The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
This matter is before the Court on plaintiffs' motion to extend
a preliminary injunction issued by United States District Judge
Joseph Sam Perry on September 16, 1980, requiring the defendants
to keep the offices of the United States Bureau of the Census
open in Cook County, Illinois, and to continue the 1980 decennial
census so that all the housing units in Cook County would be
either enumerated or determined to be vacant. By its terms the
injunction is due to expire on October 25, 1980.
Plaintiffs contend that the defendants have not fully complied
with the terms of the injunction and that it should be extended
for a reasonable time to enable the defendants to achieve full
compliance.*fn1 Since this Court finds that the defendants have
made a good faith effort at substantial compliance with the terms
of the preliminary injunction, and that at this stage of the
proceedings the balance of hardships would weigh more heavily on
the defendants should the injunction be extended than on the
plaintiffs should the injunction be allowed to expire,
plaintiffs' motion for an extension of the preliminary injunction
It would, of course, be inappropriate for this Court to conduct
a de novo hearing on the question of whether the preliminary
injunction was properly issued in the first instance. See, e.g.,
Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197 (2d Cir.
1970). Rather, the sole question before the Court is whether the
defendants have substantially complied with the terms of the
preliminary injunction, and if not, whether an extension of the
injunction is necessary to achieve full compliance.
In the opinion supporting his issuance of the injunction, Judge
Perry indicated that there were approximately 95,800 unclassified
housing units in Cook County, Illinois.*fn2
According to the terminology employed by the Census Bureau, an
"unclassified" unit is one that the Bureau has been unable to
determine is either occupied or vacant. At the hearing on the
plaintiffs' motion to extend the injunction, Stanley Moore,
Regional Director of the Bureau of the Census for the region that
includes Cook County, testified that after the injunction was
issued he ordered each district office to take action directed at
reducing the number of unclassified units in Cook County. Mr.
Moore further testified that the Bureau has successfully reduced
the number of unclassified units in Cook County to approximately
7,000 at the present time. This represents only .35% of the
nearly 2,000,000 household units in Cook County, which is
obviously de minimis under any standard.
The plaintiffs have failed to demonstrate that they would be
irreparably injured by the failure of the Census Bureau to
account for these 7,000 units currently listed as unclassified.
Under a complex procedure used by the Bureau, occupancy
characteristics typical of the census district in which the
unclassified unit is located will be imputed to the unit when the
final computer tally of population is undertaken. Assuming that
most of the units in Cook County are occupied, the unclassified
units will not be "lost" in the final compilation that is used in
determining legislative apportionment and a locality's share of
federal expenditures. By contrast, if the defendants were ordered
to continue the enumeration process until every unclassified unit
was accounted for, a process of indefinite duration, it would be
impossible to satisfactorily complete the census and have it
delivered to the President by January, 1980, as required by law.
See 13 U.S.C. § 143.
The United States Court of Appeals for the Seventh Circuit has
consistently looked to four factors in determining whether
preliminary injunctive relief is appropriate: (1) whether the
plaintiff will be irreparably injured if the injunction does not
issue; (2) whether the plaintiff has a reasonable probability of
success on the merits; (3) whether the threatened injury to the
plaintiff outweighs the threatened harm the injunction may
inflict on the defendant; and (4) whether the granting of the
injunction will serve the public interest. See Reinders Brothers,
Inc. v. Rain Bird Eastern Sales Corp., 627 F.2d 44 (7th Cir.
1980); Fox Valley Harvestore, Inc. v. Smith Harvestore Products,
Inc., 545 F.2d 1096 (7th Cir. 1976); Illinois Migrant Council v.
Pilliod, 540 F.2d 1062 (7th Cir. 1970). The same factors are
pertinent in determining whether to extend a preliminary
injunction. In the context of the case at bar, the plaintiffs'
have failed to show that they will be irreparably injured if the
preliminary injunction is not extended, nor have they shown that
any threatened injury to their interests outweighs the potential
injury to the defendants if the injunction is extended.
Furthermore, plaintiffs have not shown that the public interest
in an accurate, current census would be furthered by the
extension of the preliminary injunction. Accordingly, plaintiffs'
motion to extend the preliminary injunction is denied. It is so
However, in the interest of bringing the record in this case
up-to-date and in order to clarify some of the questions left
unanswered in the hearing on this motion, the defendants are
hereby ordered to file a report supplementing the report filed
with this Court on October 16, 1980. The supplemental report
should set forth the procedures used in reducing the 13,000
unclassified units existing at the time the injunction was issued
to the estimated 7,000 such units of record today and in
particular what actions the enumerators took in that ...