articulating what defendants believe are the technical and
nontechnical statistical and policy grounds for decision."
Stip. at 3 (emphasis added). For better or for worse, the
Department has done so. It is now clear that the guidelines are
not those the plaintiffs would have authored; but it is equally
clear that the right to directly contribute to substantive
guideline language has been surrendered.
Quite simply, the Stipulation envisions a spectrum of
acceptable guideline-making behavior by defendants. It is, by
virtue of the Stipulation, defendants' duty to operate within
that range. A range implies flexibility; but flexibility, as
agreed upon by the parties, may be incorporated into a
stipulation. Canterbury Belts Ltd. v. Lane Walker Rudkin, Ltd.,
869 F.2d at 38. It is also the law of this circuit that a court
should avoid unnecessary intrusion into the administrative
process. Schisler v. Heckler, 787 F.2d 76, 84 (2d Cir. 1986). A
court clearly oversteps its bounds when it requires that an
agency, to fulfill obligations under a consent decree, use
certain language in promulgating regulations. Rice v. Heckler,
640 F. Supp. 1051, 1059 (S.D.N.Y. 1986) (citing Berger v.
Heckler, 771 F.2d at 1578).
Defendants could have responded generously, quenching
plaintiffs' understandable but nonetheless insatiable thirst to
know everything in advance of the Secretary's decision.
Defendants have not done so, offering instead the bare minimum.
The only question for the Court is whether the guidelines
satisfy an acceptable threshold. I conclude that, while the
issue is indeed close, defendants have satisfied their
obligations thus far.
Although plaintiffs interpret the guidelines as biased
against adjustment, the Court does not view them that way. The
Stipulation itself is not perfectly neutral, and that lack of
neutrality sometimes works in plaintiffs' favor. For example,
defendants are required to publish a detailed statement and
explanation, but only in the event the Secretary decides not to
adjust. Stip. at 4. The ultimate decision on whether to adjust,
of course, must be fresh and unbiased, following the
Secretary's de novo review of the record. That good faith
discretion, I am convinced, is preserved under the guidelines.
Second, plaintiffs object to the failure of the guidelines to
articulate sufficiently technical standards. In this regard,
there has been much talmudic dissection by both sides of the
Stipulation's requirement that defendants produce "guidelines"
as opposed to "standards". Rising above a semantic wrangling of
words, which may wrongly re-work the benefit of the original
bargain, the Court returns to the mandate of the Stipulation
that defendants develop and adopt guidelines to articulate
grounds for decision. Stip. at 3. While, again, defendants have
not done this to plaintiffs' satisfaction, defendants have, in
the Court's judgment, complied with the terms of the
I find most troublesome plaintiffs' third and final
objection, that the guidelines allow the Secretary to rely on
impermissible factors in making the critical decision on
adjustment. It is more accurate to say, however, that the
guidelines list valid factors for decision-making but that they
are subject — like any set of rules — to being impermissibly
contorted to justify a flawed final decision.
Plaintiffs' protection against such anticipated abuse is the
added requirement under the Stipulation that defendants fully
explain a decision not to adjust. Because defendants have
chosen to contribute adequate but minimal performance to
satisfy their obligations at this stage, defendants clearly
incur a heavier burden to explain why no adjustment was made in
the event the Secretary elects to proceed with an actual
Admittedly, guidelines five through eight lend themselves
easily to abuse. This Court has already granted,
supra, a declaratory judgment on the constitutional and
statutory facets of adjustment. That judgment effectively moots
plaintiffs' concerns over guideline five.
Regarding guideline six, the Court reminds defendants that
the Stipulation provides:
If the Secretary determines to make an
adjustment, defendants shall publish corrected
1990 Decennial Census population data at the
earliest practicable date and, in all events, not
later than July 15, 1991. If the Secretary
determines not to make an adjustment, defendants
shall publish at the earliest practicable date and,
in all events, not later than July 15, 1991, a
detailed statement of its grounds, including a
detailed statement of which guidelines . . . were
not met and in what respects such guidelines were
Id. at 4 (emphasis added). When the parties entered into the
Stipulation, defendants affirmatively represented that the PES
and adjustment-related operations were feasible goals as
scheduled. Stip. at 2. Intentional inaction will not be
tolerated. Defendants are expected, and indeed required, to
honor their solemn commitments embodied in the Stipulation.
United States v. City of Yonkers, 856 F.2d 444, 457 (2d Cir.
1988), rev'd on other grounds sub nom., ___ U.S. ___, 110 S.Ct.
625, 107 L.Ed.2d 644 (1990).
I have considered, but rejected the option of vacating
guidelines seven and eight. These guidelines may, in a
constructive fashion, help define the meaning of "the most
accurate census practicable." To that extent they are
permissible factors. Again, the Court defers to the explicit
language of the Stipulation providing that defendants will
develop guidelines on what "they believe" to be the relevant
grounds for decision. Defendants, however, are on notice, if it
is not already clear, that back-door attempts to evade their
commitment will not be countenanced. See City of Yonkers at
B. The Special Advisory Panel
Plaintiffs return to court, charging in part that defendants
have breached obligations to the Special Advisory Panel.
Specifically, plaintiffs allege that defendants have
impermissibly "juggled" the accounting books, depleting the
$500,000 panel fund with improper and inflated charges. I
The Stipulation is quite precise on matters involving the
eight-member advisory panel. Concerning money matters, the
Stipulation requires that the Department of Commerce pay
members a daily stipend for each day the panel meets and
reimburse members for expenses. Stip at 6. The Department must
also furnish the panel with appropriate meeting space, office
facilities and clerical assistance. In addition, "Defendants
shall make available to the Panel a fund of $500,000 against
which each co-chair may draw . . . for appropriate resources to
ensure that Panel members can perform their mission."
The problem is that defendants have charged against the fund
all costs for stipends, reimbursements and office space. To
some panel members the office space provided was lavish and
unnecessary, especially in light of the initial rent which was
well above $100,000. Ericksen Affidavit at 13. Even by the
government's own estimates rendered in February of this year,
more than $340,000 has been syphoned from the fund.
Id. at Exh. L.
A plain reading of the Stipulation convinces the Court that
defendants' duty to provide specific services, as catalogued by
the explicit language, is in addition to the duty of
establishing the $500,000 fund. Oddly enough, defendants
assured the Court at the hearing that money was not a problem
and that, if it ran out, more could be found. Indeed, if
appropriation ever did become a problem for defendants, the
Court has resources of its own.*fn10
Accordingly, the motion for a declaratory judgment is hereby
granted with the understanding that statutory and
constitutional concerns will remain relevant in regard to the
final form of statistical adjustment. The motion for a
supplemental order is
granted in part and denied in part, as set forth herein.