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Department of Commerce, et al. v. New York, et al.

Paid petition · United States Court of Appeals for the Second Circuit, No. 19-212

Decided · June 27, 2019
Pre-decision estimate: 45% cert probability (95% interval 31%–60%)

Before the decision, about 10.9× the 4.1% base rate. The model weighted this up for a federal-government petitioner and counsel who has won certiorari before.

Questions presented

  1. Whether the district court erred in enjoining the Secretary of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the Secretary's decision violated the Administrative Procedure Act (APA), 5 U.S.C. 701 et seq.

  2. Whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker-including by compelling the testimony of highranking Executive Branch officials-without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis. ORDER OF MARCH 15, 2019: THE PARTIES ARE DIRECTED TO BRIEF AND ARGUE THE FOLLOWING ADDITIONAL QUESTION: WHETHER THE SECRETARY OF COMMERCE’S DECISION TO ADD A CITIZENSHIP QUESTION TO THE DECENNIAL CENSUS VIOLATED THE ENUMERATION CLAUSE OF THE U.S. CONSTITUTION, ART.I, §2, CL. 3.

Counsel of record

For petitioner
Noel John Francisco
Jones Day

For respondent
Dale E. Ho
American Civil Liberties Union

Case

Conference history
Distributed for 3 conferences

Amicus briefs
5 cert-stage · 46 merits
(12 supporting pet./neither, 34 respondent)

Argument & decision

Argued April 23, 2019 — Noel J. Francisco · Barbara D. Underwood · Dale E. Ho · Douglas N. .... Audio and transcript

Decided June 27, 2019. Opinion by Roberts, C.J..

Proceedings

  1. Jul 29 2020
    JUDGMENT ISSUED.
  2. Jun 27 2019
    Adjudged to be AFFIRMED IN PART, REVERSED IN PART, and case REMANDED. Roberts, C. J., delivered the opinion for a unanimous Court with respect to Parts I and II, and the opinion of the Court with respect to Parts III, IV–B, and IV–C, in which Thomas, Alito, Gorsuch, and Kavanaugh, JJ., joined; with respect to Part IV–A, in which Thomas, Ginsburg, Breyer, Sotomayor, Kagan, and Kavanaugh, JJ., joined; and with respect to Part V, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Thomas, J., filed an opinion concurring in part and dissenting in part, in which Gorsuch and Kavanaugh, JJ., joined. Breyer, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, Sotomayor, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in part and dissenting in part.
  3. Jun 26 2019
    Motion DISTRIBUTED for Conference of 6/27/2019.
  4. Jun 26 2019
    Joint letter in opposition to petitioners' letter of June 25, 2019, filed by respondents. (Distributed)
  5. Jun 25 2019
    Letter of petitioners Department of Commerce, et al. filed. (Distributed)
  6. Jun 25 2019
    Letter in Response to Letter of Department of Commerce, et al. of La Union Del Pueblo Entero not accepted for filing. (June 26, 2019)
  7. Jun 25 2019
    Letter of petitioners notifying Court of 4th Cir. ruling in related case filed. (Distributed)
  8. Jun 25 2019
    Letter of respondents New York Immigration Coalition, et al. filed.
  9. Jun 24 2019
    Letter of respondents New York Immigration Coalition, et al. filed. (Distributed)
  10. Jun 20 2019
    Petitioners' opposition to motion for limited remand filed. (Distributed)
  11. Jun 12 2019
    Motion for limited remand filed by respondents New York Immigration Coalition, et al. (Distributed)
  12. Jun 05 2019
    Letter of respondents New York Immigration Coalition, et al. notifying Court of reply filed in district court of (copy of reply attached) filed. (Distributed)
  13. Jun 03 2019
    Letter of petitioners updating Court on district court proceedings (Government's response to motion attached) filed. (Distributed)
  14. May 30 2019
    Letter of respondents New York Immigration Coalition, et al. notifying Court of new proceedings in the district court (proposed redacted motion attached) filed. (Distributed)
  15. Apr 23 2019
    Argued. For petitioners: Noel J. Francisco, Solicitor General, Department of Justice, Washington, D. C. For respondents New York, et al.: Barbara D. Underwood, Solicitor General, New York, N. Y. For respondents New York Immigration Coalition, et al.: Dale E. Ho, New York, N. Y. For United States House of Representatives, as amicus curiae: Douglas N. Letter, General Counsel, U. S. House of Representatives, Washington, D. C.
  16. Apr 16 2019
    Reply of petitioners Department of Commerce, et al. filed. (Distributed)
  17. Apr 12 2019
    Motion of United States House of Representatives for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
  18. Apr 12 2019
    Joint motion for enlargement of time for oral argument and for divided argument filed by respondents GRANTED in part and the time is divided as follows: 40 minutes for petitioners, 20 minutes for respondents New York, et al., 10 minutes for respondents New York Immigration Coalition, et al., and 10 minutes for amicus curiae United States House of Representatives.
  19. Apr 01 2019
    Joint appendix of respondents filed (Volumes 2, 3 & 4). (Statement of costs filed). (Distributed)
  20. Apr 01 2019
    Brief of respondents New York, et al. (Government Plaintiffs-Respondents) filed. (Distributed)
  21. Apr 01 2019
    Brief of respondents New York Immigration Coalition, et al. filed. (Distributed)
  22. Apr 01 2019
    Brief amici curiae of Businesses and Business Organizations filed. (Distributed)
  23. Apr 01 2019
    Brief amicus curiae of Natural Resources Defense Council filed. (Distributed)
  24. Apr 01 2019
    Brief amici curiae of Norman Y. Mineta, et al. filed. (Distributed)
  25. Apr 01 2019
    Certificate of Service filed with respect to brief of amicus curiae of Arab American Institute.
  26. Apr 01 2019
    Brief amicus curiae of State of California filed. (Distributed)
  27. Apr 01 2019
    Brief amici curiae of Current Members of Congress and Bipartisan Former Members of Congress filed. (Distributed)
  28. Apr 01 2019
    Brief amici curiae of Electronic Privacy Information Center, et al. filed. (Distributed)
  29. Apr 01 2019
    Proof of Service filed with respect to brief of amici Electronic Privacy Information Center (EPIC), et al..
  30. Apr 01 2019
    Brief amici curiae of Plaintiffs in Kravitz et al. v. United States Department of Commerce et al., No. 18-1041 (D.MD) filed. (Distributed)
  31. Apr 01 2019
    Brief amici curiae of American Statistical Association, et al. filed. (Distributed)
  32. Apr 01 2019
    Brief amicus curiae of The Nielsen Company (US), LLC filed. (Distributed)
  33. Apr 01 2019
    Brief amicus curiae of United States House of Representatives filed. (Distributed)
  34. Apr 01 2019
    Brief amici curiae of The Catholic Charities of the Archdiocese of New York, et al. filed. (Distributed)
  35. Apr 01 2019
    Brief amicus curiae of Arab American Institute filed. (Distributed)
  36. Apr 01 2019
    Brief amicus curiae of The Council of the Great City Schools filed. (Distributed)
  37. Apr 01 2019
    Brief amici curiae of Harris County, Texas, et al. filed. (Distributed)
  38. Apr 01 2019
    Brief amici curiae of The Leadership Conference on Civil and Human Rights, et al. filed. (Distributed)
  39. Apr 01 2019
    Brief amicus curiae of NAACP Legal Defense & Educational Fund, Inc. filed. (Distributed)
  40. Apr 01 2019
    Brief amici curiae of Lawyers for Civil Rights, et al. filed. (Distributed)
  41. Apr 01 2019
    Brief amici curiae of 190 Bipartisan Elected Officials, et al. filed. (Distributed)
  42. Apr 01 2019
    Brief amici curiae of Former Census Bureau Directors filed. (Distributed)
  43. Apr 01 2019
    Brief amici curiae of Foundations and Philanthropy-Serving Organizations filed. (Distributed)
  44. Apr 01 2019
    Brief amici curiae of Former Federal District Judges filed. (Distributed)
  45. Apr 01 2019
    Brief amici curiae of National Asian Pacific Bar Association, et al. filed. (Distributed)
  46. Apr 01 2019
    Brief amici curiae of International Municipal Lawyers Association (IMLA) and the International City/County Management Association (ICMA) filed. (Distributed)
  47. Apr 01 2019
    Brief amici curiae of County of Santa Clara, et al. filed. (Distributed)
  48. Apr 01 2019
    Brief amici curiae of Central Valley Immigrant Integration Collaborative, et al. filed. (Distributed)
  49. Apr 01 2019
    Brief amici curiae of Legal Services NYC, et al. filed. (Distributed)
  50. Apr 01 2019
    Brief amici curiae of John R. Dunne, et al. filed. (Distributed)
  51. Apr 01 2019
    Brief amici curiae of Common Cause, et al. filed. (Distributed)
  52. Apr 01 2019
    Brief amici curiae of Historians and Social Scientists Margo Anderson, et al. filed. (Distributed)
  53. Apr 01 2019
    Brief amici curiae of City of San Jose and the Black Alliance for Just Immigration filed. (Distributed)
  54. Apr 01 2019
    Brief amici curiae of Nicholas Bagley, et al. filed. (Distributed)
  55. Apr 01 2019
    Brief amici curiae of National Council of Nonprofits, et al. filed. (Distributed)
  56. Apr 01 2019
    Brief amicus curiae of California Legislature filed. (Distributed)
  57. Apr 01 2019
    Brief amici curiae of LatinoJustice PRLDEF, et al. filed. (Distributed)
  58. Mar 29 2019
    Brief amici curiae of The National School Boards Association, et al. filed. (Distributed)
  59. Mar 28 2019
    Record received from the U.S.D.C. Southern District of New York. The record is Sealed. (One Envelope).
  60. Mar 26 2019
    Brief amici curiae of The KIPP Foundation, et al. filed. (Distributed)
  61. Mar 21 2019
    Record requested from the U.S.C.A. 2nd Circuit.
  62. Mar 20 2019
    CIRCULATED
  63. Mar 20 2019
    Blanket consent filed by petitioners.
  64. Mar 15 2019
    The parties are directed to brief and argue the following additional question: Whether the Secretary of Commerce’s decision to add a citizenship question to the Decennial Census violated the Enumeration Clause of the U.S. Constitution, art. I, §2, cl. 3. Respondents are allowed an additional 2,000 words in aggregate to address this question in their briefs on the merits. Petitioners are allowed an additional 1,000 words to address this question in their reply brief on the merits.
  65. Mar 13 2019
    Joint letter of respondents in response to letter of Solicitor General filed. (Distributed)
  66. Mar 11 2019
    Letter of petitioners updating Court on related case filed. (Distributed)
  67. Mar 08 2019
    Joint motion for enlargement of time for oral argument and for divided argument, and response to motion of United States House of Representatives for leave to participate in oral argument as amicus curiae and for divided argument filed by respondents New York et al.
  68. Mar 06 2019
    Joint appendix of petitioners filed (Volume 1). (Statement of costs filed)
  69. Mar 06 2019
    Brief of petitioners Department of Commerce, et al. filed.
  70. Mar 06 2019
    Brief amicus curiae of The Becket Fund for Religious Liberty in support of neither party filed.
  71. Mar 06 2019
    Brief amici curiae of Ronald A. Cass & Christopher C. DeMuth, Sr. filed.
  72. Mar 06 2019
    Brief amici curiae of Oklahoma, et al. filed.
  73. Mar 06 2019
    Brief amicus curiae of Project on Fair Representation filed.
  74. Mar 06 2019
    Brief amicus curiae of Eagle Forum Education & Legal Defense Fund filed.
  75. Mar 06 2019
    Brief amicus curiae of Public Interest Legal Foundation filed.
  76. Mar 06 2019
    Brief amici curiae of Republican National Committee and the National Republican Congressional Committee filed.
  77. Mar 06 2019
    Brief amici curiae of Citizens United, et al. filed.
  78. Mar 06 2019
    Brief amici curiae of Judicial Watch and Allied Educational Foundation filed.
  79. Mar 06 2019
    Brief amicus curiae of Immigration Reform Law Institute filed. (Distributed)
  80. Mar 04 2019
    Motion of United States House of Representatives for leave to participate in oral argument as amicus curiae and for divided argument filed.
  81. Feb 27 2019
    Blanket Consent filed by respondents New York, et al. (government respondents).
  82. Feb 27 2019
    Blanket Consent filed by respondents New York Immigration Coalition, et al.
  83. Feb 25 2019
    Letter of petitioners filed.
  84. Feb 22 2019
    SET FOR ARGUMENT on Tuesday, April 23, 2019 (10 a.m.).
  85. Feb 21 2019
    Petitioner's brief on the merits, and any amicus curiae briefs in support of petitioners or in support of neither party, are to be filed on or before Wednesday, March 6, 2019. Respondents' briefs on the merits, and any amicus curiae briefs in support of respondents, are to be filed on or before Monday, April 1, 2019. The reply brief on the merits is to be filed in accordance with Rule 25.3 of the Rules of this Court.
  86. Feb 19 2019
    Joint letter of the parties proposing briefing schedule filed.
  87. Feb 15 2019
    Petition for a writ of certiorari before judgment GRANTED. The case will be set for argument in the second week of the April argument session.
  88. Feb 13 2019
    Reply of petitioners Department of Commerce, et al. filed. (Distributed)
  89. Feb 12 2019
    Brief amicus curiae of Project on Fair Representation filed. (Distributed)
  90. Feb 11 2019
    DISTRIBUTED for Conference of 2/15/2019.
  91. Feb 11 2019
    Brief of respondents New York et al. (Government Plaintiffs-Respondents) in opposition filed. (Distributed)
  92. Feb 11 2019
    Brief amicus curiae of United States House of Representatives filed. (Distributed)
  93. Feb 11 2019
    Brief amici curiae of Ronald A. Cass & Christopher C. DeMuth, Sr. filed. (Distributed)
  94. Feb 11 2019
    Brief amicus curiae of Public Interest Legal Foundation filed. (Distributed)
  95. Feb 11 2019
    Brief of respondents New York Immigration Coalition, et al. in opposition filed. (Distributed)
  96. Feb 11 2019
    Brief amici curiae of Judicial Watch and AEF filed. (Distributed)
  97. Jan 30 2019
    Motion DISTRIBUTED for Conference of 2/15/2019.
  98. Jan 29 2019
    Response to petitioners' motion to expedite from respondents New York, et al. (Government Plaintiffs-Respondents) filed.
  99. Jan 25 2019
    Petition for a writ of certiorari before judgment filed. (Response due February 25, 2019)
  100. Jan 25 2019
    Motion to expedite consideration of the petition for a writ of certiorari filed by petitioners.