Carey v. Klutznick

Citation637 F.2d 834
Decision Date15 December 1980
Docket NumberD,No. 672,No. 80-6232,672,80-6232
PartiesHugh 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- Appellees, 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-Appellants. ocket
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Peter Bienstock, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen. of the State of New York, Sheila Abdus-Salaam, Daniel Berger, New York City, of counsel), for plaintiffs-appellees, Hugh L. Carey and the State of New York.

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

Frederick A. O. Schwarz, Jr., New York City (Robert S. Rifkind, David A. Barrett, Roger H. Cummings, Michael J. Malone, III, John A. Redmon, Cravath, Swaine & Moore, New York City, of counsel), for the City of New York, and Edward I. Koch and for all other plaintiffs-appellees, except Hugh L. Carey and the State of New York.

Michael H. Dolinger, Asst. U. S. Atty., New York City (John S. Martin, Jr., U. S. Atty. for the Southern District of New York, Jane E. Booth, Steven E. Obus, Asst. U. S. Attys., New York City, of counsel), for defendants-appellants.

Before OAKES and MESKILL, Circuit Judges, and GAGLIARDI, * District Judge.

PER CURIAM:

This appeal, taken pursuant to 28 U.S.C. § 1292(a)(1), is from the grant of a preliminary injunction against the appellants, who collectively will be called the Census Bureau. The underlying action challenges the manner in which the Census Bureau conducted the 1980 census in the State of New York. It arises under Article I, section 2, clause 3, of the Constitution, section 2 of the Fourteenth Amendment, and the First, Fifth, and Fifteenth Amendments, as well as the statutes relating to the taking of the census and to the apportionment of representatives, 13 U.S.C. §§ 1-307 and 2 U.S.C. § 2a, and the Administrative Procedure Act, 5 U.S.C. §§ 551-576, 701-706. The appellees asserted that jurisdiction was conferred by 28 U.S.C. §§ 1331, 1337, 1361 and by 5 U.S.C. § 702, and they sought declaratory and injunctive relief.

The appellees include the City of New York and its mayor; the governor of the state; and several voters and taxpayers in various city, congressional, state senatorial and state assembly districts. Their basic complaint is that the census was conducted in a manner that will inevitably result in an undercount, an undercount that will not be evenly distributed across the state but that instead will occur at a higher rate in low-income areas populated largely by members of minority groups. A principal factual allegation is that the master address registers ("MARs") prepared for New York City were grossly inadequate because they were compiled from private commercial mailing lists that were out of date, incomplete, and lacked names of residents of poor and minority neighborhoods. Appellees also allege that the follow-up check of the MARs by the postal service and census workers was wholly inadequate. The appellees' ultimate contentions are that the resulting undercount not only will cause New York to lose at least one congressional seat to which it is entitled when the reapportionment is made, but that it also will result in the dilution of the votes of New York City residents particularly members of minority groups vis-a-vis those of other residents of the state with respect to the state legislature, and will generally cost the city and the state vast sums of money distributed under federal revenue sharing and other programs with statutory formulas tied to the census.

Originally the appellees sought a preliminary injunction enjoining the closing of census offices in the State of New York, but when the Census Bureau closed a large number of its district offices the request was modified; the appellees asked the district court to require the Census Bureau to process certain "Were You Counted" forms and to compare with Census Bureau records of New York City residents a computerized list of 1.2 million persons in New York City eligible for Medicaid. 1 They assert that this relief is necessary, despite any statistical adjustments that ultimately might be ordered in the underlying action, because they are entitled to the most accurate head count feasible as a basis for any subsequent statistical adjustment. Judge Werker found that the appellees had established the possibility of irreparable harm to the efficacy of their votes if the Census Bureau were not required to consider the "Were You Counted" forms and the computer list, and that this possibility was clear. He also found that the appellees are likely to succeed on the merits because they had submitted significant evidence concerning Census Bureau mismanagement and had raised serious questions as to whether some of the policies and procedures employed by the Census Bureau were carried out in an irrational or arbitrary manner.

The Census Bureau argues that appellees did not demonstrate irreparable harm but merely a "possibility" of irreparable harm, that appellees failed to demonstrate a sufficient prospect of success on the merits to justify a preliminary injunction, and that the lower court entered the preliminary injunction in disregard of governing equitable principles. The Bureau notes that we have power of "full review" on appeal because the trial court did not hold an evidentiary hearing. See Jack Kahn Music Co. v. Baldwin Piano & Organ Co., 604 F.2d 755, 758 (2d Cir. 1979); Forts v. Ward, 566 F.2d 849, 852 n.8 (2d Cir. 1977).

In terms of a showing of irreparable harm, see Jackson Dairy, Inc. v. H. P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979), the Census Bureau makes both a factual and a legal argument. The factual argument is that appellees can obtain the full measure of the relief they seek after trial. However, even though it may be possible to make statistical adjustments at a later date, there is no indication that changes in the conventional head count can or would be made once census figures are reported. As each day passes, retroactive head counting becomes more difficult memories fade and people move. The computer list supplied by the appellees and the "Were You Counted" forms are both devices for adjusting the head count, and the Bureau has maintained that only head count figures can be included in the official census used for apportionment. It is quite apparent, therefore, that absent interim relief and with the filing of the current census figures by the December 31, 1980 deadline, see 13 U.S.C. § 141(b), appellees would be denied any appropriate increase in their head count. As such, appellees would be irreparably harmed by deprivation of their right to a fair apportionment.

As for the Census Bureau's legal argument, it is based on Judge Werker's use of the phrase "(t)he possibility of irreparable harm." The Bureau points out that an injunction "may not be used simply to eliminate a possibility of a remote future injury," New York v. Nuclear Regulatory Commission, 550 F.2d 745, 755 (2d Cir. 1977). Although the irreparable injury that the appellees sought to avert was a "possibility," every irreparable injury is merely a possibility until it is actual and can no longer be averted. Real and imminent, not remote, irreparable harm is what must be demonstrated and we think was demonstrated here for the reasons stated above. In this connection, the fact that the order concerning the computer list was mandatory in nature is justifiable because it constituted an equitable effort by the court to restore the "status quo," which was destroyed when the Census Bureau unilaterally closed its district offices during the pendency of a preliminary injunction motion to keep them open.

The Census Bureau also argues that if the injunction is enforced the Bureau cannot meet the statutory deadline of December 31, 1980 for filing the census report, see 13 U.S.C. § 141(b), and that it does not have the employees available to perform the functions ordered by the lower court. We see nothing sacred in the due date of the filing, especially when the work of the Census Bureau, at least as preliminarily demonstrated below, is incomplete. See Young v. Klutznick, 497 F.Supp. 1318 (E.D.Mich.1980). It is the Bureau's own fault that the deadline is not being met, and in any event the reapportionment process will not commence for some considerable period of time thereafter. The mandatory injunction does involve work on the part of the Bureau, but the fact that some funds may have to be expended to hire additional personnel seems hardly a substantial problem when, according to the press, the Census Bureau spent $1 billion for its overall operation, see Wall St. J., Dec. 9, 1980, at 1, col. 1. To be sure, the district court has now conducted a full trial and the parties tell us that a decision on the merits is imminent. If it is a decision in favor of the Census Bureau, it may indeed moot the preliminary injunction at issue here. On the other hand, if appellees' claim is upheld, then injunctive relief ordering further adjustment of the head count may well be necessary to preserve the status quo.

In respect to likelihood of success on the merits, we preliminarily address the Bureau's standing, political...

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