Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: 45, Page 1 of 21
`
`FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`OCT 7 2020
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`No. 20-16868
`
`
`D.C. No. 5:20-cv-05799-LHK
`Northern District of California,
`San Jose
`
`
`ORDER
`
`
`
`
`
`
`
` Plaintiffs-Appellees,
`
`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;
`COUNTY OF LOS ANGELES, California;
`GILA RIVER INDIAN COMMUNITY,
`
`
`
` v.
`
`
`WILBUR L. ROSS, in his official capacity
`as Secretary of Commerce; UNITED
`STATES DEPARTMENT OF
`COMMERCE; STEVEN DILLINGHAM, in
`his official capacity as Director of the U.S.
`Census Bureau; UNITED STATES
`CENSUS BUREAU,
`
`
`
` and
`
`
`STATE OF LOUISIANA; STATE OF
`MISSISSIPPI,
`
`
`
`
`
`
`
` Defendants-Appellants,
`
`
`
`
`
`
`
`

`

`Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: 45, Page 2 of 21
`
`
`
`
`
`
`
`
`
`
`
`
`Intervenor-Defendants.
`
`
`Before: GRABER, W. FLETCHER, and BERZON, Circuit Judges.
`
`
`
`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
`
`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
`
`
`
`2
`
`
`
`

`

`Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: 45, Page 3 of 21
`
`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 for districting, which “shall be completed by him as expeditiously as
`
`possible after the decennial census date” and “shall, in any event, be completed,
`
`
`
`3
`
`
`
`

`

`Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: 45, Page 4 of 21
`
`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.
`
`
`
`4
`
`
`
`

`

`Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: 45, Page 5 of 21
`
`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 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
`
`
`
`5
`
`
`
`

`

`Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: 45, Page 6 of 21
`
`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 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.”
`
`
`
`6
`
`
`
`

`

`Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: 45, Page 7 of 21
`
`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 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
`
`
`
`7
`
`
`
`

`

`Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: 45, Page 8 of 21
`
`(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)).
`
`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
`
`
`
`8
`
`
`
`

`

`Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: 45, Page 9 of 21
`
`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
`
`
`
`9
`
`
`
`

`

`Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: 45, Page 10 of 21
`
`revocations’ effected under the land withdrawal review program,” id. 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
`
`
`
`10
`
`
`
`

`

`Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: 45, Page 11 of 21
`
`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 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
`
`
`
`11
`
`
`
`

`

`Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: 45, Page 12 of 21
`
`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 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
`
`
`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.”
`
`
`
`12
`
`
`
`

`

`Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: 45, Page 13 of 21
`
`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 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).
`
`
`
`13
`
`
`
`

`

`Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: 45, Page 14 of 21
`
`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 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
`
`
`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.
`
`
`
`14
`
`
`
`

`

`Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: 45, Page 15 of 21
`
`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 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
`
`
`
`15
`
`
`
`

`

`Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: 45, Page 16 of 21
`
`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
`
`meet its statutory deadlines to produce apportionment counts prior to December
`
`31, 2020 and redistricting data prior to April 1, 2021 would be seriously
`
`
`
`16
`
`
`
`

`

`Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: 45, Page 17 of 21
`
`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
`
`
`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.
`
`
`
`17
`
`
`
`

`

`Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: 45, Page 18 of 21
`
`state funding that the Plaintiffs allege from the Replan would be impossible to
`
`remedy until the next census in 2030. See, e.g., 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
`
`18
`
`
`
`

`

`Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: 45, Page 19 of 21
`
`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 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
`
`
`
`19
`
`
`
`

`

`Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: 45, Page 20 of 21
`
`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 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
`
`
`
`20
`
`
`
`

`

`Case: 20-16868, 10/07/2020, ID: 11850873, DktEntry: