Ross v. National Urban League ( 2020 )

Cite as: 592 U. S. ____ (2020) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
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No. 20A62
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WILBUR ROSS, SECRETARY OF COMMERCE, ET AL. v.
NATIONAL URBAN LEAGUE, ET AL.
ON APPLICATION FOR STAY
[October 13, 2020]
The application for stay presented to JUSTICE KAGAN and
by her referred to the Court is granted. The district court’s
September 24, 2020 order granting a preliminary injunc-
tion is stayed pending disposition of the appeal in the
United States Court of Appeals for the Ninth Circuit and
disposition of the petition for a writ of certiorari, if such writ
is timely sought. Should the petition for a writ of certiorari
be denied, this stay shall terminate automatically. In the
event the petition for a writ of certiorari is granted, the stay
shall terminate upon the sending down of the judgment of
this Court.
JUSTICE SOTOMAYOR, dissenting from grant of stay.
Today, the Court stays a preliminary injunction requir-
ing the Census Bureau to follow the data collection plan the
agency once described as necessary to avoid “risking signif-
icant impacts on data quality.” Electronic Case Filing in
No. 5:20–cv–5799, Doc. 198–7 (ND Cal., Sept. 22, 2020), p.
131 (ECF). The injunction required the Bureau to continue
its data collection efforts until October 31, 2020, a deadline
the Bureau itself selected in response to the significant op-
erational disruptions caused by the COVID–19 pandemic.
The Government now claims that this Court’s immediate
intervention is necessary because, absent a stay, the Bu-
reau will not be able to meet the December 31 statutory
deadline for reporting census results to the President. This
2 ROSS v. NATIONAL URBAN LEAGUE
SOTOMAYOR, J., dissenting
representation is contrary to the Government’s repeated as-
sertions to the courts below that it could not meet the stat-
utory deadline under any circumstances. Moreover, meet-
ing the deadline at the expense of the accuracy of the census
is not a cost worth paying, especially when the Government
has failed to show why it could not bear the lesser cost of
expending more resources to meet the deadline or continu-
ing its prior efforts to seek an extension from Congress.
This Court normally does not grant extraordinary relief on
such a painfully disproportionate balance of harms.
I
In April 2020, the Bureau extended the deadline for self-
responses to the census questionnaire and for its Non-
Response Follow-Up field operation from July 31, 2020, to
October 31, 2020. In the words of the Bureau’s associate
director for field operations, it was “ludicrous” to expect the
Bureau to “complete 100% of the nation’s data collection
earlier than [October 31]” in the middle of a pandemic. ___
F. Supp. 3d ___, ___, 2020 WL 5739144, *6 (ND Cal.,
Sept. 24, 2020).
The Bureau also rescheduled its anticipated report to the
President. Under the Census Act, the Secretary of Com-
merce must deliver to the President a report conveying the
results of the census by December 31, 2020. 13 U.S. C.
§141(b). The Bureau, however, moved this deadline to April
30, 2021. President Trump did not initially object, publicly
stating that “ ‘I don’t know that you even have to ask [Con-
gress]. This is called an act of God. This is called a situa-
tion that has to be.’ ” ___ F. Supp. 3d, at ___, 2020 WL
5739144, *37. The Bureau nonetheless requested that Con-
gress formally extend the December 31 statutory deadline
by 120 days. The House of Representatives passed a bill
extending the deadline, and on July 23, 2020, a Senate
Committee held a hearing on the bill.
On August 3, 2020, however, two weeks after President
Cite as: 592 U. S. ____ (2020) 3
SOTOMAYOR, J., dissenting
Trump announced his intent to exclude undocumented im-
migrants from the population base for congressional appor-
tionment, Secretary Ross announced the “Replan Sched-
ule.” Under the Replan Schedule, data collection would end
on September 30, 2020. The administration simultaneously
stopped pushing Congress to extend the reporting deadline
by 120 days.
II
Respondents, who are advocacy groups, cities, counties,
and Native tribes, sued to enjoin the Replan Schedule. The
District Court issued detailed factual findings, concluding
that respondents had demonstrated a likelihood of success
on the merits of their claim that the Bureau’s reversal was
arbitrary and capricious, 1 and that the harms to respond-
ents absent an injunction vastly outweighed any harm the
injunction would cause the Government. The court prelim-
inarily enjoined the Replan Schedule’s September 30 dead-
line for completing data collection (i.e., the deadline for in-
dividuals to complete the census questionnaire and for the
Bureau to wrap up its field operations) and the December
31 deadline for reporting the results to the President. The
District Court subsequently clarified that the Bureau’s
original October 31 deadline for data collection would be re-
instated. The Court of Appeals for the Ninth Circuit re-
versed the injunction as to the December 31 deadline, but
affirmed the reinstatement of the October 31 deadline. The
Government now asks this Court to intervene and stay the
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1 Specifically, the District Court concluded that respondents were
likely to succeed because the Government failed to consider important
aspects of the problem; the Replan Schedule ran counter to the evidence
before the agency; the Government failed to consider an alternative to
and articulate a satisfactory explanation for its decision to adopt the Re-
plan; and the Government failed to consider reliance interests of munic-
ipalities and organizations who publicized the October 31 deadline to
their communities. ___ F. Supp. 3d ___, ___–___, 2020 WL 5739144, *29–
*45 (ND Cal., Sept. 24, 2020).
4 ROSS v. NATIONAL URBAN LEAGUE
SOTOMAYOR, J., dissenting
entire injunction.
I would deny a stay of that injunction. An applicant for a
stay “must demonstrate (1) ‘a reasonable probability’ that
this Court will grant certiorari, (2) ‘a fair prospect’ that the
Court will then reverse the decision below, and (3) ‘a likeli-
hood that irreparable harm [will] result from the denial of
a stay.’ ” Maryland v. King, 567 U.S. 1301 (2012)
(ROBERTS, C. J., in chambers) (quoting Conkright v. From-
mert, 556 U.S. 1401, 1402 (2009) (Ginsburg, J., in cham-
bers)). The Government fails to demonstrate that the in-
junction is likely to cause it irreparable harm. Regardless
of the merits of respondents’ claims, this failure, alone, re-
quires denying the requested stay.
The Government articulates a single harm: that if data
collection continues through October 31, the Bureau will
not meet the December 31 statutory deadline to report cen-
sus results to the President. But it is unlikely the District
Court’s injunction will be the cause of the Bureau’s inability
to do so. Indeed, for months, senior Bureau officials have
represented that, whatever the data collection deadline,
meeting the December 31 reporting deadline would be im-
possible. See ___ F. 3d ___, ___, 2020 WL 5940346, *6 (CA9,
Oct. 7, 2020) (“[T]he President, Department of Commerce
officials, Bureau officials, and outside analysis from the Of-
fice of the Inspector General, the Census Scientific Advisory
Committee, and the Government Accountability Office all
stated unequivocally, some before and some after the adop-
tion of the Replan, that the Bureau would be unable to meet
[the December 31] deadline under any conditions”). Only
recently have officials begun to claim that the Bureau
might yet be able to meet the statutory deadline, and even
then, their story keeps changing. See ibid. (noting that the
Government’s representation that it could meet the statu-
tory deadline if it ended collection by October 5 was at odds
with the September 22 declaration of a senior Bureau offi-
cial). It is in fact far from clear why the Government now
Cite as: 592 U. S. ____ (2020) 5
SOTOMAYOR, J., dissenting
believes that the December 31 deadline was feasible under
the Replan Schedule but is impossible under the injunction.
Notably, the Government fails to explain why it cannot
meet the statutory deadline by adding resources to acceler-
ate data processing as it did with data collection. App. to
Application for Stay 117a (Census Bureau press release ex-
plaining that the Replan Schedule required “hiring of more
employees to accelerate the completion of data collection
and apportionment counts”).
That the Bureau has provided “ever-changing projec-
tions” about the impact of the data collection deadline on its
statutory deadline is understandable given the complexity
of the census and the unanticipated impact of the COVID–
19 pandemic. ___ F. 3d, at ___, 2020 WL 5940346, *7; see
also ___ F. Supp. 3d, at ___–___, 2020 WL 5739144, *4–*6.
But those ever-changing projections demonstrate that any
harm attributable to the injunction is at best uncertain,
and, more likely, nonexistent. This is especially true given
that, until recently, the Bureau sought an extension of the
December 31 statutory deadline, and Congress had made
significant progress toward granting it. The Bureau’s ab-
rupt shift in focus from achieving an accurate count to
meeting its deadline at all costs belies its newfound concern
for issuing its report by December 31. See New York v.
Trump, ___ F. Supp. 3d ___, ___, 2020 WL 5796815, *2
(SDNY, Sept. 29, 2020) (“As [the Government] admits,
there is no magic to the deadline for the Secretary’s Section
141(b) report” to the President).
In contrast to the Government’s unsupported claims of ir-
reparable harm, respondents will suffer substantial injury
if the Bureau is permitted to sacrifice accuracy for expedi-
ency. As the District Court found, and the Ninth Circuit
credited, “[a]n inaccurate count would affect the distribu-
tion of federal and state funding, the deployment of ser-
vices, and the allocation of local resources.” ___ F. Supp.
3d, at ___, 2020 WL 5739144, *46; ___ F. 3d, at ___, 2020
6 ROSS v. NATIONAL URBAN LEAGUE
SOTOMAYOR, J., dissenting
WL 5940346, *6. The Government attempts to downplay
that risk by asserting that over 99 percent of households in
49 States are already accounted for. 2 Reply Brief 6. But
even a fraction of a percent of the Nation’s 140 million
households amounts to hundreds of thousands of people left
uncounted. See ECF Doc. 81–1, ¶ 36 (ND Cal., Sept. 4,
2020). And significantly, the percentage of nonresponses is
likely much higher among marginalized populations and in
hard-to-count areas, such as rural and tribal lands. Id., ¶
12 (discussing the Bureau’s plan to develop “culturally rel-
evant advertisements targeting hard-to-count communi-
ties”); Response to Application 30. When governments al-
locate resources using census data, those populations will
disproportionately bear the burden of any inaccuracies. See
Department of Commerce v. New York, 588 U. S. ___, ___
(2019) (slip op., at 10) (States “show[ed] that if noncitizen
households are undercounted by as little as 2% . . . they will
lose out on federal funds that are distributed on the basis
of state population”). It is thus unsurprising that, for the
2010 census, the Bureau continued its field operations for a
full month after reaching the 99 percent threshold that the
Government now deems good enough. See Response to Ap-
plication 29–30 (citing Dept. of Commerce, Bureau of Cen-
sus, A. Jackson, 2010 Census Nonresponse Followup Oper-
ations Assessment Report 47 (2012)). The harms caused by
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2 Although this claim bears significant weight for the Government’s ar-
gument, the emergency posture of this case prevents this Court from
properly evaluating the claim’s accuracy. For example, as the District
Court found, Government oversight bodies have repeatedly warned that
accelerating the census schedule “increases the risks to obtaining a com-
plete and accurate 2020 Census.” ___ F. Supp. 3d, at ___–___, 2020 WL
5739144, *8–*9. Yet the Government addresses data quality concerns
primarily in a footnote. Application for Stay 7–8, n. 3; Reply Brief 6–7.
Without more, the Government’s bald assertion that its collection efforts
are 99 percent complete cannot support its request for extraordinary
relief.
Cite as: 592 U. S. ____ (2020) 7
SOTOMAYOR, J., dissenting
rushing this year’s census count are irreparable. And re-
spondents will suffer their lasting impact for at least the
next 10 years.
* * *
The Government has not satisfied its “especially heavy
burden” to justify a stay pending appeal of the lower court’s
injunction. Packwood v. Senate Select Comm. on Ethics,
510 U.S. 1319, 1320 (1994) (Rehnquist, C. J., in chambers).
Because the harms associated with an inaccurate census
are avoidable and intolerable, I respectfully dissent from
the grant of stay.