NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; PRINCE GEORGE’S COUNTY, MARYLAND; PRINCE GEORGE’S COUNTY MARYLAND NAACP BRANCH; ROBERT E. ROSS; H. ELIZABETH JOHNSON v. BUREAU OF THE CENSUS; STEVEN DILLINGHAM, Acting Director, Bureau of the Census; WILBUR
No. 19-1863
United States Court of Appeals for the Fourth Circuit
December 19, 2019
Before GREGORY, Chief Judge, and KEENAN and RICHARDSON, Circuit Judges.
PUBLISHED. Argued: October 30, 2019. Affirmed in part, reversed in part, and remanded by published opinion. Judge Keenan wrote the opinion, in which Chief Judge Gregory and Judge Richardson joined.
Appeal from the United States District Court for the District of Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:18-cv-00891-PWG)
ARGUED: Rachel Brown, YALE SCHOOL OF LAW, New Haven, Connecticut; Jessica Ring Amunson, JENNER & BLOCK, LLP, Washington, D.C., for Appellants. Thais-Lyn Trayer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Michael J. Wishnie, Renee Burbank, Nikita Lalwani, Joshua Zoffer, Daniel Ki, Peter Gruber Rule of Law Clinic, YALE SCHOOL OF LAW, New Haven, Connecticut; Susan J. Kohlmann, Jeremy M. Creelan, Michael W. Ross, Jacob D. Alderdice, Logan J. Gowdey, JENNER & BLOCK LLP, New York, New York; Anson
BARBARA MILANO KEENAN, Circuit Judge:
The Enumeration Clause of the Constitution requires that Congress conduct an “actual Enumeration” of the population every ten years, the results of which are used for the apportionment of Congressional representatives and the allocation of federal funding.
This undercount is not spread uniformly across the population. Id. The Census Bureau long has recognized that the undercount affects African Americans and other “racial and ethnic minority groups to a greater extent than it does whites.” Id. And, because the results of the Census directly impact both political representation and the allocation of federal funding, this “differential undercount” has had the effect of disproportionately reducing the amount of political representation and funding that undercounted communities receive. Id.
This appeal addresses a challenge to the “methods and means” that the Census Bureau has adopted for the 2020 Census, and the contention that the 2020 Census will produce an even greater differential undercount. Plaintiffs-Appellants are the National Association for the Advancement of Colored People (NAACP); Prince George’s County, Maryland; Prince George’s County, Maryland, NAACP Branch; Robert E. Ross; and H. Elizabeth Johnson (collectively, the plaintiffs). They represent “hard-to-count” communities that historically have suffered the greatest harms from differential undercounts, and that directly will lose federal funding if, as the plaintiffs assert, the differential undercount increases in 2020. Defendants-Appellees are the Census Bureau and its Director, the Secretary of Commerce, and the United States (collectively, the defendants).
The plaintiffs’ claims, brought under both the Enumeration Clause and the Administrative Procedures Act (APA, or Act),
On appeal, the plaintiffs argue that the district court erred in dismissing both sets of claims. According to the plaintiffs, their claims under both the APA and the Enumeration
Upon our review, we hold that the plaintiffs’ APA claims, as pleaded, do not satisfy the jurisdictional limitations on judicial review set forth in the APA. Therefore, we affirm the district court’s judgment dismissing those claims.
Nevertheless, mindful of the Supreme Court’s recent guidance affirming judicial review of “both constitutional and statutory challenges to census-related decision-making,” Dep‘t of Commerce v. New York, 139 S. Ct. 2551, 2568 (2019), we conclude that the district court erred in dismissing the plaintiffs’ Enumeration Clause claims as unripe, and in precluding the plaintiffs from filing an amended complaint regarding those claims after the defendants’ plans for the 2020 Census became final. Additionally, we decline to address in the first instance the defendants’ alternative arguments for affirming the district court’s judgment. We therefore reverse the district court’s dismissal of the Enumeration Clause claims, and remand that portion of the case to allow the plaintiffs to file an amended complaint setting forth their Enumeration Clause claims.
I.
This appeal arises from a brief but complicated procedural history, throughout which the factual and the legal bases of the plaintiffs’ claims changed significantly. For that reason, we begin by reviewing the proceedings below in some detail.
The plaintiffs filed this suit in March 2018, initially asserting multiple violations of the Enumeration Clause but no claims under the APA. At the time of this initial filing, and at the time of the plaintiffs’ first amended complaint in June 2018, the Census Bureau lacked a permanent director and a deputy director, and openly was cancelling pre-Census activities based on the lack of appropriations from Congress. Against this backdrop, the plaintiffs alleged that the Census Bureau’s lack of funding and staffing, exacerbated by “design flaws” in the defendants’ plans to rely on new technologies for the Census, would lead to a dramatic population undercount. The plaintiffs averred that this undercount disproportionately would impact African Americans and other “hard-to-count” communities, thereby diminishing the political representation and the amount of federal funding that these communities would receive.
The defendants moved to dismiss the plaintiffs’ claims for failure to state a claim and for lack of justiciability. The district court addressed the defendants’ motion by memorandum opinion in January 2019. The court first held that the plaintiffs’ allegations were sufficient to confer standing under the Enumeration Clause, and that judicial review was not barred by the political question doctrine. But, reasoning that judicial review was premature and that the plaintiffs’ alleged injuries could be redressed after the 2020 Census was taken, the court held that the Enumeration Clause claims challenging the “methods and means” of conducting the Census were unripe and dismissed those claims without prejudice. However, the court allowed the Enumeration Clause claim based on underfunding to proceed, identifying that one claim as “ripe” for relief.
Just days after the district court’s decision, the Census Bureau announced that
denied leave to replead the other Enumeration Clause claims. Notwithstanding the release of the Operational Plan, the district court determined that Enumeration Clause claims based on the planned “methods and means of conducting the 2020 Census” still were not ripe.
In accordance with the district court’s instructions, the plaintiffs filed a second amended complaint (Complaint) identifying six “irrational design choices” in the Operational Plan. The plaintiffs asked the court to “set aside” each “design choice” under
The defendants filed a renewed motion to dismiss, seeking dismissal of the APA claims, as well as the remaining Enumeration Clause claim that was based on underfunding. The district court granted the defendants’ motion in its entirety.
The district court dismissed the plaintiffs’ underfunding claim, holding that the claim had been rendered moot by recent Congressional appropriations, and that the plaintiffs lacked standing to challenge the adequacy of those appropriations. Next, addressing the APA claims, the court held that the plaintiffs had failed to identify any reviewable “agency action” over which the court could exercise jurisdiction. Finally, the court held that despite the fact that the APA claims were articulated as requests to “set aside agency action” under
II.
On appeal, the plaintiffs argue that the district court erred in dismissing the APA claims on jurisdictional grounds, and in dismissing the Enumeration Clause claims as unripe. We address each argument in turn.
A.
We begin by considering the APA claims, which the district court dismissed after concluding that the face of the Complaint failed to identify any “agency action” reviewable under the Act. We review de novo the district court’s assessment of its jurisdiction under the APA. Invention Submission Corp. v. Rogan, 357 F.3d 452, 454 (4th Cir. 2004). Because the district court concluded that it lacked jurisdiction based on the face of the Complaint, we accept the truth of the factual allegations contained in the Complaint and draw all reasonable inferences in the plaintiffs’ favor. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009).
Judicial review under the APA is limited to review of “final agency action.”
Second, the “agency action” must be “final.” Vill. of Bald Head Island, 714 F.3d at 194. Agency action is “final” if two preconditions are satisfied: (1) the action must be the “consummation of the agency’s decisionmaking process,” and (2) the action must be one “by which rights or obligations have been determined or from which legal consequences will flow.” Id. (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)); see also Franklin v. Massachusetts, 505 U.S. 788, 797 (1992) (“The core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties.“).
As the case law makes clear, these two characteristics of “final agency action” are prerequisites to APA review, whether a plaintiff seeks to “compel agency action” under
The plaintiffs argue that their claims meet these jurisdictional requirements, and that the district court erred in holding otherwise. According to the plaintiffs, the “design choices” at issue are discrete, because those choices can be analyzed “without reference” to one another. The plaintiffs also assert that the challenged decisions are final, because each will lead directly to a differential undercount. Finally, the plaintiffs contend that because they have presented each APA claim exclusively as a request to “set aside agency action” under
Initially, like the district court, we observe that there is tension between the substantive allegations in the Complaint and the plaintiffs’ contention that their APA claims do not seek to “compel agency action.” See
The majority, if not all, of the plaintiffs’ APA claims fail because they do not challenge actions that are “circumscribed” and “discrete.” See id.; Vill. of Bald Head Island, 714 F.3d at 194. In fact, the plaintiffs disavow any argument that the alleged deficiencies in the Operational Plan are “simply the result of a choice of methodology.” Instead, as pleaded, the plaintiffs allege only that the defendants’ “design choices” are insufficient in light of various other factors. See, e.g., Compl. at ¶ 69 (alleging “insufficient planned hiring of enumerators“); ¶ 114 (alleging “insufficient network of area census offices“); ¶ 160 (challenging the “sufficiency” of plan to rely on administrative records); ¶ 168 (alleging “insufficient partnership program staffing“) (formatting altered). So described, these claims bear little resemblance to the type of “circumscribed” actions specifically identified in the text of the APA as reviewable. See
the “whole or a part of an agency rule, order, license, sanction, relief or the equivalent or denial thereof” as reviewable actions); see also Norton, 542 U.S. at 62-63.
The plaintiffs’ description of their claims confirms this assessment. For example, in alleging that the Census Bureau plans to hire an “insufficient” number of Enumerators, the plaintiffs notably do not allege that any specific number of Enumerators is required to conduct the Census. Instead, over the course of forty-five paragraphs, the plaintiffs explain that the number of Enumerators the Census Bureau plans to hire is “insufficient” because of numerous other problems in the broader Non-Response Follow-Up Program (NRFU), as reflected in the Operational Plan. As alleged, these problems include overreliance on the first ever “Internet Self-Response” option for completing the Census, insufficient testing of “new protocols” and “new technologies,” and an “irrationally optimistic”
This same jurisdictional defect, the failure to identify actions that are “circumscribed” and “discrete,” also forecloses the APA claims that challenge the “insufficient network of area census offices,” the overreliance on administrative records within the NRFU program, the increased use of “in-office address canvassing,” and “insufficient partnership program staffing.” As those allegations make clear, the identified “decisions” are “insufficient” only in relation to one another and to the broader Operational Plan that the plaintiffs deem “inadequate” in its entirety. Thus, while we acknowledge the general principle that the multiplicity of an agency’s failings is not a barrier to judicial review, we conclude that this principle does not carry the day given the content of the particular pleadings before us.
Contrary to their position on appeal, the plaintiffs do not actually challenge multiple discrete decisions made by the Census Bureau. Instead, as pleaded, the various “design choices” being challenged expressly are tied to one another. “Setting aside” one or more of these “choices” necessarily would impact the efficacy of the others, and inevitably would lead to court involvement in “hands-on” management of the Census Bureau’s operations. See Norton, 542 U.S. at 66-67. This is precisely the result that the “discreteness” requirement of the APA is designed to avoid. Id. at 67; see also City of New York, 913 F.3d at 434; Clear Sky Car Wash LLC v. City of Chesapeake, Va., 743 F.3d 438, 445 (4th Cir. 2014); Vill. of Bald Head Island, 714 F.3d at 194. For these reasons, we hold that the plaintiffs have failed to identify any “final agency action” subject to judicial review under the APA.
Our conclusion is not altered by the fact that one of the APA claims pertains to the cancellation of specific field tests, a decision that occurred in 2016. Even if we were to assume that this decision was a “discrete” action, the decision nevertheless falls outside the scope of APA review because the cancellation of those field tests did not “give rise to legal consequences, rights, or obligations.” Invention Submission Corp., 357 F.3d at 458 (internal quotations omitted). Instead, as pleaded, the decision to cancel field tests impacts the plaintiffs only insofar as the decision leaves the Census Bureau “less prepared” to handle any “unforeseen” problems that “may” arise from the actual procedures set forth in the Operational Plan, a confluence of circumstances that the plaintiffs assert would create a disproportional impact on undercounted communities. These attenuated allegations amount to little more than a “best guess” regarding the consequences of cancelling the tests at issue. Therefore, because the Complaint fails to include specific facts indicating that the Census Bureau’s decision to cancel the field tests gave rise to “legal consequences, rights, or obligations,” see id., we hold that the cancellation of field tests does not constitute “final agency action” under the APA. See Franklin, 505 U.S. at 797.
In concluding that the plaintiffs have failed to identify a “final agency action” subject to judicial review, we emphasize that our holding is based on the broad, sweeping nature of the allegations that the plaintiffs have elected to assert under the APA. Our decision today neither disturbs
B.
We turn now to consider the district court’s decision dismissing as unripe the plaintiffs’ Enumeration Clause challenge. We review the district court’s dismissal of these claims de novo, and the court’s decision to deny leave to reintroduce the claims for abuse of discretion. Attkisson v. Holder, 925 F.3d 606, 619 (4th Cir. 2019) (leave to amend); Deal v. Mercer Cty. Bd. of Educ., 911 F.3d 183, 190 (4th Cir. 2018) (ripeness).
The ripeness doctrine derives from
The plaintiffs argue that the Enumeration Clause claims that they seek to present satisfy both these criteria.4 Thus, the plaintiffs assert that the district court erred in holding that such claims would be unripe until after the 2020 Census is completed, and compounded that error in refusing to allow the plaintiffs to replead their claims after the Operational Plan was announced. In response, the defendants do not defend the district
court’s ripeness analysis but maintain that the district court ultimately reached the correct result by dismissing the Enumeration Clause claims.
We agree with the plaintiffs that the district court erred in its ripeness analysis. First, we hold that the plaintiffs’ claims are “fit” for review. Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006). A controversy becomes “fit” for review when it no longer is “dependent on future uncertainties.” Id. We hold that, at the latest, this point occurred when the defendants announced that the Operational Plan was final and the plaintiffs sought leave to file an amended complaint. Once announced as part of the “final design” for the Census, the procedures challenged by the plaintiffs no longer credibly could be described as “uncertain.” Id.; see also U.S. House of Representatives v. U.S. Dep‘t of Commerce, 11 F. Supp. 2d 76, 91 (D.D.C. 1998) (holding that a challenge to Census procedures
We also hold that delayed adjudication would result in hardship to the plaintiffs. The Supreme Court squarely has held that it is “not necessary” for courts “to wait until the census has been conducted” to consider challenges to the Census Bureau’s planned procedures, “because such a pause would result in extreme—possibly irremediable—hardship.” Dep‘t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 332 (1999); see also Dep‘t of Commerce v. New York, 139 S. Ct. at 2561 (reviewing a pre-Census challenge to the decision to add a citizenship question to the Census questionnaire). As in House of Representatives, the injuries that the plaintiffs assert in this case arise from procedures that the defendants intend to use, or not use, in conducting the Census. 525 U.S. at 320-21. Thus, the hardship that the plaintiffs would experience from the delay in adjudicating these claims is well established.
For these reasons, we hold that the plaintiffs’ Enumeration Clause challenge to the “methods and means” to be used in the 2020 Census was ripe by the time the plaintiffs sought leave to reintroduce those claims in February 2019, and that the district court’s contrary conclusion was legal error. And, because a district court necessarily abuses its discretion when its ruling is “based on an erroneous view of the law,” see Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990), we further hold that the district court abused its discretion in denying on ripeness grounds the plaintiffs’ request to file an amended complaint setting forth their Enumeration Clause claims.
As reflected by this holding, we decline the defendants’ request that we examine their alternative grounds for dismissal of the Enumeration Clause claims, including lack of Article III standing, the political question doctrine, and because the Enumeration Clause claims fail to state facts plausibly establishing a constitutional violation. The district court has not considered these additional arguments in the context of the amended complaint that will be filed when the proceedings resume in the district court. Therefore, we decline to consider the defendants’ additional arguments in the first instance on appeal. Like the Supreme Court, we are a “court of review, not first review.” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005).
III.
In remanding the case to the district court on the Enumeration Clause claims, we do not express any view regarding the ultimate viability of such claims that may be asserted in an amended complaint. Accordingly, for the reasons stated, we affirm the district court’s judgment dismissing the APA claims, reverse the court’s judgment dismissing the Enumeration Clause claims and denying the plaintiffs leave to file an amended complaint, and remand the case to the district court for proceedings consistent with this opinion.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
GREGORY, Chief Judge, concurring:
The delegates to the Constitutional Convention in Philadelphia toiled all summer to produce a lasting document that would provide stability to the government and the promise of liberty to the governed. At the close of the Convention, Benjamin Franklin was asked what the Framers had
That Clause mandates that Congress make an “actual Enumeration” of persons in the nation every ten years.
Justice Holmes wrote, “[A] page of history is worth a volume of logic.” New York Tr. Co. v. Eisner, 256 U.S. 345, 349 (1921). From the very beginning, the Enumeration Clause was born in the tainted cauldron of racism, sexism, and classism. As the majority opinion notes, with each Census, there has been an undercount of the people. Maj. Op. at 3. “Since at least 1940, the Census Bureau has thought that the undercount affects some racial and ethnic minority groups to a greater extent than it does whites.” Wisconsin v. City of New York, 517 U.S. 1, 7 (1996). To this day, the Census Bureau acknowledges the need to count these “hard-to-count populations.” J.A. 274; Appellees’ Br. (ECF No. 34) at 9. That there has been a historical undercount does not obviate Congress’ constitutional mandate. Indeed, it magnifies that responsibility.
The history and function of the Enumeration Clause evince the importance of the constitutional issue presented here. The question—whether Congress, by agency of the Executive Branch’s Bureau of the Census, has violated the Enumeration Clause of the Constitution because it has demonstrated that it will unlikely make a meaningful and faithful enumeration of all persons in the upcoming 2020 Census—is not a political one. If this constitutional question were beyond the reach of judicial review, the People would have no ordered redress of Legislative and Executive Branch actions or inactions that thwart their essential constitutional right. If Congress is in violation of the Enumeration Clause’s mandate, it cannot take refuge behind the fig leaf of deference to administrative procedure. Nothing is more existential to the preservation of the “Republic” than requiring an “actual Enumeration” without “partiality or oppression.”