Carey v. Klutznick, 80 Civ. 4550 (HFW).

• Decision Date: 30 December 1980
• Docket Number: No. 80 Civ. 4550 (HFW).,80 Civ. 4550 (HFW).
• Citation: 508 F. Supp. 420
• Parties: Hugh L. CAREY, Edward I. Koch, Alan Chou, Rose L. Dawson, Shmuel Lefkowitz, Michael Loizou, Edwin Martinez, Walter E. Marx, Brunilda Pacheco, Lamuel Stanislaus, The State of New York, and The City of New York, Plaintiffs, v. Philip M. KLUTZNICK, Secretary of Commerce, Vincent P. Barabba, Director, Bureau of the Census, William F. Hill, Regional Director, New York Region, Bureau of the Census, Richard Bitzer, Acting Assistant Regional Director, New York Region, Bureau of the Census, Arthur G. Dukakis, Regional Director, Boston Region, Bureau of the Census, United States Department of Commerce, Bureau of the Census, Jimmy Carter, President of the United States, Edmund L. Henshaw, Jr., Clerk of the United States House of Representatives, Defendants.
• Court: U.S. District Court — Southern District of New York

508 F. Supp. 420

Hugh L. CAREY, Edward I. Koch, Alan Chou, Rose L. Dawson, Shmuel Lefkowitz, Michael Loizou, Edwin Martinez, Walter E. Marx, Brunilda Pacheco, Lamuel Stanislaus, The State of New York, and The City of New York, Plaintiffs, v. Philip M. KLUTZNICK, Secretary of Commerce, Vincent P. Barabba, Director, Bureau of the Census, William F. Hill, Regional Director, New York Region, Bureau of the Census, Richard Bitzer, Acting Assistant Regional Director, New York Region, Bureau of the Census, Arthur G. Dukakis, Regional Director, Boston Region, Bureau of the Census, United States Department of Commerce, Bureau of the Census, Jimmy Carter, President of the United States, Edmund L. Henshaw, Jr., Clerk of the United States House of Representatives, Defendants.

No. 80 Civ. 4550 (HFW).

United States District Court, S. D. New York.

December 22, 1980.

Stay Granted December 30, 1980.

Cravath, Swaine & Moore, New York City, for all plaintiffs except the State of New York and Hugh L. Carey; Frederick A. O. Schwarz, Jr., Robert A. Rifkind, David A. Barrett, Roger D. Einerson, John A. Redmon, Michael J. Malone, Roger H. Cummings, Mark P. Schnapp, Ronald P. Mysliwiec, New York City, of counsel.

Robert Abrams, Atty. Gen. of the State of New York, New York City, Peter Bienstock, Shiela Abdus-Salaam, Daniel Berger, Asst. Attys. Gen., New York City, of counsel, for the State of New York and the Hon. Hugh L. Carey.

Allen G. Schwartz, Corp. Counsel of the City of New York, New York City, Mary McCorry, New York City, of counsel, for the City of New York and the Hon. Edward I. Koch.

John S. Martin, Jr., U. S. Atty., S. D. New York, New York City, Michael H. Dolinger, Jane E. Booth, Steven E. Obus, Thomas D. Warren, Gaines Gwathmey, III, Susan M. Campbell, Asst. U. S. Attys., New York City, of counsel, for defendants.

Stay Granted December 30, 1980. See 101 S.Ct. 799.

OPINION

WERKER, District Judge.

Plaintiffs¹ commenced this suit against several defendants including the Bureau of the Census² to obtain declaratory and permanent injunctive relief requiring the defendants to adjust census figures for New York City and New York State in a manner that would reflect more accurately their true populations. Plaintiffs seek this relief on the ground that Census Bureau mismanagement of the census in New York further exacerbated what normally is a substantial undercount of the New York population. This action having been tried on the merits before the Court on November 12-14 and 17-21, 1980, and all the evidence having been duly considered, judgment is rendered for plaintiffs. Pursuant to Fed.R.Civ.P. 52(a), my findings of fact and conclusions of law follow.

FINDINGS OF FACT

THE METHODOLOGY OF THE 1980 CENSUS

The budget for the 1980 decennial census was approximately $1,008,000,000 for the full ten-year period preceding the census and approximately $670,000,000 for 1980. Tr. at 1116. The methodology of the 1980 census is set forth in numerous Census Bureau manuals. See Defendant's Ex. 22. Briefly, the census was to be carried out by a mail-out, mail-back procedure. Respondents were to provide the Census Bureau with information concerning the number of persons within their household. Several follow-up procedures designed to detect persons and households who were missed in the original count either because a form was never sent to them or because they failed to return a form also were planned. Finally, there were to be certain last resort techniques and other imputations made by the Census Bureau to complete the count. In order to accomplish the proposed procedures, approximately 270,000 persons were temporarily employed by the Bureau across the nation to supplement the staff of several thousand permanent Bureau employees. Tr. at 1115.

In large cities, mailing lists were compiled from address lists purchased from commercial mailing firms. In outlying areas the Bureau utilized a pre-list procedure whereby enumerators went out to the field and listed every housing unit in a given area. Tr. at 1128-29. It was anticipated that the commercial mailing lists would be incomplete so the Bureau designed procedures to improve the quality of the lists. There were to be three Post Office checks and a precanvass check by enumerators. Id. at 1129. "After the Advance Post Office check, all of the postal corrections were to be added to the list, and the list was then to be geocoded ...."³ Id. at 1131.

Based on the address lists so compiled, questionnaires were to be mailed out to every listed household in late March 1980. Id. at 1137. Every questionnaire that was returned to the local district office was to be matched to the Master Address Register ("MAR"). Deficiencies identified in the MAR's with respect to number of units reported in the structure were to be assigned for recanvass as were questionnaires that appeared incorrect because of the manner in which certain questions were answered. The recanvass operation undertaken at this stage was known as Follow-up I. Essentially, Follow-up I was to consist of series of procedures for field follow-up by enumerators to provide for enumeration of those households that did not receive or return a census questionnaire in the mail and for recanvass of those units which had "failed edit."⁴ Id. at 1140.

Follow-up I was to commence in mid-April 1980. Questionnaires were to be filled out for any units successfully enumerated in the course of these procedures and the information obtained was to be included in the MAR's. If after four attempts, an enumerator was unable to obtain information concerning a unit, the enumerator was to attempt to obtain that information from persons with knowledge of the status of the unit such as neighbors or janitors. This was known as last resort information. If this procedure still resulted in a dearth of information concerning the unit, the crew leader of the district office was to attempt to enumerate the unit. If this effort similarly proved unproductive, the unit was to be classified as a verified refusal and no further attempt was to be made to enumerate the unit. Id. at 1142-43. At the end of Follow-up I there was to be a merge of the MAR's and the Follow-up Address Registers ("FAR's") which were kept in the district offices after which the information in each book was to be identical. There were target dates for the completion of Follow-up I but they were not deadlines and the procedure was to continue in each district office until "every housing unit had been enumerated or had been classified as vacant, found to be no longer existent ... or where ... visits had been made and no information had been obtained, a so-called unclassified unit." Id. at 1146.

At the end of Follow-up I, preliminary figures as to number of units, vacant units and population were to be disclosed to local governmental units for a voluntary procedure known as "local review." The purpose of the program was to permit local officials to compare census figures with their own population and housing figures in order to identify possible problem areas and present challenges to Census Bureau numbers. So long as the local census office was still open and was in a position to investigate the challenges, it was to review the challenges and recanvass the challenged areas if necessary. Id. at 1147-51.

The next step in the census operation was known as Follow-up II. This phase of the enumeration involved a recheck of unclassified units, units classified as vacant or non-existent, and units that had "failed edit." Id. at 1152-54. A non-household source check was to be conducted in large cities to improve coverage of minority populations. Id. at 1252. In this procedure names and addresses from Motor Vehicle driver's license lists and of legal aliens from the Immigration and Naturalization Service were to be compared against census data received during Follow-up I. In New York City, names and addresses from public assistance files were also to be used in the non-household source check. Id. at 1154-56. Follow-up II "was supposed to end when the procedures were all completed. However, the census activities were running behind schedule around the country so that a firm time schedule was developed for each district office, depending on the status of the census in that particular office ...." The closing dates were not adhered to in many cases. "District offices were told that in order to reach this closing date, that they could truncate some activities, but they were specifically told they could not truncate any activity which had to do with coverage and, therefore, if some activity was still going on that had not been or could not be completed by that time, the office was kept open until such time as it could be completed, unless it was of a relatively small nature, and if so, the regional census office was asked to complete the activity." Id. at 1157.

If at any time after April 1, 1980, unlisted housing units were discovered during the course of any field follow-up operations, the procedures called for those units to be added to the MAR's and enumerated. Tr. 217-18; D's exhibit 22.

At the end of field operations, all of the questionnaires and address registers were to be sent for processing to Jeffersonville, Indiana. At this point, the final population totals were to be tabulated from the questionnaires, and population and other characteristics of any units that remained unclassified were to be imputed based upon the characteristics of the immediately preceding unit. Tr. 1163-64.

PROBLEMS IN EXECUTION

Despite the rather detailed procedures outlined above, the district offices often experienced problems in enumerating the population. The problems were of several different types. Some recurred frequently, thus enabling the court to draw the inference that these or similar problems were encountered throughout New York City and other large cities within the state as well as in some less populous...