State v. U.S. Dep't of Commerce

461 F.Supp.3d 80

STATE of New York, et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.

18-CV-2921 (JMF)

United States District Court, S.D. New York.

Signed May 21, 2020

Sania Waheed Khan, Ajay Paul Saini, Danielle Fidler, David Eli Nachman, Elena Stacy Goldstein, Elizabeth Morgan, Laura Jane Wood, Matthew Colangelo, Lourdes Maria Rosado, Ajay Paul Saini, Elena Stacy Goldstein, Lourdes Maria Rosado, New York State Office of The Attorney General, New York, NY, Mark Francis Kohler, Connecticut Office of the Attorney General, Hartford, CT, David J. Lyons, Ilona Kirshon, Delaware Department of Justice, Wilmington, DE, Kathleen Konopka, Robyn Renee Bender, Valerie M. Nannery, Office of The Attorney General For The District of Columbia, Washington, DC, Matthew J. Martin, Office of The Illinois Attorney General, Chicago, IL, Andrea William Trento, Hogan & Hartson L.L.P., Baltimore, MD, Ann E. Lynch, Massachusetts Attorney General's Office, Springfield, MA, Jonathan Benjamin Miller, Office of Attorney General, Boston, MA, Miranda Mercedes Cover, Massachusetts Attorney General's Office, Boston, MA, Rachel Wainer Apter, New Jersey Office of the Attorney General Department of Law, Trenton, NJ, Melissa Medoway, New Jersey Office of the Attorney General, Newark, NJ, Tania Maestas, Nm Office of The Attorney General, Santa Fe, NM, Ryan Young Park, North Carolina Department of Justice, Raleigh, NC, Michael Fischer, Aimee Diane Thomson, PA Office of the Attorney General, Philadelphia, PA, Adam Roach, Rhode Island Attorney General, Providence, RI, Matthew Robert McGuire, Michelle Kallen, Office of the Attorney General, Richmond, VA, Benjamin Daniel Battles, Julio A. Thompson, Vermont Office of Attorney General, Montpelier, VT, Laura Kristine Clinton, Washington State Attorney General, Seattle, WA, Andrew Worseck, Christie Starzec, Margaret Sobota, City of Chicago Law Department, Chicago, IL, Tonya Jenerette, Corporation Counsel, Special Federal Litigation Division, New York, NY, Gail Phyllis Rubin, Sabita Lakshmi Krishnan, New York City Law Department, New York, NY, Benjamin H. Field, Eleanor Ewing, City of Philadelphia Law Department, Philadelphia, PA, Jeffrey Dana, City of Providence Office of The City Solicitor, Providence, RI, Dennis J. Herrera, Erin Lee Kuka, San Francisco City Attorney's Office, San Francisco, CA, John Daniel Reaves, John Daniel Reaves, Attorney, Washington, DC, Gary T. Smith, Peter S. Holmes, Seattle City Attorney's Office, Seattle, WA, Yvonne S. Hilton, Matthew McHale, City of Pittsburgh Law Department, Pittsburgh, PA, Rolando L. Rios, Law Office of Rolando L. Rios, San Antonio, TX, Jacqueline Melmed, Governor's Office, State of Colorado, Denver, CO, Matthew Timothy Jerzyk, City of Central Falls, Central Falls, RI, Richard Coglianese, Zachary M. Klein, City Attorney's Office, Columbus, OH, Jo Anne Bernal, El Paso County Attorney, El Paso, TX, William Merrill Litt, Salinas, CA, for Plaintiffs.

Brett Shumate, Carlotta Wells, Carol Federighi, Kate Bailey, Garrett Joseph Coyle, Joshua E. Gardner, U.S. Department of Justice, Washington, DC, James Jordan Gilligan, Alice Shih LaCour, Brinton Lucas, Christopher Bates, Christopher R. B. Reimer, Daniel Schiffer, David M. Morrell, James Burnham, Martin M. Tomlinson, Stephen Ehrlich, DOJ-Civ, Washington, DC, for Defendants.

OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:

In these consolidated cases, two groups of Plaintiffs — the first, a coalition of states and other government entities (the "Governmental Plaintiffs"); and the second, a coalition of non-governmental organizations (the "NGO Plaintiffs") — challenged Secretary of Commerce Wilbur L. Ross, Jr.'s decision to add a question about citizenship status to the 2020 decennial census questionnaire. After more than a year of hard-fought litigation, which included an eight-day bench trial, Plaintiffs ultimately prevailed: This Court granted an injunction barring the question's inclusion, see New York v. U.S. Dep't of Commerce , 351 F. Supp. 3d 502 (S.D.N.Y. 2019), and the Supreme Court affirmed on the ground that Secretary Ross's stated rationale — that adding the citizenship question was necessary to help enforce the Voting Rights Act of 1965 — was "pretextual" and "contrived," Dep't of Commerce v. New York , ––– U.S. ––––, 139 S. Ct. 2551, 2573, 2575, 204 L.Ed.2d 978 (2019). Defendants then consented to entry of a permanent injunction barring any inclusion of a citizenship question on the 2020 census questionnaire.

Normally, that would be the end of the matter. But while the case was pending before the Supreme Court, Plaintiffs obtained new evidence that, they claim, suggests Secretary Ross's true motive in adding a citizenship question to the census questionnaire was to facilitate redistricting strategies to benefit Republicans and non-Hispanic whites. Shortly after the Supreme Court affirmed this Court's judgment, the NGO Plaintiffs filed a motion for sanctions and other relief based on that newly discovered evidence. Before the Court could issue a ruling on that motion, even more evidence emerged. First, Plaintiffs obtained documents that were produced to Congress in connection with its investigation of the citizenship question. Second, in November 2019, Defendants revealed that, in the course of responding to congressional inquiries, they had discovered "a number of documents ... that were inadvertently not produced in discovery in this matter." ECF No. 669-1, at 1. A more thorough investigation eventually revealed that the "number" of documents erroneously withheld from production exceeded 2,000. See ECF No. 676, at 2. Defendants have since remedied these failings, and the NGO Plaintiffs' motion for sanctions, updated to reflect all of these developments, is finally ripe for the Court's resolution.

For the reasons stated below, the Court concludes that the NGO Plaintiffs' motion should be granted in part and denied in part. First, the Court concludes that sanctions and further inquiry are not warranted with respect to the NGO Plaintiffs' most serious allegations — that Defendants concealed evidence and that two witnesses provided false testimony. To be clear, that conclusion is not based on a finding that Plaintiffs' troubling allegations are wrong; the Court intimates no view on that question. Instead, the conclusion is based primarily on the fact that, even if Plaintiffs' allegations are accurate, that would not have changed the outcome of this litigation. As Defendants themselves acknowledge, Plaintiffs prevailed at trial and in the Supreme Court on precisely the theory that the NGO Plaintiffs seek to reinforce here: that Secretary Ross's stated reasons for adding the citizenship question were contrived and pretextual. By contrast, the Court concludes that sanctions are justified with respect to Defendants' admitted failure to review and produce hundreds of documents that should have been disclosed prior to trial — a failure that may well have been inadvertent, but is nevertheless unacceptable for any litigant, and particularly for the Department of Justice ("DOJ"). Specifically, the Court orders Defendants to reimburse the NGO Plaintiffs for the costs and fees that they incurred as a result of Defendants' violations of their obligations.

BACKGROUND

The Court presumes familiarity with the background and procedural history of these cases, which are set forth — at some length — in the Court's prior Opinions. In short, Plaintiffs sought review of Secretary Ross's decision principally under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. At an early stage of the case, the Court found that the Administrative Record submitted by Defendants was incomplete. See New York , 351 F. Supp. 3d at 529. Thereafter, the Court ordered Defendants to complete the Administrative Record and authorized "extra-record" discovery on the ground that Plaintiffs had made a "strong preliminary showing ... that they [would] find material beyond the Administrative Record indicative of bad faith or pretext." Id. (internal quotation marks omitted). The Court then held an eight-day bench trial on Plaintiffs' claims. On January 15, 2019, the Court issued findings of fact and conclusions of law, holding that the Secretary's decision was arbitrary and capricious, contrary to law, and pretextual — a "veritable smorgasbord of classic, clear-cut APA violations." Id. at 516 ; see id. at 635-64. For all these reasons, the Court vacated Secretary Ross's decision, enjoined its implementation, and remanded the matter to the Secretary. Id. at 671-80. Because questions about the proper scope of the record had been the subject of significant controversy throughout the litigation — generating an unprecedented, largely unsuccessful effort by Defendants to halt the proceedings and obtain extraordinary relief from higher courts — the Court carefully bifurcated its findings and reasoning to make clear which conclusions were supported solely by what the parties agreed was the Administrative Record and which conclusions were further supported by extra-record evidence. See id. at 530. Defendants — Secretary Ross, the United States Department of Commerce, the Director of the Census, and the Bureau of the Census — filed a notice of appeal and a petition for certiorari before judgment in the Supreme Court. The Supreme Court granted their petition and, as noted, affirmed on the ground that Secretary Ross's stated rationale was pretextual on the basis of the entire record — including the evidence beyond the Administrative Record adduced at trial. See Dep't of Commerce , 139 S. Ct. at 2573.

In the days after the Supreme Court's decision, Defendants vacillated over whether to persist in their efforts to include a citizenship question on the 2020 census questionnaire — presumably on the basis of a new (or at least newly disclosed) rationale. See ECF Nos. 613, 627. The uncertainty came to an end on July 11,...