The application of the Solicitor General for a stay pending
appeal to the United States Court of Appeals for the Second Circuit
was presented to Justice Marshall as Circuit Justice, and by him
referred to the Court. The application was directed to that portion
of the judgment entered December 29, 1980, by the United States
District Court for the Southern District of New York, case No. 80
Civ. 4550, that precludes the Bureau of the Census from certifying
to the President the population totals for New York and the
state-by-state census tabulations, on December 31, 1980, as
mandated by 13 U.S.C. 141(b). The application is hereby granted.
This order shall remain in effect pending disposition of the appeal
by
Page 449 U.S.
1068 , 1069
the Court of Appeals.
Justice STEVENS took no part in the consideration or decision of
this application.
Justice MARSHALL, dissenting.
In this case, applicant Secretary of Commerce and others seek a
stay pending appeal, of an order of the United States District
Court for the Southern District of New York, enjoining the Census
Bureau from certifying the official tabulation of New York State's
population to the President as required by 13 U.S.C. 141(b).
Respondents include the city of New York and its Mayor; the
Governor of the State; and several voters and taxpayers in various
city, congressional, and state senatorial and assembly districts
who filed suit in District Court alleging that the 1980 census was
conducted in a manner that will inevitably result in an undercount,
largely in low-income areas populated by members of minority
groups. Specifically, respondents alleged that the master address
registers used by the Census Bureau were grossly inadequate and
that the followup check of the master address registers by Postal
Service and census workers was grossly inadequate. Respondents'
ultimate contentions were that the resulting undercount not only
will cause New York to lose at least one congressional seat to
which it is entitled when reapportionment is made pursuant to the
1980 census, but that it will also result in the dilution of the
votes of New York residents vis-a-vis those of residents of other
States, and will cost New York City and the State vast sums of
money distributed under federal revenue sharing and other programs
with statutory formulas tied to the census.
The District Court initially entered a preliminary injunction
against the Census Bureau: It found that respondents had
established a clear possibility of irreparable harm to the efficacy
of their votes, and that respondents were likely to succeed because
they had submitted significant evidence concerning Census Bureau
mismanagement and had raised serious questions as to whether some
of the Bureau's policies and
Page 449 U.S.
1068 , 1070
procedures were carried out in an arbitrary and irrational
manner. The District Court declined to stay the preliminary
injunction, and on appeal, the Court of Appeals for the Second
Circuit affirmed the District Court's denial of a stay. The Court
of Appeals found that respondents had demonstrated a possibility of
irreparable harm and had also shown sufficient prospect of success
on the merits to justify a preliminary injunction, and that the
District Court did not disregard traditional equitable principles
in issuing the preliminary injunction.
On December 22, 1980, the District Court entered final judgment
in favor of respondents. The court found that the Bureau's
implementation of the census was improper in several respects and
that the Bureau's mismanagement of the census had resulted in a
significant undercount in New York. The District Court ordered the
Bureau to adjust the actual census data regarding New York in a
reasonable and scientific manner to compensate for the
disproportionate undercount, and it enjoined the Bureau from
certifying New York's population totals to the President on
December 31, 1980, as required by statute. Applicants then brought
this stay application.
Most of applicants' memorandum in support of their stay
application is devoted to arguing that the respondents are unlikely
to succeed on the merits of the case.* On the sparse record before
this Court, I am not prepared to conclude that respondents cannot
prevail on the merits. The Court of
Page 449 U.S.
1068 , 1071
Appeals rejected applicants' claim that respondents cannot
prevail on the merits and, as noted, the District Court has ruled
against applicants as has at least one other District Court. For
me, the crucial issue in ruling on this application is applicants'
inability to show that there is a substantial likelihood that they
will suffer irreparable harm if a stay is not issued. The only
thing applicants point to is that the Census Bureau will be unable
to comply with the December 31 deadline if the District Court's
order is not stayed. But as the Court of Appeals pointed out, there
is nothing sacrosanct about the December 31 deadline. If the
District Court's conclusion is correct, the inability to meet the
deadline is the Bureau's own fault. Moreover, the actual
reapportionment of seats based on the 1980 census will not commence
until some later date and there is nothing about the District
Court's order that prevents this reapportionment from taking place
well in advance of the 1982 congressional elections.
Applicants' failure to prove irreparable harm from denial of
their stay application stands in marked contrast to the irreparable
harm that will be inflicted on respondents if the Census Bureau is
allowed to certify inaccurate (at least according to the District
Court) results to the President. Applicants have not suggested that
there is any procedure for correcting these "inaccurate" figures
once they are reported to the President and he transmits them to
Congress as required by statute, and these figures will presumably
be the basis for the reapportionment of congressional seats and a
variety of federal revenue grants. The members of minority groups
and other residents of low-income areas who were not counted by the
Census Bureau will therefore suffer the irreparable injury stemming
from the undercount. Thus, it appears that granting the application
not only fails to preserve the status quo, it may actually moot the
underlying controversy. In these circumstances, I cannot agree that
a stay must issue.
Footnotes
[
Footnote *] Applicants also rely on
Justice Stewart's stay of the District Court's decision in Young v.
Klutznick,
497 F.
Supp. 1318 (ED Mich. 1980). In that case, the District Court
enjoined the Census Bureau from certifying population totals for
any States by December 31, 1980. But in this case, unlike in Young,
the District Court order only applies to New York's population
totals. Thus, applicants cannot rely on the alleged interest of
various States in using the census figures for redistricting
purposes for state legislatures.
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