National Urban League v. Ross

Background

The Plaintiffs—including national organizations, local governments, individual officials, and tribal governments—challenged the Census Bureau’s August 3, 2020 plan, called the “Replan.” The Replan shortened the Census Bureau’s data-collection and processing schedule from the eight months provided in an earlier COVID-19 plan to four months. The Plaintiffs sued the Secretary of Commerce, the Department of Commerce, the Census Bureau’s Director, and the Census Bureau under the Constitution’s Enumeration Clause and the Administrative Procedure Act.

The Plaintiffs sought a preliminary injunction blocking implementation of the Replan. They argued that the shortened schedule would unlawfully harm the accuracy of important census data. On September 5, 2020, the Court issued a temporary restraining order to preserve the existing situation until the scheduled September 17 hearing on the preliminary-injunction motion.

Administrative-record production

The Court explained that review of an agency decision under the Administrative Procedure Act generally focuses on the administrative record: the documents and materials considered by agency decision-makers when they acted. Defendants initially told the Court that no administrative record existed. They later acknowledged that agency decision-makers had considered documents related to adopting the Replan, while continuing to dispute whether those documents technically constituted an administrative record.

On September 10, 2020, the Court ordered Defendants to produce the record in stages. The first production was due September 13, and the second was due September 16. Defendants reported that more than 8,800 documents were potentially responsive to the first production but that they had reviewed only 2,484. Defendants stated that they would not complete the production and later said compliance would be a “physical impossibility.”

The Court also learned that Defendants had produced documents to the Commerce Department’s Office of Inspector General in response to a request concerning the decision to accelerate the Census schedule. Defendants agreed to provide that production to the Court. They represented that it included about 1,800 documents totaling about 15,000 pages and that they might claim deliberative-process, attorney-client, attorney-work-product, and White House privileges. The Court established a schedule for production, privilege objections, responses, resolution of privilege disputes by United States Magistrate Judges, supplemental briefing, and a September 22 preliminary-injunction hearing.

Ruling

The Court found good cause to extend the temporary restraining order. It relied on Defendants’ failure to comply with the order requiring production of the administrative record and on the time needed to review the Inspector General production and resolve privilege disputes before deciding the preliminary-injunction motion. The Court also found that the conditions supporting the original temporary restraining order continued to exist, including the Plaintiffs’ likely irreparable harm, the serious questions presented by their claims, and the public interest in preserving the existing situation.

Judge Koh extended the temporary restraining order for up to seven days, until the Court issued its decision on the preliminary-injunction motion or through September 24, 2020, whichever was sooner. This order addressed the temporary restraining order and the timing and production of records; it did not decide the preliminary-injunction motion or the merits of the Plaintiffs’ claims.