United States District Court, D. Maryland, Southern Division
J. HAZEL, UNITED STATES DISTRICT JUDGE.
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. 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. 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.
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).
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.
STANDARD OF REVIEW
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.
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.
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
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
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.
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).
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