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

333 F. Supp. 3d 282
District Court, S.D. Illinois·Decided September 21, 2018·No. 18-CV-2921 (JMF)·Published·Cited by 4 cases

Opinion

JESSE M. FURMAN, United States District Judge *285In these consolidated cases, familiarity with which is assumed, Plaintiffs bring claims under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. , and the Due Process Clause of the Fifth Amendment challenging the decision of Secretary of Commerce Wilbur L. Ross, Jr. to reinstate a question concerning citizenship status on the 2020 census questionnaire. See generally New York v. U.S. Dep't of Commerce , 315 F.Supp.3d 766 (S.D.N.Y. 2018). Now pending is a question that has loomed large since July 3, 2018, when the Court authorized extra-record discovery on the ground that Plaintiffs had "made a strong preliminary or prima facie showing that they will find material beyond the Administrative Record indicative of bad faith." (Docket No. 205 ("July 3rd Tr."), at 85). That question, which is the subject of competing letter briefs, is whether Secretary Ross himself must sit for a deposition. (See Docket No. 314 ("Pls.' Letter"); Docket No. 320 ("Defs.' Letter"); Docket No. 325 ("Pls.' Reply") ). Applying well-established principles to the unusual facts of these cases, the Court concludes that the question is not a close one: Secretary Ross must sit for a deposition because, among other things, his intent and credibility are directly at issue in these cases.

The Second Circuit established the standards relevant to the present dispute in Lederman v. New York City Department of Parks & Recreation , 731 F.3d 199 (2d Cir. 2013). In that case, the Circuit observed that courts had long held "that a high-ranking government official should not - absent exceptional circumstances - be deposed or called to testify regarding the reasons for taking official action, 'including the manner and extent of his study of the record and his consultation with subordinates.' " Id. at 203 (quoting United States v. Morgan , 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429 (1941) ). "High-ranking government officials," the Court explained, "are generally shielded from depositions because they have greater duties and time constraints than other witnesses. If courts did not limit these depositions, such officials would spend an inordinate amount of time tending to pending litigation." Id. (internal quotation marks and citation omitted). Joining several other courts of appeals, the Circuit thus held that "to depose a high-ranking government official, a party must demonstrate exceptional circumstances justifying the deposition." Id. The Court then proffered two alternative examples of showings that would satisfy the "exceptional circumstances" standard: "that the official has unique first-hand knowledge related to the litigated claims or that the necessary information cannot be obtained through other, *286less burdensome or intrusive means." Id. (emphasis added).1

Those standards compel the conclusion that a deposition of Secretary Ross is appropriate. First, Secretary Ross plainly has "unique first-hand knowledge related to the litigated claims." 731 F.3d at 203. To prevail on their claims under the APA, Plaintiffs must show that Secretary Ross "relied on factors which Congress had not intended [him] to consider, ... [or] offered an explanation for [his] decision that runs counter to the evidence before the agency." Nat'l Ass'n of Home Builders v. Defs. of Wildlife , 551 U.S. 644, 658, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (quoting Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) ). As Defendants themselves have conceded (see Docket No. 150, at 15), one way Plaintiffs can do so is by showing that the stated rationale for Secretary Ross's decision was not his actual rationale. Indeed, the Supreme Court has long held that the APA requires an agency decisionmaker to "disclose the basis of its" decision, Burlington Truck Lines, Inc. v. United States , 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962) (internal quotation marks omitted), a requirement that would be for naught if the agency could conceal the actual basis for its decision, see also FTC v. Sperry & Hutchinson Co. , 405 U.S. 233, 248-49, 92 S.Ct. 898,

Free access — add to your briefcase to read the full text and ask questions with AI

State v. U.S. Dep't of Commerce, 333 F. Supp. 3d 282 (S.D. Ill. 2018).

333 F. Supp. 3d 282 (State v. U.S. Dep't of Commerce) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Deide v. Day
S.D. New York, 2023
New York v. U.S. Dep't of Commerce
345 F. Supp. 3d 444 (S.D. Illinois, 2018)