United States v. 2020-10-07 | 20-16868 | NATIONAL URBAN LEAGUE V. WILBUR ROSS | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

NATIONAL URBAN LEAGUE; LEAGUE
OF
WOMEN VOTERS; BLACK
ALLIANCE FOR JUST IMMIGRATION;
HARRIS COUNTY, Texas; KING
COUNTY, Washington; CITY OF LOS
ANGELES, California; CITY OF
SALINAS, California; CITY OF SAN
JOSE, California; RODNEY ELLIS;
ADRIAN GARCIA; NAVAJO NATION;
NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED
PEOPLE; CITY OF CHICAGO, Illinois;
C
OUNTY OF LOS ANGELES,
California; GILA RIVER INDIAN
COMMUNITY,
Plaintiffs-Appellees,

v.

W
ILBUR L. ROSS, in his official
capacity as Secretary of Commerce;
U
NITED STATES DEPARTMENT OF
COMMERCE; STEVEN DILLINGHAM, in
his official capacity as Director of
the U.S. Census Bureau; U
NITED
STATES CENSUS BUREAU,
Defendants-Appellants,

and
No. 20-16868

D.C. No.
5:20-cv-05799-
LHK

ORDER

2 NAT’L URBAN LEAGUE V. ROSS

STATE OF LOUISIANA; STATE OF
MISSISSIPPI,
Intervenor-Defendants.

Filed October 7, 2020

Before: Susan P. Graber, William A. Fletcher, and
Marsha S. Berzon, Circuit Judges.

Order

SUMMARY
*

Census

The panel denied in part, and granted in part, the
government’s emergency motion for a stay pending appeal
of a preliminary injunction preventing the Census Bureau
from implementing its proposed Replan schedule for
conducting the census.

On August 3, 2020, the Secretary of Commerce
announced a new schedule (the “Replan”), under which the
Bureau greatly compressed, as compared both to the original
schedule and to the COVID-19 Plan, the time allocated to
various stages for completing the census.

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

NAT’L URBAN LEAGUE V. ROSS 3

Addressing the government’s emergency motion for a
stay, the panel concluded that the government was unlikely
to succeed on the merits of the appeal as to the plaintiffs’
Administrative Procedure Act (“APA”) claims. The panel
held that the government had not made a requisite strong
showing that it was likely to prevail on its argument that the
district court erred in determining that the Replan was a
“final, agency action” subject to APA review. The panel
further held that the government had not made a strong
showing of likelihood of success as to the merits of its appeal
where the record showed little evidence that the Census
Bureau met its APA obligation to engage in reasoned
decisionmaking.

To the extent that the district court enjoined the Replan
and the September 30, 2020 deadline for data collection, the
panel held that the government had not met its burden in
showing irreparable harm, and the irreparable harm to the
plaintiffs and the resulting balance of equities justified the
denial of a stay.

However, to the extent that the district court did not
merely stay the Replan but required the government to
continue to ignore the December 31, 2020 statutory timeline
for completing the tabulations, the panel held that the
government has, at this juncture, justified a stay pending
appeal while the ability to meet or extend the deadline, and
any resulting injury, is still speculative.

4 NAT’L URBAN LEAGUE V. ROSS

COUNSEL

Jeffrey Bossert Clark, Acting Assistant Attorney General;
Sopan Joshi, Senior Counsel to the Assistant Attorney
General; Mark B. Stern and Brad Hinshelwood, Appellate
Staff; Civil Division, United States Department of Justice,
Washington, D.C.; for Defendants-Appellants.

Melissa Arbus Sherry, Richard P. Bress, Anne W. Robinson,
Tyce R. Walters, Genevieve P. Hoffman, Gemma Donofrio,
and Christine C. Smith, Latham & Watkins LLP,
Washington, D.C.; Sadik Huseny, Steven M. Bauer, Amit
Makker, and Shannon D. Lankenau, Latham & Watkins
LLP, San Francisco, California; Kristen Clarke, Jon M.
Greenbaum, Ezra D. Rosenberg, Dorian L. Spence, Maryum
Jordan, Ajay Saini, and Pooja Chaudhuri, Lawyers’
Committee for Civil Rights Under Law, Washington, D.C.;
Wendy R. Weiser, Thomas P. Wolf, and Kelly M. Percival,
Brennan Center for Justice, New York, New York; Mark
Rosenbaum, Public Counsel, Los Angeles, California;
Doreen McPaul, Attorney General; Jason Searle, Attorney;
Navajo Nation Department of Justice, Window Rock,
Arizona; Michael N. Feuer, City Attorney; Kathleen
Kenealy, Chief Assistant City Attorney; Danielle Goldstein
and Michael Dundas, Deputy City Attorneys; Office of the
City Attorney, Los Angeles, California; Christopher A.
Callihan, City Attorney; Michael Mutalipassi, Assistant City
Attorney; City Attorney’s Office, Salinas, California; Rafey
S. Balabanian and Lily E. Hough, Edelson P.C., San
Francisco, California; Mark A. Flessner, Corporation
Counsel; Justin A. Houppert, Senior Assistant Corporation
Counsel; Benna Ruth Solomon and Stephen J. Kane, Deputy
Corporation Counsel; and Rebecca Hirsch, Assistant
Corporation Counsel; Office of the Corporation Counsel,
Chicago, Illinois; Pratik A. Shah, Z.W. Julius Chen, and

NAT’L URBAN LEAGUE V. ROSS 5

Merrill C. Godfrey, Akin Gump Strauss Hauer & Feld LLP,
Washington, D.C.; David I. Holtzman, Daniel P. Kappes,
and Jacqueline N. Harvey, Holland & Knight LLP, San
Francisco, California; for Plaintiffs-Appellees.

Jeff Landry, Attorney General; Elizabeth B. Murrill,
Solicitor General; Louisiana Department of Justice, Baton
Rouge, Louisiana; Lynn Fitch, Attorney General; Krissy C.
Nobile, Deputy Solicitor General; Office of the Attorney
General; Jackson, Missouri; for Amici Curiae States of
Louisiana and Mississippi.

James R. Williams, County Counsel; Greta S. Hansen, Chief
Assistant County Counsel; Marcelo Quiñones, Lead Deputy
County Counsel; Raphael N. Rajendra and Karun Tilak,
Deputy County Counsel; Office of the County Counsel,
County of Santa Clara, San Jose, California; for Amici
Curiae County of Santa Clara and 18 Additional Local
Governments.

ORDER
Just as the 2020 decennial census was getting underway,
the COVID-19 pandemic hit, freezing operations and
disrupting a process that had taken nearly a decade to plan.
The Census Bureau (“Bureau”) instituted a revised schedule
on April 13 (“COVID-19 Plan”), extending its operations to
account for this delay. But on August 3, 2020, the Secretary
of Commerce (“the Secretary”) announced a new schedule
(“the Replan”), under which the Bureau greatly compressed,
as compared both to the original schedule and to the COVID-
19 Plan, the time allocated to various stages for completing
the census. The district court issued a preliminary injunction
preventing the Bureau from implementing its proposed

6 NAT’L URBAN LEAGUE V. ROSS

Replan schedule for conducting the census. Addressing the
government’s emergency motion for a stay of the
preliminary injunction pending appeal, we conclude that the
government is unlikely to succeed on the merits of the appeal
as to the Plaintiffs’ Administrative Procedure Act (“APA”)
claims. To the extent that the district court enjoined the
Replan and the September 30, 2020, deadline for data
collection, the government has not met its burden in showing
irreparable harm, and the irreparable harm to the Plaintiffs
and the resulting balance of equities justify the denial of a
stay. To the extent that the district court enjoined the
government from attempting to meet the December 31,
2020, statutory deadline for completing tabulations by state,
the government has, at this juncture, met its burden in
seeking a stay pending appeal. We therefore deny the
government’s motion for a stay in part and grant it in part.
I.
The “Bureau’s mandate in conducting the decennial
census is to count everyone living in the United States” and
its territories, as Bureau Associate Director Fontenot
described in his September 5 declaration. The Bureau spent
most of the last decade planning the 15.6 billion dollar 2020
decennial census, an undertaking of extreme complexity.
The four critical interlocking steps of the 2020 census
are: (1) soliciting self-response by households, electronically
or by mail; (2) non-response follow-up (“NRFU”); (3) data
processing; and (4) submission by the Secretary of the two
statutorily required reports based on the census data.
13 U.S.C. § 141(b)–(c). The Secretary is required to tabulate
the total population by state for congressional
apportionment, a task that “shall be completed within
9 months after the census date,” of April 1. Id. § 141(b). The
Secretary also must tabulate population data used by states

NAT’L URBAN LEAGUE V. ROSS 7

for districting, which “shall be completed by him as
expeditiously as possible after the decennial census date”
and “shall, in any event, be completed, reported, and
transmitted to each respective State within one year after the
decennial census date.” Id. § 141(c).
Just six days after the self-response period began, in
March 2020, COVID-19 stopped the entire census process
in its tracks. Following Office of Management and Budget
(“OMB”) guidance, the Bureau completely suspended
decennial field operations for 47 days between March 18 and
May 4, and restarted operations in phases over the next two
weeks. During that freeze, the Bureau created a new
schedule to accommodate the COVID-19 delays.
On April 13, 2020, the Bureau adopted the COVID-19
Plan, extending the total time for the census from 54 weeks
to 71.5 weeks. This extension restored to the schedule the
47 days lost to the complete pandemic shutdown. The Plan
also provided additional time for field operations to restart
and conclude by October 31, 2020. The Bureau reasoned that
the pandemic would make hiring and training the huge
temporary staff needed more difficult. Additional time
would also be required for the NRFU process, both because
of relocations caused by the pandemic and because of the
difficulty of in-person canvassing when respondents would
be reluctant to interact with enumerators for fear of
contracting the illness. The extension also built in more time
for data processing, needed to address the complexities of
population shifts caused by COVID-19.
The Bureau requested that Congress accordingly extend
the statutory deadlines by 120 days. Government officials,
from the President to Bureau officers, strenuously
maintained that the current statutory deadlines were
impossible to meet after the delays and changes caused by

8 NAT’L URBAN LEAGUE V. ROSS

the COVID-19 suspension and its aftermath. The House of
Representatives passed a bill extending the statutory
deadlines for reporting; the Senate Small Business and
Entrepreneurship Committee held a hearing on the bill on
July 23, 2020. Soon thereafter, the Administration switched
gears, requesting, instead of an extension, additional funding
to complete a “timely” census. Census Bureau Director
Dillingham, when asked about the change at a House
hearing, no longer supported an extension.
On July 31, 2020, the Bureau removed the October 31,
2020, deadline for data collection field operations from its
website. Over the next four days, Bureau staff and officials
prepared a presentation for Secretary Wilbur Ross on the
feasibility of moving the end of data collection to September
30, 2020 and completing the data processing necessary for
reapportionment by December 31. Despite the Bureau’s
months-long position that meeting the statutory deadlines
was impossible, Secretary Ross on August 3, 2020, approved
the new Replan schedule, which ended field operations by
September 30 and the initial data processing stage by
December 31, 2020. This plan condensed the total time to
conduct the census to 49.5 weeks, 4.5 weeks less than the
pre-COVID schedule of 54 weeks and 22 weeks less than the
extended COVID-19 schedule adopted to account for past
and future pandemic-related delays. The Secretary
announced the Replan in a two-page press release, which
contained no explanation concerning why the previous
projected need to extend the deadlines no longer obtained.
A coalition of plaintiffs, including advocacy
organizations, cities, counties, and tribal groups
(collectively, “Plaintiffs”), filed suit to enjoin the Replan,
alleging violations of both the APA and the Enumeration
Clause of the Constitution. The district court granted, and

NAT’L URBAN LEAGUE V. ROSS 9

then extended, a temporary restraining order. The
government argued that “there is no administrative record in
this case because there is no APA action.” But both sides
agreed that discovery, in the short term, could be limited to
non-privileged documents provided to the Department of
Commerce Inspector General for a report on the Replan.
Based on that record, the district court issued a
preliminary injunction. The court held that Plaintiffs had a
high likelihood of success on the merits of their APA claim
and so did not reach the question whether the Replan directly
violated the Enumeration Clause. The court’s order stayed
the “Replan’s September 30, 2020 deadline for the
completion of data collection and December 31, 2020
deadline for reporting the tabulation of the total population
to the President” and “enjoined [the defendants] from
implementing these two deadlines.”
After the district court entered its injunction, the
government continued to publicize the September 30, 2020,
data collection deadline on its website. Enumerators across
the country—the individuals hired to conduct the census by
contacting inhabitants—reported being told that operations
would end on September 30. On September 28, 2020, the
Bureau announced, on Twitter and in a press release, that it
would now end data collection on October 5, 2020, which it
justified in an internal document as the date adopted “in
order to meet apportionment delivery date of December 31,
2020.” The district court subsequently issued an order
clarifying the scope of the injunction, explaining that the
injunction “‘postpone[s] the effective date of’ th[e] two
Replan deadlines and so reinstates the administrative rule
previously in force: the COVID-19 Plan deadlines of
October 31, 2020 for the completion of data collection and
April 30, 2021 for reporting the tabulation of total population

10 NAT’L URBAN LEAGUE V. ROSS

to the President.” The district court determined that the
October 5 deadline violated the injunction, also noting that
it suffered “the same legal defects as the Replan.” The court
required the Census Bureau to notify employees that “data
collection operations will continue through October 31,
2020.” The Bureau recently complied with that directive.
The government appealed and requested both an
administrative stay and a stay of the preliminary injunction.
On September 30, this court denied the administrative stay.
National Urban League v. Ross, — F.3d —, 2020 WL
5815054 (9th Cir. Sept. 30, 2020). The question now before
us is whether to grant a stay pending appeal to a merits panel.
II.
“A party requesting a stay pending appeal ‘bears the
burden of showing that the circumstances justify an exercise
of [judicial] discretion.’” Doe #1 v. Trump, 957 F.3d 1050,
1058 (9th Cir. 2020) (quoting Nken v. Holder, 556 U.S. 418,
433–34 (2009)). In determining whether to grant the
government’s motion for a stay, “we apply the familiar
standard set forth by the Supreme Court in Nken, namely:
(1) whether the Government has made a strong showing of
the likelihood of success on the merits; (2) whether the
appellants will be irreparably injured absent a stay;
(3) whether a stay will substantially injure other parties; and
(4) where the public interest lies.” Id. (quoting Nken,
556 U.S. at 426). “The first two factors . . . are the most
critical.” Id. (quoting Nken, 556 U.S. at 434). “We review
the scope of the district court’s preliminary injunction for
abuse of discretion.” Id. (citing California v. Azar, 911 F.3d
558, 568 (9th Cir. 2018), cert. denied sub nom. Little Sisters
of the Poor Jeanne Jugan Residence v. California, 139 S. Ct.
2716 (2019)).

NAT’L URBAN LEAGUE V. ROSS 11

A.
The government’s primary argument as to why it is
likely to succeed on the merits of its appeal is that the district
court erred in determining that the Replan was a “final
agency action” subject to APA review. The government has
not made the requisite strong showing that it is likely to
prevail on this point.
To maintain a cause of action under the APA, a plaintiff
must challenge “agency action” that is “final.” Wild Fish
Conservancy v. Jewell, 730 F.3d 791, 800 (9th Cir. 2013)
(citing Norton v. S. Utah Wilderness All., 542 U.S. 55, 61–
62 (2004)). To be reviewable as an “agency action,” the
challenged act of the agency must be “circumscribed” and
“discrete.” Norton, 542 U.S. at 62–63. The government
maintains that the Replan fails this test, as it “is a collection
of individual judgments by the Census Bureau, all subject to
constant revision.” The government does not have a strong
likelihood on this record of supporting that characterization.
The Replan was characterized in the short August 3 Press
Release as a change in census operations and in the deadlines
for completing those operations “to accelerate the
completion of data collection and apportionment counts by
our statutory deadline of December 31, 2020.” Unlike in
NAACP v. Bureau of the Census, 945 F.3d 183 (4th Cir.
2019), Plaintiffs challenge the decisionmaking process that
went into the decision in the Replan to greatly accelerate the
census process over the COVID-19 Plan, not specific
“design choices” within that plan. Id. at 188. And unlike in
Lujan v. National Wildlife Federation, 497 U.S. 871 (1990),
which held that there was no discrete agency action in an
“APA challenge to ‘each of the 1250 or so individual
classification terminations and withdrawal revocations’
effected under the land withdrawal review program,” id.

12 NAT’L URBAN LEAGUE V. ROSS

at 881, a term that was “not derived from any authoritative
text,” id. at 890, the district court here found that the Bureau
treated the Replan as a single proposal, presented “to the
Secretary in a single slide deck” and announced in a single
press release.
As to the other requisite for APA review, finality, for an
agency action to be “final,” “the action must mark the
‘consummation’ of the agency’s decisionmaking process—
it must not be of a merely tentative or interlocutory nature
. . . . [and] the action must be one by which ‘rights or
obligations have been determined,’ or from which ‘legal
consequences will flow.’ Bennett v. Spear, 520 U.S. 154,
177–78 (1997) (citations omitted). Here, the new deadlines
were announced publicly, the Replan was implemented by
the Bureau, and when the district court first ruled, data
collection was set to cease on September 30. The district
court concluded that significant legal consequences will
flow from the timing and deadlines of the census, including
consequences to political representation, federal and state
funding, and degradation of census data, due to likely
inaccuracies in the reported totals of hard-to-count
populations. These effects echo the consequences faced by
the Plaintiffs in Department of Commerce v. New York,
139 S. Ct. 2551 (2019), which also analyzed a final agency
action concerning census decisionmaking under the APA.
Id. at 2565.
In sum, the government has not made a strong showing
that it is likely to prevail on appeal on its primary challenge
to the district court’s merits ruling.
B.
The government also argues that, if the Replan is
reviewable, the district court erred in concluding that its

NAT’L URBAN LEAGUE V. ROSS 13

adoption likely violated the APA, so the government is likely
to succeed on the merits of this appeal. The government’s
barebones, one-note argument on this point does not meet
the stringent Nken “strong showing” standard. The district
court laid out in great detail five grounds on which to find
Plaintiffs were likely to succeed on their contention that the
government did not meet the APA’s standards for reasoned
decisionmaking.
APA review “is limited to ‘the grounds that the agency
invoked when it took the action.’” Dep’t of Homeland Sec.
v. Regents of the Univ. of Ca., 140 S. Ct. 1891, 1907 (2020)
(quoting Michigan v. EPA, 576 U.S. 743, 758 (2015)).
Agency action is arbitrary and capricious where the agency
“entirely failed to consider an important aspect of the
problem,” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983), an
analysis which “turns on what [the] relevant substantive
statute makes ‘important,’” Or. Nat’l Res. Council v.
Thomas, 92 F.3d 792, 798 (9th Cir. 1996). Here, the
Enumeration Clause demonstrates a “strong constitutional
interest in accuracy” in the census, Utah v. Evans, 536 U.S.
452, 478 (2002), and “[t]he [Census] Act imposes ‘a duty to
conduct a census that is accurate and that fairly accounts for
the crucial representational rights that depend on the census
and the apportionment,’” Dep’t of Commerce, 139 S. Ct.
at 2568–69 (quoting Franklin v. Massachusetts, 505 U.S.
778, 819–20 (1992) (Stevens, J., concurring in part and
concurring in the judgment)). Both the Constitution and the
relevant statutes governing the Bureau thus require that “the
agency must examine the relevant data and articulate a
satisfactory explanation for its action” taking into account
the strong interest in accuracy. State Farm, 463 U.S. at 43.
The government’s arguments for a stay largely decline to

14 NAT’L URBAN LEAGUE V. ROSS

discuss this requirement, instead focusing on the purported
need to meet the December deadline at all costs.
1

The record of the agency’s decisionmaking during the
few days that the Replan was being developed does not show
any response, let alone a “satisfactory explanation,” to the
numerous statements by Bureau officials that accelerating
the schedule adopted in the COVID-19 Plan would
jeopardize the accuracy of the census. Most importantly, the
August 3 slide deck presented to the Secretary giving
“Operational and Processing Options to meet September 30,
2020” warns that “[a]ccelerating the [field operations]
schedule by 30 days introduces significant risk to the
accuracy of the census data.” This accuracy concern went
unaddressed—beyond an unsupported attestation that the

1
Title 13 U.S.C. § 141(b) requires that “[t]he tabulation of total
population by States . . . as required for the apportionment of
Representatives in Congress among the several States shall be completed
within 9 months after the census date and reported by the Secretary to
the President of the United States.” Id. (emphasis added). The census
date is specified as “the first day of April” every tenth year. Id. § 141(a).
The parties have both understood § 141(b) to require tabulation and
reporting by December 31, 2020, so we therefore assume that
interpretation here. We note, however, that the statute contemplates a
time frame in which to complete the census, rather than a specified date,
as it does in § 141(a). The subsequent requirement in 2 U.S.C. §2a(a) for
the President to transmit apportionment data to Congress also gives a
contingent deadline of “the first day, or within one week thereafter, of
the first regular session” of Congress. We leave open the question
whether, given the wording of the statutes and general considerations
regarding the interpretation of statutory timelines, the agency should
view this deadline as inflexible or, instead, as subject to adjustment, akin
to equitable tolling or force majeure concepts, if they cannot be met
because of extraordinary circumstances. Perhaps, as President Trump
publicly stated in April, “I don’t know that you even have to ask
[Congress for an extension]. This is called an act of God. This is called
a situation that has to be.”

NAT’L URBAN LEAGUE V. ROSS 15

count would be accurate—in the barebones press release
announcing the Replan or elsewhere in the administrative
record.
The district court also concluded that there was a striking
lack of evidence in the record showing that the Bureau had
considered the extensive reliance interest on the COVID-19
Plan. That conclusion is amply supported. “When an agency
changes course, as [the Bureau] did here, it must ‘be
cognizant that longstanding policies may have “engendered
serious reliance interests that must be taken into account.”’”
Dep’t of Homeland Sec., 140 S. Ct. 1891 at 1913 (quoting
Encino Motorcars, LLC v. Navarro, 136 S.Ct. 2117, 2126
(2016)). “It would be arbitrary and capricious to ignore such
matters.” Id. (quoting FCC v. Fox Television Stations, Inc.,
556 U.S. 502, 515 (2009).
The August 3 Press Release and the Replan slide deck do
not consider reliance interests at all. The Bureau depends
heavily on its own advertising and partnerships with private
organizations to drive participation in the census,
particularly in hard-to-reach communities. Toward this end,
targeted public advertising was increased under the COVID-
19 Plan. Nowhere do the brief Replan materials consider that
the Bureau and its partners had been relying on and
disseminating information based on the October 31 deadline
for data collection. Nor did the government address the
reliance interest of the public in following the October 31
deadline for self-reporting and for responding to
enumerators’ contact efforts, and therefore not filling out a
census or responding to a census worker before September

16 NAT’L URBAN LEAGUE V. ROSS

30.
2
These basic gaps in the government’s attention to the
pertinent factors, along with the other considerations
surveyed by the district court, are sufficient to demonstrate
that the government has not made a strong showing of
likelihood of success on appeal as to the APA claim.
The government does not really argue to the contrary
regarding the various ways in which it failed its APA
obligation to engage in reasoned decisionmaking. Its only
argument that it has met the APA’s requirements is its
mantra that the Replan was necessary to meet the statutory
deadline. But the worthy aspiration to meet that deadline
does not excuse the failure to address at all other relevant
considerations, such as accuracy and reliance. It also does
not excuse the failure to consider whether, given the timeline
of congressional action laid out by the district court, the
statutory deadline could have been moved; whether the
deadline might be retroactively adjusted, as was done in
several earlier censuses; or whether the deadline might be
equitably tolled due to the force majeure of the pandemic,
particularly given the evidence before the Bureau at the time
of both the COVID-19 Plan and the Replan decisions
suggesting that the deadline was already unlikely to be met
without sacrificing the accuracy of the count.
As the APA requires that agencies engage in “reasoned
decisionmaking,” State Farm, 463 U.S. at 52, the agency had
an obligation to consider its other obligations and any
alternatives, even if it could properly end up rejecting them.
The record before us shows little evidence of that reasoning,
nor does it show that “the Secretary examined ‘the relevant

2
Title 13 U.S.C. § 221 imposes a fine of “not more than $100” to
anyone who “refuses or willfully neglects” to answer any census
questions when requested by an authorized census officer.

NAT’L URBAN LEAGUE V. ROSS 17

data’ and articulated ‘a satisfactory explanation’ for his
decision, ‘including a rational connection between the facts
found and the choice made.’” Dep’t of Commerce, 139 S. Ct.
at 2569 (quoting State Farm, 463 U.S. at 43). The
government therefore has not made a strong showing of
likely success on appeal as to the merits of the APA claim.
C.
With respect to the September 30, 2020, data collection
deadline in the Replan, the government has also not met its
burden in making a strong showing either that the Plaintiffs
will not succeed in establishing irreparable injury under
Winter v. Natural Resources Defense Council, Inc., 555 U.S.
7, 20 (2008), or that the government will suffer irreparable
harm if a stay is issued under Nken.
The government argues that it will suffer irreparable
harm if a stay is not issued, as it represents that it will be
unable to meet the statutory deadline of December 31 if it
cannot end counting by October 5. A longer data collection
period does leave less time for processing. But the President,
Department of Commerce officials, Bureau officials, and
outside analysis from the Office of the Inspector General, the
Census Scientific Advisory Committee, and the Government
Accountability Office all stated unequivocally, some before
and some after the adoption of the Replan, that the Bureau
would be unable to meet that deadline under any conditions.
The government’s current representation that it will be
able to meet the statutory deadline if it ends collection by
October 5 is a very recent development, at odds with
Associate Director Fontenot’s prior September 22
declaration, in which he stated: “we wish to be crystal clear
that if the Court were to extend the data collection period
past September 30, 2020, the Census Bureau’s ability to

18 NAT’L URBAN LEAGUE V. ROSS

meet its statutory deadlines to produce apportionment counts
prior to December 31, 2020 and redistricting data prior to
April 1, 2021 would be seriously jeopardized.” The
government’s current justification—“that the enumeration is
approaching a 99% target in nearly every state”
3
—speaks to
accuracy of the count, but does not explain why the
shortening of processing time below three months is
consistent with Director Fontenot’s prior declaration. So
while there is a risk of irreparable harm to the government in
denying a stay, there is also a great likelihood, given the
wealth of evidence in the record, that the harm is already
likely to occur.
In any event, as the district court determined in applying
the Winter factors, the balance of hardships decidedly favors
the Plaintiffs, who make a strong showing that they will
suffer irreparable harm if a stay of the injunction is granted.
Nken, 556 U.S. at 426. This court, in denying an
administrative stay, explained that staying the injunction
would “risk[] rendering the plaintiff’s challenge to the
Replan effectively moot.” National Urban League, 2020
WL 5815054, at *2. “Thousands of census workers currently
performing field work will be terminated, and restarting
these field operations and data-collection efforts, which took
years of planning and hiring efforts to put in place, would be
difficult if not impossible . . . .” Id. The harms to
apportionment and distribution of federal and state funding
that the Plaintiffs allege from the Replan would be
impossible to remedy until the next census in 2030. See, e.g.,

3
To the extent that the current enumeration targets are relevant, the
government noted at Oral Argument that it has not hit 99% enumeration
in 7 states and is only at 97% in three states, below its own target
throughout the planning and implementation of the 2020 census,
including in the Replan slide deck.

NAT’L URBAN LEAGUE V. ROSS 19

Dep’t of Commerce, 139 S. Ct. at 2565 (discussing similar
harms).
Finally, the September 30, 2020 data collection deadline
has no direct statutory hook. Its connection to the
government’s only strongly articulated irreparable injury—
meeting at all costs the December 31 date the government
understands to be statutorily required and inflexible, but see
supra note 1—is based on ever-changing projections about
the connection between the data collection and data
processing stages. According to the government, its own
predictions about the art of the possible at the data collection
stage proved wrong. We are not told why the predictions as
to what could be accomplished at the data processing
stage—or whether the deadline could be moved if
necessary—are more accurate.
The government has therefore failed to meet its burden
to justify a stay pending appeal as to the district court’s
injunction of the September 30, 2020 data collection
deadline.
D.
To the extent that the district court did not merely stay
the Replan but required the government to continue to
ignore the December 31 timeline for completing the
tabulation, the Nken factors do justify a stay pending appeal.
“The effect of invalidating an agency rule is to reinstate
the rule previously in force.” Organized Vill. of Kake v. U.S.
Dep’t of Agric., 795 F.3d 956, 970 (9th Cir. 2015) (en banc)
(quoting Paulsen v. Daniels, 413 F.3d 999, 1008 (9th Cir.
2005)). The district court was therefore correct that the effect
of enjoining the Replan deadlines was to reinstate the
COVID-19 plan. Under the COVID-19 plan, data collection

20 NAT’L URBAN LEAGUE V. ROSS

continues until October 31, 2020, and processing could
continue until April 30, 2021, under the assumption that the
deadline for reporting to the President could be tolled or
extended if necessary.
But the district court’s order went further: it “enjoined
[the defendants] from implementing” both the September 30,
2020 internal agency deadline and the statutory December
31, 2020 deadline. In other words, once data collection ends
on October 31, 2020, the order precludes the government
from meeting the December 31 date even if it can do so, or
if it develops another way to meet its statutory obligation.
The plaintiffs have not at this juncture made the same
showing of irreparable harm as to precluding any
consideration of the statutory deadline that they have made
as to the nonstatutory data collection deadline. So their
likelihood of success on appeal on this point is—on the
current record—weaker.
Moreover, the December 31, 2020, deadline is nearly
three months away. As we have already stated, predictions
as to whether it can still be attained are speculative and
unstable. And any harm from governmental attempts to meet
the December 31 date are likely less irreparable than the
injury from displacing the October 31 data collection
endpoint. If the Bureau meets the December 31 date by using
procedures that violate any accuracy requirement embedded
in the Enumeration Clause, or proceeds in an arbitrary and
capricious manner, existing data can be reprocessed more
easily than data collection can be restarted. Moreover, given
the remaining time, leaving the December 31, 2020 date in
place as an aspiration will have no immediate impact.
Perhaps the Bureau will find that with an extraordinary effort
or changes in processing capacity, it is able to meet its
deadline. Or the Department of Commerce may seek and

NAT’L URBAN LEAGUE V. ROSS 21

receive a deadline extension from Congress. Or perhaps the
Bureau will miss the deadline, as statement after statement
by everyone from agency officials to the President has stated
it would, due to the extraordinary circumstances of the
pandemic. Missing the deadline would likely not invalidate
the tabulation of the total population reported to the
President, see, e.g., Barnhart v. Peabody Coal Co., 537 U.S.
149, 157, 171–72 (2003), and may well be approved by
Congress after-the-fact, as has happened in the past, see, e.g.,
Act of Sept. 1, 1841, ch. 15, § 1, 5 Stat. 452, 452 (1841).
Finally, and of great import to our balancing of the
equities, and consideration of the public interest, even if—as
both parties aver—data processing cannot be completed by
December 31 as a practical matter, that does not mean that
missing the putative statutory deadline should be required by
a court. Serious separation of powers concerns arise when a
court seeks to override a congressional directive to an
Executive Branch agency. See, e.g., Wisconsin v. City of
New York, 517 U.S. 1, 17 (1996) (recognizing Congress’s
broad constitutional authority over the census). There is
therefore a strong argument for judicial restraint while the
ability to meet or extend the deadline, and any resulting
injury, is still speculative.
To the extent that the district court enjoined the
Defendants from attempting to meet the December 31 date,
that injunction is stayed pending appeal.
Emergency Motion for a Stay DENIED IN PART and
GRANTED IN PART.