 5 “target

23 date” tweet during the Monday, September 28, 2020 case management conference, Defendants

24 stated that the announcement “doesn’t involve a final agency action. It is a giant endeavor with

25 constantly changing pieces. And our position is the tweet does not have an administrative record.

26 That is our position.” Tr. at 44, ECF No. 237.

27

Similarly, the next day, at the September 29, 2020 case management conference, the Court

28

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1 asked whether Defendants had produced the full record of the October 5 “target date” tweet. Tr. at

2 7, ECF No. 259. Defendants responded in the affirmative, “[s]ubject to not calling it a record

3 because in our view it is not a record.” Id. When asked about the Secretary’s approval of the

4 October 5 “target date,” Defendants stated: “[e]ven to call it a decision is perhaps to endow it with

5 significance that it otherwise does not have.” Id.

6

Even though the Census is a $15.6 billion dollar operation that took nearly a decade to

7 plan, Defendants’ production showed that the Census Bureau developed the October 5 “target

8 date” in the span of four days with the same legal defects as the Replan. For example, Census

9 Bureau Deputy Director Ron Jarmin presented to Secretary Ross two “Proposed Options for

10 Completion of Enumeration”—both of which focused on the December 31, 2020 deadline that the

11 Court had stayed and enjoined Defendants from implementing:

12

Option 1: Conclude field work by October 5, 2020 in order to meet apportionment

delivery date of December 31, 2020. 13

Option 2: Continue field work beyond October 5, 2020 in order to increase state

14

completion rates to 99% and to continue to improve enumeration of lagging sub-

15

state areas, such as tribal areas, rural areas, and hard-to-count communities.

However, this would not allow for delivery of state counts for apportionment by

16

December 31, 2020.

17 ECF No. 233 at 148 (italics added). As Deputy Director Jarmin explained to Director Dillingham

18 and other senior officials, Option 2 “would preclude meeting the 12/31 date, but furthers the goal

19 of a complete and accurate 2020 Census.” Id. at 130 (emphasis added). Option 1, by contrast,

20 would not further that goal.

21

Option 1’s data processing, like the Replan’s data processing, focuses solely on

22 congressional apportionment and leaves redistricting data for another day. See id. at 148

23 (Presentation to Secretary Ross highlighting “streamlined post data collection processing and

24 focusing only on state counts for apportionment”). This bifurcation of data processing is

25 unprecedented. As the Census Bureau found when considering the Replan, “the downstream effect

26 of separating apportionment and redistricting processing activities could not be assessed. This

27 results in additional risk to the delivery of the redistricting products in order to meet the statutory

28

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1 deadline and will have a negative impact on the accuracy of the redistricting data.” E.g., Injunction

2 Order at 55 (quoting DOC_9496 (July 31, 2020 email chain with top Bureau officials)); id. at 53

3 (quoting DOC_8019 (July 24, 2020 Apportionment Data Processing Memo)).

4

In sum, the Census Bureau repeatedly found that “[s]hortening the time period to meet the

5 original statutory deadlines for apportionment and redistricting data will result in a census that has

6 fatal data quality flaws that are unacceptable for a Constitutionally-mandated activity.” Injunction

7 Order at 49 (quoting so-called “Elevator Speech” memo prepared by senior Bureau officials

8 shared with the Government Accountability Office, DOC_8070). In the words of Timothy Olson,

9 the Bureau’s Associate Director for Field Operations, “it is ludicrous to think we can complete

10 100% of the nation’s data collection earlier than 10/31 and any thinking person who would believe

11 we can deliver apportionment by 12/31 has either a mental deficiency or a political motivation.”

12 Injunction Order at 52 (quoting DOC_7738).

13

Still, to pick between the two options (ending data collection by or after October 5, 2020),

14 Secretary Ross asked which would implement the December 31, 2020 deadline. Three short

15 emails on that enjoined topic ensued:

16

• On Monday, September 28, 2020 at 3:52 p.m. Eastern, Secretary Ross wrote to Deputy

Director Jarmin and other senior Bureau officials: “As I prepare to make the decision, I

17

would like to make sure that I understood correctly that your team’s opinion is that if we

18

stay in the field beyond October 5, we would not be able to meet the statutory deadline of

December 31.” ECF No. 256-1 at 2. 19

• At 4:30 p.m. Eastern, Deputy Director Jarmin responded: “Yes sir, we need to finish field

20

work on 10/5 if we are to have enough time (and assuming all goes well) to finish the

21

processing of the resident population, federally affiliated overseas and, if requested,

unlawful aliens in ICE Detention Centers by 12/31. Other PM [Presidential Memorandum]

22

related outputs would be pushed to 1/11/2021.” Id. at 1.

23

• At 5:12 p.m. Eastern—14 minutes after the Bureau’s tweet announcing the Secretary’s

24

decision—Secretary Ross wrote back: “Thanks for the confirmation. Based on the staff

recommendation I am extending the field operation toOctober [sic] 5.” Id.

25

ECF No. 256-1.

26

Thus, Defendants’ production shows three significant things: (1) Defendants set the

27

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1 October 5 date to meet the December 31, 2020 statutory deadline, even though Defendants are

2 “enjoined from implementing” that deadline; (2) the December 31, 2020 statutory deadline

3 intertwined with the President’s July 21, 2020 Memorandum on Excluding Illegal Aliens from the

4 Apportionment Base Following the 2020 Census; and (3) Secretary Ross approved the October 5

5 date 14 minutes after the Census Bureau tweeted the October 5 date.

6

Moreover, Defendants’ claim that October 5 is merely a “target date” is belied by

7 Defendants’ own documents, representations in federal court, and communications with Bureau

8 enumerators:

9

• The “Proposed Options for Completion of Enumeration” presentation to Secretary Ross on

Monday, September 28, 2020 shows that the Bureau will “[c]onclude field work by

10

October 5, 2020 in order to meet apportionment delivery date of December 31, 2020.” ECF

11

No. 233 at 148.

12

• Hours after the tweet on Monday, September 28, 2020, Assistant Director Christy

“instructed staff to send a text message to all Decennial field staff (Enumerators and

13

[Census Field Supervisor]s) that read: ‘A federal district court issued a preliminary

14

injunction on 9/24. The Census Bureau is complying with the Court’s Order which moves

the finishing date for NRFU operations after September 30. The Secretary announced

15

today that NRFU operations will finish on October 5. We will post updated guidance on

16

the content locker.’” ECF No. 234 (Christy Decl. ¶ 14) (emphasis added).

17

• Also on Monday, September 28, 2020, an enumerator received a text message that stated:

“The Secretary announced today that NRFU operations will finish on October 5.” ECF

18

No. 230-1. Several enumerators have alerted the Court that they have received this text

19

message. See, e.g., ECF No. 238 (“I awoke this morning to an internal message from the

Bureau that Secretary Ross has ordered that the NRFU (non response follow up) cases will

20

be terminating on October 5th.”); ECF No. 231 (text message dated September 29, 2020

21

that “NRFU operations will finish on October 5”). Assistant Director Christy confirms that

he ordered this message sent to field staff. ECF No. 234 (Christy Decl. ¶ 14).

22 • The Government has represented to a three-judge court of the United States District Court

23

for the District of Columbia that field operations “are set to conclude” on October 5.

24

Rough Tr. of Oral Argument at 8, Common Cause v. Trump, No. 20-cv-02023-CRC-GGK-

DLF (D.D.C. Sept. 29, 2020).

25 If that were not enough, Defendants’ clear, fast, and concerted advertising of the October 5

26 date stands in stark contrast with Defendants’ chaotic, dilatory, and incomplete compliance with

27

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1 the Injunction Order. As recounted above, Defendants have violated the Injunction Order in

2 several ways. A flood of emails to the Court and the parties suggests ongoing non-compliance in

3 the field.

4

Even today, in response to Plaintiffs’ second TRO motion, Associate Director Fontenot

5 again failed to acknowledge the COVID-19 Plan dates that the Injunction Order reinstated. See

6 ECF No. 284-1 (comparing December 2018 Operational Plan Version 4.0, the Replan, and

7 “clos[ing] field data collection on October 5, 2020 and submit[ting] apportionment counts by the

8 statutory deadline, December 31, 2020”); ECF No. 81-1 ¶ 69 (comparing dates under the

9 December 2018 Operational Plan Version 4.0 and the Replan). At no point have Defendants

10 unambiguously communicated to all field staff what the Injunction Order requires: immediate

11 reinstatement of the COVID-19 Plan’s deadlines of October 31, 2020 for data collection and April

12 30, 2021 for reporting the tabulation of total population to the President.

13

C. The Ninth Circuit has denied Defendants’ request to stay the Injunction Order.

14

On September 30, 2020, the Court of Appeals for the Ninth Circuit denied Defendants’

15 motion for an administrative stay of the Injunction Order. ECF No. 277. The Ninth Circuit held in

16 its published opinion that, among other things, this Court’s “September 5 temporary restraining

17 order and September 24 preliminary injunction preserve the status quo because they maintain the

18 Bureau’s data-collection apparatus.” Id. at 5.

19

The Ninth Circuit also held that:

20

Given the extraordinary importance of the census, it is imperative that the Bureau

conduct the census in a manner that is most likely to produce a workable report in

21

which the public can have confidence. The Bureau must account for its competing

22

constitutional and statutory obligation to produce a fair and accurate census report.

The hasty and unexplained changes to the Bureau’s operations contained in the

23

Replan, created in just 4 to 5 days, risks undermining the Bureau’s mission.

24 Id.at 7–8. Despite the Ninth Circuit’s ruling, the Bureau is still “conclud[ing] field work by

25 October 5, 2020 in order to meet [the] apportionment delivery date of December 31, 2020.” ECF

26 No. 233 at 148.

27

Like the Replan, the decision to end data collection on October 5 is a hasty and

28

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1 unexplained change to the Bureau’s operations that was created in 4 days. The decision also risks

2 further undermining trust in the Bureau and its partners, sowing more confusion, and depressing

3 Census participation. Consider, for instance, the whiplash inflicted on the Bureau’s partners by the

4 Bureau’s rapid changes in deadlines. The Bureau recognized its “extensive partnerships” with

5 organizations such as Plaintiff National Urban League. Injunction Order at 72 (quoting Fontenot

6 Decl. ¶¶ 28, 41). Before the Replan’s adoption, those partners advertised the COVID-19 Plan’s

7 October 31, 2020 data collection deadline for four months. After the Replan’s adoption, partners

8 diverted significant resources to mitigate the widely advertised October 31 deadline:

9

• The City of Salinas already promoted the October 31 deadline “on social media and in

thousands of paper flyers.” Gurmilan Decl. ¶¶ 11–12. Thus, “some residents who received

10

the City’s messaging will fail to respond before the R[eplan] deadline because the City has

11

limited remaining resources to correct what is now misinformation.” Id. ¶ 12. Moreover,

the City “is still advertising for census enumerator job listings because traditional applicant

12

groups like senior citizens have concerns about the risk of catching COVID-19. With fewer

13

enumerators working, every extra day the City has to use [] existing staff to support the

count . . . .” Id. ¶ 13. 14

• Harris County “participated in over 150 events,” including “food distribution events,”

15

during which it “announced the October 31, 2020 deadline for the 2020 Census.” Briggs

16

Decl. ¶ 12. Consequently, “Harris County will be forced to expend additional resources to

clear confusion about the last date for self-response during the Census, to ensure that

17

people who have not responded are counted in time.” Id. ¶ 16.

18

• The Black Alliance for Just Immigration already “publicized the October 31 deadline for

19

self-response during digital events between April and July” and is diverting resources to

publicize the new September 30 deadline. Gyamfi Decl. ¶¶ 13–14.

20 • The League of Women Voters “has already had to spend time and financial resources”

21

developing and distributing public education materials on the Replan timeline. Stewart

22

Decl. ¶ 12.

• The National Urban League has similarly had “to divert resources from other programs and

23

projects” to “alleviate the confusion” about the change in deadlines. Green Decl. ¶ 15.

24 See, e.g., id. at 27–28, 37. Yet on Monday, September 28, 2020, the Bureau announced it will end

25 field operations by October 5, 2020 in order to meet the December 31, 2020 deadline. This

26 announcement gives the Bureau’s partners just one week to advertise yet another accelerated

27 deadline.

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1

Moreover, Defendants’ sole witness in this case, Associate Director Fontenot, swore under

2 penalty of perjury that the Census Bureau could not meet the December 31, 2020 statutory

3 deadline if data collection were to extend past September 30, 2020. Specifically, Associate

4 Director Fontenot declared under oath that:

5

We wish to be crystal clear that if the Court were to extend the data collection

period past September 30, 2020, the Census Bureau would be unable to meet its

6

statutory deadlines to produce apportionment counts prior to December 31, 2020

7

and redistricting data prior to April 1, 2021. The post processing deadlines for the

Replan Schedule are tight, and extending the data collection deadline would, of

8

necessity, cause the Census Bureau to fail to be able to process the response

9

data in time to meet its statutory obligations. We have already compressed the

post processing schedule from 5 months to only 3 months. We previously planned

10

and tested our post processing systems assuming that we would follow a traditional,

11

sequential processing sequence, and the 3-month schedule necessary for the Replan

Schedule has already increased risk. We simply cannot shorten post processing

12

beyond the already shortened 3-month period.

13 Letter Order, La Union Del Pueblo Entero, et al. v. Trump, et al., 19-cv-02710-PX-PAH-ELH (D.

14 Md. Oct. 1, 2020) (three-judge court), ECF No. 125 (emphasis in original) (quoting ECF No. 117-

15 1 ¶ 107). As a result of this blatant contradiction, the three-judge court in the District of Maryland

16 ordered Defendants to explain how the Census Bureau would “accomplish an accurate final

17 enumeration given that the post-data processing phase has been shortened further.” Id. at 2.

18

D. The Court clarifies the Injunction Order and orders tailored relief to ensure

19

compliance.

20

Defendants’ dissemination of erroneous information; lurching from one hasty, unexplained

21 plan to the next; and unlawful sacrifices of completeness and accuracy of the 2020 Census are

22 upending the status quo, violating the Injunction Order, and undermining the credibility of the

23 Census Bureau and the 2020 Census. This must stop.

24

Time is of the essence. Every day that passes, the Bureau winds down field operations in

25 order to end data collection by Monday, October 5, 2020 and start data processing. Once field

26 operations are terminated, they are difficult to resume; and once data processing begins, no more

27 data can be added for processing. See ECF No. 81-1 (Fontenot Decl. at ¶¶ 67–68) (“[P]ost data

28

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1 collection activities are like building a house . . . . There is an order of steps that must be

2 maintained. . . . [T]here is no opportunity to begin the post data collection processing until data

3 collection operations close everywhere.”).

4

As Associate Director Fontenot stated on September 5, 2020 in opposition to the motion

5 for stay and preliminary injunction, the sooner the Court enjoins Defendants, the fewer field staff

6 Defendants would terminate and not be able to rehire:

7

Lack of field staff would be a barrier to reverting to the COVID Schedule were the

Court to rule later in September. The Census Bureau begins terminating staff as

8

operations wind down, even prior to closeout. Based on progress to date, as is

9

standard in prior censuses, we have already begun terminating some of our

temporary field staff in areas that have completed their work. It is difficult to bring

10

back field staff once we have terminated their employment. Were the Court to

11

enjoin us tomorrow we would be able to keep more staff on board than were the

Court to enjoin us on September 29, at which point we will have terminated many

12

more employees.

13 Id. (Fontenot Decl. at ¶ 98).

14

The Court thus exercises its authority to enforce compliance with its orders. See, e.g., Int’l

15 Ladies’ Garment Workers’ Union v. Donovan, 733 F.2d 920, 922 (D.C. Cir. 1984) (per curiam)

16 (holding that “the District Court certainly was empowered to protect” “the interest of the judicial

17 branch in seeing that an unambiguous mandate is not blatantly disregarded by parties to a court

18 proceeding”).3

19

Pursuant to that authority, the Court clarifies4 that until Defendants cure all the legal

20

21 3 Defendants argue that the Court lacks jurisdiction to “radically modify the preliminary 22 injunction” now that the Injunction Order is on appeal. ECF No. 284 at 3. Defendants’ argument
misses the point. Far from “radically modifying” the Injunction Order, the Court simply enforces 23 the Injunction Order to halt Defendants’ repeated violations. In any event, even the case that 24 Defendants cite holds that a district court may modify an injunction “to maintain the status quo
among the parties.” Id. (quoting Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 25 F.3d 867, 880 (9th Cir. 2000)). Defendants are upending the status quo here. 26 4 The Court notes that broad swaths of the public and the judiciary understood the Injunction 27 Order. For instance, during oral argument in Common Cause v. Trump, United States Circuit Judge

28

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United States District Court Northern District of California

1 defects identified in the Injunction Order, Defendants are enjoined from “implementing the

2 September 30, 2020 deadline for the completion of data collection and December 31, 2020

3 deadline for reporting the tabulation of the total population to the President.” Injunction Order at

4 78. In the meantime, the Court’s stay pursuant to 5 U.S.C. § 705 “postpone[s] the effective date

5 of” those two Replan deadlines and so reinstates the rule previously in force: the COVID-19 Plan

6 deadlines of October 31, 2020 for the completion of data collection and April 30, 2021 for

7 reporting the tabulation of total population to the President.

8

Moreover, to preserve the status quo, the Court orders some of the relief requested in

9 Plaintiffs’ motion to compel and second TRO motion. On October 2, 2020, Defendants shall issue

10 a text message to all the Census Bureau’s employees notifying them of the Court’s Injunction

11 Order, stating that the October 5, 2020 “target date” is not operative, and stating that data

12 collection operations will continue through October 31, 2020. On October 2, 2020, after the text

13 message is sent, Defendants shall file a copy of the text message with the Court. In addition, by

14 October 5, 2020 at 2 p.m. Pacific Time, Census Bureau Director Steven Dillingham shall file a

15 declaration under penalty of perjury that unequivocally confirms Defendants’ ongoing compliance

16 with the Injunction Order and details the steps Defendants have taken to prevent future violations

17 of the Injunction Order.

18

The Court will subject Defendants to sanctions or contempt proceedings if Defendants

19 violate the Injunction Order again.

20

The Court sets a case management conference on Tuesday, October 6, 2020 at 2 p.m.

21

22 Gregory G. Katsas of the Court of Appeals for the D.C. Circuit stated that census operations
23 “would have stopped September 30, and [Judge Koh] extended it until the end of October.” Judge

24 Katsas further stated, “[a]gain, maybe I misread the Koh order, but I thought that in terms of
deadlines, it extended the transmittal date from December 31st to April 1st, and that’s four months 25 [sic; in fact a four-month extension but to April 30, 2021].” Rough Tr. of Oral Argument at 9, 15;

26 see also, e.g., Associated Press, Federal Judge Says 2020 Census Must Continue for Another
Month, Wall Street Journal (Sept. 25, 2020), https://www.wsj.com/articles/federal-judge-says27 2020-census-must-continue-for-another-month-11601034711.

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United States District Court Northern District of California

1 Pacific Time and vacates the Friday, October 2, 2020 hearing on the motion to compel.

2 III. CONCLUSION

3

For the foregoing reasons, the Court:

4

• CLARIFIES the scope of the Court’s Injunction Order;

5

• ORDERS Defendants 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

6

“target date” is not operative, and stating that data collection operations will continue

7

through October 31, 2020. On October 2, 2020, after the text message is sent, Defendants

shall file a copy of the text message with the Court;

8

• ORDERS Census Bureau Director Steven Dillingham to file, by Monday, October 5, 2020

9

at 2 p.m. Pacific Time, a declaration under penalty of perjury that unequivocally confirms

10

Defendants’ ongoing compliance with the Injunction Order and details the steps

Defendants have taken to prevent future violations of the Injunction Order; and

11 • DENIES AS MOOT Plaintiffs’ motion to compel and second TRO motion.

12

IT IS SO ORDERED. 13

14 Dated: October 1, 2020
15
16
17

______________________________________
LUCY H. KOH United States District Judge

18

19

20

21

22

23

24

25

26

27

28

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 Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: 45, Page 1 of 21

FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
OCT 7 2020
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

NATIONAL URBAN LEAGUE; LEAGUE OF WOMEN VOTERS; BLACK ALLIANCE FOR JUST IMMIGRATION; HARRIS COUNTY, Texas; KING COUNTY, Washington; CITY OF LOS ANGELES, California; CITY OF SALINAS, California; CITY OF SAN JOSE, California; RODNEY ELLIS; ADRIAN GARCIA; NAVAJO NATION; NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; CITY OF CHICAGO, Illinois; COUNTY OF LOS ANGELES, California; GILA RIVER INDIAN COMMUNITY,

No. 20-16868
D.C. No. 5:20-cv-05799-LHK Northern District of California, San Jose
ORDER

Plaintiffs-Appellees,

v.

WILBUR L. ROSS, in his official capacity as Secretary of Commerce; UNITED STATES DEPARTMENT OF COMMERCE; STEVEN DILLINGHAM, in his official capacity as Director of the U.S. Census Bureau; UNITED STATES CENSUS BUREAU,

Defendants-Appellants,

and

STATE OF LOUISIANA; STATE OF MISSISSIPPI,

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Intervenor-Defendants. Before: GRABER, W. FLETCHER, and BERZON, Circuit Judges.
Just as the 2020 decennial census was getting underway, the COVID-19 pandemic hit, freezing operations and disrupting a process that had taken nearly a decade to plan. The Census Bureau (“Bureau”) instituted a revised schedule on April 13 (“COVID-19 Plan”), extending its operations to account for this delay. But on August 3, 2020, the Secretary of Commerce (“the Secretary”) announced a new schedule (“the Replan”), under which the Bureau greatly compressed, as compared both to the original schedule and to the COVID-19 Plan, the time allocated to various stages for completing the census. The district court issued a preliminary injunction preventing the Bureau from implementing its proposed Replan schedule for conducting the census. Addressing the government’s emergency motion for a stay of the preliminary injunction pending appeal, we conclude that the government is unlikely to succeed on the merits of the appeal as to the Plaintiffs’ Administrative Procedure Act (“APA”) claims. To the extent that the district court enjoined the Replan and the September 30, 2020, deadline for data collection, the government has not met its burden in showing irreparable harm, and the irreparable harm to the Plaintiffs and the resulting balance of equities justify the denial of a stay. To the extent that the district court enjoined the
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government from attempting to meet the December 31, 2020, statutory deadline for completing tabulations by state, the government has, at this juncture, met its burden in seeking a stay pending appeal. We therefore deny the government’s motion for a stay in part and grant it in part.
I. The “Bureau’s mandate in conducting the decennial census is to count everyone living in the United States” and its territories, as Bureau Associate Director Fontenot described in his September 5 declaration. The Bureau spent most of the last decade planning the 15.6 billion dollar 2020 decennial census, an undertaking of extreme complexity. The four critical interlocking steps of the 2020 census are: (1) soliciting selfresponse by households, electronically or by mail; (2) non-response follow-up (“NRFU”); (3) data processing; and (4) submission by the Secretary of the two statutorily required reports based on the census data. 13 U.S.C. § 141(b)–(c). The Secretary is required to tabulate the total population by state for congressional apportionment, a task that “shall be completed within 9 months after the census date,” of April 1. Id. § 141(b). The Secretary also must tabulate population data used by states for districting, which “shall be completed by him as expeditiously as possible after the decennial census date” and “shall, in any event, be completed,
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reported, and transmitted to each respective State within one year after the decennial census date.” Id. § 141(c).
Just six days after the self-response period began, in March 2020, COVID19 stopped the entire census process in its tracks. Following Office of Management and Budget (“OMB”) guidance, the Bureau completely suspended decennial field operations for 47 days between March 18 and May 4, and restarted operations in phases over the next two weeks. During that freeze, the Bureau created a new schedule to accommodate the COVID-19 delays.
On April 13, 2020, the Bureau adopted the COVID-19 Plan, extending the total time for the census from 54 weeks to 71.5 weeks. This extension restored to the schedule the 47 days lost to the complete pandemic shutdown. The Plan also provided additional time for field operations to restart and conclude by October 31, 2020. The Bureau reasoned that the pandemic would make hiring and training the huge temporary staff needed more difficult. Additional time would also be required for the NRFU process, both because of relocations caused by the pandemic and because of the difficulty of in-person canvassing when respondents would be reluctant to interact with enumerators for fear of contracting the illness. The extension also built in more time for data processing, needed to address the complexities of population shifts caused by COVID-19.
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The Bureau requested that Congress accordingly extend the statutory deadlines by 120 days. Government officials, from the President to Bureau officers, strenuously maintained that the current statutory deadlines were impossible to meet after the delays and changes caused by the COVID-19 suspension and its aftermath. The House of Representatives passed a bill extending the statutory deadlines for reporting; the Senate Small Business and Entrepreneurship Committee held a hearing on the bill on July 23, 2020. Soon thereafter, the Administration switched gears, requesting, instead of an extension, additional funding to complete a “timely” census. Census Bureau Director Dillingham, when asked about the change at a House hearing, no longer supported an extension.
On July 31, 2020, the Bureau removed the October 31, 2020, deadline for data collection field operations from its website. Over the next four days, Bureau staff and officials prepared a presentation for Secretary Wilbur Ross on the feasibility of moving the end of data collection to September 30, 2020 and completing the data processing necessary for reapportionment by December 31. Despite the Bureau’s months-long position that meeting the statutory deadlines was impossible, Secretary Ross on August 3, 2020, approved the new Replan schedule, which ended field operations by September 30 and the initial data processing stage by December 31, 2020. This plan condensed the total time to
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conduct the census to 49.5 weeks, 4.5 weeks less than the pre-COVID schedule of 54 weeks and 22 weeks less than the extended COVID-19 schedule adopted to account for past and future pandemic-related delays. The Secretary announced the Replan in a two-page press release, which contained no explanation concerning why the previous projected need to extend the deadlines no longer obtained.
A coalition of plaintiffs, including advocacy organizations, cities, counties, and tribal groups (collectively, “Plaintiffs”), filed suit to enjoin the Replan, alleging violations of both the APA and the Enumeration Clause of the Constitution. The district court granted, and then extended, a temporary restraining order. The government argued that “there is no administrative record in this case because there is no APA action.” But both sides agreed that discovery, in the short term, could be limited to non-privileged documents provided to the Department of Commerce Inspector General for a report on the Replan.
Based on that record, the district court issued a preliminary injunction. The court held that Plaintiffs had a high likelihood of success on the merits of their APA claim and so did not reach the question whether the Replan directly violated the Enumeration Clause. The court’s order stayed the “Replan’s 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 “enjoined [the defendants] from implementing these two deadlines.”
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After the district court entered its injunction, the government continued to publicize the September 30, 2020, data collection deadline on its website. Enumerators across the country—the individuals hired to conduct the census by contacting inhabitants—reported being told that operations would end on September 30. On September 28, 2020, the Bureau announced, on Twitter and in a press release, that it would now end data collection on October 5, 2020, which it justified in an internal document as the date adopted “in order to meet apportionment delivery date of December 31, 2020.” The district court subsequently issued an order clarifying the scope of the injunction, explaining that the injunction “‘postpone[s] the effective date of’ th[e] two Replan deadlines and so reinstates the administrative rule previously in force: the COVID-19 Plan deadlines of October 31, 2020 for the completion of data collection and April 30, 2021 for reporting the tabulation of total population to the President.” The district court determined that the October 5 deadline violated the injunction, also noting that it suffered “the same legal defects as the Replan.” The court required the Census Bureau to notify employees that “data collection operations will continue through October 31, 2020.” The Bureau recently complied with that directive.
The government appealed and requested both an administrative stay and a stay of the preliminary injunction. On September 30, this court denied the administrative stay. National Urban League v. Ross, - F.3d -, 2020 WL 5815054
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(9th Cir. Sept. 30, 2020). The question now before us is whether to grant a stay pending appeal to a merits panel.
II. “A party requesting a stay pending appeal ‘bears the burden of showing that the circumstances justify an exercise of [judicial] discretion.’” Doe #1 v. Trump, 957 F.3d 1050, 1058 (9th Cir. 2020) (quoting Nken v. Holder, 556 U.S. 418, 433– 34 (2009)). In determining whether to grant the government’s motion for a stay, “we apply the familiar standard set forth by the Supreme Court in Nken, namely: (1) whether the Government has made a strong showing of the likelihood of success on the merits; (2) whether the appellants will be irreparably injured absent a stay; (3) whether a stay will substantially injure other parties; and (4) where the public interest lies.” Id. (quoting Nken, 556 U.S. at 426). “The first two factors . . . are the most critical.” Id. (quoting Nken, 556 U.S. at 434). “We review the scope of the district court’s preliminary injunction for abuse of discretion.” Id. (citing California v. Azar, 911 F.3d 558, 568 (9th Cir. 2018), cert. denied sub nom. Little Sisters of the Poor Jeanne Jugan Residence v. California, 139 S. Ct. 2716 (2019)).
A. The government’s primary argument as to why it is likely to succeed on the merits of its appeal is that the district court erred in determining that the Replan was a “final agency action” subject to APA review. The government has not made
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the requisite strong showing that it is likely to prevail on this point. To maintain a cause of action under the APA, a plaintiff must challenge
“agency action” that is “final.” Wild Fish Conservancy v. Jewell, 730 F.3d 791, 800 (9th Cir. 2013) (citing Norton v. S. Utah Wilderness All., 542 U.S. 55, 61–62 (2004)). To be reviewable as an “agency action,” the challenged act of the agency must be “circumscribed” and “discrete.” Norton, 542 U.S. at 62–63. The government maintains that the Replan fails this test, as it “is a collection of individual judgments by the Census Bureau, all subject to constant revision.” The government does not have a strong likelihood on this record of supporting that characterization.
The Replan was characterized in the short August 3 Press Release as a change in census operations and in the deadlines for completing those operations “to accelerate the completion of data collection and apportionment counts by our statutory deadline of December 31, 2020.” Unlike in NAACP v. Bureau of the Census, 945 F.3d 183 (4th Cir. 2019), Plaintiffs challenge the decisionmaking process that went into the decision in the Replan to greatly accelerate the census process over the COVID-19 Plan, not specific “design choices” within that plan. Id. at 188. And unlike in Lujan v. National Wildlife Federation, 497 U.S. 871 (1990), which held that there was no discrete agency action in an “APA challenge to ‘each of the 1250 or so individual classification terminations and withdrawal
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revocations’ effected under the land withdrawal review program,” id. at 881, a term that was “not derived from any authoritative text,” id. at 890, the district court here found that the Bureau treated the Replan as a single proposal, presented “to the Secretary in a single slide deck” and announced in a single press release.
As to the other requisite for APA review, finality, for an agency action to be “final,” “the action must mark the ‘consummation’ of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature . . . . [and] the action must be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’ Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citations omitted). Here, the new deadlines were announced publicly, the Replan was implemented by the Bureau, and when the district court first ruled, data collection was set to cease on September 30. The district court concluded that significant legal consequences will flow from the timing and deadlines of the census, including consequences to political representation, federal and state funding, and degradation of census data, due to likely inaccuracies in the reported totals of hard-to-count populations. These effects echo the consequences faced by the Plaintiffs in Department of Commerce v. New York, 139 S. Ct. 2551 (2019), which also analyzed a final agency action concerning census decisionmaking under the APA. Id. at 2565.
In sum, the government has not made a strong showing that it is likely to
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prevail on appeal on its primary challenge to the district court’s merits ruling. B.
The government also argues that, if the Replan is reviewable, the district court erred in concluding that its adoption likely violated the APA, so the government is likely to succeed on the merits of this appeal. The government’s barebones, one-note argument on this point does not meet the stringent Nken “strong showing” standard. The district court laid out in great detail five grounds on which to find Plaintiffs were likely to succeed on their contention that the government did not meet the APA’s standards for reasoned decisionmaking.
APA review “is limited to ‘the grounds that the agency invoked when it took the action.’” Dep’t of Homeland Sec. v. Regents of the Univ. of Ca., 140 S. Ct. 1891, 1907 (2020) (quoting Michigan v. EPA, 576 U.S. 743, 758 (2015)). Agency action is arbitrary and capricious where the agency “entirely failed to consider an important aspect of the problem,” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), an analysis which “turns on what [the] relevant substantive statute makes ‘important,’” Or. Nat’l Res. Council v. Thomas, 92 F.3d 792, 798 (9th Cir. 1996). Here, the Enumeration Clause demonstrates a “strong constitutional interest in accuracy” in the census, Utah v. Evans, 536 U.S. 452, 478 (2002), and “[t]he [Census] Act imposes ‘a duty to conduct a census that is accurate and that fairly accounts for the crucial
11

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representational rights that depend on the census and the apportionment,’” Dep’t of
Commerce, 139 S. Ct. at 2568–69 (quoting Franklin v. Massachusetts, 505 U.S.
778, 819–20 (1992) (Stevens, J., concurring in part and concurring in the
judgment)). Both the Constitution and the relevant statutes governing the Bureau
thus require that “the agency must examine the relevant data and articulate a
satisfactory explanation for its action” taking into account the strong interest in
accuracy. State Farm, 463 U.S. at 43. The government’s arguments for a stay
largely decline to discuss this requirement, instead focusing on the purported need
to meet the December deadline at all costs.1
The record of the agency’s decisionmaking during the few days that the
1 Title 13 U.S.C. § 141(b) requires 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.” Id. (emphasis added). The census date is specified as “the first day of April” every tenth year. Id. § 141(a). The parties have both understood § 141(b) to require tabulation and reporting by December 31, 2020, so we therefore assume that interpretation here. We note, however, that the statute contemplates a time frame in which to complete the census, rather than a specified date, as it does in § 141(a). The subsequent requirement in 2 U.S.C. §2a(a) for the President to transmit apportionment data to Congress also gives a contingent deadline of “the first day, or within one week thereafter, of the first regular session” of Congress. We leave open the question whether, given the wording of the statutes and general considerations regarding the interpretation of statutory timelines, the agency should view this deadline as inflexible or, instead, as subject to adjustment, akin to equitable tolling or force majeure concepts, if they cannot be met because of extraordinary circumstances. Perhaps, as President Trump publicly stated in April, “I don’t know that you even have to ask [Congress for an extension]. This is called an act of God. This is called a situation that has to be.”
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Replan was being developed does not show any response, let alone a “satisfactory explanation,” to the numerous statements by Bureau officials that accelerating the schedule adopted in the COVID-19 Plan would jeopardize the accuracy of the census. Most importantly, the August 3 slide deck presented to the Secretary giving “Operational and Processing Options to meet September 30, 2020” warns that “[a]ccelerating the [field operations] schedule by 30 days introduces significant risk to the accuracy of the census data.” This accuracy concern went unaddressed—beyond an unsupported attestation that the count would be accurate—in the barebones press release announcing the Replan or elsewhere in the administrative record.
The district court also concluded that there was a striking lack of evidence in the record showing that the Bureau had considered the extensive reliance interest on the COVID-19 Plan. That conclusion is amply supported. “When an agency changes course, as [the Bureau] did here, it must ‘be cognizant that longstanding policies may have “engendered serious reliance interests that must be taken into account.”’” Dep’t of Homeland Sec., 140 S. Ct. 1891 at 1913 (quoting Encino Motorcars, LLC v. Navarro, 136 S.Ct. 2117, 2126 (2016)). “It would be arbitrary and capricious to ignore such matters.” Id. (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).
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The August 3 Press Release and the Replan slide deck do not consider reliance interests at all. The Bureau depends heavily on its own advertising and partnerships with private organizations to drive participation in the census, particularly in hard-to-reach communities. Toward this end, targeted public advertising was increased under the COVID-19 Plan. Nowhere do the brief Replan materials consider that the Bureau and its partners had been relying on and disseminating information based on the October 31 deadline for data collection. Nor did the government address the reliance interest of the public in following the October 31 deadline for self-reporting and for responding to enumerators’ contact efforts, and therefore not filling out a census or responding to a census worker before September 30.2 These basic gaps in the government’s attention to the pertinent factors, along with the other considerations surveyed by the district court, are sufficient to demonstrate that the government has not made a strong showing of likelihood of success on appeal as to the APA claim.
The government does not really argue to the contrary regarding the various ways in which it failed its APA obligation to engage in reasoned decisionmaking. Its only argument that it has met the APA’s requirements is its mantra that the Replan was necessary to meet the statutory deadline. But the worthy aspiration to
2 Title 13 U.S.C. § 221 imposes a fine of “not more than $100” to anyone who “refuses or willfully neglects” to answer any census questions when requested by an authorized census officer.
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meet that deadline does not excuse the failure to address at all other relevant considerations, such as accuracy and reliance. It also does not excuse the failure to consider whether, given the timeline of congressional action laid out by the district court, the statutory deadline could have been moved; whether the deadline might be retroactively adjusted, as was done in several earlier censuses; or whether the deadline might be equitably tolled due to the force majeure of the pandemic, particularly given the evidence before the Bureau at the time of both the COVID19 Plan and the Replan decisions suggesting that the deadline was already unlikely to be met without sacrificing the accuracy of the count.
As the APA requires that agencies engage in “reasoned decisionmaking,” State Farm, 463 U.S. at 52, the agency had an obligation to consider its other obligations and any alternatives, even if it could properly end up rejecting them. The record before us shows little evidence of that reasoning, nor does it show that “the Secretary examined ‘the relevant data’ and articulated ‘a satisfactory explanation’ for his decision, ‘including a rational connection between the facts found and the choice made.’” Dep’t of Commerce, 139 S. Ct. at 2569 (quoting State Farm, 463 U.S. at 43). The government therefore has not made a strong showing of likely success on appeal as to the merits of the APA claim.
C. With respect to the September 30, 2020, data collection deadline in the
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Replan, the government has also not met its burden in making a strong showing either that the Plaintiffs will not succeed in establishing irreparable injury under Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008), or that the government will suffer irreparable harm if a stay is issued under Nken.
The government argues that it will suffer irreparable harm if a stay is not issued, as it represents that it will be unable to meet the statutory deadline of December 31 if it cannot end counting by October 5. A longer data collection period does leave less time for processing. But the President, Department of Commerce officials, Bureau officials, and outside analysis from the Office of the Inspector General, the Census Scientific Advisory Committee, and the Government Accountability Office all stated unequivocally, some before and some after the adoption of the Replan, that the Bureau would be unable to meet that deadline under any conditions.
The government’s current representation that it will be able to meet the statutory deadline if it ends collection by October 5 is a very recent development, at odds with Associate Director Fontenot’s prior September 22 declaration, in which he stated: “we wish to be crystal clear that if the Court were to extend the data collection period past September 30, 2020, the Census Bureau’s ability to meet its statutory deadlines to produce apportionment counts prior to December 31, 2020 and redistricting data prior to April 1, 2021 would be seriously
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jeopardized.” The government’s current justification—“that the enumeration is approaching a 99% target in nearly every state”3—speaks to accuracy of the count, but does not explain why the shortening of processing time below three months is consistent with Director Fontenot’s prior declaration. So while there is a risk of irreparable harm to the government in denying a stay, there is also a great likelihood, given the wealth of evidence in the record, that the harm is already likely to occur.
In any event, as the district court determined in applying the Winter factors, the balance of hardships decidedly favors the Plaintiffs, who make a strong showing that they will suffer irreparable harm if a stay of the injunction is granted. Nken, 556 U.S. at 426. This court, in denying an administrative stay, explained that staying the injunction would “risk[] rendering the plaintiff’s challenge to the Replan effectively moot.” National Urban League, 2020 WL 5815054, at *2. “Thousands of census workers currently performing field work will be terminated, and restarting these field operations and data-collection efforts, which took years of planning and hiring efforts to put in place, would be difficult if not impossible . . . .” Id. The harms to apportionment and distribution of federal and
3 To the extent that the current enumeration targets are relevant, the government noted at Oral Argument that it has not hit 99% enumeration in 7 states and is only at 97% in three states, below its own target throughout the planning and implementation of the 2020 census, including in the Replan slide deck.
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state funding that the Plaintiffs allege from the Replan would be impossible to remedy until the next census in 2030. See, e.g., Dep’t of Commerce, 139 S. Ct. at 2565 (discussing similar harms).
Finally, the September 30, 2020 data collection deadline has no direct statutory hook. Its connection to the government’s only strongly articulated irreparable injury—meeting at all costs the December 31 date the government understands to be statutorily required and inflexible, but see supra note 1—is based on ever-changing projections about the connection between the data collection and data processing stages. According to the government, its own predictions about the art of the possible at the data collection stage proved wrong. We are not told why the predictions as to what could be accomplished at the data processing stage—or whether the deadline could be moved if necessary—are more accurate.
The government has therefore failed to meet its burden to justify a stay pending appeal as to the district court’s injunction of the September 30, 2020 data collection deadline.
D. To the extent that the district court did not merely stay the Replan but required the government to continue to ignore the December 31 timeline for completing the tabulation, the Nken factors do justify a stay pending appeal. “The effect of invalidating an agency rule is to reinstate the rule previously
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in force.” Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 970 (9th Cir. 2015) (en banc) (quoting Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir. 2005)). The district court was therefore correct that the effect of enjoining the Replan deadlines was to reinstate the COVID-19 plan. Under the COVID-19 plan, data collection continues until October 31, 2020, and processing could continue until April 30, 2021, under the assumption that the deadline for reporting to the President could be tolled or extended if necessary.
But the district court’s order went further: it “enjoined [the defendants] from implementing” both the September 30, 2020 internal agency deadline and the statutory December 31, 2020 deadline. In other words, once data collection ends on October 31, 2020, the order precludes the government from meeting the December 31 date even if it can do so, or if it develops another way to meet its statutory obligation. The plaintiffs have not at this juncture made the same showing of irreparable harm as to precluding any consideration of the statutory deadline that they have made as to the nonstatutory data collection deadline. So their likelihood of success on appeal on this point is—on the current record—weaker.
Moreover, the December 31, 2020, deadline is nearly three months away. As we have already stated, predictions as to whether it can still be attained are speculative and unstable. And any harm from governmental attempts to meet the December 31 date are likely less irreparable than the injury from displacing the
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October 31 data collection endpoint. If the Bureau meets the December 31 date by using procedures that violate any accuracy requirement embedded in the Enumeration Clause, or proceeds in an arbitrary and capricious manner, existing data can be reprocessed more easily than data collection can be restarted. Moreover, given the remaining time, leaving the December 31, 2020 date in place as an aspiration will have no immediate impact. Perhaps the Bureau will find that with an extraordinary effort or changes in processing capacity, it is able to meet its deadline. Or the Department of Commerce may seek and receive a deadline extension from Congress. Or perhaps the Bureau will miss the deadline, as statement after statement by everyone from agency officials to the President has stated it would, due to the extraordinary circumstances of the pandemic. Missing the deadline would likely not invalidate the tabulation of the total population reported to the President, see, e.g., Barnhart v. Peabody Coal Co., 537 U.S. 149, 157, 171–72 (2003), and may well be approved by Congress after-the-fact, as has happened in the past, see, e.g., Act of Sept. 1, 1841, ch. 15, § 1, 5 Stat. 452, 452 (1841).
Finally, and of great import to our balancing of the equities, and consideration of the public interest, even if—as both parties aver—data processing cannot be completed by December 31 as a practical matter, that does not mean that missing the putative statutory deadline should be required by a court. Serious
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separation of powers concerns arise when a court seeks to override a congressional directive to an Executive Branch agency. See, e.g., Wisconsin v. City of New York, 517 U.S. 1, 17 (1996) (recognizing Congress’s broad constitutional authority over the census). There is therefore a strong argument for judicial restraint while the ability to meet or extend the deadline, and any resulting injury, is still speculative.
To the extent that the district court enjoined the Defendants from attempting to meet the December 31 date, that injunction is stayed pending appeal.
Emergency Motion for a Stay DENIED IN PART and GRANTED IN PART.
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 Case: 20-16868, 09/30/2020, ID: 11842323, DktEntry: 27, Page 1 of 33

FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
SEP 30 2020
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

NATIONAL URBAN LEAGUE; LEAGUE OF WOMEN VOTERS; BLACK ALLIANCE FOR JUST IMMIGRATION; HARRIS COUNTY, Texas; KING COUNTY, Washington; CITY OF LOS ANGELES, California; CITY OF SALINAS, California; CITY OF SAN JOSE, California; RODNEY ELLIS; ADRIAN GARCIA; NAVAJO NATION; NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; CITY OF CHICAGO, Illinois; COUNTY OF LOS ANGELES, California; GILA RIVER INDIAN COMMUNITY,

No. 20-16868
D.C. No. 5:20-cv-05799-LHK Northern District of California, San Jose
ORDER

Plaintiffs-Appellees,

v.

WILBUR L. ROSS, in his official capacity as Secretary of Commerce; UNITED STATES DEPARTMENT OF COMMERCE; STEVEN DILLINGHAM, in his official capacity as Director of the U.S. Census Bureau; UNITED STATES CENSUS BUREAU,

Defendants-Appellants,

and

STATE OF LOUISIANA; STATE OF MISSISSIPPI,

Case: 20-16868, 09/30/2020, ID: 11842323, DktEntry: 27, Page 2 of 33
Intervenor-Defendants. Before: RAWLINSON, CHRISTEN, and BUMATAY, Circuit Judges. Order by Judges RAWLINSON and CHRISTEN, Dissent by Judge BUMATAY
On August 3, 2020, the United States Census Bureau (Bureau) adopted a census plan (Replan) that dramatically advanced critical deadlines for conducting the 2020 census. Appellees challenged this action pursuant to the Enumeration Clause of the United States Constitution and the Administrative Procedure Act (APA). On September 24, 2020, the district court entered a preliminary injunction staying the Replan’s schedule for completion of census field operations and for reporting the census results to the President and enjoining the government from implementing these deadlines. The government has filed an emergency motion to stay the preliminary injunction pending appeal, and a request for an immediate administrative stay pending resolution of the stay motion. In this order, we consider only the request for an administrative stay.
The decennial census is an enormous and complex nationwide operation. It requires nearly a decade of planning and hundreds of thousands of dedicated workers to accomplish. In 2018, after years of planning and testing, the Bureau adopted a plan to complete the 2020 census. The plan called for an extraordinary
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effort on the part of the government including hiring 340,000–500,000 field staff. For reasons stated in the record, the district court found that due to significant challenges encountered in the wake of COVID-19, the Bureau suspended field operations in March 2020. When operations resumed, the Bureau was unable to recruit sufficient numbers of field staff. In July 2020, the Bureau estimated that it only retained 38% of the field staff required to complete an accurate and timely census.
As a result of these serious challenges, the district court found that as early as April 2020, the Bureau, the Department of Commerce, and even the President had all publicly acknowledged that the December 31 deadline was no longer attainable. The Bureau adopted a new census plan in April to accommodate the delays caused by COVID-19 (“COVID-19 Plan”). The COVID-19 plan extended the deadline for each step in the process and contemplated that the Bureau would ask Congress for a 120-day extension of the December 31, 2020 delivery deadline for the completed census report. The Bureau’s work proceeded according to the COVID-19 Plan until August 2020.
In early August, a “senior Department [of Commerce] official” directed the Bureau to change course and prepare a new plan for completing the census by the December 31, 2020 statutory deadline. Senior Bureau staff were given just four to five days to develop this “Replan.” On August 3, 2020, the Bureau announced its
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adoption of the Replan, and its central feature: accelerating the COVID-19 Plan’s deadline for the completion of field work and data collection from October 31 to September 30. On September 24, the district court entered a preliminary injunction preventing the Bureau from implementing the September 30 deadline to stop field work and data collection. The government requests an immediate administrative stay of the district court’s injunction.
I The government has filed a single emergency motion seeking a stay pending appeal, and also seeking an administrative stay pending resolution of the motion for stay pending appeal. We recently established that an administrative stay “is only intended to preserve the status quo until the substantive motion for a stay pending appeal can be considered on the merits, and does not constitute in any way a decision as to the merits of the motion for stay pending appeal.” Doe v. Trump, 944 F.3d 1222, 1223 (9th Cir. 2019). Based on our preliminary review of the record, we conclude that the status quo would be seriously disrupted by an immediate stay of the district court’s order. As explained above, until August of this year, the Bureau had been operating for several months under the COVID-19 plan. That plan represented a revised schedule to account for the challenges caused by the COVID-19 pandemic. It included extended deadlines based on the understanding that the Bureau would
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need additional time to complete the necessary field work and data processing to produce an accurate census report. The district court’s September 5 temporary restraining order and September 24 preliminary injunction preserve the status quo because they maintain the Bureau’s data-collection apparatus pending resolution of the appeal. By the time the district court entered its order, the Bureau had already begun winding down its field operations and terminating census field workers in anticipation of the Replan’s accelerated September 30 deadline. The process of disbanding thousands of census workers will resume if an administrative stay is put in place, eliminating the Bureau’s ability to conduct field work. Accordingly, on the facts of this case, staying the preliminary injunction would upend the status quo, not preserve it.
We are mindful of the potential harms faced by both parties. Here, not only would the status quo be upended by an administrative stay, the Bureau’s ability to resume field operations would be left in serious doubt. Thousands of census workers currently performing field work will be terminated, and restarting these field operations and data collection efforts, which took years of planning and hiring efforts to put in place, would be difficult if not impossible to accomplish in a timely and effective manner. Granting the administrative stay thus risks rendering the plaintiff’s challenge to the Replan effectively moot.
We also recognize that missing the December 31 statutory deadline risks
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serious harm to the government. However, the record does not demonstrate that the Bureau’s ability to meet that deadline is affected by the district court’s injunction. Rather, the evidence in the administrative record uniformly showed that no matter when field operations end—whether September 30 under the Replan or October 31 under the COVID-19 Plan—the Bureau will be unable to deliver an accurate census by December 31, 2020. The President, senior Bureau officials, senior Department of Commerce officials, the Office of Inspector General, the Census Scientific Advisory Committee, and the Government Accountability Office have all stated that delivering a census by December 31 without compromising accuracy is practically impossible, and has been for some time. As the district court recognized, after the Bureau realized the pandemic would prevent it from adhering to its original schedule, the Bureau made two requests to Congress: first, it requested the December 31 deadline be extended to April 2021. When no final congressional action had been taken on that request in July, the Bureau requested $443 million to cover the additional cost to complete the census by year’s end. Contrary to the dissent’s repeated assertion, the only undisputed fact in this sequence was that Congress has not given the Bureau the extension or the additional funding it needs to meet the statutory deadline.
The government did not counter the Appellees’ showing on this point. Citing the chorus of statements made by the Bureau and other officials, the district
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court found that the Bureau could not meet the December 31 deadline. Indeed, despite the government’s persistent argument in the district court and before our court that the September 30 deadline for terminating field operations is essential to meeting its December 31 statutory deadline, the administrative record compellingly supports the district court’s conclusion that moving the October 31 deadline to September 30 will not allow the Bureau to complete the census on time.
Finally, we note that notwithstanding the pendency of the government’s emergency request for an immediate administrative stay to allow the Replan’s September 30 deadline to take effect, on September 28 the government again changed the deadline for completing field work. The government informed us in a September 28, 2020 letter, without explanation, that it now intends to end field operations on October 5, 2020. This abrupt change contradicts the government’s argument that the September 30 date is vitally important to the Bureau’s ability to meet its statutory reporting deadline. Our dissenting colleague cites a September 28 estimate suggesting that the census is 98% complete. This is still below the enumeration rate required by the Bureau’s internal standards for generating an accurate census report. Further, the district court ruled on September 24 and found, as of that date, the Bureau had met its standard in only four states.
Given the extraordinary importance of the census, it is imperative that the
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Bureau conduct the census in a manner that is most likely to produce a workable report in which the public can have confidence. The Bureau must account for its competing constitutional and statutory obligation to produce a fair and accurate census report. The hasty and unexplained changes to the Bureau’s operations contained in the Replan, created in just 4 to 5 days, risks undermining the Bureau’s mission.
Our dissenting colleague makes four errors. First, the dissent applies the wrong standard for a preliminary administrative stay. In Doe #1 v. Trump, our circuit definitively resolved which standard applies to administrative stay motions. We are not free to depart from that standard. Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc) (holding that a three-judge panel may not overrule a prior decision of the court). Citing the dissent from Doe #1 v. Trump, our colleague applies the factors used when we consider a motion for stay pending appeal. This analysis erroneously collapses the distinct legal analyses for an administrative stay and a motion for stay pending appeal. When considering the request for an administrative stay, our touchstone is the need to preserve the status quo. We defer weighing the Nken1 factors until the motion for stay pending appeal is considered. See Doe #1, 944 F.3d at 1223.
Second, as a consequence of its threshold error, the dissent does not grapple
1 Nken v. Holder, 556 U.S. 418, 426 (2009). 8

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with the factor that drives the outcome of the government’s motion: the Bureau’s apparatus for conducting field work will be dismantled before the motion for stay pending appeal can be decided. The dissent does not dispute that issuing an administrative stay in this case would return the Bureau to the process of dismantling its data-collection infrastructure and terminating its field staff.
Third, although we need not wade into the underlying merits of the issues on appeal, we would be remiss if we did not note that the dissent hinges on the unsupported premise that the Bureau can meet the December 31 deadline if an administrative stay is issued. The dissent’s assumption that the agency can still meet its deadline relies entirely upon one conclusory statement that was not in the administrative record but was instead prepared for litigation. Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891, 1908 (2020) (explaining that an agency’s post hoc rationalizations “must be viewed critically”); Arrington v. Daniels, 516 F.3d 1106, 1113 (9th Cir. 2008) (rejecting a justification for agency action that “is entirely absent from the administrative record”). Given the consistent picture painted by the administrative record, it is not surprising the district court was unpersuaded by this sole conclusory statement.
Fourth, the dissent addresses several issues that are not properly before us at the administrative stay stage. The government’s emergency motion does not contest the district court’s conclusion that Appellees have standing to bring their
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claims. Nor does the emergency motion challenge the district court’s conclusion that the Bureau’s decision to adopt the Replan is an unreviewable political question. Thus, those issues are not properly before us and we do not reach them.
Because the status quo would be upended, rather than preserved, if an administrative stay is issued, the government’s request for an immediate administrative stay set forth in Docket Entry No. 4 is denied.
Appellees’ response to the emergency motion is due October 2, 2020. Appellants’ optional reply is due by October 3, 2020.
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FILED

National Urban League v. Ross, No. 20-16868

SEP 30 2020

Bumatay, J., dissenting

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

COVID-19 has wreaked an undeniable toll on the Nation. The virus has

already stolen too many American lives. Even more have been hospitalized or

fallen ill. And nearly every American’s plans this year have been roiled by the

virus. But it cannot roil the law. Contorting the Administrative Procedure Act,

and liberating itself from any semblance of judicial restraint, the district court

injected itself into a sensitive and politically fraught arena: the 2020 census. After

the Department of Commerce adopted a plan to address census delays from the

COVID-19 pandemic, plaintiffs brought suit under the APA. Upon reviewing the

internal deliberative emails of the agencies, the district court decided that it knows

better than the Secretary of Commerce. Based on internal discussions about the

agency’s ability to complete the census in a timely and accurate fashion, the

district court essentially overruled the Secretary’s decision to adopt the revised

plan. But it is undisputed that this new plan was the only way to meet the statutory

obligation to report the census results to the President by December 31, 2020. No

matter for an adventurous district court: it simply cast aside the statutory deadline

as part of its injunction.

Because the district court was without authority to issue its injunction, the

defendants are likely to succeed on the merits, and they will be irreparably harmed

1

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without relief, I would have granted the request for an administrative stay. Accordingly, I respectfully dissent.
I. A census is required by our Constitution, which provides that the “actual Enumeration” of the population shall be conducted “in such Manner as [Congress] shall by Law direct.” U.S. Const. Art. I, § 2, cl. 3. As should be evident from this text, besides requiring that such an enumeration shall occur, the Constitution otherwise vests “virtually unlimited discretion” with Congress. Wisconsin v. City of New York, 517 U.S. 1, 19 (1996); see also Baldrige v. Shapiro, 455 U.S. 345, 361 (1982) (recognizing Congress’s broad discretion over the census). Congress, in turn, has vested substantial discretion with the Secretary of Commerce to determine how to conduct the decennial census. See 13 U.S.C. § 141(a); Wisconsin, 517 U.S. at 19 (“Through the Census Act, Congress has delegated its broad authority over the census to the Secretary.”). But there’s one aspect that Congress did not delegate: the date for completion of apportionment counts. 13 U.S.C. § 141(b). That deadline is etched in stone: December 31, 2020.1 And
1 Congress has provided for other deadlines as well. For example, the Census Bureau must “take a decennial census of the population” starting on April 1, 2020, and report the results to the President by December 31, 2020 (the deadline primarily at issue in this case). See 13 U.S.C. § 141(a)-(b). After receiving this report, the President must calculate “the number of Representatives to which each State would be entitled” and transmit that information to Congress by January 10,
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there’s one branch Congress has not delegated any census decisions to: the judiciary.
Cognizant of its statutory deadlines—but unaware of the looming health crisis—the Census Bureau adopted a final operational plan for the 2020 Census in December 2018. This plan has two major phases: a data-collection phase and a dataprocessing phase. During the data-collection phase, field employees follow up at non-responding addresses and collect other crucial information. Only after this phase is complete can the Bureau begin processing the collected data to report to the President by the December 31 deadline.
But even the best laid plans can go awry. Just as the data collection phase was set to begin, the COVID-19 pandemic struck, forcing the Bureau to suspend its field operations for four weeks. To resume those operations, the Bureau adopted the COVID-19 Plan on April 13, 2020, which set new deadlines for the data collection and dating processing phases, on the assumption that Congress would extend the statutory deadlines by 120 days. Congress did not act, however, so the Bureau adopted the “Replan” schedule, which outlined expedited deadlines designed “to accelerate the completion of data collection [] by our statutory deadline of December 31, 2020, as required by law[.]” According to the Bureau, it was able to meet this
2021. See 2 U.S.C. § 2a(a). Finally, the Bureau must report a tabulation of population for redistricting to the states by March 31, 2021. See 13 U.S.C. § 141(c).
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compressed timeframe by (1) offering financial incentives to increase the number of hours each enumerator worked and achieve the “same work hours as would have been done under the original time frame”; and (2) taking advantage of updated software and processing capabilities not available during the 2010 Census in order to maximize enumerator effectiveness. An Associate Director at the Bureau attests that the agency “is confident that it can achieve a complete and accurate census and report apportionment counts by the statutory deadline following the Replan Schedule.” (emphasis added).2 Under this plan, field operations would conclude by September 30, and data processing would begin on October 1. The Bureau asserts that it must complete the data collection phase by September 30 and turn to the data processing phase by October 1 to meet its December 31, 2020 deadline. See Motion at 1. On September 28, 2020, the Bureau extended its internal deadline slightly: setting October 5, 2020 as the target date for concluding field operations.3 As of September 28, 2020, the Bureau reports over 98% enumeration nationwide.4
II.
2 Inexplicably, the majority’s decision simply ignores this attestation when claiming that even under the Replan, “the Bureau will be unable to deliver an accurate census by December 31, 2020.” Majority Op. at 5. 3 United States Census Bureau, 2020 Census Update, https://www.census.gov/newsroom/press-releases/2020/2020-census-update.html 4 United States Census 2020, Total Response Rates by State, https://2020census.gov/en/response-rates/nrfu.html
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Whether to grant a request for a stay is governed by the familiar four-factor test: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Doe #1 v. Trump, 944 F.3d 1222, 1225 (9th Cir. 2019) (Bress, J., dissenting) (simplified).5
We should have granted an administrative stay here because defendants are likely to succeed on the merits. The Secretary’s decision to adopt the Replan— rather than simply ignore a statutory deadline—was not arbitrary and capricious. At bottom, the district court’s APA analysis seems to turn on the court’s apparent disagreement with whether the census will be sufficiently accurate under the Replan. But the accuracy of the census is likely a nonjusticiable political question; a properly deferential review would find the Replan satisfies statutory and constitutional requirements; and the plaintiffs here do not appear to have standing
5 The majority suggests that I apply the “wrong standard for a preliminary administrative stay.” Majority at 7. But as Judge Bress has already persuasively explained: “the instant request for a temporary stay is part of the request for a stay pending appeal, and the Court cites no authority for why the usual stay factors— including likelihood of success on the merits—would not apply.” Doe #1, 944 F.3d at 1226 (Bress, J., dissenting). We can’t simply ignore the fact that the government is likely to prevail on the merits here. That’s particularly true where, like here, the parties have addressed the merits in the request for a stay and the opposition thereto. See id.
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because their alleged injuries are not redressable. I discuss each flaw with the district court’s injunction in turn.
A. Putting aside momentarily the fact that the crux of this case is not justiciable, see, infra, § II-B and II-C, and assuming that the APA applies here and that the Replan can be considered a “final agency action,” cf. NAACP v. Bureau of the Census, 945 F.3d 183, 189 (4th Cir. 2019) (challenges to 2020 census “design choices” were not final agency actions under the APA), the Replan does not violate the APA. Under the APA, agencies must engage in “reasoned decisionmaking.” Michigan v. EPA, 576 U.S. 743, 750 (2015). Where census decisions are concerned, this only requires the Secretary to “examine the relevant data and articulate a satisfactory explanation for his decision.” Department of Commerce v. New York, 139 S.Ct. 2551, 2569 (2019). “We may not substitute our judgment for that of the Secretary.” Id. Nor may we “subordinat[e] the Secretary’s policymaking discretion to the Bureau’s technocratic expertise.” Id. at 2571 (Bureau staff’s conclusions are not “touchstones of substantive reasonableness.”); accord Wisconsin, 517 U.S. at 23 (Because it is the Secretary “to whom Congress has delegated its constitutional authority over the census,” “the mere fact that the
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Secretary’s decision overruled the views of some of his subordinates is by itself of no moment in any judicial review of his decision.”).
To make reasoned decisions, agencies must consider “significant alternatives.” Mt. Diablo Hosp. v. Shalala, 3 F.3d 1226, 1232 (9th Cir. 1993). The defendants did so. As a Bureau Associate Director explained, the Bureau “considered a variety of options and evaluated risks” in crafting the Replan, ultimately “select[ing] those that we believed presented the best combination of changes to allow us to meet the statutory deadline without compromising quality to an undue degree.” Although the Replan compressed several steps, which might “increase the risk” of errors, the Associate Director explained that efficiencies new to the 2020 Census nevertheless allowed the Replan to “achieve a complete and accurate census.”
The core of the district court’s reasoning is that the Secretary erred in considering the deadline fixed and then trying to maximize accuracy within that constraint. The court thought the Secretary should have been more flexible and considered other alternatives. But all of the alternatives would require the Bureau to consciously blow a statutory deadline. For example, the district court suggests the defendants could have considered “not adopting the Replan while striving in good faith to meet statutory deadlines.” Or, as the plaintiffs put it, “Defendants could have continued to operate under the COVID-19 Plan while striving to meet
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statutory deadlines.” But the COVID-19 Plan was premised on Congress extending the statutory deadlines. By adhering to that plan despite Congress’s inaction, the defendants would necessarily not be striving in good faith to meet the deadline; they would be consciously abandoning it.6 “An agency is under no obligation to consider every possible alternative to a proposed action, nor must it consider alternatives that are unlikely to be implemented or those inconsistent with its basic policy objectives.” Seattle Audubon Soc’y v. Moseley, 80 F.3d 1401, 1404 (9th Cir. 1996). Thus, a fortriori, an agency need not consider alternatives that violate the law. The Bureau cannot be liable for failing to consider an alternative that would undisputedly violate the clear deadline set by Congress to obtain marginal improvements (of some unknown degree) to the census.
The district court also erred in determining that the Secretary’s reason for adopting the Replan ran contrary to the facts. The district court noted that some Bureau employees thought it would be impossible to accurately complete the census by December 31, given the COVID-19 delays.7 But each statement relied
6 This same core defect infects the other proposed alternatives, such as making “good faith efforts to meet the deadline” short of adopting the Replan and “balanc[ing]” accuracy and timeliness concerns. 7 The court also suggests that the Commerce Department pressured the Bureau to cease seeking an extension of the deadline, though nothing in the record before this panel suggests this is so, and the district court’s citations show only that the Bureau did not affirmatively request an extension in certain instances. Even if that were true though, it cannot undermine the Bureau’s stated reason that it adopted the
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on was made before the Replan, which the Bureau’s Associate Director has attested will reach sufficient levels of accuracy. In any event, “there is nothing even unusual” about a Cabinet secretary “disagreeing with staff, or cutting through red tape.” New York, 139 S. Ct. at 2580 (Thomas J., concurring in part and dissenting in part). The Secretary is owed “wide discretion” in this arena because “it is he to whom Congress has delegated its constitutional authority over the census.” Wisconsin, 517 U.S. at 22; see 13 U.S.C. § 141(a). Dissent from inferior employees at the Bureau cannot constitute “facts” that the Secretary’s decision runs “contrary” to. See Wisconsin, 517 U.S. at 23 (“[T]he mere fact that the Secretary’s decision overruled the views of some of his subordinates is by itself of no moment in any judicial review of his decision.”). To hold otherwise would impermissibly “subordinat[e] the Secretary’s policymaking discretion to the Bureau’s technocratic expertise.” New York, 139 S. Ct. at 2571.
Finally, the district court concluded that the defendants “failed to sufficiently consider” their obligations to produce an accurate census because “the Replan will decrease the census’s accuracy and undercount historically undercounted
Replan because it realized Congress would not extend the deadline. See New York, 139 S. Ct. at 2576 (2019) (Thomas J., concurring in part and dissenting in part) (courts defer to executive agency and it is entitled to a presumption of regularity in part because crediting accusations of pretext, which can be easily lodged by “political opponents of executive actions to generate controversy,” could “lead judicial review of administrative proceedings to devolve into an endless morass of discovery and policy disputes”).
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individuals.” But the need to consider accuracy does not give courts license to act as a super Census Bureau. The Secretary is “required to consider the evidence and give reasons for his chosen course of action,” but “[i]t is not for us to ask whether [the] decision was ‘the best one possible’ or even whether it was ‘better than the alternatives.’” New York, 139 S. Ct. at 2571 (citation omitted). The Bureau fulfilled the deliberative requirement by considering the Replan’s impact on accuracy. See Providence v. Yakima Med. Ctr. v. Sebelius, 611 F.3d 1181, 1190 (9th Cir. 2010) (Agency action is arbitrary and capricious where the agency “entirely failed” to consider an important aspect of the problem.) (emphasis added).
B. Although the district court ostensibly conducted APA review of the procedures the Secretary used to adopt the Replan, the crux of the court’s decision is its view that the Replan would not produce an accurate census. But the “accuracy” requirement is a general duty arising from the Census Act, not a specific statutory or constitutional mandate. See New York, 139 S. Ct. at 2568–69 (“[B]y mandating a population count that will be used to apportion representatives, see [13 U.S.C.] § 141(b), 2 U. S. C. § 2a, the Act imposes a duty to conduct a census that is accurate and that fairly accounts for the crucial representational rights that depend on the census and the apportionment.”) (simplified). And it is
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for the Secretary, under the authority Congress delegated to him, to balance the need for accuracy against the statute’s hard deadline.
Although justiciability arguments are only raised briefly on the pending motion for a stay, “federal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011). Deciding whether the census meets a free-floating concept of “accuracy” is exactly the type of political question that courts are powerless to adjudicate. Virtually all of the factors announced in Baker v. Carr, 369 U.S. 186 (1962), support a finding of this being a nonjusticiable political question.8 Principally, the district court’s “accuracy” requirement is not amenable to “judicially discoverable and manageable standards.” See id. at 217. How accurate is accurate enough? See, e.g., Department of Commerce v. United States House of Representatives, 525 U.S. 316, 322 (1999) (“[T]he Bureau has always failed to reach—and has thus failed to
8 These factors include: a textual commitment of the issue to a coordinate political branch, a lack of judicially discoverable and manageable standards for resolving it, the impossibility of deciding without an initial policy determination of the kind clearly for nonjudicial discretion, or the impossibility of a court’s undertaking independent resolution of the question without expressing a lack of respect due coordinate branches of government. Baker, 369 U.S. at 217.
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count—a portion of the population.”).9 And what standard are courts to use when evaluating accuracy anyway? Neither the district court nor this panel offer any answers.
But the answer is actually quite simple: it would be impossible for us to decide this case “without an initial policy determination of the kind clearly for nonjudicial discretion.” See Carr, 369 U.S. at 217. Even under ordinary circumstances, the Secretary and Bureau must juggle many important considerations when designing the census plan. For example, in choosing the date for when to end its data-collection phase and begin its data-processing phase, the defendants must consider the trade-offs between terminating field operations (even though not everyone has been counted) against the time needed to process the data into the Secretary’s report to the President and the States. See 2 U.S.C. § 2a(a); 13 U.S.C. § 141(c); see also NAACP, 945 F.3d at 191 (“‘Setting aside’ one or more of these ‘choices’ necessarily would impact the efficacy of the others, and inevitably would lead to court involvement in ‘hands-on’ management of the Census
9 See also Wisconsin, 517 U.S. at 6 (“[Various] errors have resulted in a net ‘undercount’ of the actual American population in every decennial census.”); Karcher v. Daggett, 462 U.S. 725, 732 (1983) (recognizing that “census data are not perfect,” and that “population counts for particular localities are outdated long before they are completed”); Gaffney v. Cummings, 412 U.S. 735, 745 (1973) (remarking that census data “are inherently less than absolutely accurate”); accord C. Wright, History and Growth of the United States Census 16-17 (1900) (noting that the accuracy of our first census in 1790 was seriously questioned by the man who oversaw its implementation as Secretary of State, Thomas Jefferson).
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Bureau’s operations.”). With each decision, the Bureau must consider (and choose among) the various tradeoffs each option presents. By requiring the Bureau to prioritize an elusive standard of accuracy over and above the interest in completing the census in a timely manner, as prescribed by Congress, the court substitutes its own policy determination for those set by Congress and delegated to the Secretary.
Analogous cases have held similar claims to be nonjusticiable political questions. Just last year the Court held that trying to decide among “different visions of fairness” for districting maps is an “unmoored determination of the sort characteristic of a political question beyond the competence of the federal courts.” Rucho v. Common Cause, 139 S. Ct. 2484, 2499–2500 (2019) (internal quotations omitted); accord Nixon v. United States, 506 U.S. 224 (1993) (constitutional provision granting the “the sole Power to try all Impeachments” does not “provide an identifiable textual limit on the authority which is committed to the Senate”). So too here: determining the “accuracy” of the census is no more of a judicial question than determining the “fairness” of districting maps.10
10 Nor does the fact that plaintiffs brought their claims under the APA change the political question analysis. See 5 U.S.C. § 702 (“Nothing herein . . . affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground[.]”); Int’l Refugee Assistance Project v. Trump, 883 F.3d 233, 366 (4th Cir. 2018) (Niemeyer, J., dissenting) (“§ 702(1)’s recognition of ‘other limitations’ on the scope of APA review reflects Congress’s intent to maintain longstanding prudential limits confining the judiciary to its proper role in our constitutional
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To be sure, courts may entertain some challenges to census-related decisions. But cases treating such challenges as justiciable involved narrow and deferential review—not a freewheeling inquisition into the “accuracy” of the census. In Department of Commerce v. New York, for example, the Court considered whether the Secretary could add a citizenship question to the census consistent with the Enumeration Clause and Census Act. 139 S. Ct. at 2566, 2569. On the constitutional challenge, the Court reviewed only for whether the addition of the challenged question bore a “reasonable relationship to the accomplishment of an actual enumeration.” Id. at 2566. On the statutory question, the Court deferentially considered “whether the Secretary examined the relevant data and articulated a satisfactory explanation for his decision.” Id. at 2569. The Court’s other census cases likewise involved this type of narrow and deferential review. See Wisconsin, 517 U.S. at 19–20 (“[S]o long as the Secretary’s conduct of the census is consistent with the constitutional language and the constitutional goal of equal representation, it is within the limits of the Constitution.”) (simplified); Franklin v. Massachusetts, 505 U.S. 788, 801 (1992) (similar); see also U.S. Dep’t of Commerce v. Montana, 503 U.S. 442, 458–59 (1992) (“The polestar of equal
system, such as the political question doctrine.”); Mobarez v. Kerry, 187 F. Supp. 3d 85, 92 (D.D.C. 2016) (holding that political question doctrine precluded review of APA claims).
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representation does not provide sufficient guidance to allow us to discern a single constitutionally permissible course” among multiple options.).
When our review morphs beyond these precedents into an interrogation of “accuracy,” of the type underlying the district court’s APA analysis here, we are beyond our proper role as judges. Some legal questions—even ones arising under the same constitutional provision as previously justiciable questions—might prove to be nonjusticiable. See New York v. United States, 505 U.S. 144, 185 (1992) (“[T]he Court has suggested that perhaps not all claims under the Guarantee Clause present nonjusticiable political questions” even if most do). Thus, while the court might be competent to decide whether a particular decision bears a “reasonable relationship” to the goal of an “actual enumeration,” the same cannot be said of evaluating the “accuracy” of a census. Indeed, the Court has rejected the claim that its prior cases require “a census that was as accurate as possible” and has recognized that “[t]he Constitution itself provides no real instruction” on how to measure the “accuracy” of a census. Wisconsin, 517 U.S. at 18; see also Tucker v. U.S. Dep’t of Commerce, 958 F.2d 1411, 1417 (7th Cir. 1992) (Posner, J.) (“It might be different if the apportionment clause, the census statutes, or the Administrative Procedure Act contained guidelines for an accurate decennial census, for that would be some evidence that the framers of these various enactments had been trying to create a judicially administrable standard.”).
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We cannot mechanically apply the political question doctrine, which must be considered in light of the important separation of powers function it performs. A court’s authority to act depends on a threshold question of the “appropriate role for the Federal Judiciary”: whether the claims brought “are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere.” Rucho, 139 S. Ct. at 2494 (emphasis in original). Here, these background principles weigh in favor of not adjudicating this dispute. No census has been, or can be, fully accurate, according to the Court. See Wisconsin, 517 U.S. at 6 (“Although each [census] was designed with the goal of accomplishing an ‘actual Enumeration’ of the population, no census is recognized as having been wholly successful in achieving that goal.”). Determining what level of accuracy is sufficient is simply not something that the judicial branch is equipped to do.11 Indeed, “[i]t would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches directly responsible—as the Judicial Branch is not—to the
11 The district court and plaintiffs seem to think that the district court’s injunction does not require judicial supervision over the accuracy of the census. Instead, they frame the injunction as merely preventing the Secretary from adopting the Replan because it failed to follow the requisite procedures for doing so. But the crux of the district court’s injunction is its disagreement with the Secretary’s resolution of how to balance accuracy of the census against the statutory deadline. See, infra, § II-A. And in ordering relief, the district court has inserted itself at the top of the Executive branch’s census operation. See Motion at 17 (describing ongoing supervision of the district court under the preliminary injunction).
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electoral process. Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence.” Gilligan v. Morgan, 413 U.S. 1, 10 (1973). By allowing census-accuracy supervision under the guise of APA review, we have “given the green light for future political battles to be fought in this Court rather than where they rightfully belong—the political branches.” DHS v. Regents of the Univ. of California, 140 S. Ct. 1891, 1919 (2020) (Thomas, J., concurring in part and dissenting in part).
C. Plaintiffs also likely fail to establish Article III standing, given that they have not shown that their alleged injury is redressable by the courts, even assuming the other standing requirements are met. An injury is necessarily not redressable if the court has no authority to authorize the relief requested. See Gonzales v. Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982) (Kennedy, J.) (“Redressability requires an analysis of whether the court has the power to right or to prevent the claimed injury.”); Republic of Marshall Islands v. United States, 865 F.3d 1187, 1199 (9th Cir. 2017) (holding that a lawsuit seeking to enforce a treaty right was not redressable because “the federal courts have no power to right or to prevent . . . violat[ions of] a non-self-executing treaty provision”). Clearly, a district court has no authority to order an Executive agency to disobey a Congressional statute. Neither the district court nor plaintiffs have cited
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any authority for this unprecedented expansion of the judicial power to decide cases and controversies. See U.S. Const. Art. III, § 2. Congress makes laws, the Executive enforces them, and we interpret them in the course of adjudicating disputes. Absent the metaphorical “striking down” of an unconstitutional statute, we are impotent to set aside congressionally enacted laws. See United States v. Booker, 543 U.S. 220, 283 (2005) (Stevens, J., dissenting in part) (“[T]he Court simply has no authority to invalidate legislation absent a showing that it is unconstitutional. To paraphrase Chief Justice Marshall, an ‘act of the legislature’ must be ‘repugnant to the constitution’ in order to be void.’” (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803))). Here, no one challenges the constitutionality of the statute establishing the Secretary’s deadline. Accordingly, the district court had no authority to ignore it—let alone order an Executive agency to do so.
All of the cases relied on by the district court to enjoin operation of the statute, despite not finding any constitutional infirmity, are wholly inapposite. None suggest that a court can require an agency to disobey a statute; they merely confirm that an agency is not necessarily precluded from acting, even if it is doing so after a statutory deadline. See, e.g., Barnhart v. Peabody Coal Co., 537 U.S. 149, 158 (2003) (holding that despite statute’s mandatory deadline, post-deadline action taken by the agency was not void because there was no Congressional intent
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that agency would be deprived of statutory authority to act if it did so beyond the deadline); Linemaster Switch Corp. v. EPA, 938 F.2d 1299, 1304 (D.C. Cir. 1991) (similar). The fact that an agency can—depending on the text, structure, and history of the statue at issue—continue to act beyond its statutory deadline, says nothing about a court’s authority to require an agency to do so.
D. An agency’s decision on how to respond to a once-in-a-century pandemic, in order to meet its statutory deadline, is quintessentially the type of decision we should give substantial deference to. Throughout this pandemic, we’ve deferred to the elected branches to determine how to best respond, even when shuttering our churches and businesses. See, e.g., S. Bay United Pentecostal Church v. Newsom, 959 F.3d 938, 939 (9th Cir. 2020) (denying Free Exercise Clause challenge to application of California’s stay-at-home order to in-person religious services based on deference to elected branches during pandemic). We’ve done so despite our role in protecting individuals’ constitutional rights. See On Fire Christian Ctr., Inc. v. Fischer, 2020 WL 1820249, at *6 (W.D. Ky. 2020) (although “a state may implement emergency measures that curtail constitutional rights” during a pandemic, it cannot enact measures that are “beyond all question, a plain, palpable invasion of rights secured by the fundamental law”). If deference is appropriate there, surely it is doubly appropriate here, where courts are already required to
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show deference to the agencies. See New York, 139 S. Ct. at 2578 & n.3 (Thomas, J., concurring in part and dissenting in part) (explaining highly deferential review of an “agency’s discretionary choices and reasoning under the arbitrary-andcapricious standard”); Wisconsin, 517 U.S. at 19–20 (explaining narrow and deferential review of Secretary’s census decision). Simply put, there’s no basis to anoint ourselves supervisors of this sensitive process at the eleventh hour.
III. At a minimum, we should have granted an administrative stay while we further considered the underlying motion to stay the injunction pending appeal. The government faces irreparable harm from our refusal to do so. It’s undisputed that if the government cannot finalize the data collection phase of the census and move into the data processing phase in a timely fashion, it will likely miss its statutory deadline. Thus, even if the court ultimately rules for the defendants on the merits, it might not matter much: the plaintiffs will have effectively secured the relief they seek on the merits (e.g., a delay of moving into the data processing phase). In contrast, the defendants have said only that it would be “difficult” to rehire and redeploy workers once terminated, if they are allowed to do so, but not that it would be impossible to revamp these workers if needed. Accordingly, although an administrative stay would be inefficient if ultimately reversed later, the damage
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would not be irreparable. At most it would present a bureaucratic hassle for the agencies. The same cannot be said for the majority’s decision to deny the administrative stay. Similarly, the district court, and now the majority, fail to consider the harms that irreparably flow to other States. See Amicus Brief at 8 (“The effect of the TRO was to run up the census tally in Plaintiffs’ jurisdictions at the expense of lagging jurisdictions like Louisiana and Mississippi.”); id. at 8–9 (noting “disruption of redistricting and reapportionment in 24 states that have constitutional or statutory deadlines” tied to census).
Finally, the status quo here, to the extent that’s relevant, is the legal landscape that would have existed prior to the district court’s judicial misadventure. See Doe #1, 944 F.3d at 1229 (Bress, J., dissenting) (explaining that preserving the status quo is not an enumerated factor, but in any event, an administrative “stay simply suspends judicial alteration of the status quo, while the injunctive relief granted below constitutes judicial intervention upending it”) (simplified). Accordingly, we should have granted the request for an administrative stay to restore the parties to the positions they were in prior to the district court’s decision.
IV. Despite its errors, the district court deserves some credit. It seems to have been motivated by a valiant attempt to balance two competing priorities: accuracy
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of the census versus timeliness under the statutory deadline. But the elected branches have already done this balancing. The Secretary of Commerce was briefed on all of the Bureau employee concerns the district judge found persuasive. The Secretary considered those concerns, and then, in exercising the role that the President appointed him to perform, made the decision to proceed with the Replan. “By second-guessing the Secretary’s weighing of risks and benefits and penalizing him for departing from the Bureau’s” views about the Replan, the district court, and now the majority, “substitute[] [their] judgment for that of the agency.” New York, 139 S.Ct. at 2571. Likewise, Congress was aware of the potential problem and did not extend the deadline. The House of Representatives held committee hearings and ultimately voted on a bill to extend the deadline. The Senate received the bill, held committee hearings on it, but then took no further action—and hasn’t since July 2020.12 Plaintiffs suggest that the Senate might act on the bill soon.13
There is no basis for the judiciary to inject itself into this sensitive political controversy and seize for itself the decision to reevaluate the competing concerns between accuracy and speed, after the elected branches have apparently done so
12 https://www.congress.gov/bill/116th-congress/house-bill/6800/allactions?overview=closed 13 Plaintiffs’ Opposition at 14 n.1 (citing Hansi Lo Wang, Bipartisan Senate Push to Extend Census Begins Weeks Before Count Is Set to End, NPR (Sept. 15, 2020), https://www.npr.org/2020/ 09/15/913163016/bipartisan-senate-push-toextend-census-begins-weeks-before- count-is-set-to-end)
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already—or are actively doing so now. See Clinton v. City of New York, 524 U.S. 417, 449 (1998) (Kennedy, J., concurring) (“Failure of political will does not justify unconstitutional remedies.”). Plus, had we ruled for the defendants, nothing would have prevented the elected branches from revisiting this dispute at a later date. A belated fix might entail additional cost and delay that the district court’s injunction avoids. But in our constitutional design, courts are not empowered to swoop in and rescue the elected branches from themselves. If additional cost and delay is the consequence of Congress’s inaction, or the Secretary’s decision to adopt the Replan, then so be it. The recourse for such problems lies with the People themselves at the ballot box—not with unelected and unaccountable judges in chambers.
I respectfully dissent.
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 Cite as: 592 U. S. ____ (2020)

1

SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES _________________
No. 20A62
_________________
WILBUR ROSS, SECRETARY OF COMMERCE, ET AL. v. NATIONAL URBAN LEAGUE, ET AL.
ON APPLICATION FOR STAY
[October 13, 2020]
The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted. The district court’s September 24, 2020 order granting a preliminary injunction is stayed pending disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.
JUSTICE SOTOMAYOR, dissenting from grant of stay.
Today, the Court stays a preliminary injunction requiring the Census Bureau to follow the data collection plan the agency once described as necessary to avoid “risking significant impacts on data quality.” Electronic Case Filing in No. 5:20–cv–5799, Doc. 198–7 (ND Cal., Sept. 22, 2020), p. 131 (ECF). The injunction required the Bureau to continue its data collection efforts until October 31, 2020, a deadline the Bureau itself selected in response to the significant operational disruptions caused by the COVID–19 pandemic. The Government now claims that this Court’s immediate intervention is necessary because, absent a stay, the Bureau will not be able to meet the December 31 statutory deadline for reporting census results to the President. This

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representation is contrary to the Government’s repeated assertions to the courts below that it could not meet the statutory deadline under any circumstances. Moreover, meeting the deadline at the expense of the accuracy of the census is not a cost worth paying, especially when the Government has failed to show why it could not bear the lesser cost of expending more resources to meet the deadline or continuing its prior efforts to seek an extension from Congress. This Court normally does not grant extraordinary relief on such a painfully disproportionate balance of harms.
I
In April 2020, the Bureau extended the deadline for selfresponses to the census questionnaire and for its NonResponse Follow-Up field operation from July 31, 2020, to October 31, 2020. In the words of the Bureau’s associate director for field operations, it was “ludicrous” to expect the Bureau to “complete 100% of the nation’s data collection earlier than [October 31]” in the middle of a pandemic. ___ F. Supp. 3d ___, ___, 2020 WL 5739144, *6 (ND Cal., Sept. 24, 2020).
The Bureau also rescheduled its anticipated report to the President. Under the Census Act, the Secretary of Commerce must deliver to the President a report conveying the results of the census by December 31, 2020. 13 U. S. C. §141(b). The Bureau, however, moved this deadline to April 30, 2021. President Trump did not initially object, publicly stating that “ ‘I don’t know that you even have to ask [Congress]. This is called an act of God. This is called a situation that has to be.’ ” ___ F. Supp. 3d, at ___, 2020 WL 5739144, *37. The Bureau nonetheless requested that Congress formally extend the December 31 statutory deadline by 120 days. The House of Representatives passed a bill extending the deadline, and on July 23, 2020, a Senate Committee held a hearing on the bill.
On August 3, 2020, however, two weeks after President

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Trump announced his intent to exclude undocumented immigrants from the population base for congressional apportionment, Secretary Ross announced the “Replan Schedule.” Under the Replan Schedule, data collection would end on September 30, 2020. The administration simultaneously stopped pushing Congress to extend the reporting deadline by 120 days.
II
Respondents, who are advocacy groups, cities, counties, and Native tribes, sued to enjoin the Replan Schedule. The District Court issued detailed factual findings, concluding that respondents had demonstrated a likelihood of success on the merits of their claim that the Bureau’s reversal was arbitrary and capricious,1 and that the harms to respondents absent an injunction vastly outweighed any harm the injunction would cause the Government. The court preliminarily enjoined the Replan Schedule’s September 30 deadline for completing data collection (i.e., the deadline for individuals to complete the census questionnaire and for the Bureau to wrap up its field operations) and the December 31 deadline for reporting the results to the President. The District Court subsequently clarified that the Bureau’s original October 31 deadline for data collection would be reinstated. The Court of Appeals for the Ninth Circuit reversed the injunction as to the December 31 deadline, but affirmed the reinstatement of the October 31 deadline. The Government now asks this Court to intervene and stay the
—————— 1 Specifically, the District Court concluded that respondents were
likely to succeed because the Government failed to consider important aspects of the problem; the Replan Schedule ran counter to the evidence before the agency; the Government failed to consider an alternative to and articulate a satisfactory explanation for its decision to adopt the Replan; and the Government failed to consider reliance interests of municipalities and organizations who publicized the October 31 deadline to their communities. ___ F. Supp. 3d ___, ___–___, 2020 WL 5739144, *29– *45 (ND Cal., Sept. 24, 2020).

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entire injunction. I would deny a stay of that injunction. An applicant for a
stay “must demonstrate (1) ‘a reasonable probability’ that this Court will grant certiorari, (2) ‘a fair prospect’ that the Court will then reverse the decision below, and (3) ‘a likelihood that irreparable harm [will] result from the denial of a stay.’ ” Maryland v. King, 567 U. S. 1301 (2012) (ROBERTS, C. J., in chambers) (quoting Conkright v. Frommert, 556 U. S. 1401, 1402 (2009) (Ginsburg, J., in chambers)). The Government fails to demonstrate that the injunction is likely to cause it irreparable harm. Regardless of the merits of respondents’ claims, this failure, alone, requires denying the requested stay.
The Government articulates a single harm: that if data collection continues through October 31, the Bureau will not meet the December 31 statutory deadline to report census results to the President. But it is unlikely the District Court’s injunction will be the cause of the Bureau’s inability to do so. Indeed, for months, senior Bureau officials have represented that, whatever the data collection deadline, meeting the December 31 reporting deadline would be impossible. See ___ F. 3d ___, ___, 2020 WL 5940346, *6 (CA9, Oct. 7, 2020) (“[T]he President, Department of Commerce officials, Bureau officials, and outside analysis from the Office of the Inspector General, the Census Scientific Advisory Committee, and the Government Accountability Office all stated unequivocally, some before and some after the adoption of the Replan, that the Bureau would be unable to meet [the December 31] deadline under any conditions”). Only recently have officials begun to claim that the Bureau might yet be able to meet the statutory deadline, and even then, their story keeps changing. See ibid. (noting that the Government’s representation that it could meet the statutory deadline if it ended collection by October 5 was at odds with the September 22 declaration of a senior Bureau official). It is in fact far from clear why the Government now

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believes that the December 31 deadline was feasible under the Replan Schedule but is impossible under the injunction. Notably, the Government fails to explain why it cannot meet the statutory deadline by adding resources to accelerate data processing as it did with data collection. App. to Application for Stay 117a (Census Bureau press release explaining that the Replan Schedule required “hiring of more employees to accelerate the completion of data collection and apportionment counts”).
That the Bureau has provided “ever-changing projections” about the impact of the data collection deadline on its statutory deadline is understandable given the complexity of the census and the unanticipated impact of the COVID– 19 pandemic. ___ F. 3d, at ___, 2020 WL 5940346, *7; see also ___ F. Supp. 3d, at ___–___, 2020 WL 5739144, *4–*6. But those ever-changing projections demonstrate that any harm attributable to the injunction is at best uncertain, and, more likely, nonexistent. This is especially true given that, until recently, the Bureau sought an extension of the December 31 statutory deadline, and Congress had made significant progress toward granting it. The Bureau’s abrupt shift in focus from achieving an accurate count to meeting its deadline at all costs belies its newfound concern for issuing its report by December 31. See New York v. Trump, ___ F. Supp. 3d ___, ___, 2020 WL 5796815, *2 (SDNY, Sept. 29, 2020) (“As [the Government] admits, there is no magic to the deadline for the Secretary’s Section 141(b) report” to the President).
In contrast to the Government’s unsupported claims of irreparable harm, respondents will suffer substantial injury if the Bureau is permitted to sacrifice accuracy for expediency. As the District Court found, and the Ninth Circuit credited, “[a]n inaccurate count would affect the distribution of federal and state funding, the deployment of services, and the allocation of local resources.” ___ F. Supp. 3d, at ___, 2020 WL 5739144, *46; ___ F. 3d, at ___, 2020

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WL 5940346, *6. The Government attempts to downplay that risk by asserting that over 99 percent of households in 49 States are already accounted for.2 Reply Brief 6. But even a fraction of a percent of the Nation’s 140 million households amounts to hundreds of thousands of people left uncounted. See ECF Doc. 81–1, ¶ 36 (ND Cal., Sept. 4, 2020). And significantly, the percentage of nonresponses is likely much higher among marginalized populations and in hard-to-count areas, such as rural and tribal lands. Id., ¶ 12 (discussing the Bureau’s plan to develop “culturally relevant advertisements targeting hard-to-count communities”); Response to Application 30. When governments allocate resources using census data, those populations will disproportionately bear the burden of any inaccuracies. See Department of Commerce v. New York, 588 U. S. ___, ___ (2019) (slip op., at 10) (States “show[ed] that if noncitizen households are undercounted by as little as 2% . . . they will lose out on federal funds that are distributed on the basis of state population”). It is thus unsurprising that, for the 2010 census, the Bureau continued its field operations for a full month after reaching the 99 percent threshold that the Government now deems good enough. See Response to Application 29–30 (citing Dept. of Commerce, Bureau of Census, A. Jackson, 2010 Census Nonresponse Followup Operations Assessment Report 47 (2012)). The harms caused by

—————— 2 Although this claim bears significant weight for the Government’s ar-
gument, the emergency posture of this case prevents this Court from properly evaluating the claim’s accuracy. For example, as the District Court found, Government oversight bodies have repeatedly warned that accelerating the census schedule “increases the risks to obtaining a complete and accurate 2020 Census.” ___ F. Supp. 3d, at ___–___, 2020 WL 5739144, *8–*9. Yet the Government addresses data quality concerns primarily in a footnote. Application for Stay 7–8, n. 3; Reply Brief 6–7. Without more, the Government’s bald assertion that its collection efforts are 99 percent complete cannot support its request for extraordinary relief.

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rushing this year’s census count are irreparable. And respondents will suffer their lasting impact for at least the next 10 years.
* * *
The Government has not satisfied its “especially heavy burden” to justify a stay pending appeal of the lower court’s injunction. Packwood v. Senate Select Comm. on Ethics, 510 U. S. 1319, 1320 (1994) (Rehnquist, C. J., in chambers). Because the harms associated with an inaccurate census are avoidable and intolerable, I respectfully dissent from the grant of stay.