In a 277-page decision today, Judge Furman vacated the Commerce Department’s decision to add a citizenship question to the 2020 census, finding that the decision was a violation of the Administrative Procedure Act.  (Our prior posts on the case are here.)

Judge Furman found that Commerce Secretary Wilbur Ross justified the new question based on a rationale – that doing so would enhance enforcement of the Voting Rights Act (VRA) – that was clearly a pretext.  Judge Furman stated he was unable to determine “what Secretary Ross’s real reasons for adding the citizenship question were,” but found the evidence overwhelming that “the VRA was a post hoc rationale for a decision that Secretary had already made”:
Continue Reading Judge Furman Strikes Citizenship Question from Census, Finds The Government’s Stated Rationale to Have Been a Pretext

On Friday, the Supreme Court, as expected, granted certiorari in the challenge pending before Judge Furman over the addition of a citizenship question to the census.  The question presented concerns whether it is appropriate to order discovery outside the administrative record (such as the deposition Judge Furman had earlier ordered of Commerce Secretary Wilbur

In the ongoing saga of New York State’s challenge to the U.S. Census question on citizenship (see our previous coverage here), Judge Furman has rejected the Department of Commerce’s 11th hour attempt to delay the trial in the case currently scheduled to begin on November 6.   Citing “the defendants’ own urgent need for finality,” Judge Furman found that the Department of Commerce failed to show any irreparable harm should the trial proceed as planned, noting that they had already “conced[ed], as a procedural matter, that a trial is appropriate” by electing not file a summary judgment motion, at the Court’s invitation, which could have argued that the case be decided on the administrative record without a trial.

The U.S. Supreme Court’s recent order preventing the deposition of Secretary of Commerce Wilbur Ross loomed large in Judge Furman’s decision:
Continue Reading Judge Furman: Census Trial Will Proceed Next Week Despite SCOTUS Order on Ross Deposition

In an opinion today, Judge Furman ruled that, under the Due Process Clause, it is the Government that must bear the burden, in immigration proceedings, to justify the continued detention of people subject to deportation.

He found that, in weighing the Government’s interests of ensuring an appearance by the person subject to deportation against that person’s liberty interests, “the greater risk of error” should fall to the Government, and that “[s]everal other considerations” reinforced the point:
Continue Reading Judge Furman: Burden to Justify Detention Pending Deportation Proceedings Falls to Government, Not the Person Facing Deportation

This week, Judge Furman ordered U.S. Secretary of Commerce Wilbur Ross Jr. to sit for a deposition in a case challenging the constitutionality of adding a question about citizenship status to the 2020 U.S. census questionnaire.  The question had not appeared on the census questionnaire since 1950; according to the complaint, the question was purposefully added to decrease the response rate among immigrant communities, leading to fewer public services and less Congressional representation in those areas.

Judge Furman had previously found that the plaintiffs had “made a strong preliminary or prima facie showing that they will find material beyond the Administrative Record indicative of bad faith” and allowed discovery into the decision to add the citizenship question back to the census.  Judge Furman found that the deposition of Secretary Ross himself was required because of Secretary Ross’s high degree of personal involvement in the decision and the extent to which his credibility and intent was thus at issue
Continue Reading Judge Furman: Secretary of Commerce Must Sit for Deposition Over Census Citizenship Question

In an opinion yesterday, Judge Furman weighed in on  — and certified for interlocutory appeal — an issue that has divided judges in the Southern District:  whether the requirement that FLSA settlements be approved by the DOL or the Court can be avoided by a settlement accomplished via a Rule 68 offer of judgment.  Because Rule 68 is phrased in mandatory terms (when an offer is accepted, the “clerk must then enter judgment”), some courts have held that there is no room for judicial or DOL approval.

Judge Furman disagreed:
Continue Reading Judge Furman: Parties Cannot Circumvent Approval of FLSA Settlements with Rule 68 Offer of Judgment