No. 18A-_______
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`IN THE SUPREME COURT OF THE UNITED STATES
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`_______________
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`IN RE UNITED STATES DEPARTMENT OF COMMERCE, ET AL.
`_______________
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`RENEWED APPLICATION FOR A STAY PENDING DISPOSITION
`OF A PETITION FOR A WRIT OF MANDAMUS
`TO THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`AND REQUEST FOR AN IMMEDIATE ADMINISTRATIVE STAY
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`_______________
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`NOEL J. FRANCISCO
` Solicitor General
` Counsel of Record
` Department of Justice
` Washington, D.C. 20530-0001
` SupremeCtBriefs@usdoj.gov
` (202) 514-2217
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`________________________________________________________________
`________________________________________________________________
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`________________________________________________________________
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`IN THE SUPREME COURT OF THE UNITED STATES
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`_______________
`
`IN RE UNITED STATES DEPARTMENT OF COMMERCE, ET AL.
`_______________
`
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`RENEWED APPLICATION FOR A STAY PENDING DISPOSITION
`OF A PETITION FOR A WRIT OF MANDAMUS
`TO THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`AND REQUEST FOR AN IMMEDIATE ADMINISTRATIVE STAY
`
`
`_______________
`
`NOEL J. FRANCISCO
` Solicitor General
` Counsel of Record
` Department of Justice
` Washington, D.C. 20530-0001
` SupremeCtBriefs@usdoj.gov
` (202) 514-2217
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`________________________________________________________________
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`PARTIES TO THE PROCEEDING
`Applicants (defendants in the district court, and mandamus
`petitioners in the court of appeals) are the United States
`Department of Commerce; Wilbur L. Ross, Jr., in his official
`capacity as Secretary of Commerce; the United States Census Bureau,
`an agency within the United States Department of Commerce; and Ron
`S. Jarmin, in his capacity performing the non-exclusive functions
`and duties of the Director of the United States Census Bureau
`(referred to as the Acting Director in this brief).
`Respondent in this Court is the United States District Court
`for the Southern District of New York. Respondents also include
`the State of New York; the State of Connecticut; the State of
`Delaware; the District of Columbia; the State of Illinois; the
`State of Iowa; the State of Maryland; the Commonwealth of
`Massachusetts; the State of Minnesota; the State of New Jersey;
`the State of New Mexico; the State of North Carolina; the State of
`Oregon; the Commonwealth of Pennsylvania; the State of Rhode
`Island; the Commonwealth of Virginia; the State of Vermont; the
`State of Washington; the City of Chicago, Illinois; the City of
`New York; the City of Philadelphia; the City of Providence; the
`City and County of San Francisco, California; the United States
`Conference of Mayors; the City of Seattle, Washington; the City of
`Pittsburgh; the County of Cameron; the State of Colorado; the City
`of Central Falls; the City of Columbus; the County of El Paso; the
`County of Monterey; and the County of Hidalgo (collectively
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`ii
`plaintiffs in the district court in No. 18-cv-2921, and real
`parties in interest in the court of appeals in Nos. 18-2652 and
`18-2856). Respondents further include the New York Immigration
`Coalition; Casa de Maryland, Inc.; the American-Arab Anti-
`Discrimination Committee; ADC Research Institute; and Make the
`Road New York (collectively plaintiffs in the district court in
`No. 18-cv-5025, and real parties in interest in the court of
`appeals in Nos. 18-2659 and 18-2857).
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`IN THE SUPREME COURT OF THE UNITED STATES
`_______________
`
`No. 18A-_______
`
`IN RE UNITED STATES DEPARTMENT OF COMMERCE, ET AL.
`
`_______________
`
`RENEWED APPLICATION FOR A STAY PENDING DISPOSITION
`OF A PETITION FOR A WRIT OF MANDAMUS
`TO THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`AND REQUEST FOR AN IMMEDIATE ADMINISTRATIVE STAY
`_______________
`Pursuant to Rule 23 of the Rules of this Court and the All
`Writs Act, 28 U.S.C. 1651, the Solicitor General, on behalf of the
`United States Department of Commerce, the Secretary of Commerce,
`the United States Census Bureau, and the Acting Director of the
`United States Census Bureau, respectfully renews his application
`for a stay of written orders and an oral ruling entered by the
`United States District Court for the Southern District of New York
`on September 21, 2018 (App., infra, 5a-16a), August 17, 2018 (id.
`at 17a-19a), and July 3, 2018 (id. at 95a-107a). Together, these
`orders specifically compel the depositions of two high-ranking
`Executive Branch officials -- the Secretary of Commerce, Wilbur
`L. Ross, Jr., and the Acting Assistant Attorney General (AAG) of
`the Justice Department’s Civil Rights Division, John M. Gore --
`and more generally expand discovery beyond the administrative
`record in this suit under the Administrative Procedure Act (APA),
`5 U.S.C. 701 et seq.
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`2
`On October 5, 2018, Justice Ginsburg denied the government’s
`previous stay application without prejudice, “provided that the
`Court of Appeals will afford sufficient time for either party to
`seek relief in this Court before the depositions in question are
`taken.” 18A350 Order (Oct. 5, 2018). That same day, the
`government renewed its request in the court of appeals for a stay
`of all three orders. 18-2856 Docket entry No. 44. Earlier today
`the court of appeals denied mandamus relief to quash Secretary
`Ross’s deposition, saying that its previously entered stay of that
`deposition would expire in 48 hours -- meaning around 4 p.m. on
`Thursday, October 11, the day Secretary Ross’s deposition is
`scheduled. App., infra, 130a. The court of appeals also failed
`to grant any relief with respect to Acting AAG Gore’s deposition
`or extra-record discovery. As a result, absent relief from this
`Court, Acting AAG Gore’s deposition will proceed as scheduled at
`9 a.m. tomorrow (Wednesday, October 10). Therefore, and in
`accordance with Justice Ginsburg’s October 5 order, the government
`respectfully renews its application for a stay in this Court.
`This renewed application arises from a pair of consolidated
`cases challenging the decision by Secretary Ross to reinstate a
`citizenship question on the decennial census. Questions seeking
`citizenship or birthplace information were part of every decennial
`census from 1820 to 1950 (except in 1840); and from 1960 through
`2000 the decennial census continued to elicit such information
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`3
`from a sample of the population. Since 2005, the Census Bureau
`has included questions about citizenship and birthplace in
`detailed annual surveys sent to samples of the population.
`Respondents here challenge Secretary Ross’s decision to reinstate
`a citizenship question on the 2020 decennial census, alleging that
`adding the question might cause an undercount because, among other
`things, some households containing individuals who are unlawfully
`present will be deterred from responding (despite their legal duty
`to respond). Therefore, respondents claim, the Secretary’s
`decision was arbitrary and capricious, and violates various
`regulatory, statutory, and constitutional provisions.
`The immediate dispute here is about whether respondents are
`entitled to probe Secretary Ross’s mental processes -- his
`subjective motivations -- when he decided to reinstate the
`citizenship question. Secretary Ross consulted with many parties,
`including Census Bureau, Commerce Department, and Justice
`Department officials, before announcing his decision, and he set
`forth his reasons in a detailed memorandum backed by a voluminous
`administrative record. See App., infra, 117a-124a. Those reasons
`include the Justice Department’s view that citizenship data from
`the decennial census would be helpful to its enforcement duties
`under the Voting Rights Act of 1965 (VRA), 52 U.S.C. 10301 et seq.
`App., infra, 125a-127a. Not content to evaluate the legality of
`the Secretary’s order based on the administrative record,
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`4
`respondents assert that Secretary Ross’s stated reasons are
`pretextual, and that his decision was driven by secret motives,
`including animus against racial minorities. They seek -- and
`the district court agreed to compel -- wide-ranging discovery to
`probe the Secretary’s mental processes, including by deposing him
`and other high-ranking government officials.
`This Court has long recognized that an agency decisionmaker’s
`mental processes are generally irrelevant to evaluating the
`legality of agency action. See Morgan v. United States, 304 U.S.
`1, 18 (1938). So too has this Court recognized that compelling
`the testimony of a high-ranking government official -- especially
`a member of the President’s Cabinet -- is rarely if ever
`justified. See United States v. Morgan, 313 U.S. 409, 422 (1941).
`Secretary Ross set forth the reasons supporting his decision to
`reinstate a citizenship question in a detailed memorandum, and the
`government has provided an extensive administrative record in
`support of that determination. The validity of the Secretary’s
`decision is properly judged on that objective “administrative
`record already in existence, not some new record made initially in
`the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973)
`(per curiam).
`The district court nevertheless concluded that compelling a
`Cabinet Secretary’s and Acting AAG’s testimony was justified
`because respondents made a “strong showing of bad faith” on the
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`5
`part of Secretary Ross. App., infra, 13a (citation omitted). Yet
`the district court’s stated reasons -- that Secretary Ross might
`have subjectively desired to reinstate the question before
`soliciting the views of the Justice Department; that he overruled
`subordinates who opposed reintroducing the citizenship question;
`that the citizenship question was not “well tested”; and that the
`Justice Department had not previously requested citizenship data
`for its VRA enforcement duties -- all are legally immaterial,
`and some are factually incorrect as well.
`Nor does the district court’s finding that “exceptional
`circumstances” warrant Secretary Ross’s deposition survive
`scrutiny. App., infra, 12a. The court thought Secretary Ross’s
`testimony uniquely vital because he was personally involved in the
`decision to reinstate a citizenship question and the decision is
`of great importance to the public. The Secretary’s personal
`involvement in a significant policy decision is not exceptional,
`and the importance of the Secretary’s decision in this case does
`not distinguish it from many other decisions of national importance
`that Cabinet Secretaries make.
`Compounding its error, the district court did not adequately
`consider whether the information respondents hope to obtain from
`Secretary Ross could be obtained elsewhere. Respondents already
`have received extensive materials through discovery, including
`documents and testimony from the Secretary’s closest aides. And
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`6
`Secretary Ross’s testimony, much of which likely will be
`privileged, is unlikely to add anything material to respondents’
`understanding of those events. Moreover, to the extent extra-
`record discovery is appropriate, the government offered to supply
`the information respondents seek from Secretary Ross through
`interrogatories, requests for admission, or a deposition of the
`Commerce Department under Federal Rule of Civil Procedure
`30(b)(6). See App., infra, 13a. At a minimum, the court should
`have ordered the parties to undertake these alternatives before it
`took the extraordinary and disfavored step of ordering a Cabinet
`Secretary’s deposition.
`Similar infirmities beset the district court’s order
`compelling Acting AAG Gore’s deposition. Neither respondents nor
`the district court explained how Acting AAG Gore could provide
`information about Secretary Ross’s mental processes or alleged
`hidden animus. And of course Acting AAG Gore’s testimony on these
`topics would likely be privileged as well.
`The standards for granting a stay are thus readily met in
`this case. The district court’s orders mandating discovery outside
`the administrative record, including by compelling the depositions
`of Secretary Ross and Acting AAG Gore, were in excess of the
`court’s authority under the APA and violate fundamental principles
`of administrative law. As with similar administrative-record-
`related orders this Court has recently considered, the orders here
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`7
`“constitute[] ‘a clear abuse of discretion’” and present a “classic
`case [for] mandamus relief.” In re United States, 875 F.3d 1200,
`1211, 1213 (9th Cir.) (Watford, J., dissenting) (citation
`omitted), vacated and remanded, 138 S. Ct. 443 (2017) (per curiam).
`The balance of harms weighs strongly in favor of an immediate
`stay. Respondents have stated their intent to depose Acting AAG
`Gore and Secretary Ross on October 10 and 11, respectively. Absent
`a stay, these high-level Executive Branch officials will be forced
`to prepare for and attend these depositions, and those harms cannot
`be undone by an eventual victory on the merits. By contrast,
`respondents have no pressing need to depose these officials
`immediately. To be sure, the district court has set a trial date
`of November 5, and the government also desires an expeditious
`resolution of the ultimate legality of Secretary Ross’s order in
`time to finalize the 2020 decennial census questionnaire. But
`inquiry into Secretary Ross’s mental processes -- or, for that
`matter, a trial -- is unnecessary to resolve that question under
`bedrock principles of administrative law. Rather, the district
`court must decide this challenge on “the administrative record
`already in existence, not some new record made initially in the
`reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973) (per
`curiam).
`In light of the looming depositions and the government’s clear
`right to relief, the government seeks an immediate stay of all
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`three orders pending disposition of the government’s forthcoming
`petition for a writ of mandamus to the district court or,
`alternatively, certiorari to the court of appeals. In the
`alternative, and to avoid repetitive filings, the Court could
`construe this application as that petition. Either way, the
`government respectfully requests an immediate administrative stay
`of all three discovery orders while the Court considers this
`application.
`
`STATEMENT
`The Constitution requires that an “actual Enumeration”
`1.
`of the population be conducted every ten years in order to allocate
`representatives in Congress among the States, and vests Congress
`with the authority to conduct that census “in such Manner as they
`shall by Law direct.” U.S. Const. Art. I, § 2, Cl. 3. The Census
`Act, 13 U.S.C. 1 et seq., delegates to the Secretary of Commerce
`the responsibility to conduct the decennial census “in such form
`and content as he may determine,” and “authorize[s] [him] to obtain
`such other census information as necessary.” 13 U.S.C. 141(a).
`The Census Bureau assists the Secretary in the performance of this
`responsibility. See 13 U.S.C. 2, 4. The Act directs that the
`Secretary “shall prepare questionnaires, and shall determine the
`inquiries, and the number, form, and subdivisions thereof, for the
`statistics, surveys, and censuses provided for in this title.” 13
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`9
`U.S.C. 5. Nothing in the Act directs the content of the questions
`that are to be included on the decennial census.
`2.
`With the exception of 1840, decennial censuses from 1820
`to 1880 asked for citizenship or birthplace in some form, and
`decennial censuses from 1890 through 1950 specifically requested
`citizenship information. 18-cv-2921 Docket entry No. 215, at 8-
`10 (S.D.N.Y. July 26, 2018) (MTD Order).
`Citizenship-related questions continued to be asked of some
`respondents after the 1950 Census. In 1960, the Census Bureau
`asked 25% of the population for the respondent’s birthplace and
`that of his or her parents. MTD Order 10-11. Between 1970 and
`2000, the Census Bureau distributed a detailed questionnaire,
`known as the “long-form questionnaire,” to a sample of the
`population (one in five households in 1970, one in six thereafter)
`in lieu of the “short-form questionnaire” sent to the majority of
`households. Id. at 11-12. The long-form questionnaire included
`questions about the respondent’s citizenship or birthplace, while
`the short form did not. Ibid.
`Beginning in 2005, the Census Bureau began collecting the
`more extensive long-form data -- including citizenship data --
`through the American Community Survey (ACS), which is sent yearly
`to about one in 38 households. MTD Order 11-12. The replacement
`of the long-form questionnaire with the yearly ACS enabled the
`2010 census to be a “short-form-only” census. The 2020 census
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`10
`will also be a “short-form-only” census. The ACS will continue to
`be distributed each year, as usual, to collect additional data,
`and will continue to include a citizenship question.
`Because the ACS collects information from only a small sample
`of the population, it produces annual estimates only for “census
`tracts” and “census-block groups.” The decennial census attempts
`a full count of the people in each State and produces population
`counts as well as counts of other, limited information down to the
`smallest geographic level, known as the “census block.” As in
`past years, the 2020 census questionnaire will pose a number of
`questions beyond the total number of individuals residing at a
`location, including questions regarding sex, Hispanic origin,
`race, and relationship status.
`3.
`On March 26, 2018, the Secretary of Commerce issued a
`memorandum reinstating a citizenship question on the 2020 Census
`questionnaire. App., infra, 117a-124a. The Secretary’s reasoning
`and the procedural background are set out in that memorandum and
`in a supplemental memorandum issued on June 21, 2018. See id. at
`116a. The Secretary explained that, “[s]oon after [his]
`appointment,” he “began considering various fundamental issues”
`regarding the 2020 Census, including whether to reinstate a
`citizenship question. Ibid. As part of the Secretary’s
`deliberative process, he and his staff “consulted with Federal
`governmental components and inquired whether the Department of
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`11
`Justice (DOJ) would support, and if so would request, inclusion of
`a citizenship question as consistent with and useful for the
`enforcement of [the] Voting Rights Act.” Ibid.
`In a December 12, 2017 letter (Gary Letter), DOJ responded
`that citizenship data is important to the Department’s enforcement
`of Section 2 of the VRA for several reasons, including that the
`decennial census questionnaire would provide more granular
`citizenship voting age population (CVAP) data than the ACS surveys
`can. App., infra, at 125a-127a. Accordingly, DOJ “formally
`request[ed] that the Census Bureau reinstate into the 2020 Census
`a question regarding citizenship.” Id. at 127a.
`After receiving DOJ’s formal request, the Secretary
`“initiated a comprehensive review process led by the Census
`Bureau,” App., infra, 117a, and asked the Census Bureau to evaluate
`the best means of providing the data identified in the letter.
`The Census Bureau initially presented three alternatives. Id. at
`118a-120a. After reviewing those alternatives, the Secretary
`asked the Census Bureau to consider a fourth option too. Id. at
`120a. Ultimately, the Secretary concluded that this fourth option,
`reinstating a citizenship question on the decennial census, would
`provide DOJ with the most complete and accurate CVAP data. Id. at
`121a.
`The Secretary also observed that collecting citizenship data
`in the decennial census has a long history and that the ACS has
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`12
`included a citizenship question since 2005. App., infra, 118a.
`The Secretary therefore found, and the Census Bureau confirmed,
`that “the citizenship question has been well tested.” Ibid. He
`further confirmed with the Census Bureau that census-block-level
`citizenship data are not available from the ACS. Ibid.
`The Secretary considered but rejected concerns that
`reinstating a citizenship question would negatively impact the
`response rate for non-citizens. App., infra, 119a-122a. While
`the Secretary agreed that a “significantly lower response rate by
`non-citizens could reduce the accuracy of the decennial census and
`increase costs for non-response follow up * * * operations,” he
`concluded that “neither the Census Bureau nor the concerned
`stakeholders could document that the response rate would in fact
`decline materially” as a result of reinstatement of a citizenship
`question. Id. at 119a. Based on his discussions with outside
`parties, Census Bureau leadership, and others within the Commerce
`Department, the Secretary determined that, to the best of
`everyone’s knowledge, there is limited empirical data on how
`reinstating a citizenship question might affect response rates.
`Id. at 119a, 121a.
`The Secretary also emphasized that “[c]ompleting and
`returning decennial census questionnaires is required by Federal
`law,” meaning that concerns regarding a reduction in response rates
`were premised on speculation that some will “violat[e] [a] legal
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`13
`duty to respond.” App., infra, 123a. So despite the hypothesis
`“that adding a citizenship question could reduce response rates,
`the Census Bureau’s analysis did not provide definitive, empirical
`support for that belief.” Id. at 120a. The Secretary further
`explained that the Census Bureau intends to take steps to conduct
`respondent and stakeholder outreach in an effort to mitigate any
`impact on response rates of including a citizenship question. Id.
`at 121a. In light of these considerations, the Secretary concluded
`that “even if there is some impact on responses, the value of more
`complete and accurate [citizenship] data derived from surveying
`the entire population outweighs such concerns.” Id. at 123a.
`4.
`Plaintiffs below (respondents in this Court) are
`governmental entities (including States, cities, and counties) and
`non-profit organizations. The operative complaints allege that
`the Secretary’s action violates the Enumeration Clause; is
`arbitrary and capricious under the Administrative Procedure Act;
`and denies equal protection by discriminating against racial
`minorities. See 18-cv-5025 Compl. ¶¶ 193-212 (S.D.N.Y. June 6,
`2018); 18-cv-2921 Second Am. Compl. ¶¶ 178-197 (S.D.N.Y. July 25,
`2018).1 All of the claims rest on the speculative premise that
`
`
`1
`Challenges to the Secretary’s decision have also been
`brought in district courts in Maryland and California. See Kravitz
`v. United States Dep’t of Commerce, No. 18-cv-1041 (D. Md. filed
`Apr. 11, 2018); La Union del Pueblo Entero v. Ross, No. 18-cv-1570
`(D. Md. filed May 31, 2018); California v. Ross, No. 18-cv-1865
`
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`14
`reinstating a citizenship question will reduce the self-response
`rate to the census because, notwithstanding the legal duty to
`answer the census, 13 U.S.C. 221, some households containing at
`least one noncitizen may be deterred from doing so (and those
`households will disproportionately contain racial minorities).
`Respondents maintain that Secretary Ross’s stated reasons in his
`memorandum are pretextual, and that his decision was driven by
`secret reasons, including animus against minorities.
`Respondents announced their intention to seek extra-record
`discovery before the administrative record had been filed. At a
`May 9, 2018 hearing, respondents asserted that “an exploration of
`the decision-makers’ mental state” was necessary and that extra-
`record discovery on that issue, including deposition discovery,
`was thus justified, “prefatory to” the government’s production of
`the administrative record. 18-cv-2921 Docket entry No. 150, at 9.
`5.
`At a July 3 hearing, the district court granted
`respondents’ request for extra-record discovery over the
`government’s strong objections. App., infra, 95a-104a. The court
`concluded that respondents had made a sufficiently strong showing
`of bad faith to warrant extra-record discovery. Id. at 101a. The
`court offered four reasons to support this determination. First,
`the Secretary’s supplemental memorandum “could be read to suggest
`
`(N.D. Cal. filed Mar. 26, 2018); City of San Jose v. Ross, No. 18-
`cv-2279 (N.D. Cal. filed Mar. 17, 2018).
`
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`15
`that the Secretary had already decided to add the citizenship
`question before he reached out to the Justice Department; that is,
`that the decision preceded the stated rationale.” Ibid. Second,
`the record submitted by the Department “reveals that Secretary
`Ross overruled senior Census Bureau career staff,” who recommended
`against adding a question. Ibid. Third, the Secretary used an
`abbreviated decisionmaking process in deciding to reinstate a
`citizenship question, as compared to other instances in which
`questions had been added to the census. Id. at 102a. Fourth,
`respondents had made “a prima facie showing” that the Secretary’s
`stated justification for reinstating a citizenship question --
`that it would aid DOJ in enforcing the VRA -- was “pretextual”
`because DOJ had not previously suggested that citizenship data
`collected through the decennial census was needed to enforce the
`VRA. Id. at 102a-103a.
`Following that order, the government supplemented the
`administrative record with over 12,000 pages of documents,
`including materials reviewed and created by direct advisors to the
`Secretary. The government also produced additional documents in
`response to discovery requests, including nearly 11,000 pages from
`the Department of Commerce and over 14,000 pages from DOJ.
`Respondents have also deposed several senior Census Bureau and
`Commerce Department officials, including the Acting Director of
`the Census Bureau and the Chief of Staff to the Secretary.
`
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`16
`Although the government strongly objected to the bad-faith finding
`and subsequent discovery, it initially chose to comply rather than
`seek the extraordinary relief of mandamus.
`6.
`On July 26, the district court granted the government’s
`motion to dismiss respondents’ Enumeration Clause claims. See MTD
`Order. The district court denied the motion to dismiss
`respondents’ APA and equal protection claims, concluding that
`respondents had alleged sufficient facts to demonstrate standing
`at the motion to dismiss stage, id. at 16-32; that respondents’
`claims were not barred by the political question doctrine, id. at
`32-37; that the conduct of the census was not committed to the
`Secretary’s discretion by law, id. at 38-45; and that respondents’
`allegations, accepted as true, stated a plausible claim of
`intentional discrimination, id. at 60-68.
`7.
`On August 17, the district court entered an order
`compelling the deposition testimony of the Acting Assistant
`Attorney General for the Department of Justice’s Civil Rights
`Division, John M. Gore. App., infra, 17a-19a. The court concluded
`that Acting AAG Gore’s testimony was “plainly ‘relevant’” to
`respondents’ case in light of his “apparent role” in drafting the
`Gary Letter, and concluded that he “possesses relevant information
`that cannot be obtained from another source.” Id. at 18a. On
`August 31, the government moved to stay discovery, including Acting
`AAG Gore’s deposition, pending a mandamus petition in the Second
`
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`17
`Circuit. 18-cv-2921 Docket entry No. 292. On September 4, the
`district court denied an administrative stay, and three days later
`denied a stay altogether. 18-cv-2921 Docket entry Nos. 297, 308.
`On September 7, the government filed a petition for a writ of
`mandamus (and request for an interim stay) with the Second Circuit,
`asking to quash Acting AAG Gore’s deposition. See 18-2652 Pet.
`for Writ of Mandamus. The government also sought to halt further
`extra-record discovery because that discovery also was based on
`the same erroneous bad-faith finding. On September 25, the court
`of appeals denied the petition, explaining that it could not “say
`that the district court clearly abused its discretion in concluding
`that respondents made a sufficient showing of ‘bad faith or
`improper behavior’ to warrant limited extra-record discovery.”
`App., infra, 4a. The Second Circuit also found no clear abuse of
`discretion in the district court’s determination that Acting AAG
`Gore’s deposition was warranted because he possessed unique
`information “related to plaintiffs’ allegations that the Secretary
`used the December 2017 Department of Justice letter as a pretextual
`legal justification for adding the citizenship question.” Ibid.
`8.
`Meanwhile, respondents moved for an order compelling the
`deposition of Secretary Ross, and, on September 21, the district
`court entered an order compelling the deposition and denying a
`stay pending mandamus. App., infra, 5a-16a. The court recognized
`that court-ordered depositions of high-ranking government
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`18
`officials are highly disfavored, but nonetheless concluded that
`“exceptional circumstances” existed that “compel[led] the
`conclusion that a deposition of Secretary Ross is appropriate.”
`Id. at 6a. The court reasoned that exceptional circumstances were
`present because, in the court’s view, “the intent and credibility
`of Secretary Ross” were “central” to respondents’ claims, and
`Secretary Ross has “‘unique first-hand knowledge’” about his
`reasons for reinstating a citizenship question that cannot “‘be
`obtained through other, less burdensome or intrusive means.’” Id.
`at 10a-12a (citation omitted).
`In concluding that Secretary Ross’s deposition was necessary,
`the district court rejected the government’s contention that the
`information respondents sought could be obtained from other
`sources, including a Rule 30(b)(6) deposition, interrogatories, or
`requests for admission. App., infra, 13a. The court found these
`alternatives unacceptable because they would not allow respondents
`to assess Secretary Ross’s credibility or to ask him follow-up
`questions. Ibid. The court also believed that a deposition would
`be a more efficient use of the Secretary’s time, because additional
`interrogatories, depositions, or requests for admissions would
`also burden the Secretary. Ibid.
`On September 27, the government filed a petition for writ of
`mandamus (and request for an interim stay) with the Second Circuit,
`asking to quash Secretary Ross’s deposition. See 18-2856 Pet. for
`
`
`
`
`
`19
`Writ of Mandamus. The government also sought a stay to preclude
`the depositions of Secretary Ross and Acting AAG Gore and to
`preclude further extra-record discovery pending this Court’s
`review. On September 28, the Second Circuit temporarily stayed
`Secretary Ross’s deposition while it considered the mandamus
`petition. App., infra, 2a. On October 9, the court denied the
`petition, holding that the district court did not clearly abuse
`its discretion in finding that “only the Secretary himself would
`be able to answer the Plaintiffs’ questions.” Id. at 131a.
`9.
`Meanwhile, although the district court had denied the
`government’s earlier stay request, the government once again moved
`for a stay pending review in this Court, in an abundance of caution
`under this Court’s Rule 23.3. The court denied that motion on
`September 30, and reconfirmed a trial date of November 5, 2018.
`On October 2, the Second Circuit declined to stay Acting AAG Gore’s
`deposition or other discovery. Id. at 129a.
`10. On October 3, the government filed a stay application in
`this Court. See No. 18A350. On October 5, Justice Ginsburg denied
`the stay without prejudice, “provided that the Court of Appeals
`will afford sufficient time for either party to seek relief in
`this Court before the depositions in question are taken.”
`Accordingly, the government renewed its stay request in the Second
`Circuit. No. 18-2856 Docket entry No. 44 (Oct. 5, 2018). On
`October 9, the court of appeals declined to stay Acting AAG Gore’s
`
`
`
`
`
`20
`deposition, and stayed Secretary Ross’s deposition only for 48
`hours. Id. at 130a. Acting AAG Gore’s deposition is set to begin
`at 9 a.m. tomorrow (Wednesday, October 10), and Secretary Ross’s
`the next day.
`
`ARGUMENT
`The government respectfully requests that this Court grant a
`stay of the district court’s orders pending completion of further
`proceedings in this Court. The government intends to file
`forthwith a petition for a writ of mandamus or certiorari
`challenging all three orders. In the alternative, and to minimize
`repetitive filings, the government asks that this application be
`construed as a petition for a writ of mandamus (or, in the
`alternative, certiorari) to direct the district court to quash the
`depositions of Secretary Ross and Acting AAG Gore and to halt
`discovery beyond the administrative record. The district court
`should be directed to confine its review of
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