Court Rules Census to Continue Despite COVID-19 Pandemic

On October 7, the 9th Circuit issued an opinion mandating that the 2020 Census data collection process would continue through October 30 and that the processing of said data was allowed to take as long as April 30. This announcement came as the federal government attempted, via litigation, to undo previously extended Census deadlines that were put in place in April of 2020 after census workers were furloughed in order to lessen the impact of the COVID-19 pandemic.

Six days after census polling began, the Census Bureau shut down all operations for 47 days, between March 18 and May 4. On April 13, the  Bureau extended the original field operations end date of September 30 to October 31. The Bureau justified the extension due to the “relocations (of staff) 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.” Yet on July 31, the court explained, the Census Bureau Director testified at a House of Representatives hearing that he no longer supported the extension, resulting in the Bureau immediately rescinding all advertising about the October 31 extension, despite the reality that the extended deadline was posted widely throughout the country for four months.

The National League of Women Voters, National Urban League, NAACP, and Black Alliance for Just Immigration, joined by a few local governments including the City of San Jose and County of Los Angeles, filed for a preliminary injunction to enjoin the change to the October 31 deadline, arguing that the deadline change was a final agency action in violation of the Administrative Procedure Act (APA). The district court judge granted the plaintiffs’ injunction, requiring the “Census Bureau to notify employees that data collection operations will continue through October 31, 2020.”

The Bureau disagreed with the district court ruling and filed an appeal with a three-fold argument. First, the change in the deadline did not constitute a final agency action that could be reviewed or enjoined under the APA. Second, even if the deadline adjustment was a final agency action, the date change would not violate the APA. Lastly, even if the date change was a final agency action that did indeed violate the APA, a preliminary injunction required a showing of irreparable harm, which the plaintiffs failed to evidentiate. 

The appeals court ruled that the defendant’s arguments lacked merit and that the preliminary injunction would remain in place. Replying to the defendant’s assertion that the date change was a final agency action under the APA, the court held that an agency action was “final” if the action is “one by which rights of obligations have been determined, or from which legal consequences will flow.” Given the date change was “directly communicated to all staffers and had significant legal consequences…including consequences to political representation (and) federal and state funding,” the court determined that the date change was indeed a final agency action.

Turning next to the defendant’s claim that the deadline change, even if a final agency action, failed to violate the APA, the court overruled what it called “the government’s barebones, one-note argument on this point” due to the complete lack of an administrative record from the time the deadline change was being considered. The court explained that “arbitrary and capricious” agency actions are prohibited by the APA and an “agency action is arbitrary and capricious where the agency entirely failed to consider an important aspect of the problem.” Given the Bureau failed to consider any aspect of the problem, noted the court, when implementing the date change, the deadline alteration is indisputably an agency action that is arbitrary and capricious in violation of the APA.

The court then concluded by addressing the defendant’s argument that the date change, even if a final agency action violating the APA, still must stand since the district court incorrectly granted the preliminary injunction, given the plaintiffs’ failure to prove the irreparable harm necessary to receive injunctive relief. The court summarily dismissed this argument, holding that the proven irreparable harm is that “(t)housands 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. The harms to apportionment and distribution of federal and state funding that the (p)laintiffs allege from the (deadline change) would be impossible to remedy until the next census in 2030.”

The defendant has filed a motion to stay the preliminary injunction, pending review by the U.S. Supreme Court.  In the motion, the Bureau argued that if data collection went beyond October 5, the Bureau would be unable to process the data in time to meet its statutorily mandated data reporting deadline of December 31. The 9th Circuit addressed this argument in the aforementioned opinion, stating that the data reporting deadlines were not defined dates, but rather defined time periods that were potentially “subject to adjustment, akin to equitable tolling or force majeure concepts, if they (could not) be met because of extraordinary circumstances.”