National Urban League v. Ross

Background

The plaintiffs sued Commerce Secretary Wilbur L. Ross, Jr., the U.S. Department of Commerce, the Census Bureau’s director, and the Census Bureau. They alleged violations of the Enumeration Clause and the Administrative Procedure Act concerning the 2020 Census.

Louisiana and Mississippi asked to intervene—meaning to become parties to the case—and separately asked the court to shorten the normal schedule for deciding that request. They sought an orderly wind-down of census operations in jurisdictions with adequate enumeration rates and the redirection of Census Bureau resources to jurisdictions with lower enumeration rates.

The States filed their motions on September 23, 2020, after the court had held a hearing on the plaintiffs’ request for a stay and preliminary injunction and after the case had accumulated more than 300 docket filings. The States did not previously file amicus briefs, which are filings by nonparties offering views relevant to a case. The plaintiffs opposed intervention. The States did not file a reply brief. During this period, the defendants obtained stays from the U.S. Supreme Court that allowed the requested wind-down of census operations.

Expedited schedule

Although the States had improperly noticed their hearing date, the court granted their Motion to Shorten Time and to Expedite and decided the intervention request immediately.

Intervention as of right

Under Federal Rule of Civil Procedure 24(a)(2), intervention as of right requires the applicant to show that the request was timely, that the applicant has a related interest, that the case could impair the applicant’s ability to protect that interest, and that the existing parties do not adequately represent the applicant’s interest.

The court held that the States failed to satisfy the timeliness and adequate-representation requirements. The States sought intervention after the preliminary-injunction hearing and after many parties and amici had participated in the fast-moving case. The States did not explain why they had not filed amicus briefs or moved to intervene earlier. Louisiana asserted, without a supporting declaration, that it did not learn of the lawsuit until September 17, 2020, but the court noted that this did not address Mississippi’s knowledge or explain why the States should not have known earlier that their interests might not be adequately represented.

The court also found that the defendants adequately represented the States’ asserted interests. The States sought a wind-down of census operations, and the defendants had obtained a Supreme Court stay that allowed the Census Bureau to wind down operations on October 15, 2020.

Permissive intervention

Under Federal Rule of Civil Procedure 24(b), a court may allow a timely applicant to intervene when the applicant’s claim or defense shares a common question of law or fact with the main case. The court has broad discretion over permissive intervention. The court held that the States could not intervene permissively because their interests were adequately represented and their request was untimely. It stated that the timeliness requirement is applied more strictly for permissive intervention.

Disposition

Judge Lucy Koh GRANTED the States’ Motion to Shorten Time and to Expedite and DENIED the States’ Motion to Intervene. The court identified amicus briefs, filed according to the court’s schedule, as the appropriate way for the States to present their views going forward.