Amicus Curiae Brief — Department of Commerce, et al., Petitioners v. New York, et al.

No. 18-966

IN THE

Supreme Court of the United States

__________

UNITED STATES DEPARTMENT OF COMMERCE, ET AL.,

Petitioners,

v.

STATE OF NEW YORK, ET AL.,

Respondents.

__________

On Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

__________

BRIEF OF

FORMER FEDERAL DISTRICT JUDGES

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

__________

April 1, 2019

DEREK T. HO

Counsel of Record

T. DIETRICH HILL

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(dho@kellogghansen.com)

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION ....................................................... 1

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT ............................................................... 5

I. DEFERENCE TO THE DISTRICT

JUDGE’S FACTUAL FINDINGS IS

DEEPLY INGRAINED IN AMERICAN

LAW .................................................................. 5

A. Deference to Judicial Findings of Fact

Has Been a Continuous Feature of

the Federal Judicial System Dating

Back to Its Earliest Years .......................... 6

B. The Federal Rules of Civil Procedure

Adopted the Equity Standard of

Appellate Review for All Factual

Findings .................................................... 10

II. DEFERENCE TO TRIAL COURTS’

FACTUAL DETERMINATIONS IS

CRITICAL

TO

THE

PROPER

FUNCTIONING OF THE FEDERAL

JUDICIARY.................................................... 13

A. Deference to Trial Courts Promotes

More Accurate Factual Findings.............. 14

B. Deference on Factual Findings

Fosters Judicial Efficiency ....................... 16

C. Failure To Give Proper Weight to the

Factual Findings of District Courts

Tends To Delegitimize Them in the

Public’s View ............................................. 18

ii

III. THE

CLEAR-ERROR

STANDARD

MANDATES AFFIRMANCE OF THE

DECISION BELOW ....................................... 20

A. The District Court Based Its Finding

of Pretext on a Substantial Body of

Evidence Viewed in the Context of the

Entire Record ............................................ 20

B. A Wealth of Empirical Evidence

Supports the District Court’s Finding

That the Secretary’s Explanation

Lacked a Logical Connection to the

Evidence Before Him ................................ 24

CONCLUSION.......................................................... 27

APPENDIX ............................................................... 1a

iii

TABLE OF AUTHORITIES

Page

CASES

Anderson v. City of Bessemer City, 470 U.S. 564

(1985) .............................................................11, 12,

14, 17, 22

Atari, Inc. v. North Am. Philips Consumer

Elecs. Corp., 672 F.2d 607 (7th Cir. 1982) .......... 12

Baker v. Schofield, 243 U.S. 114 (1917) ..................... 9

Bose Corp. v. Consumers Union of United

States, Inc., 466 U.S. 485 (1984) ....................17, 19

Butte & Superior Copper Co. v. Clark-Montana

Realty Co., 249 U.S. 12 (1919) .............................. 9

Campbell v. Boyreau, 62 U.S. (21 How.) 223

(1859) ..................................................................... 9

Commissioner v. Duberstein, 363 U.S. 278

(1960) ..............................................................13, 15

Dooley v. Pease, 180 U.S. 126 (1901) ........................ 10

Easley v. Cromartie, 532 U.S. 234 (2001) ................ 17

Espenschied v. Baum, 115 F. 793 (7th Cir. 1902)

................................................................................ 9

Furrer v. Ferris, 145 U.S. 132 (1892) ......................... 8

Graver Tank & Mfg. Co. v. Linde Air Prods. Co.:

336 U.S. 271 (1949), adhered to on reh’g,

339 U.S. 605 (1950) ............................................. 15

339 U.S. 605 (1950) ............................................. 15

Mason v. Crosby, 16 F. Cas. 1029 (C.C.D. Me.

1847) (No. 9,236).................................................... 8

Metsker v. Bonebrake, 108 U.S. 66 (1883) .................. 8

iv

New York Life Ins. Co. v. Simons, 60 F.2d 30

(1st Cir. 1932) ........................................................ 8

Norris v. Jackson, 76 U.S. (9 Wall.) 125 (1870) ....... 10

Parsons v. Bedford, Breedlove & Robeson,

28 U.S. (3 Pet.) 433 (1830) .................................... 9

Pullman-Standard v. Swint, 456 U.S. 273

(1982). .............................................................12, 13

Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133 (2000) ........................................21, 22

Silvester v. Becerra, 138 S. Ct. 945 (2018) ..........15, 27

The Abbotsford, 98 U.S. 440 (1879) ............................ 9

The San Pedro, 15 U.S. (2 Wheat.) 132 (1817) .......... 7

The Ship Potomac, 67 U.S. (2 Black) 581 (1862) ......... 8

United States v. King, 48 U.S. (7 How.) 833

(1849) ..................................................................... 9

United States v. United States Gypsum Co.,

333 U.S. 364 (1948) ............................................. 11

United States v. Virginia, 518 U.S. 515 (1996) ........ 20

Wiscart v. D’Auchy, 3 U.S. (3 Dall.) 321

(1796) ............................................................6, 7, 13

Woods-Faulkner & Co. v. Michelson, 63 F.2d

569 (8th Cir. 1933) ................................................. 8

Youngblood v. Magnolia Petroleum Co., 35 F.2d

578 (10th Cir. 1929) ............................................... 8

v

STATUTES AND RULES

Act of Mar. 3, 1865, ch. 86, § 4, 13 Stat. 500, 501 ........10

Administrative Procedure Act, 5 U.S.C. § 701

et seq. ................................................1, 4, 20, 21, 26

Judiciary Act of 1789, ch. 20, 1 Stat. 73 ................ 5, 6

§ 19, 1 Stat. 83 ....................................................... 6

§ 22, 1 Stat. 84-85 .................................................. 7

Fed. R. Civ. P.:

Rule 52 ...................................................3, 4, 10, 12,

13, 16, 17, 18, 20

Advisory committee’s note to 1985

amendment ................................................12, 19

Rule 52(a) (1938) ................................................. 11

Sup. Ct. R.:

Rule 37.3(a) ............................................................ 1

Rule 37.6 ................................................................ 1

OTHER MATERIALS

Bryan L. Adamson, Federal Rule of Civil Procedure 52(a) as an Ideological Weapon?, 34 Fla.

St. U.L. Rev. 1025 (2007) ...................15, 17, 19, 20

Edward H. Cooper, Civil Rule 52(a): Rationing

and Rationalizing the Resources of Appellate

Review, 63 Notre Dame L. Rev. 645 (1988) ...14, 15,

16, 17, 18

Felix Frankfurter & James M. Landis, The

Business of the Supreme Court at October

Term, 1929, 44 Harv. L. Rev. 1 (1930) .................. 7

vi

Kelly Kunsch, Standard of Review (State and

Federal): A Primer, 18 Seattle U.L. Rev. 11

(1994) ..........................................................6, 10, 15

John F. Nangle, The Ever Widening Scope of

Fact Review in Federal Appellate Courts—

Is the “Clearly Erroneous Rule” Being

Avoided?, 59 Wash. U.L.Q. 409 (1981) ...........6, 11,

14, 16, 23

Note, The Law of Fact: Findings of Fact Under

the Federal Rules, 61 Harv. L. Rev. 1434

(1948) ................................................................... 17

U.S. Supreme Court, 2016 Year-End Report on

the Federal Judiciary (Dec. 31, 2016),

https://www.supremecourt.gov/publicinfo/

year-end/2016year-endreport.pdf ...................16, 19

Charles Alan Wright, The Doubtful Omniscience

of Appellate Courts, 41 Minn. L. Rev. 751

(1957) ..............................................................18, 19

INTEREST OF AMICI CURIAE 1

Amici, listed in an appendix to this brief, are former

federal district judges who were appointed by both

Republican and Democratic presidents and sat on

courts across the country, resolving disputes over

practically every type of dispute that is litigated

in federal court. Amici thus know from first-hand

experience that a federal district judge has a unique

perspective: no one else can watch the entire case

unfold, disinterestedly hearing the views and arguments of the parties and considering the entire record

in context over an extended period of time. Amici have

differing views of the merits of the citizenship question at issue in this case. But they are united in their

views regarding the importance to the federal judicial

system of the longstanding tradition of appellate

deference to district judges’ factual findings.

INTRODUCTION

Faithful application of the well-established standard

of deference to a district court’s factual findings should

result in affirmance of the judgment below. The

government conceded below that, as a matter of law,

a pretextual explanation for agency action violates the

Administrative Procedure Act. See Pet. App. 312a.

The district court found, based on careful consideration of an extensive record, that the Commerce Secretary’s rationale for including the citizenship question

was, in fact, pretextual. It also found that the Census

1 Pursuant to Supreme Court Rule 37.6, counsel for amici

represent that they authored this brief in its entirety and that

none of the parties or their counsel, nor any other person or entity

other than amici or their counsel, made a monetary contribution

intended to fund the preparation or submission of this brief.

Pursuant to Rule 37.3(a), counsel for amici also represent that all

parties have consented to the filing of this brief.

2

Bureau’s own analysis showed that inclusion of the

question would not, contrary to the Secretary’s assertions, enhance the accuracy of the census.

Those factual findings must be reviewed pursuant

to a deferential clear-error standard of review. That

deferential standard dates back to the federal judiciary’s earliest years, and it is critical to both the proper

functioning and legitimacy of the federal courts. Indeed, the core competency of the federal district courts

is the resolution of factual questions. Substituting

fact-findings by appellate courts, which are farther

removed from the evidentiary record, undermines the

proper functioning of the federal judiciary. Appellate

courts are not designed to retry cases. Moreover, giving litigants a second bite at the apple will incentivize

litigants to take appeals in the hopes of relitigating

the facts.

Perhaps even more important, public confidence in

federal trial courts depends on the presumption that

district judges are competent and impartial. Secondguessing district judges in their own bailiwick undercuts that presumption and delegitimizes federal trial

courts. With the legitimacy and impartiality of the

federal judiciary under attack, adherence to the

ordinary rules of civil procedure is especially critical.

Amici thus urge the Court, in resolving this case, to

remain faithful to the deferential clear-error standard

and affirm the judgment below.

3

SUMMARY OF ARGUMENT

Under Federal Rule of Civil Procedure 52, the

factual findings of a district court must stand unless

clearly erroneous. That rule plays a critical role in the

functioning of the judicial system and recognizes that

district courts are situated best to resolve factual

questions.

I. From the earliest days, this Court has made

clear that its role, like that of other appellate courts,

is not to retry cases or reexamine the conclusions of

trial courts on disputed factual issues. Almost from

the inception of the federal judicial system, factual

findings of courts sitting in equity were entitled to

great weight; the findings of courts sitting at law were

entitled to conclusive weight. Both forms of review

recognized the superior ability of the trial court to

examine both live testimony and documentary

evidence in the context of the entire record.

After the merger of law and equity, the Federal

Rules of Civil Procedure adopted the equity standard

of review. Rule 52 commands this Court, like the

courts of appeals, to let stand factual findings even

if the reviewing court would have found that the

evidence led to a different result, unless the trial court

clearly erred. This Court has explained that Rule 52

does not make exceptions – it does not allow greater

latitude where factual findings are based on documentary evidence or deposition testimony, and it does not

treat “ultimate” facts any differently than subsidiary

historical facts.

II. Deferential review benefits the judicial system

in several important ways. It recognizes that, more

often than not, a district court seeing the entire case

unfold will come to a more accurate conclusion than a

reviewing court that must make its decision based on

4

a cold record. It conserves the resources of appellate

courts, allowing them to focus on difficult legal

questions instead of being required to pore through

voluminous records. It discourages meritless appeals

that, in effect, seek to retry factual issues in the hope

that a second fact-finder will have a different view of

the evidence. And by focusing appellate courts, trial

courts, and the parties on their respective roles, it

leads to better outcomes at every level of the judicial

system.

Deference also contributes to the legitimacy of the

district courts and reaffirms public confidence in the

competence and fairness of trial judges. Fact-finding

is the core role of trial courts, and upholding that role

signifies that the trial courts are succeeding in their

most important responsibility, while invalidating

their findings signals that they are failing. District

courts are the face of the federal judiciary to many

Americans, and a loss of confidence in them detracts

from the legitimacy of the federal system as a whole.

Strict adherence to Rule 52’s mandate is especially

critical today, when the judiciary is under attack and

accused of bending procedural rules to favor certain

ideological or political positions.

III. Proper deference to the district court’s factfinding is dispositive here. First, as the government

conceded below, a pretextual explanation for agency

action violates the Administrative Procedure Act

(“APA”), see Pet. App. 312a, and specifically the APA’s

requirement that an agency explain the basis for its

actions. The district court’s finding that the Secretary’s announced reason was pretextual is supported

by ample record evidence. In many cases, the district

court relied on undisputed historical facts about the

timeline of the administrative process. In resolving

5

other questions, the district court considered competing accounts of historical facts and inferred intent

from statements that, while conceivably open to

alternative interpretations, certainly supported the

district court’s determinations. The district court did

not clearly err in finding that the Secretary’s reasons

were pretextual.

Second, the district court properly found that the

Secretary’s stated purposes were not logically connected to the evidence before the agency at the time.

A variety of empirical evidence supported this finding,

including the Census Bureau’s contemporaneous

analyses and the testimony of the government’s own

expert witness. Deference is particularly appropriate

where, as here, the district court must understand and

apply technical concepts, as explained by extensive

testimony from a variety of experts, in order to resolve

factual disputes. The government cannot point to any

record evidence showing error, let alone clear error, by

the district court.

ARGUMENT

I. DEFERENCE TO THE DISTRICT JUDGE’S

FACTUAL FINDINGS IS DEEPLY INGRAINED

IN AMERICAN LAW

Appellate deference to factual findings by a trial

judge has been a key part of the judicial system and

the division of judicial labor since the earliest period

of American law. Indeed, under the Judiciary Act of

1789, many findings of fact were virtually unreviewable, reflecting the longstanding principle that parties

had one opportunity to put on evidence and prove

their case, and that appellate courts existed to guide

the development of the law, not retry cases. Deference

has become less extreme over time, but that core

principle has carried through the merger of law and

6

equity and the institution of the Federal Rules of Civil

Procedure, and remains a central part of the proper

functioning of the judicial system today.

A. Deference to Judicial Findings of Fact Has

Been a Continuous Feature of the Federal

Judicial System Dating Back to Its Earliest

Years

1. Appellate review of judicial findings of fact

began with review of courts sitting in equity. Actions

at law were always tried before a jury; thus, there

were no judicial findings to review.2 A trial court

sitting in equity, however, necessarily made its own

factual determinations in addition to applying legal

principles to those facts.

In one of its earliest cases, Wiscart v. D’Auchy, 3

U.S. (3 Dall.) 321 (1796), this Court held that, under

the Judiciary Act of 1789, factual findings of a trial

court sitting in equity were entitled to conclusive

weight. At issue was the effect of § 19 of the Act,

which required that trial courts, in issuing decisions,

“cause the facts on which they found their sentence or

decree, fully to appear upon the record either from the

pleadings and decree itself,” unless the parties stipulated to a statement of the case. Ch. 20, 1 Stat. 73,

83. The Court held that the required statement was

“conclusive as to all the facts, which it contains,”

because the Supreme Court could review it only by

2 See John F. Nangle, The Ever Widening Scope of Fact Review

in Federal Appellate Courts—Is the “Clearly Erroneous Rule”

Being Avoided?, 59 Wash. U.L.Q. 409, 412-13 (1981). Further, in

the earliest days, a verdict could be reviewed only by a “writ of

error,” which allowed the reviewing court to correct only legal

errors that appeared on the face of the record. See Kelly Kunsch,

Standard of Review (State and Federal): A Primer, 18 Seattle

U.L. Rev. 11, 15-16 (1994).

7

writ of error (not by appeal) under § 22 of the Act.

3 U.S. (3 Dall.) at 324. Defending that holding, Chief

Justice Ellsworth explained that he saw no need to

strain the language of the statute to allow for plenary

review, because there was no injustice in treating the

circuit court’s findings as conclusive:

[S]urely, it cannot be deemed a denial of justice,

that a man shall not be permitted to try his cause

two or three times over. If he has one opportunity

for the trial of all the parts of his case, justice is

satisfied; and even if the decision of the Circuit

Court had been made final, no denial of justice

could be imputed to our government; much less

can the imputation be fairly made, because the

law directs that in cases of appeal, part shall be

decided by one tribunal, and part by another; the

facts by the court below, and the law by this court.

Such a distribution of jurisdiction has long been

established in England.

Id. at 328-29 (opinion of Ellsworth, C.J.).

After Wiscart, Congress provided for direct appeal to

the Supreme Court in equity and admiralty cases,3

leading the Court to consider the proper weight to

accord factual findings. Although, theoretically, the

Court could reexamine “the entire case,” in practice it

deferred substantially to trial courts’ findings of fact.4

Resolution of conflicting evidence was for the trial

court; as the Court put it, “[i]t is not enough for the

3 See The San Pedro, 15 U.S. (2 Wheat.) 132, 141 (1817).

Review of admiralty cases, though generally considered equivalent to review of equity cases, was subsequently circumscribed by

an 1875 statute.

4 Felix Frankfurter & James M. Landis, The Business of the

Supreme Court at October Term, 1929, 44 Harv. L. Rev. 1, 28

(1930).

8

appellant merely to raise a doubt on conflicting

testimony, that the judgment of the Court below may

possibly be erroneous.” The Ship Potomac, 67 U.S.

(2 Black) 581, 584 (1862).5

After equity appeals began to flow to the circuit

courts of appeals in 1891, those courts took a similarly

deferential approach to factual findings. Although the

circuit courts had the power to review factual findings

de novo, it became well-established practice to defer

unless it “clearly appear[ed] . . . that the great weight

of the evidence is clearly contrary to the factual finding of the sitting justice, or the inference of the sitting

justice from proven facts is unreasonable.” New York

Life Ins. Co. v. Simons, 60 F.2d 30, 32 (1st Cir. 1932).6

5 Magnifying that deference was the fact that trial courts com-

monly referred cases to masters in equity. The trial court itself

gave great deference to masters’ findings, refusing to “retry and

reexamine and decide on all the questions of fact,” unless there

was “a clear mistake[ ] or a palpable abuse of power.” Mason v.

Crosby, 16 F. Cas. 1029, 1032 (C.C.D. Me. 1847) (No. 9,236).

After all, if parties could retry all facts anew, a referral would be

“little aid in the administration of justice.” Id. This Court, in

turn, deferred to the trial court’s adoption of a master’s findings:

“[T]hey are to be taken as presumptively correct; and unless some

obvious error has intervened in the application of the law, or

some serious or important mistake has been made in the consideration of the evidence, the decree should be permitted to stand.”

Furrer v. Ferris, 145 U.S. 132, 134 (1892); see also Metsker v.

Bonebrake, 108 U.S. 66, 72 (1883) (“The findings of the master

are prima facie correct.”).

6 See also Woods-Faulkner & Co. v. Michelson, 63 F.2d 569, 571

(8th Cir. 1933) (“Whatever uncertainty or conflict there may have

been in the testimony . . . was resolved by the lower court in favor

of the plaintiff, and we are of the view that this finding should

not be disturbed.”); Youngblood v. Magnolia Petroleum Co.,

35 F.2d 578, 579 (10th Cir. 1929) (“[W]hen a court of equity has

considered conflicting evidence, and made a finding and decree,

it is presumptively correct, and, unless some obvious error of law

9

This Court continued to defer to factual findings unless “clearly and manifestly wrong,” Butte & Superior

Copper Co. v. Clark-Montana Realty Co., 249 U.S. 12,

30 (1919), giving special deference when the circuit

and district courts concurred on issues of fact, see, e.g.,

Baker v. Schofield, 243 U.S. 114, 118 (1917).

2. The tradition of deference to judicial factfindings at common law dates back to the midnineteenth century. In the earliest years of the

Republic, “[t]he finding of issues in fact by the court

upon the evidence [wa]s altogether unknown” in cases

at law. Campbell v. Boyreau, 62 U.S. (21 How.) 223,

226 (1859). Juries, not judges, served as fact-finders;

while it was settled that a jury’s verdict had “conclusive effect in the appellate court,” there was no need

for a separate standard of review for judicial factfindings. Parsons v. Bedford, Breedlove & Robeson,

28 U.S. (3 Pet.) 433, 448 (1830).

The standard of review for judicial findings in cases

at law first arose when Congress provided that federal

courts in Louisiana could follow local state courts in

trying cases at law without a jury, a consequence of

Louisiana’s history as a civil law jurisdiction. See The

Abbotsford, 98 U.S. 440, 442 (1879). This Court held

that the judge’s fact-findings in that context were

subject to the same standard of review as a jury’s –

i.e., that “the decision of the Circuit Court upon [a]

question of fact must, like the finding of a jury, be

regarded as conclusive.” United States v. King, 48

U.S. (7 How.) 833, 845 (1849).

has intervened or some serious mistake of fact has been made,

the finding or decree must be permitted to stand.”); Espenschied

v. Baum, 115 F. 793, 793 (7th Cir. 1902) (per curiam) (“Under

such circumstances, a very clear and palpable error in the facts

must be shown on appeal.”).

10

The issue became more widespread when Congress

provided for the waiver of jury trials in all federal

courts in 1865. See Act of Mar. 3, 1865, ch. 86, § 4, 13

Stat. 500, 501. Section 4 of the Act provided that trial

courts could make “general” or “special” findings;

general findings were as conclusive as a jury verdict,

but, if the court made special findings, appellate

review could “extend to the determination of the

sufficiency of the facts found to support the judgment.”

Id. Even then, however, the appellate court could

consider the sufficiency of the findings to support the

legal judgment, but could not consider the sufficiency

of the evidence to support the findings. See Norris v.

Jackson, 76 U.S. (9 Wall.) 125, 127-28 (1870). Thus,

“[w]here a case is tried by the court, a jury having

been waived, its findings upon questions of fact are

conclusive in the courts of review, it matters not how

convincing the argument that upon the evidence the

findings should have been different.” Dooley v. Pease,

180 U.S. 126, 131 (1901). The practice of treating

judicial fact-findings on equal footing with jury verdicts continued until the adoption of the Federal Rules

of Civil Procedure in 1938.7

B. The Federal Rules of Civil Procedure

Adopted the Equity Standard of Appellate

Review for All Factual Findings

The Federal Rules of Civil Procedure merged the

rules of law and equity and, in Rule 52, unified the

appellate standard of review for judicial findings

of fact. Rule 52 provided, in pertinent part, that

“[f ]indings of fact shall not be set aside unless clearly

7 The writ of error was replaced by appeal in 1928, but there

was no substantive change until the merger of law and equity.

See Kunsch, 18 Seattle U.L. Rev. at 18 & n.45.

11

erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of

the witnesses.” Fed. R. Civ. P. 52(a) (1938). The rule

effectively adopted the existing practice in equity

cases, rather than the even more stringent standard

applied in law cases (though not without debate8). See

United States v. United States Gypsum Co., 333 U.S.

364, 394-95 (1948). In its earliest articulation of the

rule, this Court explained that “[a] finding is ‘clearly

erroneous’ when although there is evidence to support

it, the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake

has been committed.” Id. at 395.

As this Court has long stated, the clear-error rule

stands as a “clear command” to appellate courts,

including this one. Anderson v. City of Bessemer City,

470 U.S. 564, 574 (1985). The “reviewing court” has a

“duty” not “to duplicate the role of the lower court.” Id.

at 573. That “duty” binds appellate courts to affirm

even when they might disagree with the district

court’s findings:

If the district court’s account of the evidence

is plausible in light of the record viewed in its

entirety, the court of appeals may not reverse it

even though convinced that had it been sitting as

the trier of fact, it would have weighed the evidence

differently. Where there are two permissible

views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.

Id. at 573-74 (emphasis added).

8 See generally Nangle, 59 Wash. U.L.Q. at 413. Among others,

the Reporter of the first Advisory Committee, Judge Charles E.

Clark, favored the even more deferential standard then applicable to jury-waived trials at law.

12

For a time, some commentators and courts suggested

that greater deference was due to findings of fact

based on live testimony, and particularly the credibility of witnesses, while less deference was proper for

findings based on documentary evidence. See, e.g.,

Atari, Inc. v. North Am. Philips Consumer Elecs.

Corp., 672 F.2d 607, 614 (7th Cir. 1982). This Court

made clear, however, that Rule 52 makes no such

distinction. Rule 52 commands deference “even when

the district court’s findings do not rest on credibility

determinations, but are based instead on physical or

documentary evidence or inferences from other facts.”

Anderson, 470 U.S. at 574. To remove any doubt that

a lower standard applied to findings of fact based on

documentary evidence, the Court amended Rule 52

in 1985, removing any reference to live testimony.

The advisory committee’s note explained that the

amendment aimed

(1) to avoid continued confusion and conflicts

among the circuits as to the standard of appellate

review of findings of fact by the court, (2) to eliminate the disparity between the standard of review

as literally stated in Rule 52(a) and the practice of

some courts of appeals, and (3) to promote nationwide uniformity.

Fed. R. Civ. P. 52 advisory committee’s note to 1985

amendment. Thus, appellate courts must let stand

all findings – whether based on live testimony,

depositions, documentary evidence, or otherwise –

unless they are clearly erroneous.

This Court has also rejected any distinction between

“ultimate” facts and “subsidiary” facts. See PullmanStandard v. Swint, 456 U.S. 273, 287-88 (1982). The

Court explained that Rule 52

13

does not make exceptions or purport to exclude

certain categories of factual findings from the

obligation of a court of appeals to accept a district

court’s findings unless clearly erroneous. It does

not divide facts into categories; in particular,

it does not divide findings of fact into those

that deal with “ultimate” and those that deal with

“subsidiary” facts.

Id.; see also Commissioner v. Duberstein, 363 U.S. 278,

291 (1960) (“[t]he rule itself applies also to factual

inferences from undisputed basic facts”). Cf. Wiscart,

3 U.S. (3 Dall.) at 330 (opinion of Ellsworth, C.J.)

(finding of fraudulent intent “is not an inference from

a fact, but a statement of the fact itself ”). Thus,

whether based on testimony or documentary evidence,

and whether the fact is considered “ultimate” or

“subsidiary,” Rule 52 and this Court’s precedents

command deference to the district court’s factual

determinations.

II. DEFERENCE TO TRIAL COURTS’ FACTUAL DETERMINATIONS IS CRITICAL

TO THE PROPER FUNCTIONING OF THE

FEDERAL JUDICIARY

Deference to trial courts is not only deeply rooted in

American law; it also serves important purposes for

the federal judiciary: (1) it improves adjudication of

disputed facts by placing the fact-finding function in

the hands of trial judges who specialize in resolving

factual disputes; (2) it is critical to judicial efficiency

by reducing the number of appeals; and (3) it enhances

the legitimacy of district courts and the federal judiciary as a whole. Trial courts also are situated best

to resolve questions of fact. Appellate “fact-finding” is

at least as likely to introduce error as to correct it,

as the appellate court may misapprehend important

evidence or the record as a whole.

14

A. Deference to Trial Courts Promotes More

Accurate Factual Findings

The clear-error standard recognizes that district

courts are, on balance, better situated than appellate

courts to come to the correct conclusion on disputed

factual issues. Of course, district judges have a

comparative advantage in assessing live testimony,

which the reviewing court cannot. See Anderson, 470

U.S. at 575 (“[O]nly the trial judge can be aware of the

variations in demeanor and tone of voice that bear so

heavily on the listener’s understanding of and belief

in what is said.”). But even where the district court is

assessing only documentary evidence or deposition

testimony, the trial judge has a comparative advantage.

As one district judge has explained:

Even when findings are drawn from undisputed

facts or documents, a trial judge who has participated in the case from the beginning and has seen

its entire mosaic unfold should be better able to

determine the facts than an appellate judge. Even

in assessing a witness’ deposition a trial court will

weigh the witness’ testimony in the context of the

entire trial and, oftentimes, determine credibility

of a deposition witness based on veiled references

made by live witnesses.9

District judges have “the familiarity of prolonged

exposure” to a case,10 and, as many courts have recognized, “develop expertise at making inferences from

testimony and evidence because it is a function they

9 Nangle, 59 Wash. U.L.Q. at 425.

10 Edward H. Cooper, Civil Rule 52(a): Rationing and Rationalizing the Resources of Appellate Review, 63 Notre Dame L. Rev.

645, 654 (1988).

15

perform all the time.”11 They are well-equipped to

resolve questions that involve “practical human

experience” and “multiplicity of relevant factual elements, with their various combinations.” Duberstein,

363 U.S. at 289. And where scientific or technical

expertise is needed, the district judge acquires familiarity with the subject matter through the testimony

of experts for all sides and, in some cases, actual

scientific demonstrations. See Graver Tank & Mfg.

Co. v. Linde Air Prods. Co., 336 U.S. 271, 274 (1949)

(“To no type of case is [Rule 52(a)] more appropriately

applicable . . . .”), adhered to on reh’g, 339 U.S. 605

(1950). Thus, “deference is ‘[p]articularly’ appropriate

when the issues require familiarity with ‘principles

not usually contained in the general storehouse of

knowledge and experience.’ ” Silvester v. Becerra, 138

S. Ct. 945, 950 (2018) (Thomas, J., dissenting from the

denial of certiorari) (quoting Graver Tank, 339 U.S. at

610) (alteration in original).

Further, deference by appellate courts encourages

district courts to pay especially close attention to disputed factual issues, recognizing that the parties have

only one chance to present their evidence. “[A] judge

who knows that the central responsibility of decision

cannot be shared is likely to take the task of decision

more seriously.”12 In contrast, when appellate courts

reverse because they merely have a different view

of the evidence, a district judge has less incentive

to weigh the evidence carefully or make thorough

11

Kunsch, 18 Seattle U.L. Rev. at 20; see also Bryan L.

Adamson, Federal Rule of Civil Procedure 52(a) as an Ideological

Weapon?, 34 Fla. St. U.L. Rev. 1025, 1044-45 (2007) (“As the role

of trial judge as fact finder becomes rooted, judges ideally adapt

to and master the act of fact finding.”).

12 Cooper, 63 Notre Dame L. Rev. at 652.

16

findings, as the court’s fact-finding may not affect the

ultimate outcome.13 And dividing primary responsibility for questions of fact from primary responsibility

for questions of law encourages the parties to sharpen

their presentation of the issues at the appropriate

level and, as a consequence, results in better outcomes

on both legal and factual questions. Parties “who

know that they will not have any significant second

chance to convince another tribunal on the facts must

take the initial trial seriously. If there is any reason

to believe in our adversary system of trial, more

serious party effort should lead to better decisions.”14

A failure to defer to factual findings under Rule 52

consequently diminishes the quality of the fact-finding

process in the first place.

B. Deference on Factual Findings Fosters

Judicial Efficiency

The “clear error” rule also improves efficiency for

the federal judiciary in two closely related ways. It

conserves judicial resources directly by limiting

the time appellate judges must devote to re-reviewing

the parties’ evidence. It also indirectly conserves

resources by discouraging appeals that, in effect,

merely seek to retry the case before a panel of

appellate judges.

13 See Nangle, 59 Wash. U.L.Q. at 427. Judge Nangle observed

from judicial meetings that appellate courts’ failure to respect

district courts’ factual findings resulted in a “lowering in the

morale of district court judges” that was “reflected occasionally in

a ‘what’s the difference’ attitude in opinion writing” and in more

difficulty in filling judicial positions. Id.; see also U.S. Supreme

Court, 2016 Year-End Report on the Federal Judiciary 8 (Dec. 31,

2016) (“There are many easier and more lucrative ways for a

good lawyer to earn a living.”), https://www.supremecourt.gov/

publicinfo/year-end/2016year-endreport.pdf.

14 Cooper, 63 Notre Dame L. Rev. at 652.

17

Both courts and commentators have recognized that

the limited time and energy of appellate courts will be

wasted if they must reconsider every finding of fact

and review the entire evidentiary record de novo upon

request. Forcing a three-judge appellate panel to

review facts de novo would entail “a huge cost in

diversion of judicial resources,” as well as wasting the

resources of parties who “have already been forced to

concentrate their energies and resources on persuading the trial judge that their account of the facts is the

correct one.” Anderson, 470 U.S. at 574-75. “[T]he

structure of the court system . . . does not permit nor

can sustain matters being fully relitigated at each

level,” and thus “having facts fully adjudicated at the

trial level promotes efficiencies by relieving appellate

courts of that often lengthy and arduous task.”15

Respecting the limitation of Rule 52 both spares

appellate courts “the necessity of investigating completely the evidence buried in the record”16 and allows

them to “devote more of their limited capacities to

developing the law.”17 Conversely, the “increased

accuracy” of any “foray into the minutiae of the record”

is doubtful. Easley v. Cromartie, 532 U.S. 234, 262

(2001) (Thomas, J., dissenting); see also Bose Corp. v.

Consumers Union of United States, Inc., 466 U.S. 485,

518-19 (1984) (Rehnquist, J., dissenting) (“I am at a

loss to see how appellate courts can even begin to

make . . . determinations” about “the state of mind

of a particular author at a particular time”). And,

in addition to the challenge of reviewing an often

extensive record, appellate judges sit in panels,

15 Adamson, 34 Fla. St. U.L. Rev. at 1045.

16 Note, The Law of Fact:

Findings of Fact Under the Federal

Rules, 61 Harv. L. Rev. 1434, 1438-39 (1948).

17 Cooper, 63 Notre Dame L. Rev. at 652.

18

so “conjoint fact-finding” creates an added layer of

difficulty.18

Closer review of the record would add to the burden

of the appellate court in any given appeal, but it

also encourages additional appeals, multiplying the

burdens on the system. Deference on factual issues

discourages “bootless appeals in cases that, to a disinterested eye, are doomed from the beginning.”19 As

Charles Alan Wright observed when arguing for even

greater deference, a “broadened scope of appellate

review . . . will mean an increase in the number of

appeals,”20 and the appeals encouraged by lax adherence to Rule 52 will be precisely those in which the

only issue is fact-bound, has a marginal chance of

success, and requires the appellate court to delve into

the evidence. Minimizing the number of meritless

appeals allows appellate courts to give proper attention to the already large volume of cases before them.

C. Failure To Give Proper Weight to the Factual Findings of District Courts Tends To

Delegitimize Them in the Public’s View

Failure to defer appropriately to district courts’

fact-finding also has the broader effect of diminishing

public confidence in trial courts and, consequently, in

the judicial system.

Trial courts are often the public face of the judiciary,

as the vast majority of adjudication occurs at the trial

level. Although the individual federal district judges

“are generally not well known,” the federal judicial

system “depends fundamentally on the[ir] skill, hard

18 Id. at 653.

19 Id. at 652.

20 Charles Alan Wright, The Doubtful Omniscience of Appellate Courts, 41 Minn. L. Rev. 751, 780 (1957).

19

work, and dedication.”21 Both lawyers and the public

recognize that trial courts have the primary responsibility for the truth-finding function of the judicial

system; appellate courts have a different role. Thus,

as the Advisory Committee on the Federal Rules of

Civil Procedure has observed, “[t]o permit courts of

appeals to share more actively in the fact-finding function would tend to undermine the legitimacy of the

district courts in the eyes of litigants.” Fed. R. Civ. P.

52 advisory committee’s note to 1985 amendment.

Indeed, in the long run, one of “[t]he principal

consequences of broadening appellate review” is to

“impair[ ] the confidence of litigants and the public in

the decisions of the trial courts.”22 Put another way,

“sanctioning . . . factual second-guessing by appellate

courts” will cause “only lessened confidence in the

judgments of lower courts,” Bose, 466 U.S. at 520

(Rehnquist, J., dissenting), and “undermine[ ] the

presumption of competence trial judges possess.”23

In contrast, “[a]ffirming trial court decisions furthers

jurisprudential values of comity and systemic legitimacy as well, reinforcing the correctness of those

judgments and mitigating perceptions of unwarranted

trial court bias.”24

Reaffirming the legitimacy and competence of trial

courts is particularly critical today. As one commentator presciently wrote in 2007:

We live in a time in which the judicial system

is under literal and figurative attack. Judicial

independence is threatened by the sharp ideological

21 2016 Year-End Report on the Federal Judiciary 3.

22 Wright, 41 Minn. L. Rev. at 779.

23 Adamson, 34 Fla. St. U.L. Rev. at 1081.

24 Id. at 1045.

20

divide which exists on issues before the courts.

Judges are accused not only of harboring substantive biases, but also of manipulating or ignoring

procedural rules to advance their biases. If Rule

52(a) and fact typology are treated in a principled

manner, the possibility or perception of bias can

be mitigated and their effectiveness as an ideological weapon dulled.25

Failing to adhere closely to Rule 52, on the other

hand, can create the perception of procedural manipulation. As Justice Scalia once wrote, overturning

well-supported factual findings “makes evident that

the parties to this litigation could have saved themselves a great deal of time, trouble, and expense by

omitting a trial.” United States v. Virginia, 518 U.S.

515, 585 (1996) (Scalia, J., dissenting) (“The Court

simply dispenses with the evidence submitted at trial

. . . in favor of the Justices’ own view of the world.”).

III. THE CLEAR-ERROR STANDARD MANDATES AFFIRMANCE OF THE DECISION

BELOW

Faithful application of the clear-error standard

requires affirmance here.

A. The District Court Based Its Finding of Pretext on a Substantial Body of Evidence

Viewed in the Context of the Entire Record

As the government conceded below, a pretextual

explanation for agency action violates the Administrative Procedure Act (“APA”), which requires that

agencies provide the public with an accurate account

of the basis of their actions. See Pet. App. 312a; see

also Tr. of May 9, 2018 Conference at 15:10-12, ECF

No. 150 (“I think we would agree if the plaintiffs on

25 Id. at 1087.

21

APA review can establish that the stated rationale

is pretextual, that would be a basis for the Court to

remand to the agency.”). The district court found that

Secretary Ross’s justification for including the citizenship question at issue “was pretextual – that is, that

the real reason for his decision was something other

than the sole reason he put forward in his Memorandum” explaining his decision. Pet. App. 311a.

Pretext is a classic example of a fact that is rarely

susceptible to direct proof and is almost always

inferred from evidence of other historical facts. See,

e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 147 (2000). The district court concluded that

Secretary Ross’s decision was pretextual based on a

number of circumstances that pointed in the same

direction. For one, there was evidence that Secretary

Ross had already decided to add the citizenship question before the request from the Department of Justice

that the Secretary later cited as the reason for adding

the question. See Pet. App. 313a. Indeed, a number

of undisputed facts supported that inference: Secretary Ross’s discussion of defending the legal basis for

the question in mid-2017, id. at 86a-87a; “attempts

by Commerce Department staff to shop around for a

request by another agency,” id. at 313a; and the fact

that the voting-rights explanation in the Department

of Justice’s request, subsequently cited by Secretary

Ross as the sole purpose of adding the citizenship

question, played no role in the initial discussions of

the issue, id. at 314a. The district court more than

adequately explained how these historical facts, in the

overall context of the administrative record, led to the

conclusion that Secretary Ross’s explanation was pretextual. See generally id. at 313a-314a, 318a-321a.

The inference of pretext from those undisputed facts

was buttressed by the district court’s conclusion that

22

Secretary Ross “sought to conceal aspects of the process.” Id. at 314a. Secretary Ross’s failure to disclose

much of the process in his ultimate memorandum

explaining the decision, as well as his misleading testimony before Congress – that, among other things,

the “Department of Justice . . . initiated the request

for inclusion,” id. at 72a – support this conclusion.

The individual findings supporting this inference are

myriad – for example, the district court considered two

competing accounts of a meeting between Secretary

Ross and an executive of the Nielsen Company, Christine Pierce – a meeting that Secretary Ross explicitly

cited as supporting his action in including the citizenship question. See id. at 109a. Secretary Ross and

Ms. Pierce disagreed on what Ms. Pierce said about

the empirical data on the citizenship question, and the

district court credited Ms. Pierce’s account, particularly after the government “chose not to even crossexamine her.” Id. at 112a. Neither account was

facially implausible, and a district court’s crediting

of one plausible account over another is the kind of

finding that “can virtually never be clear error.”

Anderson, 470 U.S. at 575. A misleading explanation,

in turn, suggests something to hide. See Reeves, 530

U.S. at 147 (“Proof that the defendant’s explanation is

unworthy of credence . . . may be quite persuasive.”).

The inference that Secretary Ross attempted to

conceal parts of the deliberative process constitutes

further circumstantial evidence that his ultimate

explanation for the addition of the census question

was pretextual.

The government fails to address much of this

evidence in its brief. Br. 40-45. To the extent the

government challenges the evidence of pretext at all,

it does so primarily by attacking the district court’s

interpretation of Secretary Ross’s statements as

23

misleading. See Br. 44 (contending that the district

court “strained to construe the Secretary’s remarks

and actions in the most uncharitable manner possible”). But it is hardly “uncharitable” to construe some

of the Secretary’s statements that are literally false –

such as the assertion that the Department of Commerce

was “responding solely to the Department of Justice’s

request,” Pet. App. 72a – as misleading. Undoubtedly,

some statements that are literally untrue may not be

misleading in context or may not be intended to mislead. That is why the intent of the author is an inference that can be reached only through understanding

and reviewing the entire factual record. See Nangle,

59 Wash. U.L.Q. at 425 (a trial judge has “seen [the]

entire mosaic unfold”). Further, Secretary Ross’s public statements were hardly the only evidence suggesting an intent to conceal parts of the decision-making

process, starting with the government’s initial proffer

of the administrative record, which lacked important

documents reflecting the Secretary’s actions and

discussions prior to the request from the Department

of Justice. Even if Secretary Ross’s statements could

be construed not to be misleading in context, the

district court’s finding of an intent to conceal was

more than justified by its careful examination of the

entire record.

Moreover, an intent to conceal was just one piece of

the totality of evidence suggesting that the Secretary’s

proffered explanation was pretextual. The district

court’s 72-page exposition of the relevant evidence

over a multi-year timeline, see Pet. App. 38a-129a,

including dozens of separate data points suggesting

that the voting-rights explanation was a pretext, more

than justified its ultimate determination.

24

B. A Wealth of Empirical Evidence Supports

the District Court’s Finding That the

Secretary’s Explanation Lacked a Logical

Connection to the Evidence Before Him

Although the Secretary’s own stated priority in adding the citizenship question was to obtain complete

and accurate data, see Pet. App. 289a-290a, the district court found that Secretary Ross’s explanations

“were unsupported by, or even counter to, the evidence

before the agency” in a number of ways, id. at 285a.

Among the most important were Secretary Ross’s

assertions that there was no empirical evidence that

adding the question would cause a differential undercount, id. at 286a, and that adding the question would

serve the purpose of obtaining complete and accurate

data, id. at 289a-290a. As the district court explained,

there was actually substantial evidence that a differential undercount would result, including multiple

studies by the Census Bureau. Id. at 141a. The

government’s own expert testified that these analyses

were sound and, if anything, understated the extent

of the likely differential undercount. Id. at 144a-145a.

That conclusion found support in analysis by multiple

plaintiffs’ experts, which provided important background expertise as well as specific evidence on the

differential undercount. Id. at 146a-148a. And even

though all of the evidence pointed in the same

direction – that is, that a differential undercount

would occur – the district court still undertook a

searching review of these experts’ opinions, concluding that it would not rely on certain parts of these

opinions for various reasons. See id. at 147a-148a

nn.36-37.

The district court also explained why the evidence

before the agency contradicted the Secretary’s assertion that the addition of the question would result in

25

more complete and accurate data. Most significantly,

the district court explained that the Census Bureau’s

own analyses came to the opposite conclusion. In particular, the Bureau’s January 19, 2018 memorandum

analyzed the likely effect of adding a citizenship question in three separate ways. Each analysis showed

that adding the question would result in less complete

data, as the question would decrease response rates.

Id. at 47a-48a. Lower response rates would result

in less accurate data, as the alternative methods of

gathering information are less accurate; in turn,

characteristics “imputed” to those not directly counted

would be required for more people and, at the same

time, reflect the less accurate data existing for those

counted directly. Id. at 48a-49a & n.15.

The Bureau also concluded that even adding the

citizenship question while, at the same time, using administrative records to gather citizenship data would

result in lower quality data than using administrative

records alone. This somewhat “counterintuitive[ ]”

finding results from the complex interactions between

data compilations. Id. at 52a-53a. The survey data

would be inaccurate in several ways, but any incorrect

identifications of citizenship could not be corrected

feasibly. Id. The decrease in response rates and the

inaccuracy of survey responses on the citizenship

question would increase the number of people for

whom citizenship is unknown or incorrect – and,

among other things, the decreased response rates

would lead to less linkage between responses and

administrative records. Id. at 53a. It would also lead

to less accurate data both because inaccurate characteristics would be imputed to non-responding individuals and because inaccurate self-reporting would, in

some cases, be used instead of administrative records

that are statistically more accurate. Id. at 54a-58a.

26

No expert testimony, or evidence before the Secretary

when he made his decision, contradicted these analyses. The district court thus properly found that the

Secretary’s explanation in his memorandum could not

be reconciled with the scientific evidence.

The government’s criticisms of these factual findings are largely divorced from the record, and thus

cannot show that the district court clearly erred. On

the issue of whether a differential undercount would

occur, the Secretary explained that there was “limited

empirical evidence” that this was likely. Id. at 557a.

But the government’s explanation of how the Secretary reached this conclusion does not actually point to

anything beyond the Secretary’s own assertions. See

Br. 30-31 (citing the Secretary’s statement nine times,

and no other record evidence). To assess whether

the Secretary’s decision was arbitrary and capricious

under the APA, the district court necessarily had to

compare the Secretary’s rationale to the empirical

evidence. Pet. App. 148a-151a. Pointing to the Secretary’s statements cannot show that the district court

erred in its assessment of that evidence.

The closest the government comes to offering a

criticism of the district court’s empirical findings is its

argument that the court misinterpreted the Census

Bureau’s studies, because “some 22 million people for

whom citizenship information would otherwise be

unavailable” “will answer the citizenship question.”

Br. 33 (emphasis omitted). That assertion, however,

does not support the conclusion that the totality of

resulting citizenship data will be either more complete

or more accurate. Tellingly, the government cites no

statistical analysis or expert testimony in support of

that factual assertion. And, even if the government

could point to contrary evidence, resolving scientific

27

disputes is a core competency of federal district courts,

and a circumstance in which deference is “[p]articularly

appropriate.” Silvester, 138 S. Ct. at 950 (Thomas, J.,

dissenting from the denial of certiorari). The district

court’s well-supported finding that the Secretary’s

asserted goals could not be reconciled with the

evidence before him are not clearly erroneous and

should not be disturbed.

CONCLUSION

The judgment of the district court should be affirmed.

Respectfully submitted,

April 1, 2019

DEREK T. HO

Counsel of Record

T. DIETRICH HILL

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(dho@kellogghansen.com)

1a

APPENDIX

List of Amici Curiae

The Honorable W. Royal Ferguson, Jr. served as a

District Judge of the United States District Court for

the Western District of Texas from 1994 through 2013.

From 2008 through 2013, he served as a member of

the Judicial Panel on Multidistrict Litigation.

The Honorable Nancy Gertner served as a District

Judge of the United States District Court for the District of Massachusetts from 1994 through 2011.

The Honorable Stephen C. Robinson served as a

District Judge of the United States District Court for

the Southern District of New York from 2003 through

2010.

The Honorable Kevin H. Sharp served as a District

Judge of the United States District Court for the Middle District of Tennessee from 2011 through 2017.

From 2014 through 2017, he served as Chief Judge of

the District.

The Honorable T. John Ward served as a District

Judge of the United States District Court for the Eastern District of Texas from 1999 through 2011.