                                                                FILED: June 25, 2019



                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT

                               ___________________

                                   No. 19-1382 (L)
                                (8:18-cv-01570-GJH)
                               ___________________

LA UNION DEL PUEBLO ENTERO; TEXAS SENATE HISPANIC CAUCUS; TEXAS
HOUSE OF REPRESENTATIVES MEXICAN AMERICAN LEGISLATIVE CAUCUS;
SOUTHWEST VOTER REGISTRATION EDUCATION PROJECT; CALIFORNIA
LATINO LEGISLATIVE CAUCUS; COALITION FOR HUMANE IMMIGRANT
RIGHTS; DOLORES HUERTA FOUNDATION; MI FAMILIA VOTA EDUCATION
FUND; SOMOS UN PUEBLO UNIDO; GEORGIA ASSOCIATION OF LATINO
ELECTED OFFICIALS; LABOR COUNCIL FOR LATIN AMERICAN
ADVANCEMENT; PROMISE ARIZONA; EL PUEBLO, INC.; MARYLAND
LEGISLATIVE LATINO CAUCUS; ASIAN AMERICANS ADVANCING JUSTICE-
CHICAGO; ASIA SERVICES IN ACTION, INC.; ORGANIZATION OF CHINESE
AMERICANS-GREATER HOUSTON; MINKWON CENTER FOR COMMUNITY
ACTION, INC.; CHELSEA COLLABORATIVE; CHICANOS POR LA CAUSA; LATINO
COMMUNITY FUND OF WASHINGTON; ARIZONA LATINO LEGISLATIVE
CAUCUS; GENE WU; JUANITA VALDEZ-COX; CALIFORNIA LEGISLATIVE BLACK
CAUSUS; CALIFORNIA ASIAN PACIFIC ISLANDER LEGISLATIVE CAUCUS; OCA-
GREATER HOUSTON; FRIENDLY HOUSE; FOUR DIRECTIONS, INC.; MIA
GREGERSON; RAJ MUKHERJI; CINDY RYU; SHARON SANTOS; OLIVER SEMANS,
SR.

            Plaintiffs – Appellees

v.

WILBUR L. ROSS, sued in his official capacity as U.S. Secretary of Commerce; DIRECTOR
RON JARMIN, sued in his official capacity as Performing the Non-Exclusive Functions and
Duties of the Director, U.S. Census Bureau; U. S. CENSUS BUREAU; U. S. DEPARTMENT
OF COMMERCE

            Defendants – Appellants
                                ___________________

                                     No. 19-1387
                                 (8:18-cv-01041-GJH)
                                ___________________

ROBYN KRAVITZ; MICHAEL KRAVITZ; CATHERINE NWOSU; NNABUGWU
NWOSU; JOANNE WILSON; RICHARD MCCUNE; JOSE MORENO; DIANA
ALEXANDER; MARTHA SANCHEZ; LAUREN RACHEL BERMAN; YAMILE
LABORI; SARAH BRYAN; ALEJANDRO CHAVEZ; MICHAEL KAGAN; SONIA
CASAREZ SHAFER; LAZARA YOELVIS MAGADAN; LINDA RIVAS; T. CARTER
ROSS; VIRGINIA GARCIA; ELIZABETH BUCHANAN; MAEGAN ORTIZ

             Plaintiffs – Appellees

v.

UNITED STATES DEPARTMENT OF COMMERCE; U. S. CENSUS BUREAU; WILBUR
L. ROSS, in his official capacity as Secretary of Commerce; KAREN DUNN KELLEY, in
her official capacity as the Under Secretary for Economic Affairs, performing nonexclusive
duties of the Deputy Secretary of Commerce; RON JARMIN, in his official capacity as an
employee of the U.S. Census Bureau performing the non-exclusive functions and duties of
the Director of the U.S. Census Bureau; DR. STEVEN DILLINGHAM, Deputy Director of
the Census Bureau

             Defendants - Appellants

                                ___________________

                                     No. 19-1425
                                 (8:18-cv-01570-GJH)
                                ___________________

LA UNION DEL PUEBLO ENTERO; TEXAS SENATE HISPANIC CAUCUS; TEXAS
HOUSE OF REPRESENTATIVES MEXICAN AMERICAN LEGISLATIVE CAUCUS;
SOUTHWEST VOTER REGISTRATION EDUCATION PROJECT; CALIFORNIA
LATINO LEGISLATIVE CAUCUS; COALITION FOR HUMANE IMMIGRANT
RIGHTS; SOMOS UN PUEBLO UNIDO; DOLORES HUERTA FOUNDATION; MI
FAMILIA VOTA EDUCATION FUND; GEORGIA ASSOCIATION OF LATINO
ELECTED OFFICIALS; LABOR COUNCIL FOR LATIN AMERICAN
ADVANCEMENT; PROMISE ARIZONA; EL PUEBLO, INC.; MARYLAND
                               2
LEGISLATIVE LATINO CAUCUS; ASIAN AMERICANS ADVANCING JUSTICE-
CHICAGO; ASIA SERVICES IN ACTION, INC.; ORGANIZATION OF CHINESE
AMERICANS-GREATER HOUSTON; MINKWON CENTER FOR COMMUNITY
ACTION, INC.; CHELSEA COLLABORATIVE; CHICANOS POR LA CAUSA; LATINO
COMMUNITY FUND OF WASHINGTON; ARIZONA LATINO LEGISLATIVE
CAUCUS; GENE WU; JUANITA VALDEZ-COX; CALIFORNIA LEGISLATIVE BLACK
CAUSUS; CALIFORNIA ASIAN PACIFIC ISLANDER LEGISLATIVE CAUCUS; OCA-
GREATER HOUSTON; FRIENDLY HOUSE; FOUR DIRECTIONS, INC.; MIA
GREGERSON; RAJ MUKHERJI; CINDY RYU; SHARON SANTOS; OLIVER SEMANS,
SR.

              Plaintiffs – Appellants

v.

WILBUR L. ROSS, sued in his official capacity as U.S. Secretary of Commerce; DIRECTOR
RON JARMIN, sued in his official capacity as Performing the Non-Exclusive Functions and
Duties of the Director, U.S. Census Bureau; U. S. CENSUS BUREAU; U. S. DEPARTMENT
OF COMMERCE

              Defendants – Appellees

                                   ___________________

                                        ORDER
                                   ___________________

       Upon consideration of submissions relative to the plaintiffs’ motion for remand, this

Court hereby grants the motion. More specifically, we remand for further proceedings on the

Fifth Amendment equal protection claim and the 42 U.S.C. § 1985 claim, so that the district

court may address and resolve the matters identified in its Indicative Ruling of June 19, 2019,

and its related Memorandum Opinion of June 24, 2019. Pursuant to Rule 12.1(b) of the Federal

Rules of Appellate Procedure, we will retain jurisdiction during the pendency of the remand

proceedings. After the district court’s entry of a final ruling on the plaintiffs’ pending motion

for relief from final judgment, the parties must comply with the notification requirement of

                                               3
Rule 12.1(b).

       Entered at the direction of Judge King with the concurrence of Judge Wynn. Judge

Wynn filed a separate concurring statement. Judge Agee voted to deny the motion for remand.

                                            For the Court

                                            /s/ Patricia S. Connor, Clerk



WYNN, J., concurring:

       I concur in the Court’s decision to remand this case for further proceedings on the Fifth

Amendment equal protection claim and the 42 U.S.C. § 1985 claim, so that the district court

may address and resolve matters identified in its Indicative Ruling and related Memorandum

Opinion.

       In addressing and resolving those matters, the district court should keep in mind that

“discriminatory intent need not be proved by direct evidence.” Rogers v. Lodge, 458 U.S. 613,

618 (1982) (emphasis added). Instead, when deciding whether discriminatory intent motivates

a facially neutral law, courts undertake a “sensitive inquiry into such circumstantial and direct

evidence of intent as may be available.” Village of Arlington Heights v. Metro. Housing Dev.

Corp., 429 U.S. 252, 266 (1977) (emphasis added). Therefore, “necessarily,” an “invidious

discriminatory purpose may often be inferred from the totality of the relevant facts, including

the fact, if it is true, that the law bears more heavily on one race than another.” Washington v.

Davis, 426 U.S. 229, 242 (1976) (emphasis added). To that end, even in the absence of direct

evidence of invidious discriminatory intent, this Court and other courts have found such intent


                                               4
when, for example, a governmental decisionmaker was aware that an action was likely to

disproportionately impact a minority group, the decisionmaker declined to impose ameliorative

measures to minimize the likely disproportionate impact, the decisionmaker’s process for

deciding to take the action deviated from standard practice, and the decisionmaker provided

pretextual reasons for taking the action. See N.C. State Conference of NAACP v. McCrory,

831 F.3d 204, 221 (4th Cir. 2016); Veasey v. Abbott, 830 F.3d 216, 235 (5th Cir. 2016) (en

banc); United States v. Yonkers Bd. of Ed., 837 F.2d 1181, 1229–30 (2d Cir. 1987).

       It may be prudent upon remand, for the district court to consider whether it is appropriate

for the district court to preliminarily enjoin the Government from placing the citizenship

question on the 2020 Census questionnaire pending the district court’s and this Court’s final

review of Plaintiffs’ equal protection and Section 1985 claims. Although U.S. Census Bureau

Chief Scientist Dr. John Abowd testified that “the final date for locking down the content of

the census questionnaire is October 31, 2019,” J.A. 771, the Government’s briefing has

repeatedly represented to this Court and the Supreme Court that the 2020 Census questionnaire

must be finalized by this Sunday, June 30, 2019. Thus, if the district court does not anticipate

deciding this case until after June 30, 2019 (which appears highly likely, given that the district

court has indicated it plans to reopen discovery and order an evidentiary hearing), a preliminary

injunction may be necessary to prevent the printing of the Census questionnaire from, at least

from the Government’s perspective, rendering the case moot.

       In any event, I believe that the district court should expeditiously address Plaintiffs’

equal protection and Section 1985 claims to prevent unduly interfering with the preparation of


                                                5
the Census questionnaire and interfering with appellate review of its ultimate determination as

to those claims.




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