National Urban League v. Ross

Background

The plaintiffs sued to challenge the Census Bureau’s “Replan,” which accelerated several 2020 Census deadlines, including the end of field operations. They brought claims under the Enumeration Clause and the Administrative Procedure Act and asked for a preliminary injunction.

The court had earlier ordered defendants to produce documents comprising the administrative record, including guidance, directives, and communications about the Replan. Defendants identified more than 8,800 documents responsive to one production request but had reviewed only 2,484 by the deadline. They represented that they could not complete that production by the later date they had identified and also indicated that they would not complete another required production on time.

Plaintiffs then asked the court to require in camera review—that is, review by the judge privately rather than disclosure to the other side—of documents that defendants had provided to the Department of Commerce Office of Inspector General. Defendants agreed to provide those documents for review, subject to conditions concerning privilege and the definition of the administrative record. At the hearing, defendants said the production contained about 1,800 documents totaling about 15,000 pages, but they could not say which custodians had been searched, what time period had been searched, whether the production included materials from the Secretary of Commerce and his subordinates, or what documents remained outstanding.

Court’s Ruling

The court ordered defendants to file by Friday, September 18, 2020:

- All documents they had produced to the Inspector General that would constitute or be included in the administrative record, in machine-readable color format to the extent feasible; - An index identifying each document’s title, date, persons involved, and Bates range; and - A privilege log for any documents defendants claimed were protected from disclosure.

The court also ordered defendants to submit a declaration addressing whether the production included materials from the Secretary of Commerce and his subordinates, the time period and custodians searched, whether defendants fully complied with the Inspector General’s request, the dates of production, what documents remained outstanding, and when any outstanding documents would be produced.

The court stated that defendants’ production to the Inspector General did not excuse their obligation to comply with the earlier administrative-record order. It noted that failing to produce or complete an administrative record can support sanctions, but plaintiffs were not seeking sanctions at that time. The court stayed its September 10 order requiring production of the administrative record until the case-management conference after the court ruled on the preliminary-injunction motion.

Effect of the Order

This was a document-production and privilege-review order. It did not resolve the preliminary-injunction motion or decide whether the Census Bureau’s Replan violated the Enumeration Clause or the Administrative Procedure Act.