Plaintiff Electronic Privacy Information Center (EPIC), a non-profit organization dedicated to privacy and civil liberties issues, brings this action against the U.S. Department of Commerce and the U.S. Census Bureau under the Administrative Procedure Act (APA) and the Declaratory Judgment Act. The plaintiff claims that the E-Government Act requires the defendants to conduct and release "privacy impact assessments" addressing Secretary of Commerce Wilbur Ross's March 26, 2018 decision to include a citizenship question in the 2020 Census. The defendants agree, but insist they still have plenty of time to do so "before" actually "initiating a new collection of information" within the meaning of the E-Government Act.
I. BACKGROUND
A. Statutory Background
The E-Government Act requires federal agencies to "conduct a privacy impact assessment,"
*87"ensure the review of the privacy impact assessment," and, "if practicable, ... make the privacy impact assessment publicly available" "before" "initiating a new collection of information" that "will be collected, maintained or disseminated using information technology" and that "includes any information in an identifiable form permitting the physical or online contacting of a specific individual, if identical questions have been posed to[ ] ... 10 or more persons." E-Government Act § 208(b)(1)(A)-(B).
The term "collection of information" is defined by statute as "the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions ... regardless of form or format, calling for" "answers to identical questions posed to ... ten or more persons[.]"
A privacy impact assessment-or "PIA"-must "address" "what information is to be collected;" "why the information is being collected;" "the intended use of the agency of the information;" "with whom the information will be shared;" "what notice or opportunities for consent would be provided to individuals regarding what information is collected and how that information is shared;" "how the information will be secured;" and "whether a system of records is being created under [the Privacy Act]." E-Government Act § 208(b)(2)(B)(ii).
B. Factual Background
On March 26, 2018, Secretary of Commerce Wilbur Ross announced his decision to include a citizenship question on the 2020 Decennial Census questionnaire. See Bachman Decl. ¶ 12, Dkt. 12-1. That decision has been challenged elsewhere on a number of grounds.
The Bureau is no stranger to PIAs. When Secretary Ross announced the inclusion of the citizenship question in March 2018, the Bureau was already planning to conduct an annual PIA for the primary information technology system used for the decennial census. Bachman Decl. ¶¶ 3, 9. That system-called "CEN08"-shares Census-related information with four other systems: "CEN21," "CEN05," "CEN11," and "CEN13."
The Bureau maintains and regularly updates PIAs for each of these systems. See
The existing PIAs say little about the collection of citizenship information in particular. The PIAs for CEN05,
Unsatisfied with this level of treatment, EPIC filed this action on November 20, 2018. The complaint asserts two counts under the APA and one count under the Declaratory Judgment Act. Count I alleges that the defendants acted unlawfully by adding the citizenship question to the Census without first conducting, reviewing, and releasing PIAs to address that decision. Compl. ¶¶ 64-70 (citing
On January 15, 2019, a federal district court in New York permanently enjoined Commerce and the Bureau from including the citizenship question on the Census. See New York v. U.S. Dep't of Commerce,
II. LEGAL STANDARD
A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. Council, Inc. ,
"Before the Supreme Court's decision in Winter , courts weighed the preliminary injunction factors on a sliding scale, allowing a weak showing on one factor to be overcome by a strong showing on another factor." Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs ,
"Both before and after Winter , however, one thing is clear: a failure to show a likelihood of success on the merits alone is sufficient to defeat the motion." Hudson v. Am. Fed'n of Gov't Employees ,
Likewise, "it is clear" before and after Winter "that failure to show a likelihood of irreparable harm remains, standing alone, sufficient to defeat the motion." Navajo Nation v. Azar ,
III. ANALYSIS
A. Likelihood of Success on the Merits
The defendants concede that they must eventually prepare PIAs that adequately address the collection of citizenship data in the 2020 Census. See, e.g. , Defs.' Opp'n at 1, 12, Dkt. 12. But they disagree with the plaintiff that they were required to do so before Secretary Ross announced his decision to add the citizenship question on March 26, 2018. As the defendants point out, the E-Government Act requires agencies to conduct (and, if practicable, release) a PIA only before "initiating a new collection of information." E-Government Act § 208(b)(1)(A)(ii) (emphasis added). And "initiating" the collection of information, the defendants argue, means more than just announcing a decision to collect information at some point in the future. It requires at least one instance of obtaining, soliciting, or requiring the disclosure of information, which in the defendants' view will not occur until the Bureau mails its first batch of Census questionnaires to the public. See Defs.' Opp'n at 11-14. The Court agrees.
"A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning." Perrin v. United States ,
*90introduce[.]" Black's Law Dictionary 784 (6th ed. 1990). These definitions share a focus on the beginning, starting , or commencing of a course of conduct. In the words of Webster's Third , they contemplate "the first actions, steps, or stages of" the activity initiated. Webster's Third New International Dictionary 1164 (3d ed. 1976) ).
Combining this ordinary meaning with the statutory definition of "collection of information," an agency must conduct (and, if practicable, release) a PIA before it begins "obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions[.]"
A simple hypothetical offered by the defendants illustrates why this interpretation tracks the plain meaning of the statute. Imagine a happy couple is planning a wedding, and a friend asks if they have "initiated the collection of RSVPs." Ordinarily, they would not say yes if they had merely finalized the guest list, chosen a font for the invitations, or decided to include a dinner selection on the RSVP cards. At that point, they have not "initiated the collection" of any RSVPs. They have merely made antecedent decisions about what information to collect-and from whom-in the future. Likewise, when Secretary Ross decided to add a citizenship question to the yet-to-be-mailed Census questionnaires-the equivalent of adding a dinner selection to an un-mailed RSVP card-he did not "initiate a new collection of information" but merely decided what new information the Bureau would collect later.
The plaintiff resists this analogy because Secretary Ross's decision was final and made the collection of information all but inevitable. See Reply at 5. For the analogy to hold, the plaintiff argues, the couple would have had to place an order with a full-service printer who will mail the invitations on a fixed date in the future unless the couple cancels the order.
A similar usage applies in the legal context. Courts routinely use the phrase "initiating an action" to refer the filing of the complaint. See, e.g., Horne v. Dep't of Agric. ,
Congress must have been aware of this distinction. After all, it had a range of terms at its disposal if it wanted agencies' assessment and reporting obligations to arise earlier in the data-collection process. For instance, Congress could have required a PIA before "planning" or "providing for" a new collection of information. See E-Government Act (132 references to variations of the words "plan" or "provide"). Alternatively, Congress could have required a PIA whenever an agency makes a "determination" or "decision" to initiate a new collection of information. See
Indeed, the only other use of "initiate" in the E-Government Act confirms that Congress uses that word deliberately to refer to actions beyond mere decisionmaking or planning. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 170 (2012) ("A word or phrase is presumed to bear the same meaning throughout a text[.]"). Section 214(c) requires the Administrator of the Office of Electronic Government to "initiate pilot projects or report to Congress on other activities that further the goal of maximizing the utility of information technology in disaster management." E-Government Act § 214(c). Plainly, this obligation would not be satisfied if the Administrator merely announced a decision to initiate a pilot project at some point in the future. The natural interpretation of § 214(c) is that the Administrator must either actually commence a pilot project or else perform "other activities" that serve the same goals.
Although the plaintiff does not address § 214(c), it notes that elsewhere in Title 44 Congress apparently drew a distinction between "initiating," "carrying out," and "completing." See Pl.'s Mot. at 19 (quoting
The plaintiff raises a number of additional arguments to support its interpretation, but none are persuasive. First , the plaintiff attempts to show that the text itself encompasses a decision to collect information at some point in the future. The plaintiff highlights the use of gerunds in the definition of "collection of information," see
The plaintiff also argues that Congress would not have used the six-word phrase "initiating a new collection of information" if it meant "collecting new information" and could have said so directly in three fewer words. See Reply at 4. But this observation ignores that the noun form "collection of information" has a statutory definition that Congress may have used for clarity or consistency. Moreover, the defendants have never argued that the agency must actually "collect"-that is, obtain or receive-information to have initiated a new collection of information under § 208. They acknowledge that performing any one of the gerunds listed in
Next, the plaintiff argues that Secretary Ross literally "requir[ed] the disclosure of facts or opinions to third parties" when he issued the March 26, 2018 decision adding a citizenship question to the Census. See Pl.'s Reply at 7. That is simply not true. By the plaintiff's own admission, the public will not be obligated to disclose information to third-parties until the Bureau actually implements the 2020 Census. See
Second , EPIC attempts to draw various inferences from statutory structure. For instance, the plaintiff points to other provisions in Title 44 that describe the "collection of information" in contexts where an agency clearly has not begun obtaining or soliciting information. See Pl.'s Reply at 5-6 (citing, e.g. ,
The plaintiff also highlights the provision directly adjacent to § 208(b)(1)(A)(ii), which requires a PIA before "developing or procuring information technology that collects, maintains, or disseminates information[.]" E-Government Act § 208(b)(1)(A)(i). In the plaintiff's view, the choice to require a PIA before "developing" or "procuring" technology-and not merely before "activating" or "deploying" it-shows that Congress intended PIAs to be completed early on in an agency's decisionmaking process. See Pl.'s Reply at 6. But one could just as easily draw the opposite inference and conclude that when Congress wants to require a PIA at a preliminary stage, like development or procurement, it does so explicitly.
Third , the plaintiff invokes OMB regulations that implement a related statute, the Paperwork Reduction Act, whose definitions are incorporated into the E-Government Act. See Pl.'s Mot. at 20; see also
The OMB regulations define "collection of information" only "[a]s used in this Part"-that is, in the Paperwork Reduction Act regulations themselves.
In any event, even if the OMB regulations did apply, they would not change the outcome here. To "initiate" a "plan" would *94still mean to commence it or put it into action, not merely to announce it, as EPIC suggests, see Pl.'s Mot. at 20-21. Thus, a "plan ... calling for the collection or disclosure of information" would not be "initiated" until the "collection or disclosure" "call[ed] for" actually begins-in this case, with the mailing of questionnaires to the public.
Fourth , the plaintiff invokes precedent, pointing to a D.C. Circuit decision that mentioned in passing that an agency "need not prepare a privacy impact assessment unless it plans to collect information." EPIC v. Presidential Advisory Comm'n on Election Integrity ,
Fifth , the plaintiff argues that allowing agencies to wait until after deciding to collect information to conduct and publish a PIA would frustrate the purpose of the E-Government Act's privacy provisions. See Pl.'s Reply at 9. But "[e]ven the most formidable argument concerning the statute's purposes could not overcome the clarity" of "the statute's text." Kloeckner v. Solis ,
The plaintiff advocates a much broader conception of § 208's purpose aimed at influencing agency decisionmaking. To support that vision, it cites cases discussing the National Environmental Policy Act (NEPA),
*95assessment, the role and timing of those assessments differ sharply. Unlike the E-Government Act, NEPA explicitly requires an impact statement to be included "in every recommendation or report on proposals for legislation and other Federal actions" that meet certain criteria.
That is not to say that negative policy consequences cannot ever result if an agency drags its feet in performing its PIA obligations. See Pl.'s Reply at 3. But publishing a PIA shortly before commencing a new collection of information does not make the PIA "useless," as EPIC claims. See
For all of these reasons, the Court interprets "initiating a new collection of information," E-Government Act § 208(b)(1)(A)(ii), to require at least one instance of "obtaining, causing to be obtained, soliciting, or requiring the disclosure ... of facts or opinions,"
B. Likelihood of Irreparable Harm
"Having concluded that plaintiff has no likelihood of success on the merits, the Court finds it unnecessary to weight the remaining preliminary injunction factors." Doe v. Hammond ,
First, the plaintiff argues that the Bureau's ongoing failure to publish adequate PIAs irreparably harms its members by denying them information vital to a national debate. Pl.'s Mot. at 27. But even assuming this harm is irreparable, it will not be redressed by the relief requested. The plaintiff does not seek an affirmative injunction directing the defendants to perform or publish a PIA. It seeks only negative injunctions preventing the Bureau from "implementing" Secretary Ross's "decision to add a citizenship question to the 2020 Census" and from "initiating any collection of citizenship status information that would be obtained through the 2020 Census." Pl.'s Proposed Order, Dkt. 8-2. As the D.C. Circuit has explained, "halting" the "collection of ... data" cannot redress an informational injury under the E-Government Act because "ordering the defendants not to collect ... data only negates the need (if any) to prepare an impact assessment, making it less likely that EPIC will obtain the information it says is essential." EPIC ,
Second, the plaintiff argues that its members suffered irreparable harm from Secretary Ross's failure to conduct a PIA and take privacy considerations into account before deciding to collect citizenship data. See Pl.'s Mot. at 29-31. The plaintiff acknowledges that this harm has already "mature[d]", id. at 30 (internal quotation marks omitted), and that the defendants will not change course absent judicial intervention, see Pl.'s Reply at 5, 7, but it nonetheless argues that "equitable intervention is necessary" before an "irretrievable commitment of resources" occurs that might render any future PIA a rubber stamp, id. at 15 (internal quotation marks omitted). The problem, however, is that the earliest "irretrievable commitment" the plaintiff identifies is the "printing, addressing, and mailing" of Census materials in June 2019. Pl.'s Mot. at 30 (internal quotation marks omitted). That event, still four months away, is not "of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm," Wisconsin Gas Co. v. FERC ,
Finally, the plaintiff argues that its members will be irreparably harmed if and when their own citizenship data is collected. But this harm, too, is neither imminent nor certain. The parties agree that the Bureau will not mail any questionnaires until January 2020 at the earliest. Pl.'s Reply at 2, 14; Defs.' Opp'n at 26-27. And, *97again, even that will only happen if the permanent injunction already in effect is vacated or reversed on appeal.
In short, the plaintiff has not demonstrated a "certain" injury "of such imminence that there is a clear and present need for equitable relief to prevent irreparable harm." Wisconsin Gas Co. ,
CONCLUSION
For the foregoing reasons, the Court will deny the plaintiff's motion for a preliminary injunction. A separate order accompanies this memorandum opinion.
Notes
E-Government Act of 2002, § 208(b)(1)(A), Pub. L. 107-347,
See New York v. U.S. Dep't of Commerce ,
http://www.osec.doc.gov/opog/privacy/Census-pias.html?#.
http://www.osec.doc.gov/opog/privacy/Census%20PIAs/CEN05_PIA_SAOP_Approved.pdf
http://www.osec.doc.gov/opog/privacy/Census%20PIAs/CEN13_PIA_SAOP_Approved.pdf
http://www.osec.doc.gov/opog/privacy/Census%20PIAs/CEN18_PIA_SAOP_Approved.pdf
http://www.osec.doc.gov/opog/privacy/Census%20PIAs/CEN08_PIA_SAOP_Approved.pdf
http://www.osec.doc.gov/opog/privacy/Census%20PIAs/CEN11_PIA_SAOP_Approved.pdf
The plaintiffs do not challenge the PIA for CEN21. See Compl. ¶¶ 49, 51-62, Dkt.1.
The defendants argue that this interpretation of § 208 also leads to certain prudential and jurisdictional consequences-namely, a lack of ripeness or final agency action. See Defs.' Opp'n at 16-21. But these arguments would only be relevant if EPIC sought to challenge, prospectively, the agencies' failure to conduct or release adequate PIAs in the future. It does not. See Pl.'s Reply at 13. EPIC challenges only the defendants' past failure to conduct or release adequate PIAs before Secretary Ross issued his decision on March 26, 2018. See, e.g. , Pl.'s Reply at 10-13; Compl. ¶¶ 64-76. The Court therefore need not consider whether a different claim premised on future acts or omissions could proceed.