Nat'l Urban League v. Ross

• Decision Date: 30 September 2020
• Docket Number: No. 20-16868,20-16868
• Citation: 977 F.3d 698
• Parties: NATIONAL URBAN LEAGUE; League of Women Voters; Black Alliance for Just Immigration; Harris County, Texas; King County, Washington; City of Los Angeles, California; City of Salinas, California; City of San Jose, California; Rodney Ellis; Adrian Garcia ; Navajo Nation; National Association for the Advancement of Colored People; City of Chicago, Illinois; County of Los Angeles, California; Gila River Indian Community, Plaintiffs-Appellees, v. Wilbur L. ROSS, in his official capacity as Secretary of Commerce; United States Department of Commerce; Steven Dillingham, in his official capacity as Director of the U.S. Census Bureau; United States Census Bureau, Defendants-Appellants, and State of Louisiana; State of Mississippi, Intervenor-Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

977 F.3d 698

NATIONAL URBAN LEAGUE; League of Women Voters; Black Alliance for Just Immigration; Harris County, Texas; King County, Washington; City of Los Angeles, California; City of Salinas, California; City of San Jose, California; Rodney Ellis; Adrian Garcia ; Navajo Nation; National Association for the Advancement of Colored People; City of Chicago, Illinois; County of Los Angeles, California; Gila River Indian Community, Plaintiffs-Appellees,

v. Wilbur L. ROSS, in his official capacity as Secretary of Commerce; United States Department of Commerce; Steven Dillingham, in his official capacity as Director of the U.S. Census Bureau; United States Census Bureau, Defendants-Appellants,andState of Louisiana; State of Mississippi, Intervenor-Defendants.

No. 20-16868

United States Court of Appeals, Ninth Circuit.

FILED SEPTEMBER 30, 2020

ORDER

On August 3, 2020, the United States Census Bureau (Bureau) adopted a census plan (Replan) that dramatically advanced critical deadlines for conducting the 2020 census. Appellees challenged this action pursuant to the Enumeration Clause of the United States Constitution and the Administrative Procedure Act (APA). On September 24, 2020, the district court entered a preliminary injunction staying the Replan's schedule for completion of census field operations and for reporting the census results to the President and enjoining the government from implementing these deadlines. The government has filed an emergency motion to stay the preliminary injunction pending appeal, and a request for an immediate administrative stay pending resolution of the stay motion. In this order, we consider only the request for an administrative stay.

The decennial census is an enormous and complex nationwide operation. It requires nearly a decade of planning and hundreds of thousands of dedicated workers to accomplish. In 2018, after years of planning and testing, the Bureau adopted a plan to complete the 2020 census. The plan called for an extraordinary effort on the part of the government including hiring 340,000–500,000 field staff. For reasons stated in the record, the district court found that due to significant challenges encountered in the wake of COVID-19, the Bureau suspended field operations in March 2020. When operations resumed, the Bureau was unable to recruit sufficient numbers of field staff. In July 2020, the Bureau estimated that it only retained 38% of the field staff required to complete an accurate and timely census.

As a result of these serious challenges, the district court found that as early as April 2020, the Bureau, the Department of Commerce, and even the President had all publicly acknowledged that the December 31 deadline was no longer attainable. The Bureau adopted a new census plan in April to accommodate the delays caused by COVID-19 ("COVID-19 Plan"). The COVID-19 plan extended the deadline for each step in the process and contemplated that the Bureau would ask Congress for a 120-day extension of the December 31, 2020 delivery deadline for the completed census report. The Bureau's work proceeded according to the COVID-19 Plan until August 2020.

In early August, a "senior Department [of Commerce] official" directed the Bureau to change course and prepare a new plan for completing the census by the December 31, 2020 statutory deadline. Senior Bureau staff were given just four to five days to develop this "Replan." On August 3, 2020, the Bureau announced its adoption of the Replan, and its central feature: accelerating the COVID-19 Plan's deadline for the completion of field work and data collection from October 31 to September 30. On September 24, the district court entered a preliminary injunction preventing the Bureau from implementing the September 30 deadline to stop field work and data collection. The government requests an immediate administrative stay of the district court's injunction.

I

The government has filed a single emergency motion seeking a stay pending appeal, and also seeking an administrative stay pending resolution of the motion for stay pending appeal. We recently established that an administrative stay "is only intended to preserve the status quo until the substantive motion for a stay pending appeal can be considered on the merits, and does not constitute in any way a decision as to the merits of the motion for stay pending appeal." Doe #1 v. Trump , 944 F.3d 1222, 1223 (9th Cir. 2019). Based on our preliminary review of the record, we conclude that the status quo would be seriously disrupted by an immediate stay of the district court's order.

As explained above, until August of this year, the Bureau had been operating for several months under the COVID-19 plan. That plan represented a revised schedule to account for the challenges caused by the COVID-19 pandemic. It included extended deadlines based on the understanding that the Bureau would need additional time to complete the necessary field work and data processing to produce an accurate census report. The district court's September 5 temporary restraining order and September 24 preliminary injunction preserve the status quo because they maintain the Bureau's data-collection apparatus pending resolution of the appeal. By the time the district court entered its order, the Bureau had already begun winding down its field operations and terminating census field workers in anticipation of the Replan's accelerated September 30 deadline. The process of disbanding thousands of census workers will resume if an administrative stay is put in place, eliminating the Bureau's ability to conduct field work. Accordingly, on the facts of this case, staying the preliminary injunction would upend the status quo, not preserve it.

We are mindful of the potential harms faced by both parties. Here, not only would the status quo be upended by an administrative stay, the Bureau's ability to resume field operations would be left in serious doubt. Thousands of census workers currently performing field work will be terminated, and restarting these field operations and data collection efforts, which took years of planning and hiring efforts to put in place, would be difficult if not impossible to accomplish in a timely and effective manner. Granting the administrative stay thus risks rendering the plaintiff's challenge to the Replan effectively moot.

We also recognize that missing the December 31 statutory deadline risks serious harm to the government. However, the record does not demonstrate that the Bureau's ability to meet that deadline is affected by the district court's injunction. Rather, the evidence in the administrative record uniformly showed that no matter when field operations end—whether September 30 under the Replan or October 31 under the COVID-19 Plan—the Bureau will be unable to deliver an accurate census by December 31, 2020. The President, senior Bureau officials, senior Department of Commerce officials, the Office of Inspector General, the Census Scientific Advisory Committee, and the Government Accountability Office have all stated that delivering a census by December 31 without compromising accuracy is practically impossible, and has been for some time. As the district court recognized, after the Bureau realized the pandemic would prevent it from adhering to its original schedule, the Bureau made two requests to Congress: first, it requested the December 31 deadline be extended to April 2021. When no final congressional action had been taken on that request in July, the Bureau requested $443 million to cover the additional cost to complete the census by year's end. Contrary to the dissent's repeated assertion, the only undisputed fact in this sequence was that Congress has not given the Bureau the extension or the additional funding it needs to meet the statutory deadline.

The government did not counter the Appellees’ showing on this point. Citing the chorus of statements made by the Bureau and other officials, the district court found that the Bureau could not meet the December 31 deadline. Indeed, despite the government's persistent argument in the district court and before our court that the September 30 deadline for terminating field operations is essential to meeting its December 31 statutory deadline, the administrative record compellingly supports the district court's conclusion that moving the October 31 deadline to September 30 will not allow the Bureau to complete the census on time.

Finally, we note that notwithstanding the pendency of the government's emergency request for an immediate administrative stay to allow the Replan's September 30 deadline to take effect, on September 28 the government again changed the deadline for completing field work. The government informed us in a September 28, 2020 letter, without explanation, that it now intends to end field operations on October 5, 2020. This abrupt change contradicts the government's argument that the September 30 date is vitally important to the Bureau's ability to meet its statutory reporting deadline. Our dissenting colleague cites a September 28 estimate suggesting that the census is 98% complete. This is still below the enumeration rate required by the Bureau's internal standards for generating an accurate census report. Further, the district court ruled on September 24 and found, as of that date, the Bureau had met its standard in only four states.

Given the extraordinary importance of the census, it is imperative that the Bureau conduct the census in a manner that is most likely to produce a workable report in which the public can have confidence. The Bureau must account for its competing constitutional and statutory obligation to produce a fair and accurate census report. The hasty and unexplained changes to the Bureau's operations contained in the Replan, created in just 4 to 5 days, risks undermining the Bureau's mission.

Our dissenting colleague makes four errors. First, the dissent applies the wrong standard for a preliminary...