Senate of State of Cal. v. Mosbacher, 91-55887

• Decision Date: 06 July 1992
• Docket Number: No. 91-55887,91-55887
• Citation: 968 F.2d 974
• Parties: SENATE OF THE STATE OF CALIFORNIA, David Roberti, Milton Marks, Stewart Kwoh, Lillian Mobley, Plaintiffs-Appellees, v. Robert A. MOSBACHER, United States Department of Commerce, Barbara Everitt Bryant; Bureau of the Census, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 974

968 F.2d 974

SENATE OF THE STATE OF CALIFORNIA, David Roberti, Milton

Marks, Stewart Kwoh, Lillian Mobley, Plaintiffs-Appellees, v. Robert A. MOSBACHER, United States Department of Commerce, Barbara Everitt Bryant; Bureau of the Census,

Defendants-Appellants.

No. 91-55887.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted June 4, 1992.

Decided July 6, 1992.

Michael S. Raab, U.S.Dept. of Justice, Washington, D.C., for defendants-appellants.

Robert B. Broadbelt, Michael J. Olecki, Browne & Woods, Beverly Hills, Cal., for plaintiffs-appellees.

Richard H. Borrow and Jonathan Steinberg, Irell & Manella, Los Angeles, Cal., for amicus.

Appeal from the United States District Court for the Central District of California.

Before: PREGERSON, BRUNETTI, and FERNANDEZ, Circuit Judges.

FERNANDEZ, Circuit Judge:

The Senate of the State of California, individual state senators, and residents of California (collectively the Senate) brought this action against the Secretary of Commerce (the Secretary). The Senate sought to compel the Secretary to release tapes which contain adjusted census calculations for California. The district court issued a preliminary injunction which directed the Secretary to divulge the tapes to the Senate. We reverse.

BACKGROUND

In 1987, the Department of Commerce notified the public that no statistical adjustment would be made for the 1990 census. In response to litigation brought by the States of New York and California, City of New York v. Department of Commerce, 739 F.Supp. 761 (E.D.N.Y.1990), the Department vacated that decision and conducted a review of the 1990 census to determine if adjusted figures should be released. The Department's post-enumeration survey (PES) ¹ determined that over five million people were missed in the 1990 census--an overall undercount of about 2%. Adjustment of the 1990 Census for Overcounts and Undercounts of Population and Housing; Notice of Final Decision, 56 Fed.Reg. 33,582, 33,587 (July 22, 1991) (Adjustment Decision ). Blacks were undercounted by 4.8%, Hispanics by 5.2%, Asian-Pacific Islanders by 3.1%, American Indians by 5.0%, and non-Blacks by 1.7%. Id. at 33,582. California, with a minority population of 43%, was the most severely affected state: its total undercount was one million.

On July 22, 1991, the Secretary notified the public that he would not release adjusted figures. Adjustment Decision at 33,582. The Secretary gave several reasons for his decision, including: (1) it was unclear whether adjusting the figures would improve the accuracy of the census; (2) some localities would gain more accurate figures, but others would lose accuracy; (3) the statistical procedures are unstable and could produce different results and different mistakes; (4) political tampering could result from using statistics to achieve desired results; (5) the release of the figures could disrupt the redistricting process at the state and local level, which was already designed using the official figures; and (6) future censuses could be potentially affected in a way that would discourage full and active participation by the state and localities. Id. at 33,583-84.

The Senate brought this action to compel the Secretary to release the adjusted census calculations for the State of California. It claimed that the release was required by the Constitution, the census statutes, 13 U.S.C. §§ 1, et seq., and the Voting Rights Act, 42 U.S.C. § 1973. It did not seek release pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The district court granted a preliminary injunction ordering the release of the adjusted census figures. It concluded that the Senate would be irreparably harmed if it was not provided with the adjusted census calculations for use in the redistricting process. The court found no harm at all to the Department of Commerce, which had already calculated and prepared the adjusted figures, and had even been ready to send them out to the states. We stayed the injunction pending appeal.

STANDARD OF REVIEW

We review jurisdictional questions de novo. See United States v. Moncini, 882 F.2d 401, 403 (9th Cir.1989); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1194 (9th Cir.1988). "The grant ... of a motion for a preliminary injunction is within the discretion of the district court, and the order of the district court will be reversed only if the court relied on an erroneous legal premise or otherwise abused its discretion." Employers Ins. of Wausau v. Albert D. Seeno Const. Co., 945 F.2d 284,

285 (9th Cir.1991). "Questions of law underlying a preliminary injunction motion are reviewed de novo." Id. at 285-86.

DISCUSSION

In reviewing the grant of the preliminary injunction in this case we are faced with two interwoven issues: Was there jurisdiction to grant relief in this case and were there legal grounds upon which relief could be granted? These issues are interwoven because if there was no law under which the Secretary's decision could be reviewed or questioned, then we lack jurisdiction. By the same token, the absence of laws restraining the Secretary's decision not to release the tapes containing adjusted data would also obliterate the foundation upon which the preliminary injunction rested. We will first explicate the principles that support these propositions. We will then examine the law upon which the Senate rests its claims.

A. Review of Agency Action.

It is a longstanding rule that some agency actions are not subject to judicial review because they are committed to the discretion of the agency itself. That principle is set forth in the Administrative Procedure Act. The Act provides that it will not apply when "agency action is committed to agency discretion by law." 5 U.S.C. § 701(a)(2). As might be expected, the courts have restrained the reach of that exception, for it is a beast that will swallow the whole of judicial review if given the opportunity. Nevertheless, the courts have not rendered the beast toothless. The Supreme Court has said that this exception was designed to apply in "rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply.' " Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820-21, 28 L.Ed.2d 136 (1971) (citation omitted). But, rare or not, the Court has made it clear that "an agency decision not to take enforcement action should be presumed immune from judicial review under section 701(a)(2)." Heckler v. Chaney, 470 U.S. 821, 832, 105 S.Ct. 1649, 1656, 84 L.Ed.2d 714 (1985). As the Court said, "an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion." Id. at 831, 105 S.Ct. at 1655. The Court explained that

even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion. In such a case, the statute ("law") can be taken to have "committed" the decisionmaking to the agency's judgment absolutely.

Id. at 830, 105 S.Ct. at 1655. Compare our recent cases on prosecutorial discretion in which we refused review even though decision making was said to violate due process. United States v. Redondo-Lemos, 955 F.2d 1296, 1299-1300 (9th Cir.1992); United States v. Nance, 962 F.2d 860, 865 (9th Cir.1992); United States v. Diaz, 961 F.2d 1417, 1420 (9th Cir.1992).

The Court revisited this issue in Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988), where it was asked to review the decision of the Central Intelligence Agency to discharge an employee. It reviewed the authority granted to the Director of that agency and determined that the "standard fairly exudes deference to the Director, and appears to us to foreclose the application of any meaningful judicial standard of review." Id. at 600, 108 S.Ct. at 2052.

The same might be said of an agency decision not to release internal information to the public. It is most difficult to see precisely what legal standards should apply to that determination, if Congress has not undertaken to set forth standards of review. Of course, Congress has adopted FOIA, but this case was not brought under that statute. Indeed, that statute was designed to outline release standards and was needed, in part, because there was no truly meaningful way to compel a release in its absence. At any rate, neither the Constitution This terrain was recently surveyed by the Seventh Circuit in a census case. Tucker v. Department of Commerce, 958 F.2d 1411 (7th Cir.1992). There the court dealt with an attempt to force the Secretary to adjust the census data itself for much the same reasons as those asserted by the Senate in its attempt to obtain the unreleased information. Even when faced with that substantive claim, the court determined that judicial review was not proper. As it said:

                itself nor the census statutes has ever been held to be a FOIA.   See Houchins v. KQED, Inc., 438 U.S. 1, 15, 98 S.Ct. 2588, 2597, 57 L.Ed.2d 553 (1978)
                

It might be different if the apportionment clause, the census statutes, or the Administrative Procedure Act contained guidelines for an accurate decennial census, for that would be some evidence that the framers of these various enactments had been trying to create a judicially administrable standard. There is nothing of that sort, and the inference is that these enactments do not create justiciable rights. The Constitution directs Congress to conduct a decennial census, and the implementing statutes delegate this authority to the Census Bureau. There is a little more to the statutes--they specify a timetable, and a procedure for translating fractional into whole seats--but they say nothing about how to conduct a census or what to do about undercounts. So nondirective are the relevant statutes that it...