Brennan Ctr. for Justice at NYU Sch. of Law v. Dep't of Commerce, Civil Action No. 20-2674 (TJK)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtTIMOTHY J. KELLY, United States District Judge
Citation498 F.Supp.3d 87
Decision Date30 October 2020
Docket NumberCivil Action No. 20-2674 (TJK)
Parties BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW, Plaintiff, v. DEPARTMENT OF COMMERCE et al., Defendants.

498 F.Supp.3d 87

BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW, Plaintiff,
v.
DEPARTMENT OF COMMERCE et al., Defendants.

Civil Action No. 20-2674 (TJK)

United States District Court, District of Columbia.

Signed October 30, 2020


498 F.Supp.3d 91

Caitlin W. Monahan, Rieko H. Shepherd, Pro Hac Vice, Mikayla C. Foster, Pro Hac Vice, Wilmer Cutler Pickering Hale & Door LLP, Boston, MA, Jared Vasconcellos Grubow, Pro Hac Vice, WilmerHale, New York, NY, Patrick Joseph Carome, Wilmer Cutler Pickering Hale & Dorr LLP, Washington, DC, for Plaintiff.

Elizabeth J. Shapiro, Stephen McCoy Elliott, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

TIMOTHY J. KELLY, United States District Judge

The Brennan Center filed this FOIA action in late September 2020, requesting the production of records responsive to

498 F.Supp.3d 92

requests it sent to nine federal agencies in early July. The records it seeks relate to the 2020 United States census, including the methodology used to calculate and report state-population totals, the potential use of citizenship status data in those calculations, and how the calculations will be used to reapportion the House of Representatives—i.e., how many seats in that body the House will inform each state it is entitled to for the next ten years, as it must by January 25, 2021. Just over a week after filing its complaint, the Brennan Center filed the instant motion for a preliminary injunction. The motion seeks to compel the agencies to expedite processing of its requests, and, on top of that, to do so (and provide it a Vaughn index) by November 2, 2020. It is rare that any preliminary relief is appropriate in a FOIA case, but this is not a run-of-the-mill case. For the reasons explained below, the Court will grant the motion for preliminary injunction in part and require Defendants to process most of the Brennan Center's requests and produce Vaughn indices on a rolling basis to be completed by January 11, 2021, in time for the Brennan Center to make use of the records by January 25, 2021.

I. Background

A. The Freedom of Information Act

The Freedom of Information Act (FOIA) requires agencies to make records "promptly available to any person" whose request "reasonably describes such records" and otherwise satisfies agency procedures. 5 U.S.C. § 552(a)(3)(A). Within twenty business days of receiving a request, a period that an agency may extend for ten days in "unusual circumstances," 5 U.S.C. § 552(a)(6)(B)(i), the agency must determine "whether to comply with such request" and "immediately notify the person making such request" of "such determination and the reasons therefor" and of "the right of such person to appeal to the head of the agency any adverse determination," 5 U.S.C. § 552(a)(6)(A)(i). Then, responsive, non-exempt records "shall be made promptly available to such person making such request." 5 U.S.C. § 552(a)(6)(C)(i).

A person who "demonstrates a compelling need" or falls within "other cases determined by the agency" is entitled to expedited processing of his request. 5 U.S.C. § 552(a)(6)(E)(i)(I)–(II). There are two potential bases for expedited processing at issue here. A requester is entitled to expedited processing if he can show that (1) the requests concern "[a] matter of widespread and exceptional ... interest" that raises "questions" "about the Government's integrity" that "affect public confidence," 5 C.F.R. § 1303.40(e)(1)(iv) ; 15 C.F.R. § 4.6(f)(1)(iii) ; 28 C.F.R. § 16.5(e)(1)(iv) ; or (2) the requester is "primarily engaged in disseminating information," and there is "urgency to inform the public concerning actual or alleged Federal Government activity," 5 U.S.C. § 552(a)(6)(E)(v)(II) ; 5 C.F.R. § 1303.40(e)(1)(ii) ; 15 C.F.R. § 4.6(f)(1)(iv) ; 28 C.F.R. § 16.5(e)(ii). If a request is entitled to expedited processing, the agency must process it "as soon as practicable." 5 U.S.C. § 552(a)(6)(E)(iii).

B. The 2020 United States Census and Related Statutory Deadlines

The Constitution requires that a census be conducted every ten years "in such Manner as [Congress] shall by Law direct" to reapportion the number of seats allocated to each state in the House of Representatives. U.S. Const., art. I, § 2, cl. 3. The state-population totals are also used "to allocate federal funds to the States and to draw electoral districts."

498 F.Supp.3d 93

Dep't of Commerce v. New York , ––– U.S. ––––, 139 S. Ct. 2551, 2561, 204 L.Ed.2d 978 (2019). Congress has delegated the taking of the census to the Secretary of Commerce "in such form and content as he may determine," 13 U.S.C. § 141(a), and established certain statutory deadlines governing the reapportionment process that are relevant here. The Secretary must report state-population totals to the President "within 9 months after the census date," 13 U.S.C. § 141(b), in this case by December 31, 2020. Then, "[o]n the first day, or within one week thereafter" of the first regular session of each fifth Congress (here, by January 10, 2021) the President must submit the reapportionment data—"the whole number of persons in each State ... and the number of Representatives to which each State would be entitled"—to Congress. See 2 U.S.C. § 2a(a) ; Tr. at 5.1 Finally, within "fifteen calendar days after the receipt of such statement," here by January 25, 2021, the Clerk of the House of Representatives must "send to the executive of each State a certificate of the number of Representatives to which such State is entitled." See 2 U.S.C. § 2a(b) ; Tr. at 41.2

C. Events Surrounding the 2020 United States Census

The FOIA requests at issue relate to several events concerning the timing and content of this year's census. In 2018, the Secretary of Commerce announced that the 2020 census questionnaire would include a citizenship question. ECF No. 1 ("Compl.") ¶ 31; Dep't of Commerce v. New York , 139 S. Ct. at 2562. But in June the year after, the Supreme Court set aside that decision, effectively precluding use of the question on the questionnaire. Compl. ¶ 31; Dep't of Commerce v. New York , 139 S. Ct. at 2576. The next month, the President issued Executive Order 13880, instructing agencies to provide the Secretary "the maximum assistance permissible, consistent with law, in determining the number of citizens and non-citizens in the country, including by providing any access that the Department may request to administrative records that may be useful in accomplishing that objective." Compl. ¶ 32; 84 Fed. Reg. 33,821 (July 11, 2019). And about a year later, in July 2020, the President issued a "Memorandum on Excluding Illegal Aliens from the Apportionment Base Following the 2020 Census" to the Secretary. Compl. ¶ 29; 85 Fed. Reg. 44,679 (July 23, 2020). The memorandum established that "it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status," and directed the Secretary, in preparing his report of state-population totals for the President, "to provide information" permitting him to carry out that policy. Id. at 44,680. In September, a three-judge district court in the Southern District of New York found the memorandum an unlawful exercise of the President's statutory authority and enjoined the Secretary from providing the President that information. New York v. Trump , No. 20-CV-5770 (RCW) (PWH) (JMF), 485 F.Supp.3d 422, (S.D.N.Y. Sept. 10, 2020). The Supreme Court will hear argument on an expedited appeal of that decision on November 30.

498 F.Supp.3d 94

Trump v. New York , No. 20-366, ––– U.S. ––––, 141 S.Ct. 616, 208 L.Ed.2d 205, (U.S. Oct. 16, 2020).

In addition, because of complications from the COVID-19 pandemic, in April 2020 the Census Bureau announced that it would seek from Congress a four-month delay in the statutory deadlines for this year's census, which would have extended the Secretary's deadline to report state-population totals to the President to April 30, 2021. Compl. ¶ 26; Statement on 2020 Census Operational Adjustments Due to COVID-19 , Release No. CB20-RTQ.16 (Apr. 13, 2020), https://2020census.gov/en/news-events/press-releases/statement-covid-19-2020.html?linkId=10000001175162. But in early August 2020, shortly after the President issued the memorandum on excluding unlawful aliens from the state-population totals used for reapportionment, the Census Bureau reversed course and announced it would no longer seek such a delay. Compl. ¶ 28; Statement from U.S. Census Bureau Director Steven Dillingham: Delivering a Complete and Accurate 2020 Census Count , Release No. CB20-RTQ.23 (Aug. 3, 2020), https://www.census.gov/newsroom/press-releases/2020/delivering-complete-accurate-count.html. At the same time, the Census Bureau announced that it would end field data collection by September 30, a month earlier than the three-month extension it had previously planned to account for the pandemic. See id. A few days before that deadline, a district court in the Northern District of California granted a preliminary injunction enjoining the shorter deadline. Nat'l Urban League v. Ross , No. 20-CV-05799-LHK, 489 F.Supp.3d 939,...

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