City of Los Angeles v. U.S. Dept. of Commerce

• Citation: 307 F.3d 859
• Decision Date: 27 September 2002
• Docket Number: No. 01-55986.,01-55986.
• Parties: CITY OF LOS ANGELES, California; City of San Antonio, Texas; City of Inglewood, California; County of Santa Clara, California; City of Stamford, Connecticut; Laura Chick, individually; Laura Chick, in her official capacity as a member of the Los Angeles City Council; Mike Feuer, individually; Mike Feuer, in his official capacity as a Member of the Los Angeles City Council; Mike Hernandez, in his official capacity as a Member of the Los Angeles City Council; Nate Holden, individually; Nate Holden, in his official capacity as a Member of the Los Angeles City Council; Cindy Miscikowsky, individually; Cindy Miscikowsky, in her official capacity as a Member of the Los Angeles City Council; Nick Pacheco, individually; Nick Pacheco, in his official capacity as a Member of the Los Angeles City Council; Alex Padilla, individually; Alex Padilla, in his official capacity as a Member of the Los Angeles City Council; Rita Walters, individually; Rita Walters, in her official capacity as a Member of the Los Angeles City Council; Mark Ridley-Thomas, individually; Mark Ridley-Thomas, in his official capacity as a Member of the Los Angeles City Council; Fernando Ferrer, individually; Fernando Ferrer, in his official capacity as President of Bronx Borough, New York, New York; County of Los Angeles; City and County of San Francisco; Bronx Borough, New York City, New York; Brooklyn Borough, New York City, New York; Albuquerque, New Mexico; Toledo, Ohio; San Jose, California; Cruz M. Bustamante, individually; Cruz M. Bustamante, in his official capacity as Lieutenant Governor for the State of California; Ruth Galanter, individually; Ruth Galanter, in her official capacity as a Member of the Los Angeles City Council; Carelton S. Finkbeiner, individually; Carelton S. Finkbeiner, in his official capacity as Mayor of Toledo, Ohio; Peter F. Vallone, individually; Peter F. Vallone, in his official capacity as Speaker of the New York City Council; C. Virginia Fields, individually; C. Virginia Fields, in her official capacity as President of Manhattan Borough, New York City, New York; The New York Council; City of Chicago, Illinois; Michael Madigan, individually; Michael J. Madigan, in his official capacity as Minority leader of the Illinois Senate; Emil Jones, Jr., individually; Emil Jones, Jr., in his official capacity as Minority leader of the Illinois Senate; John H. Stroger, Jr., individually; John H. Stroger, Jr., in his official capacity as President of the Cook County Board of Commissioners; Claire Schulman, individually; Claire Schulman, in her official capacity as President of Queens Borough, New York City, New York, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF COMMERCE; Donald Evans, Secretary of the Department of Commerce, in his official capacity, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

307 F.3d 859

CITY OF LOS ANGELES, California; City of San Antonio, Texas; City of Inglewood, California; County of Santa Clara, California; City of Stamford, Connecticut; Laura Chick, individually; Laura Chick, in her official capacity as a member of the Los Angeles City Council; Mike Feuer, individually; Mike Feuer, in his official capacity as a Member of the Los Angeles City Council; Mike Hernandez, in his official capacity as a Member of the Los Angeles City Council; Nate Holden, individually; Nate Holden, in his official capacity as a Member of the Los Angeles City Council; Cindy Miscikowsky, individually; Cindy Miscikowsky, in her official capacity as a Member of the Los Angeles City Council; Nick Pacheco, individually; Nick Pacheco, in his official capacity as a Member of the Los Angeles City Council; Alex Padilla, individually; Alex Padilla, in his official capacity as a Member of the Los Angeles City Council; Rita Walters, individually; Rita Walters, in her official capacity as a Member of the Los Angeles City Council; Mark Ridley-Thomas, individually; Mark Ridley-Thomas, in his official capacity as a Member of the Los Angeles City Council; Fernando Ferrer, individually; Fernando Ferrer, in his official capacity as President of Bronx Borough, New York, New York; County of Los Angeles; City and County of San Francisco; Bronx Borough, New York City, New York; Brooklyn Borough, New York City, New York; Albuquerque, New Mexico; Toledo, Ohio; San Jose, California; Cruz M. Bustamante, individually; Cruz M. Bustamante, in his official capacity as Lieutenant Governor for the State of California; Ruth Galanter, individually; Ruth Galanter, in her official capacity as a Member of the Los Angeles City Council; Carelton S. Finkbeiner, individually; Carelton S. Finkbeiner, in his official capacity as Mayor of Toledo, Ohio; Peter F. Vallone, individually; Peter F. Vallone, in his official capacity as Speaker of the New York City Council; C. Virginia Fields, individually; C. Virginia Fields, in her official capacity as President of Manhattan Borough, New York City, New York; The New York Council; City of Chicago, Illinois; Michael Madigan, individually; Michael J. Madigan, in his official capacity as Minority leader of the Illinois Senate; Emil Jones, Jr., individually; Emil Jones, Jr., in his official capacity as Minority leader of the Illinois Senate; John H. Stroger, Jr., individually; John H. Stroger, Jr., in his official capacity as President of the Cook County Board of Commissioners; Claire Schulman, individually; Claire Schulman, in her official capacity as President of Queens Borough, New York City, New York, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF COMMERCE; Donald Evans, Secretary of the Department of Commerce, in his official capacity, Defendants-Appellees.

No. 01-55986.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 9, 2002.

Filed September 27, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas M. Riordan (argued), Brian S. Currey, Jeremy I. Levin, O'Melveny & Myers, Los Angeles, CA, for the plaintiffs-appellants.

Michael S. Raab (argued), Mark B. Stern, Robert D. McCallum, Jr., John S. Gordon, U.S. Department of Justice, Washington, DC, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California Gary A. Feess, District Judge, Presiding. D.C. No. CV-01-01671-GAF.

Before: FERGUSON, REINHARDT, and GRABER, Circuit Judges.

Opinion by Judge FERGUSON; Dissent by Judge REINHARDT.

FERGUSON, Circuit Judge.

Various municipalities and officials ("Appellants") filed the instant lawsuit against the Department of Commerce and Secretary of Commerce Donald Evans to compel the Secretary to adopt statistically adjusted population data as the official Census 2000 for redistricting purposes. Secretary Evans decided against its use based on the recommendation of a committee of senior Census Bureau officials and statisticians who, after extensive study, expressed serious concerns regarding possible flaws in the statistical (or sampling) methodology.

The District Court rejected Appellants' claim that Secretary Evans' decision not to use the adjusted data (hereinafter "adjustment decision") violated 13 U.S.C. § 195, which requires the Secretary of Commerce to use "sampling" in conducting the census if "he considers it feasible." The District Court found moot Appellants' claim that Secretary Evans violated the notice-and-comment requirements of the Administrative Procedure Act ("APA") in revoking former Secretary of Commerce William Daley's delegation of the adjustment decision to the Director of the Bureau of Census. We affirm.

I. BACKGROUND

The Constitution requires Congress to conduct a decennial census "in such Manner as they shall by Law direct" for apportioning congressional representation to the states. U.S. CONST. art. I, § 2, cl. 3; id. amend. XIV, § 2. By means of the Census Act, Congress has delegated broad discretion to the Secretary of Commerce to conduct the census "in such form and content as he may determine, including the use of sampling procedures and special surveys." 13 U.S.C. § 141(a). The Secretary, in turn, oversees the Bureau of the Census, an agency within the Department of Commerce responsible for conducting the decennial census. 13 U.S.C. § 2, 4 & 21.

Although the Constitution mandates only that the census be taken for reapportionment purposes, the census data is used for myriad other purposes. Wisconsin v. City of N.Y., 517 U.S. 1, 5-6, 116 S.Ct. 1091, 134 L.Ed.2d 167 (1996) (describing secondary uses of census data). Appellants challenge the Census 2000 results because of their effect on the allotment of federal and state funds, as well as the redistricting of their respective state legislatures.

A. Sampling and the Census Act

At issue in this case is whether the Secretary was required to statistically adjust the results of Census 2000 pursuant to 13 U.S.C. § 195, as amended in 1976. Since 1940, the Bureau has employed sampling techniques to gather supplemental information regarding the population. U.S. Bureau of the Census, Dep't of Commerce, Accuracy and Coverage Evaluation: Statement on the Feasibility of Using Statistical Methods to Improve the Accuracy of Census 2000, 65 Fed.Reg. 38,374, 38,382 & n. 21 (June 20, 2000) ("A.C.E. Report").

In 1957, the Secretary requested that Congress enact a law that would clearly authorize the use of sampling in conducting the census. Utah v. Evans, ___ U.S. ___, ___, 122 S.Ct. 2191, 2202, 153 L.Ed.2d 453 (2002) (citing legislative history); Dep't of Commerce v. U.S. House of Reps., 525 U.S. 316, 336, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999) (amended opinion) (same). In response, Congress amended the Census Act by enacting § 195, which provided that the Secretary "may, where he deems it appropriate, authorize the use of the statistical method known as `sampling' in carrying out the provisions of this title" for purposes other than apportionment. Census Act of 1957, Pub.L. No. 85-207, § 14, 71 Stat. 481, 484 (1957) (codified at 13 U.S.C. § 195 (1957)); see Dep't of Commerce, 525 U.S. at 336, 119 S.Ct. 765. In 1976, Congress amended § 195 to provide:

Except for the determination of population for purposes of apportionment of Representatives in Congress among the several States, the Secretary shall, if he considers it feasible, authorize the use of the statistical method known as "sampling" in carrying out the provisions of this title.

Mid-Decade Census of Population Act of 1976, Pub.L. No. 94-521, § 10, 90 Stat. 2459, 2464 (1976) (emphasis added).

Since the enactment and revision of § 195, the Bureau has considered the use of statistical sampling to compensate for the error rate in the decennial census. In particular, it has studied the possibility of implementing statistical adjustments to the census data to compensate for the undercount of the population and the disproportionate undercount (or "differential undercount") of racial and ethnic minorities, children, and renters. See 65 Fed. Reg. 38,376; see also Wisconsin, 517 U.S. at 7-8, 116 S.Ct. 1091. However, for both Census 1980 and Census 1990 (and most recently for Census 2000), the Secretary ultimately decided against the use of the statistically adjusted data as the official census and relied instead on the headcount data. Id. at 8, 116 S.Ct. 1091.

B. Census 2000

In 1997, the Bureau submitted a plan to Congress for Census 2000. See U.S. BUREAU OF THE CENSUS, DEP'T OF COMMERCE, REPORT TO CONGRESS: THE PLAN FOR CENSUS 2000, 23 (Aug.1997) ("Census 2000 Plan"). The Census 2000 Plan incorporated the findings of the National Academy of Sciences ("NAS") that sampling could be used as an alternative to traditional means of enumeration.¹ Accordingly, the Census 2000 Plan provided for a "limited use of sampling" in ascertaining the population. Significantly, the Census 2000 Plan would have resulted in one set of census results: the initial headcount data adjusted by statistical sampling techniques. Id. at 52.

The Census 2000 Plan precipitated legal challenges to the use of statistical sampling in determining the population. In 1999, the Supreme Court held that "the Census Act prohibits the proposed uses of statistical sampling in calculating the population for purposes of apportionment." Dep't of Commerce, 525 U.S. at 343, 119 S.Ct. 765. Following Department of Commerce, the Bureau modified its plan to statistically adjust the Census 2000 only for purposes other than apportionment. 65 Fed.Reg. 38,377.

1. The Accuracy and Coverage Evaluation ("A.C.E.") Report

On June 2000, the Bureau issued the A.C.E. Report, which described the statistical methodology to be used for Census 2000. The Report set forth the Bureau's preliminary determination that the use of the statistically adjusted data was feasible in terms of both the statutory deadline for releasing redistricting information and...