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The Trump Administration Lost The Fight Over The Census Citizenship Question. Now They Have To Pay The Challengers.

The administration already agreed to pay $2.7 million to the ACLU and others. It is now facing requests for as much as $12 million from challengers in Maryland.

Posted on August 16, 2019, at 1:55 p.m. ET

Nicholas Kamm / AFP / Getty Images

WASHINGTON — When the Trump administration backed down last month on adding a citizenship question to the 2020 census, it didn’t just lose the policy fight. It's now paying millions of dollars in legal fees to the groups that sued.

Federal law gave the challengers the right to demand that the government, as the losing party, cover its legal bills. Earlier this month, the Justice Department reached a $2.7 million agreement with the American Civil Liberties Union and other groups that sued over the citizenship question in federal court in Manhattan, according to a copy of the settlement obtained by BuzzFeed News through a public records request.

The government's tab is only going to get bigger. Late Thursday, challengers in two cases in Maryland filed demands for $7 million and $4 million in attorney fees and other legal expenses, respectively. Lawyers in those cases told the court that they're in settlement negotiations with the government, which means the final sums paid out could be lower if the two sides reach a deal, but they've filed their full demands on the record in case those talks fall through.

In California, the state government and other challengers have asked for more than $100,000 to reimburse certain legal costs so far, and their requests for attorney fees and other expenses are due in early September.

Under the Equal Access to Justice Act, which Congress passed in 1980, parties who win civil lawsuits against the federal government can recoup at least some of the money they spend on lawyers and other legal expenses; groups or individuals that went to court with pro bono legal representation can also ask for fees to reimburse their lawyers.

There are limits. The law generally caps the hourly rates that lawyers can claim. The original law set the rate at $125 per hour, but it allowed for cost-of-living adjustments, so the current rate is approximately $200 per hour. But in the multimillion-dollar fee requests filed in Maryland this week, lawyers for the challengers argued that they should be entitled to higher market rates because the Trump administration had acted in "bad faith" in pursuing the citizenship question. Between the two cases, the lawyers said they'd performed more than 10,000 hours of work.

Congress passed the fee-shifting law because it wanted to encourage people to go to court to enforce its policies and to challenge unlawful or unconstitutional actions by federal agencies, said Brian Wolfman, a law professor at Georgetown University Law Center and an expert on the Equal Access to Justice Act. Lawmakers also wanted to make sure plaintiffs who won were made financially whole, he said.

"If an employee had to spend $100,000 to enforce their employment rights that ended up being worth $100,000, no one in their right mind would bring that litigation," Wolfman said. He added that the same was true for nonprofit organizations: "They can't pursue all the litigation that Congress might want them to pursue if they were going to lose money in doing so."

In the census cases, federal judges in New York, Maryland, and California sided with the challengers and blocked the addition of a citizenship question to the 2020 form. The Justice Department took the fight up to the US Supreme Court. The court issued a divided opinion in June. It found that although a citizenship question wasn't itself unconstitutional, the reason the Trump administration gave for doing it — enforcing voting rights — didn't line up with the evidence, which was a problem under the federal Administrative Procedure Act. A majority of the justices ruled that the administration couldn't add the question to the 2020 form based on the current record.

Chief Justice John Roberts, joined by the court's more liberal wing, wrote in the majority decision that the administration's stated reason was "contrived" — language that lawyers in the Maryland cases quoted in Thursday's court filings in arguing for higher rates.

The Supreme Court's decision kicked the cases back down to the district courts. By early July, it appeared the administration wouldn't press the fight and try to come up with a new rationale for adding the question that they thought might survive another round of litigation. On July 2, both the Justice Department and Commerce Secretary Wilbur Ross said the census forms would be printed without the question.

But the following day, Trump tweeted that articles based on the statements from DOJ and Ross were "FAKE!", creating confusion. Judges questioned the sudden change after a DOJ lawyer had represented there would be no question on the form. The Justice Department confirmed that it had been instructed to find ways to include the question in the 2020 census, and Trump gave a string of public statements indicating the situation was in flux. DOJ even moved to change the team of lawyers involved, a possible sign that it was digging in.

But a week later, on July 11, Trump appeared in the Rose Garden with Ross and Attorney General Bill Barr to announce that they would, in fact, drop efforts to put the question on the 2020 census. Trump cited the time it would take to go through more litigation, and said the administration would instead collect citizenship data from federal agencies — an option that the Census Bureau originally recommended to Ross before he decided to include the question as part of the decennial count.

Following Trump's announcement, judges in the New York, Maryland, and California cases entered final orders permanently blocking the government from including the citizenship question on the 2020 census. At that point, the challengers could file requests for their legal fees as "prevailing parties" under the Equal Access to Justice Act.

Wolfman said that the fee-shifting law allowed the government to challenge a fee demand even if they lost on the grounds that its position was "substantially justified," but settling would avoid another court fight and give the government a chance to try to pay less than what the challengers might get if it were up to a judge. In the Maryland cases, the lawyers preemptively contested any effort by the government to raise the "substantially justified" argument.

The ACLU declined to comment, and lawyers in the Maryland cases did not immediately return requests for comment on Friday.

A Justice Department spokesperson declined to comment.

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