City of New York v. U.S. Dept. of Commerce

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: KEARSE; TIMBERS
• Citation: City of New York v. U.S. Dept. of Commerce, 34 F.3d 1114 (2nd Cir. 1994)
• Decision Date: 08 August 1994
• Docket Number: No. 813,D,813
• Parties: CITY OF NEW YORK; State of New York; City of Los Angeles; City of Chicago; City of Houston; Dade County, Florida; United States Conference of Mayors; National League of Cities; League of United Latin American Citizens; National Association for the Advancement of Colored People; Marcella Maxwell; Donald H. Elliott; John Mack; Olga Morales; Timothy W. Wright, III; Raymond G. Romero; Antonio Gonzales; Athalie Range; Jerry Alan Wood; Carolyn Sue Lopez; City of Atlanta, Georgia; Maynard Jackson, Individually, and as the Mayor of the City of Atlanta; Florida House of Representatives; Florida State Conference; Miguel A. De Grandy; Willye Dennis; Mario Diaz-Balart; Dr. Charles Evans; Rodolfo Garcia, Jr.; Bollowy L. "Bo" Johnson; Alfred J. Lawson, Jr.; Willis Logan, Jr.; Johnnie McMillan; Alzo J. Reddick; Peter Rudy Wallace; T.K. Wetherell, Plaintiffs-Appellants, State of Texas; City of Phoenix, Arizona; State of New Jersey; State of Florida; City of Cleveland, Ohio; City of Denver, Colorado; City of Inglewood, California; City of New Orleans, Louisiana; City of Oakland, California; City of Pasadena, California; City of Philadelphia, Pennsylvania; City of San Antonio, Texas; City of San Francisco, California; Broward County, Florida; State of Arizona; City of Baltimore, Maryland; City of Boston, Massachusetts; City of Long Beach, California; City of San Jose, California; Los Angeles County, California; San Bernardino County, California; District of Columbia; Navajo Nation; State of New Mexico; City of Tucson, Arizona; Council of Great City Schools, Intervenors-Plaintiffs-Appellants, People of the State of California ex rel. Daniel E. Lungren, Attorney General, Plaintiff, County of Hudson, New Jersey, Intervenor-Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE; Ronald H. Brown, Esq. As Secretary of the United States Department of Commerce; Michael R. Darby, As Under Secretary for Economic Affairs of the United States Department of Commerce; Bureau of Census; Barbara Everitt

Page 1114

34 F.3d 1114

63 USLW 2128

CITY OF NEW YORK; State of New York; City of Los Angeles City of Chicago; City of Houston; Dade County, Florida United States Conference of Mayors; National League of Cities; League of United Latin American Citizens; National Association for the Advancement of Colored People; Marcella Maxwell; Donald H. Elliott; John Mack; Olga Morales Timothy W. Wright, III; Raymond G. Romero; Antonio Gonzales; Athalie Range; Jerry Alan Wood; Carolyn Sue Lopez; City of Atlanta, Georgia; Maynard Jackson Individually, and as the Mayor of the City of Atlanta; Florida House of Representatives; Florida State Conference; Miguel A. De Grandy; Willye Dennis; Mario Diaz-Balart; Dr. Charles Evans; Rodolfo Garcia, Jr.; Bollowy L. "Bo" Johnson; Alfred J. Lawson, Jr.; Willis Logan, Jr.; Johnnie McMillan; Alzo J. Reddick; Peter Rudy Wallace; T.K. Wetherell, Plaintiffs-Appellants, State of Texas; City of Phoenix, Arizona; State of New Jersey; State of Florida; City of Cleveland, Ohio; City of Denver, Colorado; City of Inglewood, California; City of New Orleans, Louisiana; City of Oakland, California; City of Pasadena, California; City of Philadelphia, Pennsylvania; City of San Antonio, Texas; City of San Francisco, California; Broward County, Florida; State of Arizona; City of Baltimore, Maryland; City of Boston, Massachusetts; City of Long Beach, California; City of San Jose, California; Los Angeles County, California; San Bernardino County, California; District of Columbia; Navajo Nation; State of New Mexico; City of Tucson, Arizona; Council of Great City Schools, Intervenors-Plaintiffs-Appellants, People of the State of California ex rel. Daniel E. Lungren, Attorney General, Plaintiff, County of Hudson, New Jersey, Intervenor-Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE; Ronald H. Brown, Esq. As Secretary of the United States Department of Commerce; Michael R. Darby, As Under Secretary for Economic Affairs of the United States Department of Commerce; Bureau of Census; Barbara Everitt Bryant, As Director of Bureau of Census; William J. Clinton, As President of the United States; Donald K. Anderson, As Clerk of the United States House of Representatives; Michael Espy, As Secretary of Agriculture; Donna E. Shalala, As Secretary of Health & Human Services; Henry Cisneros, As Secretary of Housing & Urban Development; Robert B. Reich, As Secretary of Labor; Frederico Pena, As Secretary of Transportation; Richard W. Riley, As Secretary of Education, Defendants-Appellees, State of Wisconsin; State of Oklahoma, Intervenors-Defendants-Appellees.

No. 813, Docket 93-6183.

United States Court of Appeals, Second Circuit.

Argued Jan. 5, 1994.

Decided Aug. 8, 1994.

Robert S. Rifkind and Peter L. Zimroth, New York City (Cravath, Swaine & Moore, Arnold & Porter, O. Peter Sherwood, Corp. Counsel of City of New York, David B. Goldin, Asst. Corp. Counsel, Robert Abrams, Atty. Gen. of State of N.Y., Stanford M. Cohen, Louis M. Solomon, Stein, Zauderer, Ellenhorn, Frischer & Sharp, New York City, Dan Morales, Atty. Gen. of State of Tex., Javier P. Guajardo, Asst. Atty. Gen., Austin, TX, Robert A. Butterworth, Atty. Gen. of the State of Fla., George L. Waas, Asst. Atty. Gen., Tallahassee, FL, Fred De Vesa, Acting Atty. Gen. of State of N.J., Michael S. Bokar, Senior Deputy Atty. Gen., Trenton, N.J., Grant Woods, Atty. Gen. of State of Ariz., Robert B. Carey, First Asst. Atty. Gen., Phoenix, AZ, Tom Udall, Atty. Gen. of State of N.M., Christopher D. Coppin, Asst. Atty. Gen., Santa Fe, NM, James K. Hahn, City Atty. of City of Los Angeles, Jessica F. Heinz, Deputy City Atty., Los Angeles, CA, De Witt W. Clinton, County Counsel of the County of Los Angeles, Ada Treiger, Los Angeles, CA, Timothy J. Schoenwalder, Blank, Rigsby & Meenan, Tallahassee, FL, on the brief), for plaintiffs-appellants and intervenors-plaintiffs-appellants.

Mark B. Stern, Atty., Dept. of Justice, Washington, DC (Frank W. Hunger, Asst. Atty. Gen., Michael S. Raab, Atty., Dept. of Justice, Washington, DC, Zachary W. Carter, U.S. Atty. for E.D.N.Y., Brooklyn, NY, on brief), for defendants-appellees.

Peter C. Anderson, Asst. Atty. Gen. of State of Wis., Madison, WI (James E. Doyle, Atty. Gen. of State of Wis., Madison, WI, Gretchen A. Harris, Andrews, Davis, Legg, Bixler, Milsten & Price, Oklahoma City, OK, on brief), for intervenors-defendants-appellees.

Before: TIMBERS, KEARSE, and LEVAL, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiffs City of New York et al. appeal from a judgment entered in the United States District Court for the Eastern District of New York following a bench trial before Joseph M. McLaughlin, Judge, ^* dismissing their action to compel defendants United States Department of Commerce ("DOC") et al. (collectively the "federal defendants") to make statistically-based adjustments to the 1990 United States census in order to rectify acknowledged undercounting of certain minority groups, including African-Americans, Hispanics, Asian-Pacific Islanders, and Native Americans. The district court, applying a standard of review set out in the Administrative Procedure Act, 5 U.S.C. Sec. 706 (1988) ("APA"), see 713 F.Supp. 48, 54 (1989), dismissed the complaint on the ground that the decision of the Secretary of Commerce (the "Secretary") not to adjust the census figures was not arbitrary or capricious. See 822 F.Supp. 906 (1993). On appeal, plaintiffs contend that, because the constitutional right to equal apportionment of votes depends on having the most accurate census practicable, the district court should not have applied an arbitrary-and-capricious standard of review but should have reviewed the Secretary's decision de novo. In opposition, the federal defendants argue that the Secretary's decision not to make a statistical adjustment to the census was entirely immune from judicial review or, at the most, was reviewable only for reasonableness, and that the district court correctly found that the decision not to adjust was not unreasonable. The States of Wisconsin and Oklahoma, as intervenors-defendants-appellees, argue that the district court's decision should be affirmed on the ground that the Census Act, 13 U.S.C. Sec. 131 et seq. (1988), prohibits any statistical adjustment of a census that is used for congressional apportionment.

For the reasons stated below, we conclude that the district court properly held that the Secretary's decision is reviewable and that the Census Act does not prohibit a statistical adjustment of the initial census enumeration; but we conclude that the court should not have reviewed the Secretary's decision under the APA's arbitrary-and-capricious standard of review. We vacate and remand for the court to determine whether the Secretary's decision not to make an adjustment in order to improve the overall count and reduce the disproportionate undercounting of minority groups was essential to the achievement of a legitimate governmental interest.

I. BACKGROUND

The background of this litigation focusing on the 1990 census has been painstakingly explored by the district court in several published opinions, see City of New York v. United States Department of Commerce, 713 F.Supp. 48 (E.D.N.Y.1989) ("NYC v. DOC I "); City of New York v. United States Department of Commerce, 739 F.Supp. 761 (E.D.N.Y.1990) ("NYC v. DOC II"); City of New York v. United States Department of Commerce, 822 F.Supp. 906 (E.D.N.Y.1993) ("NYC v. DOC III"), familiarity with which is assumed. The following description is taken largely from NYC v. DOC III, which includes the district court's findings after trial.

A. The Constitutional Requirement of a Decennial Census

The Constitution of the United States requires a decennial census of the population. See Art. I, Sec. 2, cl. 3 (an "actual Enumeration shall be made ... within every ... Term of ten Years"). The Constitution provides that members of the House of Representatives shall be apportioned among the states "according to their respective Numbers." Art I, Sec. 2, cl. 3; see also 14th Amend. Sec. 2 ("Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State...."). The apportionment of Representatives among the states also determines the allocation of votes to the states for the election of the President. See Art. II. Sec. 1, cl. 2 ("Each State shall appoint ... a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress....").

In addition to these federal constitutional purposes, the census data are used by the states to draw boundaries for congressional and state legislative districts and are used by local governments to establish districts for other representative bodies such as county legislatures, city councils, and boards of supervisors. Census data are also used to allocate federal and state funding and services. For purposes other than apportionment, Congress has directed that, in addition to the decennial census, there be a mid-decade census. See 13 U.S.C. Sec. 141(d).

The Constitution provides that the decennial census shall be conducted "in such Manner as [Congress] shall by Law direct." Art. I, Sec. 2, cl. 3. The agency designated by Congress to conduct the census is the Bureau of the Census ("Bureau" or "Census Bureau"), an agency within DOC. See 13 U.S.C. Sec. 2 (1988).

B. The Census Bureau's Planned Statistical Adjustment

Each decennial census has inevitably contained errors, resulting from, inter alia, the failures of millions of United States residents to return census forms or be counted by other means, leading to omissions, and the multiple counting of some residents and the listing of nonexistent persons, leading to overcounting. The census thus provides at best only an estimate of the nation's true population. Further, the census has been found to undercount members of ethnic and racial...