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Kravitz v. United States Department of Commerce

United States District Court, D. Maryland, Southern Division

June 24, 2019

ROBYN KRAVITZ, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants. LA UNIÓN DEL PUEBLO ENTERO, et al., Plaintiffs,
v.
WILBUR ROSS, et al., Defendants.

          MEMORANDUM OPINION

          GEORGE J. HAZEL, UNITED STATES DISTRICT JUDGE.

         In these related cases, Plaintiffs challenged Commerce Secretary Wilbur Ross's decision to include a citizenship question on the 2020 Census. Plaintiffs claimed the decision was arbitrary and capricious in violation of the Administrative Procedure Act (APA), unconstitutional in violation of the Constitution's Enumeration Clause and the equal protection guarantee of the Due Process Clause of the Fifth Amendment (Equal Protection claim), and made as part of a conspiracy to violate their civil rights in violation of 42 U.S.C. § 1985.[1] After a six-day bench trial, on April 5, 2019, this Court entered judgment in favor of the Plaintiffs on their claims arising under the Administrative Procedure Act and the Enumeration Clause. ECF No. 155.[2] The Court also permanently enjoined Defendants from including a citizenship question on the 2020 Census. Id. However, the Court entered judgment for Defendants on Plaintiffs' Equal Protection claim and on the LUPE Plaintiffs' 42 U.S.C. § 1985(3) claim. Id.

         On June 3, 2019, Plaintiffs filed a Rule 60(b)(2) Motion for Relief from Final Judgment, alleging that newly-discovered evidence entitled them to judgment on their Equal Protection and § 1985 claims. ECF No. 162. Because an appeal is pending and this Court only retains limited jurisdiction over a Rule 60(b) motion, Plaintiffs also requested that the Court “issue an indicative ruling under Fed.R.Civ.P. 62.1 stating that a Rule 60(b) motion raises a substantial issue or would be granted.” Id. at 9 (quoting Fourth Circuit Appellate Procedure Guide (Dec. 2018) at 22-23).

         After a hearing, ECF No. 169, the Court entered an Order on June 19, 2019, granting Plaintiffs' Motion for an Indicative Ruling Under Rule 62.1(a) and concluding that Plaintiffs' Rule 60(b)(2) Motion raises a substantial issue. ECF No. 174. This Memorandum Opinion explains that Order.

         I. STANDARD OF REVIEW

         Plaintiffs ultimately seek relief from the Court's Final Judgment entered in favor of Defendants on Plaintiffs' claims based on the equal protection guarantee of the Fifth Amendment Due Process Clause and, for the LUPE Plaintiffs only, § 1985. To obtain relief under Rule 60(b), a party must show that its motion is timely, that the motion raises a meritorious claim or defense, and that the opposing party would not be unfairly prejudiced by having the judgment set aside. See Nat'l Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 264 (4th Cir. 1993) (quoting Park Corp. v. Lexington Ins. Co., 812 F.2d 894, 896 (4th Cir. 1987)). When Rule 60(b)(2) is applicable, as here, a party must provide “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b).” Fed.R.Civ.P. 60(b)(2).

         This Court retains limited jurisdiction to consider a motion for relief under Rule 60(b) even though an appeal is pending. See Fobian v. Storage Tech. Corp., 164 F.3d 887, 891 (4th Cir. 1999) (“[W]hen a Rule 60(b) motion is filed while a judgment is on appeal, the district court has jurisdiction to entertain the motion, and should do so promptly.”). Specifically, pursuant to Rule 62.1, the Court may (1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue. Fed.R.Civ.P. 62.1; see also Fourth Circuit Appellate Procedure Guide (Dec. 2018) at 22-23.

         II. DISCUSSION

         This Court previously concluded that the Secretary's articulated reason for adding a citizenship question to the 2020 Census-to improve Voting Rights Act (VRA) enforcement- was a pretext. ECF No. 154 at 108. However, the Court held that based on the trial record, Secretary's Ross's actual rationale remained, to some extent, a mystery. Id. at 42, 112. Plaintiffs now claim that new evidence sheds additional light on Secretary Ross's real reasoning.

         Specifically, new evidence shows that a longtime partisan redistricting strategist, Dr. Thomas Hofeller, played a potentially significant role in concocting the Defendants' pretextual rationale for adding the citizenship question, and that Dr. Hofeller had concluded in 2015 that adding a citizenship question would facilitate redistricting methods “advantageous to Republicans and Non-Hispanic Whites.” ECF No. 162-3 at 68, 125-126, 128. Before fully exploring the meaning of this new evidence, it is useful, for context, to first review the evidence established at trial.

         A. Trial Record

         The Court previously found that evidence in the Trial Record demonstrated that persons around Secretary Ross had an interest in whether undocumented immigrants are counted in the Census for apportionment purposes, and that the Secretary did look at that issue. Secretary Ross's activity in this regard included conversations with Chief White House Strategist Steve Bannon who asked the Secretary to speak to Kansas Secretary of State Kris Kobach about adding a citizenship question to the Census. PX-19 (AR 763); PX-58 (AR 2651). Thereafter, complying with Bannon's request, Kobach and Secretary Ross discussed Kobach's ideas about adding a citizenship question to the Census, and “the fact that the U.S. census does not currently ask respondents about their citizenship.” PX-19 at 2 (AR 764). Secretary Ross and Kobach also discussed the potential effect adding “one simple question” to the Census would have on “congressional apportionment.” Id. Kobach expressed concern that the lack of a citizenship question “leads to the problem that aliens who do not actually ‘reside' in the United States are still counted for congressional apportionment purposes, ” but he did not mention the VRA rationale. Id.

         Additionally, Deputy Chief of Staff and Director of Policy Earl Comstock emailed the Secretary an article entitled “The Pitfalls of Counting Illegal Immigrants” in response to the Secretary's inquiry into whether undocumented people were counted for apportionment purposes on March 10, 2017, shortly after the Secretary's confirmation. PX-55 (AR 2521); Comstock Dep. at 62:13-64:4, 65:5-8. “Potentially” that same day, Secretary Ross made what he later would term his “months old request” that a citizenship question be added to the 2020 Census. Comstock Dep. 146: 1-15; see also PX-88 (AR 3710).

         The Trial Record also included emails from President Trump's re-election campaign crediting the President with mandating the addition of the citizenship question and various statements and tweets by candidate, President-elect and President Trump, demonstrating his animus towards immigrants and his concern about political power being wielded by ...


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