Jurisdictional Statement — Franklin v. Massachusetts

Supreme Court brief1992

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| MAR 25 92

E CLERK

No. 91-1502

In the Supreme Court of the United States

OCTOBER TERM, 1991

BARBARA FRANKLIN, SECRETARY OF COMMERCE, ET AL.,

APPELLANTS

COMMONWEALTH OF MASSACHUSETTS, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

JURISDICTIONAL STATEMENT

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

JOHN G. ROBERTS, JR.

Deputy Solicitor General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

MICHAEL JAY SINGER

MARK B. STERN

Lori M. BERANEK

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

Stee

SS SS SSIS

QUESTIONS PRESENTED

The three-judge district court held that the Census

Clause of the Constitution (Art. I, § 2, Cl. 3) and the

Census Act (13 U.S.C. 141) permit the Secretary of

Commerce to include federal personnel stationed abroad

(and their dependents) in the state population totals on

which the apportionment of Representatives is based.

However, the court held that the Secretary’s manner of

doing so following the 1990 census was arbitrary and

capricious, in violation of the Administrative Procedure

Act (APA), 5 U.S.C. 706(2) (A), because he did not

furnish an adequate justification. The questions presented

are:

1. Whether judicial review of the apportionment of

Representatives, based on the census including federal

personnel stationed abroad, is barred by virtue of the

political question doctrine, the APA’s exceptions for situa-

tions in which “statutes preclude judicial review” and

“agency action is committed to agency discretion by law,”

5 U.S.C. 701(a), and the inapplicability of the APA to

the President.

2. Whether, if judicial review is not barred, the inclu-

sion of federal personnel stationed abroad was arbitrary

and capricious.

3. Whether, if the district court correctly found that

the Secretary’s determination violated the APA, it pron-

erly ordered appellants to effect a new apportionment of

Representatives with the personnel abroad thrown out of

the underlying census count, rather than remanding the

matter to the Secretary for further proceedings.

(I)

PARTIES TO THE PROCEEDINGS

The appellants herein, who were defendants in the dis-

trict court, are Barbara Franklin, Secretary of Commerce

(substituted as a party pursuant to Rule 35.3 of this

Court); Mark W. Plant, Acting Under Secretary of

Commerce for Economic Affairs (also substituted pursu-

ant to Rule 35.3); the Bureau of the Census; Barbara

Bryant, Director of the Bureau of the Census; and

George Herbert Walker Bush, the President of the United

States. Donnald K. Anderson, the Clerk of the United

States House of Representatives, also was a defendant in

the district court.

The appellees in this Court, who were the plaintiffs

below, are the Commonwealth of Massachusetts and two

of its registered voters, Edward F. Berlin and Karen

J. Kepler.

TABLE OF CONTENTS

Page

EE PR eo ;, 1

ES TE 1

Constitutional and statutory peovisions involved ....... ' 1

The questions 0: are paubstential OS SS ae 14

ETE 29

TABLE OF AUTHORITIES

Cases:

Adams Vv. Nagle, 303 U.S. 582 (19388) 0.0... = 24

Alexander Vv. Fioto, 480 U.S. 684 (1977) .............. 16

American Bank, N.A. V. Clarke, 933 F.2d 899

Ee 24

American Textile Mfrs. Institute, Inc. v. Donovan,

EE ST 27

Armstrong V. Bush, 924 F.2d 282 (D. C. Cir.

EE EES EES A 22

Baker v. Carr, 369 U.S. 186 (1962) .................... 17, 18, 19

Baldrige v. Shapiro, 455 U.S. 845 (1982) —........... 17

Borough of Bethel Park v. Stans:

319 F. Supp. 971 (W.D. Pa. 1970)... 11, 26

449 F.2d 575 (3d Cir. 1971) _....... “eS PRA 4

Camp V. Pitts, 411 U.S. 138 (1973) .............. 28

Chicago & Southern Air Lines, Inc. V. Waterman

Steamship Corp., 333 U.S. 108 (1948) —.00000... 23

Citizens to Preserve Overton Park, Inc. v. Volpe,

CE 20, 28

City of Camden v. Plotkin, 466 F. Supp. 44

re 26

Coleman V. Miller, 307 U.S. 433 (1939) .. 2 25

Davis v. Bandemer, 478 U.S. 109 (1986) .. ae 19

Department of the Navy v. Egan, 484 U.S. 518

EE a 25

Dothard Vv. Rawlinson, 433 U.S. 321 (1977) ....... 16

Engineers Vv. Chicago, RJ. & P.R.R., 382 U.S. 423

SE Ve « 16

(11)

Iv Vv

Cases—Continued : Page Statutes—Continued : Page

Florida Power & Light Co. v. Lorion, 470 U.S. 729 Act of Apr. 25, 1940, ch. 152, § 2, 54 Stat. 162. 24

ERE eae ee 28 Act of Nov. 15, 1941, ch. 470, 55 Stat. 761:

Heckler v. Chaney, 470 U.S. 821 (1985) 20, 22 § 1, 65 Stat. 761-762... Po a eae aa ni 25

Kleppe v. Sierra Club, 427 U.S. 390 (1976) —......... 25 Nee eomsansiiois ‘ 25

Marsh v. Oregon Natural Resources Council, 490 § 2(b), 55 Stat. 762... SSS pe ENA 24

U.S. 360 (1989) . 25 Administrative Procedure Act, 5 U.S.C. 701 etece.:

Mississippi V. Johnson, 1 US. 4 Wall) 475 I aA 15

(1866) .. ssseeneeeee 3B B U.S.C. 701 (8) (1) oecccccceceeeeeeeee ceenerencccnee 28

Morris V. Gressette, 482 US. 491° (1977) . coescsecceseees 24 B U.S.C. 701 (@) (2) ence -ceceeeeonee--- 12-13. 20

PBGC v. LTV Corp., 110 8. Ct. 2668 (1990) 28 5USC. 101i) (1)...

Philadelphia v. Klutznick, 503 F. Supp. 663 (E.D. SUSC 708 oo ” =. =

On ae 26 Senate 18 U.S.C. 141 et 7s Te aie ak ,

Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 0 ‘ =a ope

ee Pa re 17 Ee RRR 22

Quon v. Stans, 309 F. Supp. 604 (N.D. Cal. 13 U.S.C. 141 (a) .. 1, 3, 12, 13, 20, 21, 103a

ets ae 26 18 U.S.C. 141(b) . ao = + > Ff Ff

Southern Ry. v. Seaboard Allied Milling Corp., 0S soutninasicshsienisniteenéditagnal passim

4 FO FE a eon 24 2 U.S.C. 2a(a) . a

Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368 2 U.S.C. 2a(b) ................ a + + ST

a Ses 16 NE EE Ee ae ee eR ee 25

Tucker v. United States Dep't of Commerce, No. EE subeneiniteminatogn ae 16

91-2051 (7th Cir. Mar. 16, 1992)... 18-19, 21-22, 22 I IIIIIIED scrccsnscsesasersieseetsouinesbevencsstetmeetsinecsocestan 16

Turner V. City of Memphis, 369 U.S. 350 (1962) __. 16 TTT aiciiceiciesshacnninlnlibnanilahaieceeiiidsen'

United States ex rel. City of Atlanta v. Steuart, 47 ne

P26 O78 (D.C. Cir. 26G1) ................-.....-......-....... 26 :

United States Dep't of Commerce Vv. Montana, No. Census—Place of Residence: Hearing Before the

91-860 (argued Mar. 4, 1992) 0... mas 10 Subcomm. on Census and Population of the

Webster Vv. Doe, 486 U.S. 592 (1988) __.18, 20, 21, 22 House Comm. on Post Office and Civil Service,

Zemel Vv. Rusk, 381 U.S. 1 (1965) ... 16 94th Cong., 2d Sess. (1976) 0... 4,5

: 86 Cong. Rec. (1940) :

Constitution and statutes : eh 23

U.S. Const. : 5 23

Art. I: pp. 4485-4486 ES SS as 23

§ 2, Cl. 3 (Census Clause) ..... 1, 2, 12, 17, 19, 99a 134 Cong. Rec. (1988) :

Amend. XIV: scence icceeneatinceretans dens 6

EE eee eee eee ses 1,11, 100a IIE? wniicnnncenscesczussenessutumeenscssemessounes 6

RS ae: 1, 101a P — seeeenccovaweseseennnnnnesssseeeennnnesssees sececennnee ns ;

Act of Mar. 1, 1790, ch. II, § 5, 1Stat.103...~—s2t tig ~~ 9-9 anaenaaeeeeeeenannS

Act of June 18, 1929, ch. 28, § 22, 46 Stat. 26-27 24 DD. 25,808-25,806 .. .

136 Cong. Rec. H4195-H4197 (daily ed. Jane 26,

a sinstbshughnbensidnmnenaientespeniennen 8

Miscellaneous—Continued :

Congressional Research Service, The 1990 Census:

Including Foreign-Based Military and Civilian

Personnel in the State Counts (June 20,1990). 4,9

H.R. 4720, 100th Cong., 2d Sess. (1988) ............... 5

H.R. 2661, 101st Cong., Ist Sess. (1989) 27

H.R. 4908, 101st Cong., 2d Sess. (1990) —............. - we

H.R. Rep. No. 958, 100th Cong., 2d Sess. (1988) 5

H.R. Rep. No. 552, 101st Cong., 2d Seas. (1990)... 7-8, 26

41 Op. Att’y Gen. 81 (1949) en... ll

S. 2675, 101st Cong., 2d Sess. (1990) — 7

S. Rep. No. 752, 79th Cong., Ist Sess. (1945) 20

In the Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-1502

BARBARA FRANKLIN, SECRETARY OF COMMERCE, ET AL.,

APPELLANTS

COMMONWEALTH OF MASSACHUSETTS, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

JURISDICTIONAL STATEMENT

OPINIONS BELOW

The opinion of the three-judge district court (App.

la-84a) and its order denying reconsideration and a stay

(App. 85a-93a) are not yet reported.

JURISDICTION

The judgment of the three-judge district court (App.

94a-96a) was entered on February 20, 1992, and the

notice of appeal (App. 97a-98a) was filed on March 16,

1992. The jurisdiction of this Court is invoked under 28

U.S.C. 1253. See note 7.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article I, Section 2, Clause 3 and Section 8, Clause 18

of the United States Constitution; Sections 2 and 5 of the

Fourteenth Amendment; 2 U.S.C. 2a; and 13 U.S.C.

14l1(a) and (b), are reproduced at App. 99a-103a.

(1)

STATEMENT

The Commonwealth of Massachusetts and two of its

registered voters brought this suit to challenge, inter

alia, the decision by the Secretary of Commerce to include

in the 1990 census count for each State those federal per-

sonnel stationed abroad who designated that State as

their permanent “home of record” when they entered the

Armed Forces, or who were found to have a sufficient

nexus to that State under an alternative standard. The

court rejected appellees’ contentions that inclusion of fed-

eral personnel abroad (and their dependents) in the enu-

meration on which the apportionment of Representatives

is based violates the Census Clause of the Constitution

(Art. I, §2, Cl. 3) and the Census Act (13 U.S.C.

141(b)). However, concluding that the conduct of the

census is subject to judicial review under the Admin-

istrative Procedure Act, 5 U.S.C. 701 et seq., the court

held that the manner of including personnel abroad was

arbitrary and capricious, because, in its view, the Secre-

tary of Commerce did not furnish an adequate explana-

tion or factual justification for the method of allocation.

Rather than remanding the matter to the Secretary, how-

ever, the court ordered appellants to effect a new appor-

tionment of the House of Representatives, with the per-

sonnel abroad excluded. Under the district court’s order,

a total of 922,819 people must be eliminated from the

apportionment counts. Stipulation of Facts (Stip.) { 53.

1. Article I, Section 2, Clause 3 of the Constitution

provides that “Representatives * * * shall be apportioned

among the several States * * * according to their respec-

tive Numbers.” It further provides that “[t]he actual

Enumeration shal] be made * * * in such Manner as they

[the Congress] shall by Law direct.” Pursuant to the

latter provision, Congress enacted the current Census Act,

which directs the Secretary of Commerce to conduct a

census, as of April 1 of every tenth year, “in such

form and content as [the Secretary] may determine, in-

cluding the use of sampling procedures and special sur-

veys.” 13 U.S.C. 141(a). The Census Act further pro-

vides that “(t]he tabulation of total population by States

* * * as required for apportionment of Representatives in

Congress among the several States shall be completed

within 9 months after the census date and reported by the

Secretary to the President of the United States.” 13

U.S.C. 141 (b).

Under the apportionment statute, the President then

must transmit to Congress, during the first week of its

next Session, “a statement showing the whole number of

persons in each State,” as ascertained under the decennial

census, “and the number of Representatives to which each

State would be entitled under an apportionment of the

then existing number of Representatives by the method

known as the method of equal propoi‘‘ons.” 2 U.S.C.

2a(a). The apportionment statute further provides that

“lelach State shall be entitled * * * to the number of

Representatives shown in the |President’s] statement.”

2 U.S.C. 2a(b). Within 15 calendar days after receipt

of the President’s statement, the Clerk of the House of

Representatives must send to the Governor of each State

a certificate of the number of Representatives to which

it is entitled under these provisions. /bid.

Following the 1990 census, the Census Bureau tabu-

lated the population by States. The Secretary of Com-

merce transmitted those results to the President on De-

cember 26, 1990, as required by 13 U.S.C. 141(b), along

with a calculation of the number of Representatives to

which each State is entitled under the method of equal

proportions. The President transmitted his statement to

Congress on January 3, 1991, and the Clerk of the House

of Representatives sent certificates of entitlement to the

States based on the President’s statement on January 16,

1991. The Clerk certified that the Commonwealth of

Massachusetts is entitled to ten Representatives, a loss

of one from the 1980 apportionment. App. 2a n.1.

2. Military personnel serving outside the States were

first included in the Nation's total population in 1830

and 1840, although their numbers were not allocated to

particular States for purposes of apportionment of Rep-

resentatives. The counting was then discontinued, but

was reinstituted in 1900 and continued through the

1960 census. Stip. J 18.

In the 1970 census, the Department of Commerce de-

cided to include overseas military personnel in state pop-

ulation totals for apportionment purposes, using “home

of record” data. Borough of Bethel Park v. Stans, 449

F.2d 575, 581 (3d Cir. 1971). A person designates a

“home of record” when enlisting in one of the military

services (see DD Form 1966, Box 5); it “reflects the

State to which he or she will be moved upon separation.” *

Instructions for completing the enlistment form state that

the “home of record” is the address “declared by you to

be your permanent home or actual home at time of en-

listment,” and not a “temporary address.” Mot. for Re-

consideration, Exh. 3.

The Commerce Department decided to include overseas

military personnel in state totals in 1970 because of the

large number serving abroad during the Vietnam con-

flict and strong bipartisan congressional support for do-

ing so.2 The Commerce Department also relied on a 1969

opinion by then-Assistant Attorney General Rehnquist,

who concluded that “the Director of the Census may, in

his discretion, validly adopt that procedure.” A.R. 15.

Assistant Attorney General Rehnquist stated his under-

standing that the factors that had led to the Director’s

former practice (difficulties in securing reliable informa-

1 Congressional Research Service, The 1990 Census: Including

Foreign-Based Military and Civilian Personnel in the State Couyts

4 (June 20, 1990) [hereinafter CRS Study] (quoting Defense Man-

agement Data Center procedures) (Administrative Record (A.R.)

878).

2 Census—Place of Residence: Hearing Before the Subcomm. on

Census and Population of the House Comm. on Post Office and

Civil Service, 94th Cong., 2d Sess. 7, 9 (1976) (statement of Robert

L. Hagan, Deputy Director, Bureau of the Census) (reproduced at

A.R. 41, 43) [hereinafter 1976 Hearing].

tion and the substantial expense of allocation) had become

“largely inapplicable,” and that “it has become entirely

feasible to make the proposed allocation to home States.”

Ibid. He also found it “reasonable to assume that many,

if not most, persons of voting age living abroad vote in

their home States and consider themselves to be repre-

sented in Congress by members from their home States.”

Ibid.

In the 1980 census, the Commerce Department again

included military personnel abroad in the total popula-

tion of the Nation. It did not, however, include those per-

sonnel in the tabulation of state populations for appor-

tionment purposes, because of the smaller size of the over-

seas population, the practice prior to 1970 of not allocat-

ing overseas personnel among the States, and concerns

that “[t]he data on ‘home State’ of those overseas are of

an unknown reliability.” 1976 Hearing 7, 9 (A.R. 41,

43).

3. The Commerce Department likewise did not orig-

inally plan to include military personnel stationed abroad

(and their dependents) in the state totals to be used for

apportionment following the 1990 census. A.R. 511-512.

By July 1989, however, there was strong bipartisan sup-

port in Congress for doing so, and numerous bills were in-

troduced in the 100th and 101st Congresses to mandate

that result. Stip. 1] 33, 37. One such bill was H.R. 4720,

100th Cong., 2d Sess., which was introduced on June 1,

1988, by Chairman Dymally of the House Subcommittee

on Census and Population. That bill specified that the

place of residence for census purposes “shall be considered

to be the individual’s last place of general abode within

the United States for a period of 6 consecutive months

or longer.” A.R. 361-364. The bill was reported by the

House Committee (H.R. Rep. No. 953, 100th Cong., 2d

Sess. (1988)), but the House voted not to suspend the

rules to permit passage. Stip. 133. The floor debates

show a broad consensus in favor of including overseas

personnel in the apportionment counts; the debates in-

stead centered on the manner in which they would be al-

located among the States. See 134 Cong. Rec. 25,798-

25,804 (1988). Some Members expressed the view that

the home State should be based on an individual’s “home

of record,” rather than his last abode of six months, id.

at 25,799-25,800 (Reps. Ridge and Goodling), noting that

the latter test “would drastically skew the census toward

those few States with a large number of military bases.”

Id. at 25,801 (Rep. Kennelly); see also id. at 25,803

(Rep. Green) ; id. at 25,803-25,804 (Rep. Petri).

4. On July 31, 1989, the Secretary of Commerce de-

cided to count federal personnel abroad for apportionment

purposes in 1990. A.R. 511-512. The Secretary noted that

the Defense Department “believes strongly that its

employees should not be excluded from apportionment

counts because of temporary and involuntary residence

overseas.” A.R. 511. He also relied on the growing bi-

partisan concern of Congress; the Defense Department’s

assurance that it was feasible to provide the necessary

counts of overseas military personnel and their depend-

ents in time to meet the December 31, 1990, deadline for

reporting to the President; the precedent of including

overseas military personnel in 1970; and Assistant At-

torney General Rehnquist’s 1969 opinion that the Depart-

ment enjoyed the discretion to do so. A.R. 511-512.

At the time the Secretary decided to include overseas

personnel, the Commerce Department planned to use data

derived from an enumeration to be conducted by the De-

fense Department. Due to a lack of funding and other

constraints, however, the Defense Department abandoned

that option in December 1989. Stip. { 46; A.R. 787. At-

tention then turned to developing an alternative ap-

proach, based on existing Defense Department data. At

that point, the Commerce Department chose to count

military personnel based on their last address in the

United States of at least six months’ duration, although

it expressed its willingness to utilize “home of record”

data if the Defense Department reexamined available evi-

dence and furnished an acceptable methodology by Octo-

ber 31, 1990. A.R. 830-835.

In the meantime, congressional support for use of

“home of record” data intensified. For example, in a

letter dated April 5, 1990, four Members of Congress

urged the Director of the Census Bureau to adopt the

“home of record’? method, rather than the individual’s

last residence in the United States (A.R. 811-812):

Upon entering the service, each member of the armed

services must indicate a “home of record.” This home

of record will remain constant throughout the enlist-

ment period and reflects the state where the individ-

ual resided prior to enlistment. Upon discharge from

service, the individual is granted a moving stipend to

cover the expense of moving from the point of dis-

charge back to the home of record.

* * * The only administrative listing which would

best describe the residence of our members of the

armed forces stationed abroad is the home of record.

After all, the state listed for the home of record is

the last location at which the members of the armed

forces CHOSE TO RESIDE. In a very real sense,

those states had this population taken from them by

federal action.

On May 23, 1990, two bills, H.R. 4903 and S. 2675,

101st Cong., 2d Sess., were introduced to require the

Census Bureau to assign members of the military sta-

tioned abroad to home States using their “homes of rec-

ord.” The House Report on the former expressed the view

that members of the Armed Forces and their dependents

stationed overseas “are entitled to representation in Con-

gress and should be included in the population figures

used for apportionment of the House of Representatives,”

and it recommended counting them on the basis of their

homes of record because that information “most closely

approximates the home State of individuals who are

highly mobile, not by choice, but by virtue of their service

to their country.” H.R. Rep. No. 552, 101st Cong., 2d

Sess. 2 (1990). The House passed H.R. 4903 under

a suspension of the rules on June 26, 1990. 136 Cong.

Rec. H4195-H4197 (daily ed.}. The companion Senate

hill was scheduled for consideration by the Senate com-

mittee in the near future. A.R. 862, 863, 919.

In light of these developments, the Commerce Depart-

ment decided to revisit the question of the most appro-

priate method of allocating overseas military personnel

among the States for apportionment purposes. The Cen-

sus Bureau accordingly evaluated the three methods for

which data were available in Defense Department rec-

ords: legal residence, home of record, and last duty

station in the United States. A.R. 921. After doing so,

the Associate Director of the Bureau in charge of the

Decennia! Census reported that in view of all the cur-

rently available information, “the technical staff of the

Census Bureau believes that the Home of Record comes

closest to the concept of the Usual Residence among the

three data sources that DoD has available.” A.R. 924.

The concept of “usual residence” has been the guiding

principle in formulating enumeration and residence rules

since the first census in 1790. As applied by the Com-

merce Department, it provides that persons should be

included in the census counts at the place where they live

and sleep most of the time as of the census date, although

persons who are occasionally or temporarily absent are

often counted at their homes. App. 59a, 60a-61a n.24,

8O0a-8la; Stip. 1 4, 5.

The Under Secretary agreed with the Census Bureau

and recommended to the Secretary that the “home of

record” method be adopted, A.R. 919, especially since the

Defense Department had represented that its existing

data (in which gaps had been identified) “would be sup-

plemented and improved by methodologies devised by tech-

nical experts who designed the overseas enumeration.”

A.R. 920. As a result, he concluded, home of record data

“will constitute the most accurate data available from

the Department of Defense.” A.R, 919.

The Under Secretary acknowledged that a recent letter

from Assistant Secretary of Defense Jehn to Representa-

tive Aspin had stated that the last duty station in the

United States most closely approximates the “usual resi-

dence” concept. But the Under Secretary explained that

“because last duty station merely reflects the location of

the facility to which a person is assigned, many military

personnel and their dependents would be counted in states

other than their actual previous U.S. residence (such as

those assigned to the Pentagon, who would be counted as

D.C. residents even though they lived in Maryland or Vir-

ginia).”” A.R. 921. The Under Secretary also explained

that the option of using legal residence was rejected be-

cause in many cases legal residence—which is declared by

a member of the Armed Forces for tax purposes (CRS

Study 4 (A.R. 878) )—does not necessarily reflect a sub-

stantial nexus to the State. A.R. 921; see also A.R. 932

(a person may designate as his legal residence “a place

where |he| was assigned at any point during military

service, no matter how brief the assignment or how dis-

tant in time’’).*

* The Congressional Research Service had also studied the three

available methods for allocating military personnel stationed abroad

to particular States, and found that each has its advantages and

disadvantages. See CRS Study 5 (AR. 879). Thus, it concluded

that the home of record “may well reflect the person's own concept

of his or her home State,” although he or she may not return to that

State at the end of the term of service; legal residence “reflects

the State to which the person chooses to pay his or her taxes, but

a person may choose a low or no tax State to claim as a legal resi-

dence” ; and although last duty station may reflect where the person

last resided and thus be comparable to the Census Bureau's usual!

residence rule, it may not actually indicate the State where a person

lives because it “may be in a different State than where he or she

resides.” CRS Study 5-6 (A.R. 879-880). The CRS Study also

found that allocating military personnel among the States accord-

ing to home of record is “closest to the population distribution of

the entire population,” whereas an allocation based on legal resi-

dence varies from the distribution of the entire population nearly

three times as much as home of record and an allocation based on

last duty station varies ten times as much. CRS Study 6 (AR.

880).

The Under Secretary communicated the Department’s

reasoning in letters to a number of Members of Congress

on July 23, August 7, and September 11, 1990. A.R. 925-

942. He also noted that although approximately 7% of

overseas personnel records lacked a home of record desig-

nation, the Defense Manpower Data Center planned to

“use supplemental data from their automated records” to

fill the gap and that, as a result, “the number of missing

state designations will be negligible.” Jbid.*

5. On May 1, 1991—almost four months after it re-

ceived its certificate of entitlement to ten Representa-

tives—the Commonwealth of Massachusetts and two of its

registered voters filed this sui’ in an effort to retain Mas-

sachusetts’ eleventh Representative. They challenged (1)

the equal proportions method prescribed by 2 U.S.C. 2a

for apportioning Representatives among the States (an

issue that is already before this Court in United States

Dep’t of Commerce v. Montana, No. 91-860 (argued Mar.

4, 1992)), and (2) inclusion of federal personnel sta-

tioned abroad in the population totals used for apportion-

ing Representatives among the States. Because appellees

challenged the apportionment of Congress on constitu-

tional grounds, « three-judge district court was convened

under 28 U.S.C. 2284(a). App. 5a-l4a.

a. The court rejected appellees’ constitutional challenge

to the equal proportions method for apportioning Repre-

sentatives among the States. It therefore disagreed with

the holding by the three-judge district court in the Mon-

tana case that the equal proportions method is uncon-

stitutional. App. 27a-56a.

4 If the Defense Department did not have a home of record for a

member, his home State (and that of his dependents) was deter-

mined on the basis of his legal residence, with last duty station

being used if legal residence also was not available. Stip. § 56. The

home States of Defense Department civilian employees (and their

dependents) were determined through responses to questionnaires.

A.R. 944. The home States of overseas employees of other federal

agencies (and their dependents) were based on the agencies’ re-

sponses, drawn from data in their records, to a form provided by

the Census Bureau. Stip. { 57.

b. The district court also rejected appellees’ contention

that because Section 2 of the Fourteenth Amendment

refers to the counting of persons “in each State,” inclusion

of federal personnel stationed abroad violates the Con-

stitution. App. 79a-8la. The court explained that the

notion that the apportionment may “only be based on

a person’s actual physical presence in a state on census

day * * * finds no support in the case law,” which instead

interprets the “in each State” language to refer to actual

inhabitants of the State—‘“that is, persons with some re-

lation to the state,” not “simply those physically in the

state on census day.” Jd. at 80a. Thus, in Bethel Park

(which rejected the contention that federal personnel sta-

tioned abroad had te be assigned to particular locations

within a State following the 1970 census) the court found

“no indication that the members of the Constitutional Con-

vention had in mind any specific criteria by which per-

sons were to be deemed residents of one state rather than

another,” and that “[i]t is most likely that [the Framers]

thought in terms of an average inhabitant.” App. 80a

(quoting 319 F. Supp. 971, 974 (W.D. Pa. 1970)). Asa

result, the court below continued, “|a]llocation of what

the Bethel Park court referred to as the ‘fringe’ popula-

tions has long been considered a discretionary decision

open to revision as time unfolded and circumstances de-

veloped.” App. 80a; see also id. at 8la (quoting 41 Op.

Att’y Gen. 31, 33 (1949) ).

The court pointed out that in addition to military per-

sonnel, other subclasses of persons (such as boarding

school and college students, other Americans abroad, and

crew members of vessels at sea) also present the problem

of how to account for people who are away from what

might be considered their domicile or legal residence on

the census date. The court noted that “[c]lensus admin-

istrators have developed various methods for dealing with

the|se| subclasses’”—methods that “have reflected con-

temporary societal views about what location should be

designated as the ‘usual residence’ for such a person and

the administrative practicability and accuracy of making

a count of a member of the subclass at a particular loca-

tion.” App. 60a-6la n.24. In the court’s view, this “flex-

ibility of the ‘usual residence’ concept as applied by the

Census Bureau over the years * * * demonstrates the

broad discretion the Bureau has traditionally enjoyed

to interpret what the phrase ‘in each state’ means.” /d.

at Sla.

c. The court likewise rejected appellees’ contention that

inclusion of federal personnel stationed abroad in state

population totals violates the Census Act. App. 8la n.31.

It noted that 13 U.S.C. 141(a) provides for the Secretary

of Commerce to conduct the decennial census “in such

form and content as he may determine.” That language,

it reasoned, “gives the Secretary broad discretion to de-

termine how the census will be carried out, discretion

which mirrors the broad mandate given to Congress”

by Article I, Section 2, Clause 3 to provide for the

enumeration “in such Manner as they shall by Law

direct.” App. 8la n.31. The court was unpersuaded by

appellees’ argument that although 13 U.S.C. 141 (a) gives

the Census Bureau discretion to determine how to con-

duct the census, it severely circumscribes the Bureau’s

discretion to determine who shall be counted for purposes

of apportionment; in the court’s view, “in determining

how the census is to be carried out, the Bureau necessarily

must determine who shall be counted, i.e., the ‘content’ of

the census.” App. 8la n.31. The court therefore con-

cluded that “|t|he policy decision to apportion overseas

federal employees is well within the discretion afforded the

Census Bureau under the Census Act.” /bid.

d. Despite its holding that inclusion of federal per-

sonnel abroad (and their dependents) violates neither the

Constitution nor the Census Act, the district court never-

theless invalidated the Secretary’s determination to do so

for the 1990 census. Finding a violation of the APA, the

court rejected appellants’ position that the Secretary's

determination to count overseas personnel on the basis of

their homes of record and comparable data is not subject

to judicial review under the APA because that matter is

“committed to agency discretion by law.” 5 U.S.C.

701 (a) (2). It recognized that 13 U.S.C. 141(a), by pro-

viding for the Secretary to conduct the census “in such

form and content as he may determine,” “is plainly

drawn in discretionary terms” and “fairly exudes defer-

ence.” App. 70a (quoting Webster v. Doe, 486 U.S. 592,

600 (1988)). But, observing that the census “can be pro-

foundly influential in the balance of advantage among

competing partisan and parochial interests,” the court

found it “especially appropriate to have some review by

the courts, as the distinterested branch of government.”

App. 7la. The court believed that in this case, the

“usual residency” policy that has been followed since

1790 furnished adequate standards for judicial review.

Id. at 70a, Tla. The court also noted that other courts

had reviewed census determinations under the APA’s

arbitrary and capricious standard. Jd. at 68a-69a.

On the merits, the court condemned the Secretary's

manner of including federal personnel abroad as arbi-

trary and capricious. App. 75a-79a. The court surmised

that the Secretary decided in July 1989 to include over-

seas personnel only because the Defense Department

planned to conduct a special enumeration that was ex-

pected to generate reliable data. The court stated that

if the Secretary's decision-making were complete at that

time, it “would not be prepared to say that his decision

was arbitrary and capricious.” Jd. at 76a. But the court

faulted the Census Bureau for proceeding to include per-

sonnel abroad after the Defense Department cancelled its

plans for the enumeration. Jd. at 76a-79a. The court at-

tributed that course to “inertial forces” that did not per-

mit consideration of reverting to the policy of not includ-

ing personnel abroad in the state totals, despite what

the court regarded as deficiencies in the home of record

data and its belief that the administrative record did

not dispel misgivings previously expressed by the Census

Bureau and Defense Department about the home of rec-

ord and other methods. /d. at 76a-77a.

Rather than remanding the matter to the Secretary for

further proceedings, the court ordered the Executive

Branch defendants, by March 31, 1992, to submit to the

Clerk of the House of Representatives a statement show-

ing the number of nee pry bag each

would be entitled as a census

2 U.S.C. 2a without inclusion of personnel abroad. The

court further ordered the Clerk of the House of Repre-

sentatives, by April 10, 1992, to

of each State a recertification of the number of Repre-

sentatives to which it is entitled u our

decision. App. 95a.° If allowed to stand, the district

court’s judgment will result in the loss of one

sentative by the State of Washington and a gain of one

by Massachusetts. Stip. {j 42.°

THE QUESTIONS ARE SUBSTANTIAL

The district court greatly exceeded its authority by

ordering appellants to eliminate a total of 922,819 people

from the 1990 census tabulation and to effect a reappor-

tionment of the House of Representatives—even though

the court held that inclusion of federal personnel sta-

tioned abroad in state population totals violates neither

s ts were conditioned upon the Massachusetts

Leteiaaaete mastmant, to Mash 9 2008, of 0 low sotisteteting

the Commonwealth into eleven congressional districts, rather than

the ten it was apportioned under the President's January 3, 199%,

statement. App. 95a-96a. That condition has been satisfied : on

March 13, 1992, the Commonwealth certified to the district court

that the Governor had signed such a law. /d. at 91a.

the Associate Director of the Census Bureau for the Decen-

pr + a and Carl J. Dahiman, the Deputy Assistant Secretary of

Defense for Requirements and Resources, which sought to explain

the material in the record concerning the determination to count

overseas personnel on the basis of their homes of record and com-

parable data. By order dated March 13, 1992, the district court

denied the motions for reconsideration and a stay, and granted

appellees’ motion to strike the declarations. App. 85a-93a.

the Constitution nor the Census Act. That order consti-

tutes an unprecedented intrusion into matters textually

committed by the Constitution to Congress and, in turn,

committed by Congress to the President, the Secretary of

Commerce, and the Clerk of the House, without any pro-

vision or standards for judicial review and under strict

deadlines and procedures that foreclose it. Judicial re-

view of the conduct of the census under the APA there-

fore is barred both because “statutes preclude judicial

review” and because “agency action is committed to

agency discretion by law.” 5 U.S.C. 701(a). Indeed, the

President, whose statement to Congress determines the

number of Representatives to which each State is entitled

under 2 U.S.C. 2a, is not an “agency” whose actions are

subject to judicial review under the APA.

Assuming arguendo that the conduct of the census is

subject to judicial review under the APA, the district

court plainly erred in holding that the Secretary of Com-

merce’s method of including federal military and civilian

personnel abroad in the enumeration was arbitrary and

capricious. The “home of record” data on which the allo-

cation of most military personnel was based represents

the person’s permanent or usual residence upon entering

the service; the other bases the Secretary relied upon in

the absence of “home of record” data are also reliable and

sound. But even if we further assume, arguendo, that

the district court correctly concluded that the Secretary

had not adequately justified his method of including per-

sonnel abroad, the proper disposition was to vacate the

Secretary’s decision and remand for further proceedings.

The court had no authority to order that federal per-

sonnel abroad be thrown out of the tabulation of state

populations for 1990, much less to order the President

to submit a new statement of apportionment to Congress. -

The legal issues presented by this case are of para-

mount importance to the structure of the Government.

The judgment below affects the number of Representa-

tives to which Massachusetts and Washington will be en-

titled in Congress and the number of Presidential elec-

tors to which each will be entitled in the 1992 election.

Accordingly, this case, like Montana, warrants review

this Term, so that these and other States may confidently

implement a final apportionment of their congressional

districts. The Court therefore should promptly note

probable jurisdiction and set the case for briefing and

argument this Term.’

7 Under 28 U.S.C. 1253, “any party may appeal to the Supreme

Court from an order granting or denying * * * [a] permanent

injunction in any civil action, suit or proceeding required by any

Act of Congress to be heard and determined by a district court of

three judges.” A three-judge court was properly convened in this

case pursuant to 28 U.S.C. 2284(a), which states that such a court

“shall be convened * * * when an action is filed challenging the

constitutionality of the apportionment of congressional districts.”

As we explain in our jurisdictional statement in the Montana

case (91-860 J.S. 25-27), that statute applies to challenges to the

apportionment of Representatives pursuant to 2 U.S.C. 2a. Ap-

pellees raised two constitutional challenges to the apportionment

made by the President’s January 3, 1991, statement to Congress

pursuant to 2 U.S.C. 2a. One of those constitutional challenges was

to the inclusion of federal military and civilian personnel stationed

overseas. Because the district court enjoined that inclusion (albeit

on APA grounds), a direct appeal from the judgment below may be

taken to this Court. See, ¢.g., Alerander v. Fioto, 430 U.S. 634, 636

(1977); Engineers v. Chicago, RJ. & P.R.R., 382 U.S. 423, 428

(1966) ; Zemel v. Rusk, 381 U.S. 1, 5-6 (1965); see also Dothard v.

Rawlinson, 433 U.S. 321, 324 n.6 (1977).

If the Court disagrees with our position on this Court’s jurisdic-

tion, the appeal from the district court’s judgment lies in the First

Circuit. Accordingly, out of an abundance of caution, we have also

filed a protective notice of appeal to the First Circuit. And to ensure

that the Court can enter a decision this Term, we shall also file a

protective petition for a writ of certiorari before judgment to the

First Circuit, pursuant to 28 U.S.C. 1254(1). As a result, if the

Court should conclude at any stage that it does not have jurisdiction

over this appeal, it may grant the certiorari petition in order to

render a decision on the merits. See Turner v. City of Memphis, 369

U.S. 350, 353 (1962); Stainback v. Mo Hock Ke Lok Po, 336 US.

368, 371 (1949). We took similar precautions in the Montana case.

See 91-860 J.S. 28 n.22.

A. The district court erred in holding that inclusion of

federal personnel abroad in state population totals based

on “home of record” or comparable data is subject to

judicial review under the APA.

1. The text of the Constitution commits the choice of

the methods by which the census is conducted and Repre-

sentatives are apportioned to the discretion of Congress.

Article I, Section 2, Clause 3 requires that “Representa-

tives * * * shall be apportioned among the several States

* * * according to their respective Numbers.” Although

the quoted language does not expressly so provide, it has

always been understood to vest the power to apportion

Representatives in Congress. Prigg v. Pennsylvania, 41

U.S. (16 Pet.) 539, 619 (1842). In Montana, we argue

that under the factors identified in Baker v. Carr, 369

U.S. 186, 217 (1962), Congress’s exercise of that power

is subject to judicial review only to determine whether

it is plainly contrary to an explicit textual limitation.

Accordingly, Congress’s selection from among apportion-

ment methods that are rationally tied to the “respective

Numbers” of the States presents a political question not

reviewable by the courts. 91-860 Gov’t Br. 24-34; 91-860

Reply Br. 3-8.

The political question analysis set forth in our Mon-

tana briefs applies a fortiori here, especially since the

district court held that the counting of personnel abroad

violates no explicit constitutional limitation. Article I,

Section 2, Clause 3 directs that the “actual Enumeration

shall be made * * * in such Manner as they [the Con-

gress] shall by Law direct.” As a result, “responsibility

for conducting the decennial census rests with Congress,”

Baldrige v. Shapiro, 455 U.S. 345, 347-348 (1982), and

the quoted text contains no “judicially discoverable and

manageable standards” for resolving a challenge to the

manner Congress prescribes.

Moreover, with respect to the issue in this case, the

selection of appropriate criteria for allocating overseas

personnel among the States requires “an initial policy

determination of a kind clearly for nonjudicial discre-

tion.” Baker v. Carr, 369 U.S. at 217. In fact, the dis-

trict court noted with approval that methods for count-

ing various subclasses of people who are away from their

domicile or legal residence on the census date “hav. re-

flected contemporary societal values” and the “adr +-

trative practicability and accuracy of making a count of

a member of the subclass at a particular location” (App.

60a-6la n.24)—judgments of a distinctly “legislative”

nature that are beyond the expertise of a court to make.

For these reasons, if Congress itself had “direct[ed]”

that the “actual Enumeration” of federal military per-

sonnel stationed overseas be made “in such Manner” as

to include them in state populations based on their home

of record, that legislative judgment would not be subject

to review by the courts. An “independent resolution” of

such an issue by a court would “express[] lack of the

respect due [a] coordinate branch[] of government” on

a matter so central to its political character as the data

on which the allocation of its Members is based. Baker

v. Carr, 369 U.S. at 217.*

8 Here, as in Montana, the remaining Baker v. Carr factors fur-

ther support the political question analysis. See 91-860 Gov’t Br.

31-34; 91-860 Reply Br. 7 & n.5. Review by various courts of the

census counts underlying the apportionment would interfere with the

mechanism prescribed by Congress for apportioning Representatives

among the States, and would, as a result, disrupt, confuse and delay

apportionment of congressional districts within the States. See

pages 23-24, infra. There accordingly is “an unusual need for un-

questioning adherence to a political decision already made.” 369

U.S. at 217.

In addition, as the judgments in this case and Montana vividly

illustrate, litigation such as this creates a grave “potentiality of

embarrassment from multifarious pronouncements by various de-

partments on one question” (369 U.S. at 217): the judgment in

Montana expressly bars the appellants in that case from effecting an

apportionment under 2 U.S.C. 2a (91-860 J.S. App. 47a-48a), while

the judgment in this case expressly requires a new apportionment

pursuant to that statute (App. 95a). Still other suits have been

brought to require the Secretary to adjust the census total to com-

pensate for a disparate undercount in various States. See, ¢.g.,

Tucker v. United States Dep’t of Commerce, No. 91-2051 (7th Cir.

2. There is no basis for a different result here simply

because the determination to include overseas federal per-

sonnel based on their homes of record or comparable data

was made by the Secretary of Commerce, rather than by

Congress itself. Congress has directed the Secretary to

take the decennial census “in such form and content as

he may determine.” 13 U.S.C. 141(a). As the district

court itself correctly observed, this language “gives the

Secretary broad discretion to determine how the census

will be carried out, discretion which mirrors the broad

mandate given to Congress” under Article I, Section 2,

Clause 3. App. 8la n.31. Because Congress’s exercise of

its own power under the Census Clause of the Constitu-

tion is not subject to judicial review, the directly parallel

Mar. 16, 1982), discussed below and at pages 21-22, infra. Accord-

ingly, the proper forum for correction of any deficiencies in the

conduct of the census is Congress, where all States are represented

and a dispositive resolution may be promptly enacted, rather than

in separate lawsuits in separate courts.

Nonetheless, the Seventh Circuit held in Tucker that a challenge

to the Secretary’s decision not to make a statistical adjustment of

the census totals did not present a political question. It believed

that a challenge to the accuracy of the census would not require the

judiciary “to adjudicate questions that the Constitution has placed

within the exclusive jurisdiction of another branch of government,

or to disregard traditional limits on equitable relief.” Slip op. 7-8.

As we have explained in the text, however, the Constitution does

grant Congress exclusive jurisdiction over the conduct of the census;

and although Congress has assigned that responsibility to the Sec-

retary, it has not assigned any role to the courts. The Tucker court

also could not square application of the political question doctrine

in cases involving challenges to the census with the rejection of that

doctrine in apportionment cases such as Baker v. Carr and Davis v.

Bandemer, 478 U.S. 109 (1986). Slip op. 7, 8. That observation

ignores the critical point that the political question doctrine derives

from the “the relationship between the judiciary and the coordinate

Branches of the Federal Government” and is “essentially a function

of the separation of powers.” Baker v. Carr, 369 U.S. at 210, 217.

Baker v. Carr and Davis v. Bandemar did not present those con-

cerns, because they involved challenges to apportionments by state

legislatures. By contrast, this case, like Montana, involves a chal-

lenge to action by the political Branches of the Federal Government.

language in 13 U.S.C. 141(a) strongly indicates that

Congress likewise did not intend that the exercise of the

power it delegated to the Secretary would be subject to

review, or that the apportionment based on the census

conducted by the Secretary could be set aside by a court.

In fact, the Census Act and apportionment statute, espe-

cially when read together, foreclose APA review here.

a. In the first place, whether to use “home of record”

data to allocate overseas personnel among the States is

“committed to agency discretion by law.” 5 U.S.C.

701(a) (2). Even when Congress has not expressly pre-

cluded judicial oversight, “review is not to be had if the

statute is drawn so that a court would have no meaning-

ful standard against which to judge the agency’s exercise

of discretion.” Heckler v. Chaney, 470 U.S. 821, 830

(1985). See Citizens to Preserve Overton Park, Ine. V.

Volpe, 401 U.S. 402, 410 (1971) (action is committed

to agency discretion by law where “statutes are drawn

in such broad terms that in a given case there is no law

to apply”) (quoting S. Rep. No. 752, 79th Cong., Ist

Sess. 26 (1945)). In this case, the applicable statute, 13

U.S.C. 141(a), contains no standards for determining on

what basis the Secretary may include federal personnel

stationed abroad in the tabulation of state populations.

To the contrary, its language is at least as deferential as

that at issue in Webster v. Doe, 486 U.S. 592, 599-601

(1988), under which the Court found that judicial review

was unavailable under the APA’s “agency discretion”

exception.’

® Webster involved a statute which, as the Court explained (486

U.S. at 600)

allows termination of an Agency employee whenever the Direc-

tor “shall deem such termination necessary or advisable in the

interests of the United States” (emphasis added), not simply

when the dismissal is necessary or advisable to those interests.

This standard fairly exudes deference to the Director, and ap-

pears to us to foreclose the application of any meaningful judi-

cial standard of review.

Compare 13 U.S.C. 141(a) (“The Secretary shall * * * take a decen-

nial census * * * in such form and content as he may determine.”).

ee en teat es

Although the district court agreed that 13 U.S.C.

141(a) “is plainly drawn in discretionary terms” and

that—standing alone—it “fairly exudes deference,” App.

70a (quoting Webster v. Doe, 486 U.S. at 600), it found

that the statutory structure “has been refined further by

the ‘usual residence’ policy that has governed census de-

terminations since the First Census Act.” App. 70a. The

court failed, however, to appreciate the significance of

the fact that while that policy was explicitly embodied in

the First Census Act’s reference to “usual abode” (Act

of Mar. 1, 1790, ch. II, § 5, 1 Stat. 103), it is not men-

tioned in 13 U.S.C. 141(a). While the Census Bureau

has pursued a “usual residence” policy over the years,

the absence of any reference to it in the statutory

text underscores that the articulation and application of

the policy, and the nature of the factual basis on which

it may be invoked in particular circumstances, are com-

mitted to the Census Bureau’s discretion.

The numerous determinations of a technical and policy

nature that must be made in planning for and compiling

the results of an undertaking so massive as the enumera-

tion of 250 million persons throughout the country and

abroad further reinforce the conclusion that Congress

committed that task—both in general and in its myriad

particulars—to the sound judgment and discretion of the

Secretary. Recognition of a right of judicial review under

the APA would invite the courts to micromanage the

census and invite States and individuals who believe they

have been shortchanged to sift through the census plan

and its implementation to find just the right “defect”—

namely, one whose “correction” would work to their ad-

vantage. The rash of suits following the past three cen-

suses underscores that potential.

In a similar case (and for similar reasons), the Sev-

enth Circuit recently held that the Secretary’s decision

not to make a statistical adjustment of the census totals

to compensate for an alleged undercount in certain States

may not be challenged under the APA. Tucker v. United

States Dep’t of Commerce, No. 91-2051 (Mar. 16, 1992).

The court held that the Census Act does not confer litiga-

ble rights on persons claiming to be injured by the con-

duct of the census. Slip op. 9-15. Of particular relevance

here, the court noted that 13 U.S.C. 141 and 2 U.S.C. 2a

“say nothing about how to conduct a census or what to

do about undercounts,” but rather are so “nondirective”

that “it is arguable that there is no law for a court to

apply in a case such as this.” Slip op. 12 (citing Webster,

Chaney, and Overton Park). The district court in this

case should have reached the same conclusion. Indeed,

the Seventh Circuit in Tucker expressed doubt about the

correctness of the decision in this case. See slip op. 13.

Tucker therefore highlights the need for guidance from

this Court.

b. Moreover, under the governing statutory scheme, it

is action by the President, not the Secretary of Commerce,

that determines the apportionment of Representatives.

Under subsection (a) of 2 U.S.C. 2a, the President must

transmit to Congress a statement showing the whole num-

ber of persons in each State and the number of Repre-

sentatives to which it would be entitled under the method

of equal proportions. 2 U.S.C. 2a(a). Subsection (b)

then provides that “{e]ach State shall be entitled * * *

to the number of Representatives shown in the state-

ment required by subsection (a)”—i.e., the President’s

statement.

As the D.C. Circuit held in Armstrong v. Bush, 924

F.2d 282 (1991), the President is not an “agency” within

the meaning of the APA. The D.C. Circuit correctly rea-

soned that although 5 U.S.C. 701(b)(1) does not ex-

pressly exclude the President, the APA should not be read

to apply to his actions, in view of the textual silence, the

legislative history of the APA, the “longstanding prac-

tice” of the Executive Branch, and the “compelling rea-

sons” for requiring a “clear statement” of congressional

intent where a statute would implicate separation of

powers concerns. 924 F.2d at 288-289; see also Missis-

sippi Vv. Johnson, 71 U.S. (4 Wall.) 475 (1866). Accord-

ingly, the APA, and the presumption of judicial review

it sets forth (see 5 U.S.C. 702), do not support the core

relief sought by appellees and granted by the district

court—namely, an injunction requiring the President to

submit a new apportionment statement to Congress pur-

suant to 2 U.S.C. 2a. See also pages 27-29, infra.

c. Other features of the census and apportionment

statutes lead to the same conclusion. Those features bring

this case squarely within the APA’s exception for situa-

tions in which “statutes preclude judicial review.” 5

U.S.C. 701(a) (1). First, the Census Act does not direct

the Secretary of Commerce to publish the tabulation of

state populations to the public at large, which would be

expected if Congress had intended to permit the tabula-

tion to be challenged in court by a member of the public

( or the State in which he resides). Rather, the Act pro-

vides that the tabulation shall be “reported by the Secre-

tary to the President of the United States.” 13 U.S.C.

141(b). The fact that the Act contemplates further ac-

tion by the President strongly implies that the Secretary’s

“report” is not a proper subject of judicial review under

the APA. Cf. Chicago & Southern Air Lines, Inc. v.

Waterman Steamship Corp., 333 U.S. 103 (1948).

Second, the time limits in the Census Act foreclose any

opportunity for judicial review. The Secretary must sub-

mit his report to the President within nine months of the

census date (t.e., by December 31), and the President

then must transmit his statement to Congress during the

first week of the next Session of Congress, which typically

commences on January 3. 2 U.S.C. 2a(a). Within fifteen

days, the Clerk of the House then must send to the Gov-

ernor of each State a certificate of the number of Repre-

sentatives to which it is entitled. The whole point of this

expedited schedule is to ensure that state legislatures are

able to enact redistricting legislation immediately.’ It is

10 See 86 Cong. Rec. 4369, 4370, 4485-4486 (1940) (Rep. McLeod).

Representative McLeod made the cited remarks in support of his

floor amendment in 1940 (which was adopted by the House and

fundamentally incompatible with the certainty that Con-

gress intended to assure for a court to review and set

aside the apportionment made by the President’s state-

ment after the Clerk has informed the States of their

entitlements. And the strict time limits preclude judicial

review prior to that time. Morris v. Gressette, 432 U.S.

491, 500-504 (1977); see also Southern Ry. v. Sea-

board Allied Milling Corp., 442 U.S. 444, 457 (1979);

Adams v. Nagle, 303 U.S. 532 (1938); American Bank,

N.A. v. Clarke, 933 F.2d 899 (10th Cir. 1991).

Third, the fact that the operative action by the Presi-

dent takes the form of a statement addressed to Congress

suggests that any defects that may be perceived in that

statement (or the census data on which it is based) are

to be addressed by Congress, not by members of the pub-

lic or the courts in suits brought against Executive

Branch officers after the statement has been transmitted.

That is clear from the text of 2 U.S.C. 2a(b), which pro-

vides that “[e]Jach State shall be entitled, * * * until

the taking effect of a reapportionment under this section

or subsequent statute, to the number of Representatives

shown in the President’s statement” (emphasis added).

By expressly reserving to itself the power to alter the ap-

portionment in a “subsequent statute,” Congress fore-

closed the courts from setting aside the “entitlement”

conferred on a State by the President’s statement.’ This

Congress, Act of Apr. 25, 1940, ch. 152, § 2, 54 Stat. 162) to re-

quire the Clerk to send the certificates within 60 days of receipt of

the President’s statement, rather than at the end of the Session of

Congress, as the Census Act of 1929 provided. Act of June 18,

1929, ch. 28, § 22, 46 Stat. 26-27. In 1941, the time period was

compressed to fifteen days (Act of Nov. 15, 1941, ch. 470, § 2(b), 55

Stat. 762), thereby heightening the interest in expedition.

11 Congress enacted such a provision in 1941, when it adopted the

method of equal proportions in 2 U.S.C. 2a. By the time the 1941

Act was passed, the apportionment made pursuant to the President’s

statement had already become effective because of the passage of

60 days. Congress not only mandated use of the equal proportions

method on a prospective basis (for the 1950 census apportionment

conclusion is reinforced by the nature and purpose of the

actions the court below set aside, for technical and policy

decisions that bear on apportionment of the House of

Representatives clearly involve the sort of “sensitive and

inherently discretionary judgment call[s]” in which

courts ordinarily have no role. Department of the Navy

v. Egan, 484 U.S. 518, 527 (1988); ef. Coleman v. Mil-

ler, 307 U.S. 433 (1939).

B. Even if the Secretary’s determination to include

federal personnel abroad in the enumeration and to allo-

cate them to States based on their “homes of record” or

comparable data is not altogether insulated from judicial

review, that determination certainly was not arbitrary

and capricious.

The district court specifically found that it is “well

within the discretion afforded the Census Bureau under

the Census Act” to assign overseas federal personnel to

the States for apportionment purposes. App. 8la n.31.

The only remaining question, then, concerned the Secre-

tary’s selection of an appropriate method for making that

assignment. Where, as here, determinations must be

made about the quality of available data and choices

among possible alternatives, the Secretary’s discretion is

at its zenith. See Marsh v. Oregon Natural Resources

Council, 490 U.S. 360, 377 (1989) (quoting Kleppe v.

Sierra Club, 427 U.S. 390, 412 (1976)) (“[blecause

analysis of the relevant documents ‘requires a high level

of technical expertise,’ we must defer to the ‘informed

discretion of the responsible federal agencies’”). Even

lower courts holding that judicial review of census deter-

minations is not completely barred have uniformly ac-

knowledged the “wide latitude” afforded the Census

Bureau “to select its methods, techniques and by those

and beyond); it also mandated its use “retroactively” to the 1940

census by requiring that new certificates to be sent—which bene-

fited Arkansas at the expense of Michigan. See Act of Nov. 15,

1941, ch. 470, §2(a), 55 Stat. 762; 2 U.S.C. 2a, 2b; 91-860 Gov't

Reply Br. 13-14,

means to arrive at its own result.” Philadelphia v. Klutz-

nick, 503 F. Supp. 663, 677 (E.D. Pa. 1980). Here, the

Secretary and the Census Bureau acted well within the

ambit of their discretion.

The district court was of the view that home of record

data could “not provide a valid factual basis” for the ap-

portionment of overseas employees. App. 77a. As the dis-

trict court saw it, the Secretary’s decision in July 1989

to incorporate overseas federal personnel in apportion-

ment counts was based on the Defense Department’s

plans to conduct a census of its personnel abroad concur-

rently with the general decennial census; it correspond-

ingly surmised that once the Defense Department with-

drew its plans in December 1989, nothing but “inertial

forces” drove appellants to use home of record data as a

substitute for the Defense Department’s cancelled survey.

Id. at 7T5a-76a. Not so.

When the Defense Department dropped its plans to

conduct a special enumeration, the Census Bureau con-

sidered alternative data sources that were available in

existing records. After doing so, it concluded that home

of record—which represents the State of the individual’s

permanent or actual residence at the time of enlistment—

“comes closest to the concept of Usual Residence.” A.R.

924. That judgment comported with the considered view

of the House of Representatives, which passed a bill to

mandate use of home of record data on the premise that

“it most closely approximates the home State of individ-

uals who are highly mobile, not by choice, but by virtue

of their service to their country.” H.R. Rep. No. 552,

supra, at 3. By contrast, “[l]ast duty station merely re-

flects the location of the facility to which a person is as-

12 See also City of Camden v. Plotkin, 466 F. Supp. 44, 53 (D.N_J.

1978) (the Census Bureau enjoys “broad discretion” in “determin-

ing the methods of enumeration”); accord United States ex rel.

City of Atlanta v. Steuart, 47 F.2d 979, 982 (D.C. Cir. 1931);

Bethel Park, 319 F. Supp. at 976; Quon v. Stans, 299 F. Supp. 604,

607 (N.D. Cal. 1970).

signed”—and to which he or she may retain no affinity

after being transferred “—and would result in counting

personnel in “states other than their actual previous U.S.

residence.” A.R. 925, 921.

The Census Bureau also satisfied itself that the data

to be furnished by the Defense Department would be ac-

curate, in light of the latter’s representations that it

would supplement its data and improve its methodologies.

See page 10, supra. Moreover, although the district court

made much of the Census Bureau’s initial reliance on the

Defense Department’s- proposed enumeration, which the

court believed would have been preferable, that enumera-

tion was designed to ascertain the person’s last residence

in the United States of six months or more in duration.

A.R. 454, 497. Accordingly, like the “last duty station”

method the Census Bureau rejected, it would not neces-

sarily have resulted in an accurate measure of a person’s

permanent affinity for the State in question. But even if

the district court might reasonably have concluded that

the Defense Department’s enumeration would have been

“better” or “preferable” to the use of home of record

data, that finding would not render the Census Bureau’s

approach arbitrary and capricious, or justify a court

order mandating elimination of an entire component of

the national population from the apportionment counts.

Cf. American Textile Mfrs. Institute, Inc. v. Donovan,

452 U.S. 490, 527-528 (1981).

C. Even if the district court were correct in holding

that the Secretary did not adequately explain his deter-

mination to include federal personnel stationed overseas

in the state-by-state tabulation on the basis of their

3 See A.R. 752 (remarks of Rep. Ridge during House subcom-

mittee hearing on H.R. 2661, 101st Cong., Ist Sess. (1989), which

would have required inclusion of overseas military personnel in

apportionment counts) (“before I was shipped overseas I spent six

months at Fort Benning, Georgia. I have not been since that time,

at that time, or for the foreseeable future ever interested in being

considered in any census as a resident of Fort Benning, Georgia.

Northwestern Pennsylvania is my home.’’)

homes of record or comparable data, the relief ordered

by the district court was wholly improper. As this Court

recently explained, the options of a reviewing court in

such circumstances are narrowly confined:

If the record before the agency does not support the

agency action, if the agency has not considered all

the relevant factors, or if the reviewing court sim-

ply cannot evaluate the challenged action on the

basis of the record before it, the proper course, ex-

cept in rare circumstances, is to remand to the

agency for additional investigation or explanation.

The reviewing court is not generally empowered to

conduct a de novo inquiry into the matter being re-

viewed and to reach its own conclusions based on such

an inquiry.

Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744

(1985); accord PBGC v. LTV Corp., 110 S. Ct. 2668,

2680 (1990); Camp v. Pitts, 411 U.S. 138, 142-143

(1973); Overton Park, 401 U.S. at 420. Adherence

to that principle is especially necessary in the present

context, because Congress has expressly conferred broad

discretion and responsibility on the Secretary of Com-

merce to conduct the census, which necessarily in-

cludes authority to reevaluate data and methodologies

when possible defects are brought to her attention. The

district court improperly usurped that function by fore-

closing any further consideration of including more than

922,000 persons in the apportionment counts.

Furthermore, even if the court could, under ordinary

APA principles, order the Secretary to delete overseas

federal personnel and their dependents from the appor-

tionment counts, it had no authority to enter an injunc-

tion requiring the President to effect a new apportion-

ment of the House of Representatives by transmitting a

statement to Congress pursuant to 2 U.S.C. 2a. As we

have explained, the President is not even subject to suit

under the APA. In any event, the APA does not over-

ride established principles governing the denial of equita-

ble relief. 5 U.S.C. 702. Here, the injunction results in

an extraordinary intrusion into matters committed by the

Constitution and laws to the political Branches; it also

effects an extraordinary disruption of the redistricting

process in the States that the expedited schedule in 2

U.S.C. 2a was designed to facilitate. The judgment of

the district court therefore warrants review by this Court.

CONCLUSION

The Court should note probable jurisdiction and reverse

the judgment of the district court.

Respectfully submitted.