The opinion of the court was delivered by: BECHTLE
Presently before the Court is plaintiffs' oral motion for a preliminary injunction directing the defendants, or their representatives, to meet with the plaintiffs and review the plaintiffs' data allegedly revealing gross errors in the 1980 census in Philadelphia.
The plaintiffs' instant motion was raised on the first day of a hearing on plaintiffs' previously filed motion for a preliminary injunction seeking the relief set forth in their complaint. See Complaint at 18-19. As the record stands at this time, the oral motion must be denied.
The plaintiffs the City of Philadelphia, its mayor and several elected representatives and individual citizens-seek a range of declaratory and injunctive relief from the defendants, all of whom are responsible, directly or indirectly, for the execution of the 1980 census in Philadelphia by the Bureau of the Census ("Census Bureau"). The complaint alleges that in Philadelphia the Census Bureau has drastically undercounted the population and miscounted the number of vacant housing units. Asserting that such a failure violates the plaintiffs' rights to equal legislative representation and due process of law and must be set aside as arbitrary and capricious, the plaintiffs seek ultimate relief including: (1) an injunction against reporting any statistics from Philadelphia until such statistics are corrected (presumably by comparison with the data which the defendants would be directed to review under the preliminary injunction sought in the instant motion); and, (2) a "declaratory judgment" that the defendants must use an adjustment factor to correct for the historical undercount of various segments of Philadelphia's population. Complaint at 19, 22.
Whether to grant or deny plaintiffs' oral motion for a preliminary injunction is a matter within the sound discretion of the trial court. See Penn Galvanizing Co. v. Lukens Steel Co., 468 F.2d 1021, 1023 (3d Cir. 1972); 11 C. Wright & A. Miller, Federal Practice & Procedure, § 2948, at 427-428 (1973). In determining whether to issue a preliminary injunction, the trial court must weigh and consider four factors: (1) whether the plaintiffs will suffer irreparable harm pendente lite if relief is not granted; (2) whether the defendants will be harmed if relief is granted; (3) whether the public generally will be harmed if relief is granted; and, (4) whether the plaintiffs are likely to ultimately prevail on the merits. Fitzgerald v. Mountain Laurel Racing, Inc., 607 F.2d 589, 600-601 (3d Cir. 1979). An examination of the present record reveals that the plaintiffs' oral motion must be denied.
Turning first to the matter of the likelihood of irreparable harm, the Court has not been shown that the denial of relief pendente lite will render the Court unable to grant the ultimate relief sought. Specifically, the record gives no indication that this Court would be effectively unable to enforce an order requiring the Census Bureau to correct its final statistics in Philadelphia. The plaintiffs have argued that the closing of the Census Bureau's two offices in Philadelphia and the release of the staff in those offices will destroy the possibility for effective relief because all of the personnel and data needed to review the plaintiffs' comments and criticisms will have disappeared. However, the defendants have assured this Court, through sworn affidavits and the representations of counsel on the record, that both the data and any personnel required could be provided if the Court eventually should so order.
The record, as developed to date, reveals no reason why such assurances are insufficient to protect the interests of the plaintiffs pending the outcome of this lawsuit.
Second, the defendants will clearly suffer substantial harm if relief is granted at this time. An order now directing the Census Bureau to meet with the plaintiffs and review their data would impede and delay the long-scheduled and orderly processing of the raw census data. Such an impediment should not be imposed lightly. In view of the lack of any showing on the present record of irreparable harm to the plaintiffs, an order by the Court directing the relief sought here and causing such delay is unwarranted.
Third, the public interest militates against issuing a preliminary injunction now. It cannot be doubted that the public has a strong interest in the timely and orderly completion of the census. An order of this Court compelling the Census Bureau to remove personnel from their regular assignments in processing the raw census data and to reassign them to review at length the plaintiffs' data, before the plaintiffs have established any right to have the Census Bureau correct its data, would indeed be directly opposed to that public interest.
Finally, the plaintiffs have not shown a reasonable probability of ultimate success on the merits. It is not enough to show the Court that the plaintiffs' data is accurate and varies greatly from that of the defendants. The plaintiffs must also show that they have a right to challenge the accuracy of the census. The Court has yet to hear argument on the many difficult and novel legal issues involved in this general question. At this stage, however, the Court strongly doubts the ability of the plaintiffs to establish a right to challenge the Census Bureau's execution of its legislatively mandated duties, as long as the actions taken do not violate any statute or administrative regulation determining the procedures to be followed by the Census Bureau. The plaintiffs have yet to assert any such specific violation. In view of the serious doubts the Court has at this time concerning the right of the plaintiffs to any relief, the Court concludes that there has not been shown a sufficient likelihood of success on the merits. See Spencer Companies, Inc. v. Armonk Indus., Inc., 489 F.2d 704 (1st Cir. 1973) (unlikelihood of ultimate success on the merits based in part on presence of novel issues of law); 11 C. Wright & A. Miller, Federal Practice & Procedure, § 2948 at 455 (1973).
For all of the above reasons, the Court must deny the plaintiffs' oral motion for a preliminary injunction at this time. It should be made plain, however, that the Court does not now decide the plaintiffs' earlier motion for a preliminary injunction seeking the relief outlined in the complaint. See Complaint at 18-19. When the hearing on that motion resumes, the Court will hear further argument and receive evidence. The plaintiffs, thus, still have an opportunity to present arguments and evidence showing that the relief sought in that motion is necessary to preserve the status quo.
AND NOW, TO WIT, this 18th day of September, 1980, IT IS ORDERED as follows:
1. The Court's Order of August 29, 1980, is hereby modified as follows:
(A) The Census Bureau is directed to maintain one open office in Philadelphia staffed with sufficient personnel to respond to the plaintiffs' general inquiries.
(B) While the Census Bureau shall be required to provide a response to any submission made to it which was "invited" by the Census Bureau, by reason of the policies and procedures it announced or established to carry out its functions, the Census Bureau shall have the right, but shall be under no obligation, to act upon any information or data submitted by the plaintiffs ...