National Urban League v. Ross

Background

The plaintiffs, including organizations, local governments, tribal governments, and individuals, sued Commerce Secretary Wilbur L. Ross, the U.S. Department of Commerce, Census Bureau Director Steven Dillingham, and the Census Bureau. They challenged the Census Bureau’s August 3, 2020 Replan under the Constitution’s Enumeration Clause and the Administrative Procedure Act (APA). The plaintiffs sought a preliminary injunction blocking implementation of the Replan.

The Replan shortened the census schedule. It moved the self-response and non-response follow-up deadlines from October 31, 2020, to September 30, 2020, and shortened data processing so that the deadline moved from April 30, 2021, to December 31, 2020. The plaintiffs argued that the changes would harm census accuracy, particularly for populations that are harder to count.

The dispute concerned whether the defendants had to produce an administrative record. In an APA case, an administrative record generally contains the documents and materials that agency decision-makers directly or indirectly considered when taking the challenged action. The defendants initially said that no administrative record existed, later acknowledged that agency documents had informed the Replan, and relied primarily on a declaration prepared for the litigation.

Reviewability

The court rejected the defendants’ argument that the Replan presented a political question beyond judicial review. The court concluded that the Census Act, the Constitution, and the APA supplied standards for evaluating the agency’s decision, including the requirement that the census be accurate and fairly account for representational rights.

The court also concluded that the plaintiffs had standing. It found that the plaintiffs had alleged concrete and foreseeable harms, including possible reduced political representation, reduced federal funding, less reliable census data for local planning, and diversion of resources to address the changed deadlines. The court determined that those harms were sufficiently connected to the Replan and could be addressed by an injunction.

The court held that the Replan was final agency action under the APA. It reasoned that the Secretary had approved the Replan, no further agency review was expected, and the schedule directly affected when the Census Bureau would stop collecting data and when people could participate in the census. The court also held that the Replan was a discrete agency action rather than an impermissibly broad challenge to the Census Bureau’s overall methods.

Finally, the court rejected the argument that the Replan was committed to agency discretion by law. It concluded that census-related decision-making is subject to meaningful legal standards and is not within the narrow category of agency actions that courts cannot review.

Administrative-record production

The court held that it could order production of the administrative record before deciding the plaintiffs’ preliminary-injunction motion. It distinguished the authorities cited by the defendants, including cases involving completion of an already-produced record, asserted deliberative-process privilege, or unusually broad production orders.

The court further held that APA review must rely on the reasons the agency considered when it acted, not on new explanations created during litigation. Because the Fontenot declaration had been prepared for the litigation, the court concluded that it could not substitute for the administrative record and could amount to an improper after-the-fact justification.

Order and scope

The court ordered the defendants to produce the administrative record. For the immediate production needed for the preliminary-injunction motion, the court required documents concerning the Replan and its components, including related guidance, directives, and communications. The order set September 13, 2020, as the deadline for production by materials held by Steven Dillingham, Wilbur Ross, and their direct reports or subordinates. It set September 16, 2020, as the deadline for production by Albert E. Fontenot, his subordinates, and people who worked with him to consider or prepare the Replan.

The specified date range was April 13, 2020, through August 3, 2020, but the court stated that the complete record could not be artificially limited by date if earlier Bureau planning had informed the Replan. The court required a privilege log for any documents the defendants claimed were privileged and said it would consult with the parties about producing the complete record after ruling on the preliminary-injunction motion.

The order expressly stated that its conclusions were provisional and could change after production of the administrative record. It ordered production but did not decide the ultimate merits of the plaintiffs’ challenge to the Replan.