National Urban League v. Ross

Background

The plaintiffs—including organizations, local governments, tribal entities, and individual plaintiffs—sued Commerce Secretary Wilbur L. Ross, Jr., the U.S. Department of Commerce, Census Bureau Director Steven Dillingham, and the U.S. Census Bureau. They alleged violations of the Enumeration Clause and the Administrative Procedure Act.

The plaintiffs asked for a temporary restraining order, or TRO, preventing the defendants from implementing an August 3, 2020 “Replan.” The Replan shortened the census data-collection and processing schedule from the eight months set out in the defendants’ April 13, 2020 COVID-19 Plan to four months. The plaintiffs argued that the shorter schedule would reduce the accuracy of census data. They requested that the TRO remain in effect until the September 17 hearing on their motion for a stay and preliminary injunction.

Court’s Analysis

A TRO is temporary relief intended to preserve the existing situation and prevent irreparable harm until a hearing. The court applied the factors used for preliminary injunctive relief: serious questions about the merits, likely irreparable harm, the balance of hardships, and the public interest.

The court found serious questions concerning the plaintiffs’ Administrative Procedure Act claims. These included whether the Replan was reviewable, whether the plaintiffs had standing, whether the Replan was final agency action, whether the decision was committed to agency discretion, and whether the Replan was arbitrary and capricious. The court said it was not prejudging those claims.

The court found that the plaintiffs had identified and supported four potential forms of irreparable harm: loss of political representation from an inaccurate apportionment, possible loss of federal funding, resources spent addressing undercounting, and increased local-government costs for services and capital allocation. Because an inaccurate decennial census count would not be remedied for another decade, the court concluded that these harms could last for that period.

The court also found that the defendants would face less burden from an injunction at that time than later in September. The defendants’ evidence indicated that field staff were already being terminated as operations wound down and that rehiring them later would be difficult. The court further considered statements indicating that the Census Bureau had passed the point at which it could produce accurate counts by December 31, 2020. It concluded that the balance of hardships and the public interest strongly favored the plaintiffs.

Ruling

The court GRANTED the plaintiffs’ motion for a temporary restraining order and found that no security was necessary. Effective September 5, 2020, the order enjoined Commerce Secretary Wilbur L. Ross, Jr., the U.S. Department of Commerce, Census Bureau Director Steven Dillingham, and the U.S. Census Bureau from implementing the August 3 Replan or allowing actions based on its shortened timelines, including winding down or altering census field operations. The injunction remained in effect until the court’s September 17 hearing on the plaintiffs’ motion for a preliminary injunction.

Judge Lucy M. Koh did not make a final ruling on the merits of the plaintiffs’ claims in this TRO order.