Every ten years, beginning in 1790, the United States has counted its population as of the first of April, as required by the Enumeration Clause of the United States Constitution. U.S. Const. art. I, § 2, cl. 3 ("Enumeration Clause" or "Census Clause"); see Franklin v. Massachusetts ,
Congress also has found that "[i]t is essential that the decennial enumeration of the population be as accurate as possible consistent with the Constitution and Laws of the United States."
The Fourteenth Amendment ostensibly removed the inequality by providing that "Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of the persons in each state...."
In March 2018, with the 2020 Census only two years away, Plaintiffs
What Defendants dispute in the pending Motion to Dismiss is whether Plaintiffs' Enumeration Clаuse claim is properly before this Court and, if so, whether they have stated a claim. Defendants argue that Plaintiffs' claim is not ripe, they lack standing to bring this litigation, the political question doctrine bars this suit, and they have not stated a claim under the Enumeration Clause. Defs.' Mot., ECF No. 43.
Yet this case is distinctly different from the other litigation to date leading up to the 2020 Census, as it does not challenge a discrete agency decision and does not include a claim under the Administrative Procedure Act ("APA"),
The crux of this suit is Plaintiffs' belief that the Bureau should have done more to prepare for the 2020 Census than it has at this timе. But, ripeness bars Plaintiffs' claim for injunctive relief with respect to the method and means of conducting the 2020 Census, at least at this time. The claim will be dismissed without prejudice to being reinstated at a later time. But, Plaintiffs' claim that there are insufficient funds available for the Bureau to conduct the 2020 Census, which, they allege, also will result in an Enumeration Clause violation, may be ripe for declaratory relief (assuming an evidentiary basis exists to support their allegations). And, it is plausible that this Court could fashion declaratory relief that would make it likely that sufficient funds will be appropriated to enable the final planning and execution of the 2020 Census to take place. Therefore, I find that Plaintiffs have standing, and I will deny Defendants' Motion to Dismiss as to their insufficient-funding claim for declaratory relief. This claim will proceed, and targeted discovery will be permitted to determine whether there is an evidentiary basis for the declaratory relief they seek.
Background
Why the Census Is Conducted
When the United States Constitution was drafted in 1787, the Framers "believed the correct apportionment of political power would be the 'fundamental ... instrument' of this republican government." Robert R. McCoy, A Battle on Two Fronts: A Critique of Recent Supreme Court Jurisprudence Establishing the Intent and Meaning of the Constitution's Actual Enumeration Clause ,
[T]he larger States supported the so-called Virginia plan to create a bicameral legislature in which the rights of suffrage ought to be proportioned to the quotas of contributions or to the number of free inhabitants of the respective States. The more populous States, since they thought that they would have to bear a greater burden taxwise and in other respects, sought a proportionally larger share of control of the central government, and the smaller States, such as Delaware, understandably did not desire to be controlled by their larger sisters.... The problem was one of balance of power in a federation of States differing greatly in size, wealth and population.
Sincock ,
The Framers introduced the Enumeration Clause "to determine how political power would be apportioned among the 'disparate' population of the New Republic." McCoy, 13 Cornell J.L. & Pub. Pol'y at 655. The Enumeration Clause of the U.S. Constitution requires that an "actual Enumeration" of the people in the United States "shall be made ... every ... ten Years, in such Manner as [the United States Congress] shall by Law direct." U.S. Const. art. I, § 2, cl. 3. The Framers assigned the task of enumeration to the federal government "to make the apportionment count as objective as possible" and "to avoid the possibility of corruption by state politics." McCoy, 13 Cornell J.L. & Pub. Pol'y at 656. Congress has "delegate[d] the duty of conducting the decennial census to the Secretary of Commerce." LUPE ,
The "primary purpose" of the enumeration, as noted, is to determine the number of Congressional representatives; but also significant is its use in allocating federal funding among the states. See U.S. Const. am. XIV, § 2 ("Representatives shall be apportioned among the several states according to their respectivе numbers, counting the whole number of persons in each state."); Wisconsin v. City of New York ,
In Wisconsin , Chief Justice Rehnquist observed that the results of the census are used to apportion the members of the House of Representatives among the States.
How the Census Is Conducted
Originally, census data was collected "by an actual inquiry at every dwelling-house ... and not otherwise." McCoy, 13 Cornell J.L. & Pub. Pol'y at 640 (quoting Thomas R. Lee, The Original Understanding of the Census Clause: Statistical Estimates and the Constitutional Requirement of an "Actual Enumeration" ,
Relevant legislation sets various census-related deadlines, and in Department of Commerce v. U.S. House of Representatives , Justice O'Connor described the sequence:
The [Census] Act provides that the Secretary "shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as of the first dayof April of such year." [ 13 U.S.C.] § 141(a). It further requires that "[t]he tabulation of total population by States ... as required for the apportionment of Representatives in Congress among the several States shall be completed within 9 months after the census date and reported by the Secretary to the President of the United States." § 141(b). Using this information, the President must then "transmit to the Congress a statement showing the whole number of persons in each State ... and the number of Representatives to which each State would be entitled." 2 U.S.C. § 2a(a). Within 15 days thereafter, the Clerk of the House of Representatives must "send to the executive of each Stаte a certificate of the number of Representatives to which such State is entitled." 2 U.S.C. § 2a(b) (1994 ed., Supp. III).
Historical [In]Accuracy of the Census
"[I]t is essential that the decennial enumeration of the population be as accurate as possible consistent with the Constitution and laws of the United States." 1998 Appropriations Act § 209(a)(6). Thus, each census from 1790 to 1990 "was designed with the goal of accomplishing an 'actual Enumeration' of the population." Wisconsin ,
There have been 20 decennial censuses in the history of the United States.... Despite consistent efforts to improve the quality of the count, errors persist. Persons who should have been counted are not counted at all or are counted at the wrong location; persons who should not have been counted (whether because they died before or were born after the decennial census date, because they were not a resident of the country, or because they did not exist) are counted; and persons who should have been counted only once are counted twice. It is thought that these errors have resulted in a net "undercount" of the actual American population in every decennial census. In 1970, for instance, the Census Bureau concluded that the census results were 2.7% lower than the actual population.
Critical in the case before me is the concept known as the "differential undercount." As noted, according to Plaintiffs' well-pleaded allegations, the Bureau "has identified what it terms 'hard-to-count' populations ... includ[ing] racial and ethnic
The undercount is not thought to be spread consistently across the population: Some segments of the population are "undercounted" to a greater degree than are others, resulting in a phenomenon termed the "differential undercount." 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. In 1940, for example, when the undercount for the entire population was 5.4%, the undercount for blacks was estimated at 8.4% (and the undercount for whites at 5.0%). The problem of the differential undercount has persisted even as the census has come to provide a more numerically accurate count of the population. In the 1980 census, for example, the overall undercount was estimated at 1.2%, and the undercount of blacks was estimated at 4.9%.
The Census Bureau has recognized the undercount and the differential undercount as significant problems, and in the past has devoted substantial effort toward achieving their reduction. Most recently, in its preparations for the 1990 census, the Bureau initiated an extensive inquiry into various means of overcoming the impact of the undercount and the differential undercount. As part of this effort, the Bureau сreated two task forces: the Undercount Steering Committee, responsible for planning undercount research and policy development; and the Undercount Research Staff (URS), which conducted research into various methods of improving the accuracy of the census. In addition, the Bureau consulted with state and local governments and various outside experts and organizations.
Largely as a result of these efforts, the Bureau adopted a wide variety of measures designed to reduce the rate of error in the 1990 enumeration, including an extensive advertising campaign, a more easily completed census questionnaire, and increased use of automation, which among other things facilitated the development of accurate maps and geographic files for the 1990 census. The Bureau also implemented a number of improvements specifically targeted at eliminating the differential undercount; these included advertising campaigns developed by and directed at traditionally undercounted populations and expanded questionnaire assistance operations for non-English speaking residents.
Wisconsin ,
2020 Census and Plaintiffs' Allegations
Despite these considerable concerns about conducting an accurate enumeration, Defendants' preparations and funding to undertake this Herculean task are, in Plaintiffs' view, abysmal. Am. Compl. ¶¶ 28-30. The Amended Complaint inventories these perceived deficiencies. First, while each census for the past half century has been considerably more costly than the one before, id. ¶ 32, and Secretary Ross "told Congress that the lifecycle cost of the 2020 Census would be $ 3.3 billion above the original estimate and that the administration would request an additional $ 187 million for Fiscal Year 2018," id. ¶ 37, Congress nonetheless "directed that the budget for the 2020 Census not exceed the cost of the 2010 enumeration," id. ¶ 33, and funding for the Bureau has not "escalate[d] to prepare for the decennial census" as it typically would. Id. ¶¶ 34-37, 54.
Second, the combined effects of a hiring freeze in 2017 and an "order directing agencies to submit plans for personnel cuts" have "prevent[ed] the Census Bureau from hiring staff necessary to ensure an 'actual enumeration' in 2020." Id. ¶¶ 55-59. Also, although the Bureau has a director as of January 2, 2019, the position previously was vacant for eighteen months. See Tara Bahrampour, Senate confirms new Census Bureau director as 2020 survey approaches , Wash. Post (Jan. 3, 2019), https://www.washingtonpost.com/local/social-issues/senate-confirms-new-census-bureau-director-as-2020-survey-approaches/2019/01/03/5599b2d2-0fa0-11e9-831f-3aa2c2be4cbd_story.html?utm_term=.0c26387d9e74.
Third, as for the design of the census itself, the 2020 Census will be the first digitized census, "a radical departure from the paper and in-person methods used in all previous censuses." Am. Compl. ¶¶ 68-70. Consequently, there is a risk that it will face cybersecurity threats that Defendants have not properly guarded against. Id. ¶ 68. And, in its new digitized form, it may "improper[ly] rel[y] on state administrative databases of varying quality," id. , which may "result in inconsistent counting methodologies between states" and "an even higher undercount" for hard-to-count groups. Id. ¶¶ 91-94. The new approach also means "a significant reduction in on-the-ground presence and field workers," id. ¶ 68, which Plaintiffs believe "will likely have a devastating impact on communities that have low or little access to reliable broadband internet, many of which are communities of color and low-income households" and "rural residents," id. ¶¶ 75, 77; see also id. ¶¶ 71-78. According to Plaintiffs, "Defendants' design flaws, coupled with their insufficient funding, planning and staffing deficiencies, have left them unprepared for the challenges that digitization presents." Id. ¶ 79.
Plaintiffs filed suit to ensure that Defendants reasonably prepare-before it is too late-to enumerate the population accurately. They claim that "[i]f a court does not act promptly to remedy these constitutional failures, the deficiencies currently present in the 2020 Census will become irremediable, and there will be no amount of funding, hiring, or appropriate planning that can fix the serious existing deficiencies in time for the census." Id. ¶ 117. In their one-count Amended Complaint, they allege that "Defendants have violated and are at imminent risk of violating the 'actual Enumeration' clause of the United States Constitution, Art. I § 2 cl. 3." Am. Compl. ¶ 122. Plaintiffs ask the Court to
[1.] Declare that the Defendants are obligated to ensure an accurate actual enumeration of the people;
[2.] Enjoin Defendants from violating their constitutional duty to conduct an accurate actual enumeration of the people;
[3.] Enter an injunction that requires Defendants to propose and implement, subject to this Court's approval and monitoring, a plan to ensure that hard-to-count populations will be actually enumerated in the decennial census; and
[4.] Grant any other and further relief the Court deems appropriate.
Id. at 21-22. Although not requested in so many words, Plaintiffs' catch-all request for relief necessarily encompasses the possibility of a declaratory judgment targeted
Standard of Review
Defendants contend that this Court lacks subject matter jurisdiction because Plaintiffs lack standing, Defs.' Mem. 7-15, and even if they have standing, their claims still are not justiciable because they are not ripe and, even if ripe, they are barred by the political question doctrine, id. at 16-24.
Thus, "the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction." Kerns v. United States ,
Even on a facial challenge, the Court's review on a motion to dismiss is not necessarily limited to the pleadings. In addition to the operative complaint, I "may consider ... documents attached to the motion to dismiss, if they are integral to the complaint and their authenticity is not disputed." Sposato v. First Mariner Bank , No. CCB-12-1569,
[t]he court may judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court's territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
Fed. R. Evid. 201.
Justiciability
This Court may "adjudicate only actual cases and controversies." Zaycer v. Sturm Foods, Inc. ,
Among the reasons that Defendants say this case should be dismissed for lack of subject matter jurisdiction is that this Court lacks the authority to review the actions of the Secretary regarding the methods and means chosen to conduct the 2020 Census. The argument goes like this: Pursuant to Article 1, Section 2, Clause 3 of the Constitution, Congress has the authority to conduct the decennial census "in such Manner as they shall by Law direct." Congress, in turn, has delegated the same authority to the Secretary, who "shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as of the first day of April of such year ... in such form and content as he may determine...."
It is hardly surprising that the Defendants make this argument, since, as noted, the Supreme Court also has spoken expansively of the discretion the Secretary enjoys when planning the decennial census. In Wisconsin v. City of New York , Chief Justice Rehnquist, writing for the Court explained:
The text of the Constitution vests Congress with virtually unlimited discretion in conducting the decennial "actual Enumeration," and notwithstanding the plethora of lawsuits that inevitably accompany each decennial census, there is no basis for thinking that Congress' discretion is more limited than the text of the Constitution provides. Through the Census Act, Congress has delegated its broad authority over the census to the Secretary [of Commerce]. Hence, so long as the Secretary's conduct of the census is "consistent with the constitutional language and the constitutional goal of equal representation," it is within the limits of the Constitution. In light of the Constitution's broad grant of authority to Congress, the Secretary's decision not to adjust [the results of the 1990 census to account for a differential undercount] need bear only a reasonable relationship to the accomplishment of an actual enumeration of the population, keeping in mind the constitutional purpose of the census.
deference arises not from the highly technical nature of [the Secretary's] decision, but rather from the wide discretion bestowed by the Constitution upon Congress, and by Congress upon the Secretary. Regardless of the Secretary's statistical expertise, it is he to whom Congress has delegated its constitutional authority ovеr the census. For that same reason, the mere fact that the Secretary's decision overruled the views of some of his subordinates is by itself of no moment in any judicial review of his decision.
Moreover, some circuit courts have gone so far as to suggest that there simply is no law that establishes standards by which a court could review the Secretary's decision. Take, for example, Judge Posner's observation in Tucker v. U.S. Department of Commerce :
The Constitution directs Congress to conduct a decennial census, and the implementing statutes delegate this authority to the Census Bureau. There is a little more to the statutes-they specify a timetable, and a procedure for translating fractional into whole seats-but they say nothing about how to conduct a census or what to do about undercounts. So nondirective are the relevant statutes that it is arguable that there is no law for a court to apply in a case like this-that you might as well turn it over to a panel of statisticians and political scientists and let them make the decision, for all that a court could do to add to its rationality or fairness.
That does not mean that the Secretary's decisions are unreviewable, as the Constitution and case law impose a limit on the Secretary's discretion: To the extent possible, the census must be conducted in a way that will not thwart the goal of equal representation, because the accuracy of the census impacts how representation is apportioned. See Wisconsin ,
Consistent with this law, a host of district courts have been less cautious than the Circuit Courts that concluded that they could not review the Secretary's decisions. These trial courts vigorously have rejected arguments that they are powerless to review decisions of the Secretary regarding the conduct of the census. See, e.g. , Dist. of Columbia v. U.S. Dep't of Commerce ,
To hold that the agеncy charged with its tabulation is not subject to judicial review is to hold that the Bureau is free to adopt any numbers, regardless of bias, manipulation, fraud or similarly grave abuse, which is exactly the type of conduct and temptation the Framers wished to avoid by entrusting the census to the federal government. This cannot be.
But the usefulness of this line of cases in addressing the issues in this case seems limited for two reasons. First, unlike the present case, the challenges brought by the plaintiffs in those cases were initiated after the Census Bureau had acted-not in the midst of the planning process. This distinction is quite important for purposes of applicability of the arbitrary and capricious standard that applies to APA claims, as "[j]udicial review under the APA ... is limited to 'final agency actions.' "
Moreover, the Supreme Court's failure to incorporate the APA's "arbitrary and capricious" or "abuse of discretion" language into the test for reviewing an Enumeration Clause challenge to the Secretary's decisions regarding how to conduct a decennial census cаnnot be ignored. And here, the only claim brought by Plaintiffs is an Enumeration Clause claim-not an APA claim. Additionally, even if they were to seek amendment of the complaint to assert an APA challenge, it is hard to imagine that it would be ripe at the present time, since the Secretary is in the process of making his decisions about how to conduct the 2020 census, and therefore there is no final agency action to examine. See
Certainly, more recently, this Court and others have exercised their discretion to review the Bureau's pre -census decisions regarding the 2020 Census. See La Unión del Pueblo Entero v. Ross ("LUPE "), No. GJH-18-1570,
Defendants argue that, under the circumstances of this case, in which Plaintiffs challenge their alleged inaction rather than any discrete actions they have taken toward conducting the census, an Enumeration Clause challenge cannot be brought until after the 2020 Census has been taken and the results are announced by the Secretary, because only then will it be possible to determine without speculation whether their alleged failure to prepare has caused a differential undercount. But by then, Plaintiffs argue, it will be too late to correct the effect of the undercount-the Court must act now to superintend the design of the 2020 Census before it takes place.
It is true that, as noted, Congress itself has found that
the decennial enumeration of the population is a complex and vast undertaking and if such enumeration is conducted in a manner that does not comply with the requirements of the Constitution or the laws of the United States, it would be impracticable for thе States to obtain, and the Courts to provide, meaningful relief after such enumeration has been conducted.
1998 Appropriations Act § 209(a)(8). And, the Supreme Court rejected a standing challenge to a suit brought prior the conduct of the census to prevent the Secretary's planned use of statistical sampling during the 2000 decennial census, concluding that it was "certainly not necessary for this Court to wait until the census has been conducted to consider the issues presented here, because such a pause would result in extreme-possibly irremediable-hardship." Dep't of Commerce v. U.S. House of Reps. ,
But the circumstances that led to those Congressional findings and that lawsuit were far different from this case, for three reasons. First, the challenge in U.S. House of Representatives (like the citizenship question challenges in the 2020 Census cases) was to a discrete decision of the Census Bureau. There, the plaintiffs challenged the Bureau's decision to use two specific types of "statistical sampling to supplement data obtained through traditional census methods,"
The Plaintiffs argue that, if they wait until after the planning for the 2020 Census
Ripeness
The foregoing discussion brings us to considerations of ripeness. Defendants argue that "Plaintiffs' challenge to the Census Bureau's supposedly deficient preparations for the 2020 census is not fit for judicial review some two years before the census because each of the alleged deficiencies in the [Amended Complaint] depends on future uncertainties, as the [Amended Complaint] itself acknowledges." Defs.' Mem. 17. Defendants contend that budgetary and staffing deficiencies could be remedied through "decisions in the next two years."
As relevant to this case, the ripeness doctrine protects against premature adjudication of issues by courts before the facts are sufficiently developed to warrant judicial intervention. Ohio Forestry Ass'n v. Sierra Club ,
Delayed Review
Whether delayed review will impose a hardship on Plaintiffs depends on whether the alleged injury that Plaintiffs expect to suffer could be remedied in a later lawsuit, or whether harm to Plaintiffs is imminent, requiring redress now. See Ohio Forestry ,
To be ripe, a claim cannot "rest[ ] upon 'contingent future events that may not occur as anticipated, or indeed may not occur at all.' " U.S. House of Reps. v. U.S. Dep't of Commerce ,
Plaintiffs allege that "Defendants' choices in procedures, such as their approach to digitization, and cut-back in field and mailing outreach, have already been made ," and therefore "Plaintiffs are at imminent risk of harm." Am. Compl. ¶ 116 (emphasis added). This alleged action is not speculative, even if it has not been finalized, see
Interference with Further Administrative Action
Defendants noted during oral argument and in their Supplement, Defs.' Supp. 7, 10-11 & App'x, that, since the filing of this lawsuit, many of the factual allegations in the Amended Complaint may no longer hold true. Plaintiffs disputed at oral argument and in their Supplement-with good reason-the admissibility of a number of the "facts" that Defendants insist moot Plaintiffs' allegations. See Pls.' Supp. 14-15. Federal Rule of Evidence 201(b) only permits the Court to take judicial notice of facts known within its territorial jurisdiction or that are capable of being established readily by reference to sources the reliability of which cannot reasonably be challenged. Here, Plaintiffs reasonably challenge the reliability of Defendants' "facts." See Pls.' Supp. 14-15. Thus, neither Defendants' arguments nor evidence that is not properly before the Court can negate Plaintiffs' well-pleaded allegations at this juncture. See Lujan ,
But, even without considering Defendants' disputed "facts," it is undisputed that the President has nominated and the Senate confirmed a permanent Director of the Census Bureau. Notice, ECF No. 56; see Tara Bahrampour, Senate confirms new Census Bureau director as 2020 survey approaches , Wash. Post (Jan. 3, 2019), https://www.washingtonpost.com/local/social-issues/sеnate-confirms-new-census-bureau-director-as-2020-survey-approaches/2019/01/03/5599b2d2-0fa0-11e9-831f-3aa2c2be4cbd_story.html?utm_term=.bb8d954ee588. Further, the beginning of the 2020 Census is a year or more away. Assuming there is sufficient continued funding appropriated by Congress and signed into law by the President (discussed below), then it is inevitable that many of the alleged deficiencies in staffing, census design, and testing will be addressed and, where deficient, corrected. This case is unlike New York v. U.S. Department of Commerce , which concerned "final agency action" that the defendants already had taken in deciding to include the citizenship question. Nos. 18-2921 (JMF) & 18-5025 (JMF),
Benefit of Further Factual Development
Finally, the Court clearly would benefit from further factual development before being called to evaluate whether the procedures finally approved for the 2020 Census are sufficient to survive an Enumeration Clause challenge (i.e., whether they bear a reasonable relationship to the accomplishment of an actual enumeration). For example, completing the testing that the Bureau so far has postponed will provide essential information regarding the accuracy of digital
The One Ripe Claim for Relief
The fact that Plaintiffs have failed to establish that they are entitled to all the relief they seek does not mean that they are not entitled to any of it, assuming they can demonstrate evidentiary support for their allegations. This is because they also challenge the adequacy of the Bureau's funding, Am. Compl. ¶¶ 32-37, 79, and they also seek declaratory relief, see id. at 21. As noted, the Court could issue a declaratory judgment that Congress has failed to appropriate sufficient funds for the Secretary to perform the Constitutionally required "actual Enumeration" of the population as of April 1, 2020. Indeed, "Congress [has] committed [itself] to providing the level of funding that is required to perform the entire range of constitutional census activities, with a particular emphasis on accurately enumerating all individuals who have historically been undercounted." 1998 Appropriations Act
Notably, Defendants argued at oral argument that the Bureau's work is not disrupted at this time. They insist that "Plaintiffs' claims are mooted day by day," as the Bureau's funding has increased, census centers have opened, a number of operations have been deployed successfully, and the Bureau no longer plans to rely on state administrative records. And, along with their Supplement, Defendants filed an affidavit from a Census Bureau official, ostensibly to show that the Bureau has funding. Reist Decl., ECF No. 61-1. But, as discussed, argument of counsel and the Reist Declaration are inappropriate for consideration in ruling on a motion to dismiss, where the facts that the Court may consider are circumscribed. See Lujan ,
But, even if I were to consider the assertions at oral argument and in the affidavit, the most they would show is that funding will be exhausted at the end of April 2019, or perhaps sometime in early April. Given what must be done in 2019 to keep on track, this evidence actually demonstrates that there is a justiciable claim as to sufficiency of funding given the government shutdown (the longest in the nation's history, and still looming like a Damoclean sword if the three-week extension of a continuing resolution fails to result in congressional appropriation of lasting funding that is signed into law by the President
Standing
A plaintiff has standing if
(1) [the plaintiff] has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Zaycer v. Sturm Foods, Inc. ,
But, significantly, "[a]t the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice," because "on a motion to dismiss [the Court] 'presume[s] that general allegations embrace those specific facts that are necessary to support the claim.' " Lujan ,
Injury in Fact
An "imminent" injury is one that "is not too speculative," i.e., one that "is 'certainly impending.' " Lujan v. Defs. of Wildlife ,
As noted in the related arena of ripeness, "delayed review would cause hardship to the plaintiffs" because they could not undo the likely absence of funding. See Ohio Forestry ,
While Defendants offer an affidavit to show that the Bureau currently has funding, as discussed above, the affidavit also shows that funding will expire with a year to go before the 2020 Census. Additionally, it appears that printing of the census questionnaire is imminent, as it "is set to take place this summer," yet "the company contracted to print the forms went bankrupt" and the Bureau has not "announce[d] a new one" (and may not be able to pay one this summer), which strengthens Plaintiffs' argument that Defendants cannot prepare without proper funding. See Tara Bahrampour, Senate confirms new Census Bureau director as 2020 survey approaches , Wash. Post (Jan. 3, 2019), https://www.washingtonpost.com/local/social-issues/senate-confirms-new-census-bureau-director-as-2020-survey-approaches/2019/01/03/5599b2d2-0fa0-11e9-831f-3aa2c2be4cbd_story.html?utm_term=.c1974a3eb3fc.
Defendants also contend that "Plaintiffs fail to allege facts suggesting that households that would otherwise respond to the 2020 Census will now choose not to do so as a result of deficiencies in funding, staffing, or leadership," Defs.' Mem. 10, or that "their geographic area (Prince George's County) will lose funding and seats even if potential undercounts in other geographic areas are taken into account ," id. at 11 (emphasis in brief). I disagree that Plaintiffs have not alleged that the 2020 Census plans will not disproportionately impact them.
According to Plaintiffs, the underfunded Bureau has "decided to cut its on-the-ground presence and field infrastructure significantly" and "has reduced the number of area offices and workers, and will conduct in-person visits at a fraction of past rates." Id. ¶ 85. For example, instead of visiting households in person "up to six times in order to ensure completion of census forms[,] ... [f]or the 2020 Census, the Census Bureau proposes to conduct only one in-person visit to each household." Id. ¶ 88. As for the effects of this approach, Plaintiffs allege:
If the in-person visit is unsuccessful, the Census Bureau plans to use federal and state administrative records to attempt to determine the residents for an undetermined number of the households that have not responded.
State administrative data is often unreliable and of poor quality, and the quality of the information between states varies significantly. Moreover, these databases generally do not include data that the census collects with respect to race, ethnicity, and the relationship of household members to each other.
The Census Bureau has not yet reached agreements with all states to use the states' administrative databases. If the Census Bureau fails to secure agreements with all states, this failure will result in inconsistent counting methodologies between states.
The Census Bureau plans to use state administrative data as a substitute for in-person enumeration only for those households that are already "hard-to-count," including communities of color. Using unreliable state data as the basis for compiling final census data for households that are disproportionately minority and low-income will lead to an even higher undercount for these groups.
State administrative databases often lack accurate data on young children and undocumented individuals.
Because many states do not collect data on race and ethnicity, using state administrative data would create incomplete census records, and would harm communities of color during the post-2020 redistricting process.
...
Moreover, Defendants' failure to conduct a constitutionally sufficient census and the resulting dramatic undercount of Prince George's County residents increases the risk of Maryland losing seats in Congress. This loss would deprive Prince George's County residents of fair and equal representation.
Am. Compl. ¶¶ 89-94, 108 (paragraph numbers omitted; emphasis added). Thus, Plaintiffs allege a concrete and particularized injury in the form of underfunding leading to a disproportionate undercount, which in turn would result in reduced funding and representation; it is neither highly attenuated nor merely hypothetical.
According to the Reist Declaration, Defendants will not be relying on state databases. Reist Decl. 16. But, I cannot judicially notice this fact, see Fed. R. Evid. 201(b), and therefore it is not properly before me on Defendants' Motion to Dismiss, as I must accept Plaintiffs' well-pleaded allegations, see Aziz v. Alcolac, Inc. ,
Moreover, contrary to Defendants' assertion, Defs.' Mem. 12, Plaintiffs have alleged prudential standing because this injury "falls within the 'zone of interests' sought to be protected by the [Enumeration Clause]." Lujan v. Nat'l Wildlife Fed'n ,
Further, in Kravitz v. U.S. Department of Commerce , this Court agreеd with the plaintiffs that "they face a concrete injury in that their states and communities will be disproportionately undercounted as a result of the addition of the citizenship question to the 2020 Census."
Traceable Injury
Defendants argue that the alleged injury is not traceable to their actions because "Plaintiffs' theory of harm relies on a multi-step causal chain" that involves (1) Prince Gеorge's County residents failing to respond, (2) state and local governments reducing their "spending on the particular roads and other programs that Plaintiffs use" if and when their federal funding decreases, and (3) Maryland "us[ing] unadjusted census figures for its state-level redistricting." Defs.' Mem. 13-14.
It is true that "a plaintiff may not have standing where the alleged injury is solely 'th[e] result [of] the independent action of some third party not before the court.' " Kravitz v. U.S. Dep't of Commerce ,
In Kravitz , Judge Hazel concluded that the plaintiffs "pleaded that their alleged injuries are 'fairly traceable' to the Census Bureau's conduct" by "plausibly plead[ing] that the addition of the citizenship question to the 2020 Census will determinatively or coercively cause individuals to 'fail or refuse to respond.' "
[W]hile it is true that if an undercount occurs it will occur only because private individuals choose not to respond to the census surveys, Plaintiffs have plausibly alleged that the citizenship question will have a "determinative or coercive effect" on those individuals' decision not to respond. Plaintiffs cite statements by former Census Bureau officials indicating that the citizenship question may cause the Census Bureau to be "perceived as an enforcement agency" which would cause respondents to "misunderstand or mistrust the census and fail or refuse to respond." Plaintiffs allege that the Census Bureau's own internal findings revealed that, in response to citizenship questions, respondents were more likely to fail to respond or falsify responses.
Just as the Kravitz plaintiffs plausibly alleged standing's causation element by pleading that the citizenship question would have a coercive effect on individuals' decisions not to respond to the Census, the Plaintiffs here have plausibly alleged that a disproportionate undercount would be "fairly traceable" to the addition of a citizenship question. Although it is true that for an undercount to occur, private individuals would have to choose not to respond to the Census, Plaintiffs allege that government action will directly cause through "coercive effect" those individuals to refuse to answer.
No. GJH-18-1570,
Here, Plaintiffs allege that, as a result of underfunding, Defendants have canceled field tests and have not hired enough "partnership specialists" to "test its novel digitization strategy in rural areas that are most susceptible to undercounting." Am. Compl. ¶¶ 44-46. They also allege more broadly that Defendants have not "hir[ed] staff necessary to ensure an 'actual enumeration' in 2020." Id. ¶ 59. And, they allege that the "reduced ... number of area offices and workers" and reduced number of "in-person visit[s] to each household" will result in reliance on "State administrative data" that "is often unreliable and of poor quality," as well as "inconsistent" across states, and "will lead to an even higher undercount" of "minority and low-income" individuals, young children, and undocumented individuals. Id. ¶¶ 85-93. Moreover, the alleged underfunding leaves the Bureau unable to remedy the purported staffing deficiencies. Thus, as in LUPE and Kravitz , Plaintiffs have satisfied the causation requirement by alleging that the undercount will be " 'produced by [the] determinative or coercive effect' of the defendants' conduct 'upon the action of someone else.' " Kravitz ,
Redressability
A plaintiff's allegations satisfy the redressability prong if it is "likely, and not merely speculative, that a favorable decision will remedy the injury." Friends of the Earth, Inc. v. Gaston Copper Recycling Corp. ,
Defendants argue that a declaratory judgment will not redress Plaintiffs' alleged injuries, because the Court cannot appropriate funds, nominate and confirm senior Census Bureau executives, or hire subordinate ones.
But Defendants put too sharp a point on their redressability argument. No, the Court cannot order Congress to adequately fund the 2020 Census, the President to appoint senior census officials, or the Secretary to hire sufficient qualified persons to plan and execute it.
In Defendants' minds, such a narrow judicial declaration regarding funding still would fall short of meeting the redressability standard (i.e., that it is likely, not speculative, that the injury Plaintiffs allege can be redressed by a favorable court decision, Lujan v. Defs. of the Wildlife ,
As for the exact contours of any declaratory relief this court might grant following an evidentiary hearing or trial, it is enough to say that some form of declaratory relief is likely to redress a proven shortfall in funding for the 2020 census, and it is unnecessary to predict exactly what it would be at this preliminary stage of the case. See Texas v. Mosbacher ,
Political Question Doctrine
Defendants also challenge Plaintiffs' claim as a non-justiciable political question. Pursuant to the political question doctrine, courts cannot "review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch." Kravitz v. U.S. Dep't of Commerce ,
This is a "narrow exception" to judicial review. Zivotofsky ex rel. Zivotofsky v. Clinton ,, 195, 566 U.S. 189 , 132 S.Ct. 1421 (2012). Whether a case presents a non-justiciable political question depends on a number of factors, the most important of which are whether there exists a "textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it." Baker v. Carr , 182 L.Ed.2d 423 , 217, 369 U.S. 186 , 82 S.Ct. 691 (1962) 7 L.Ed.2d 663
Kravitz ,
In the past five months, this Court has ruled twice that "the political question doctrine does not bar courts from considering whether or not the expansive authority granted by [the] Census Clause has been violated."
Similarly, in California v. Ross & City of San Jose v. Ross , the court concluded that the political question doctrine did not preclude it from considering the plaintiffs' claims challenging the defendants' plan to include a citizenship question in the 2020 Census. Nos. 18-1865-RS & 18-2279-RS, slip. op. 19 (N.D. Cal. Aug. 17, 2018), ECF No. 47-1. There, also, the court observed that "Courts have routinely held that the Enumeration Clause does not textually commit exclusive, non-reviewable control over the census to Congress." Id. at 18. On that basis, it rejected the defendants' argument that "the command to conduct an 'actual enumeration' presents a judicially cognizable question that courts have routinely answered, while the latter command regarding the 'manner' of conducting the census presents a nonjusticiable political question reserved for Congress and be delegation, to the Secretary." Id. at 17. The viability of Defendants' argument is no different before me. For the same reasons that my colleagues have explained, I conclude that the political question doctrine does not preclude my review of Plaintiffs' Enumeration Clause claim. See id. ; LUPE ,
Failure to State a Claim
"The Constitution requires that the Census be conducted in a manner that bears 'a reasonable relationship to the accomplishment of an actual enumeration of the population,' while keeping in mind the enumeration's other constitutional purposes (i.e. apportionment and equal protection)." LUPE ,
To state a claim for violation of the Enumeration Clause, Plaintiffs must allege that Defendants' preparations (or lack thereof) for the 2020 Census "unreasonably compromise[ ] the distributive accuracy
ORDER
Accordingly, it is, this 29th day of January, 2019, hereby ORDERED that
1. Defendants' Motion to Dismiss, ECF No. 43, IS GRANTED IN PART AND DENIED IN PART as follows:
a. The claims against President Donald J. Trump are DISMISSED by consent;
b. Defendants' Motion IS DENIED as to Plaintiffs' Enumeration Clause claim for declaratory relief, based on Defendants' lack of funding for the 2020 Census;
c. Defendants' Motion to Dismiss otherwise IS GRANTED, without prejudice to the reinstatement of the dismissed claims upon a showing that they are ripe; and
d. The Court will contact counsel to discuss a schedule to conduct focused, targeted discovery on the funding challenge, as well as for further proceedings consistent with this Memorandum Opinion and Order.
Notes
I accept Plaintiffs' well-pleaded allegations as true for purposes of Defendants' Motion to Dismiss. Kerns v. United States ,
"Indians not taxed" were excluded from the count before and after the amendment. Compare U.S. Const. art I, § 2, cl. 3, with
Plaintiffs are the National Association for the Advancement of Colored People ("NAACP"); Prince George's County (the "County"); Prince George's County Maryland NAACP Branch (the "County NAACP"); Robert E. Ross, President of the County NAACP; and H. Elizabeth Johnson, County NAACP Executive Committee member. Am. Compl. 1, ¶¶ 7-8.
On January 2, 2019, after the position had been vacant for eighteen months, the Senate unanimously confirmed Steven Dillingham as Director of the Bureau. Notice, ECF No. 56; see Tara Bahrampour, Senate confirms new Census Bureau director as 2020 survey approaches , Wash. Post (Jan. 3, 2019), https://www.washingtonpost.com/local/social-issues/senate-confirms-new-census-bureau-director-as-2020-survey-approaches/2019/01/03/5599b2d2-0fa0-11e9-831f-3aa2c2be4cbd_story.html?utm_term=.038a4677f030.
Plaintiffs named the following Defendants: the Bureau; Ron Jarmin, Acting Director of the Bureau; Wilbur Ross, Secretary of Commerce; President Donald J. Trump; and the United States of America. The Clerk shall substitute Steven Dillingham for Ron Jarmin as Defendant on the docket. Plaintiffs consent to the dismissal of their claims against President Trump. Pls.' Opp'n 3 n.1, ECF No. 46.
The parties fully briefed the motion. ECF Nos. 43-1, 46, 49; see also ECF Nos. 47, 48, 50 (Plaintiffs' notices of supplemental authority). A hearing was held on January 14, 2019, after which the parties provided supplemental briefing, ECF Nos. 61, 63.
In LUPE , Judge Hazel of this Court denied the defendants' motion to dismiss, in which they argued that the plaintiffs lacked standing, the political question doctrine barred the claims, and plaintiffs failed to state a claim for, inter alia , violation of the Enumeration Clause.
In New York , the defendants "did not raise the issue of ripeness until their post-trial briefs-and then raised it only in response to a query from the Court."
When a plaintiff does not have standing or presents a political question or a claim that is not ripe, its claim is not justiciable. Flast v. Cohen ,
I note that, while Defendants argue that some circumstances have changed, in their view mooting many of Plaintiffs' arguments, they did not contend in their Motion to Dismiss and Memorandum in Support that any of Plaintiffs' jurisdictional allegations were not true. See Defs.' Mem. In a footnote to their Supplemental Memorandum, Defendants acknowledge that they "primarily assert a 12(b)(1) facial challenge," but state that "the Court may construe Defendants' motion as a 12(b)(1) factual challenge, see Kerns v. United States ,
They also contend, in another footnote to their Supplemental Memorandum, that "the Court may dismiss this case as moot."
Defendants asserted at oral argument that Judge Furman rejected the "reasonable relationship" standard in New York v. U.S. Dep't of Commerce ,
As noted, in this case, Plaintiffs state a single count for violation of the Enumeration Clause of the U.S. Constitution, Am. Compl. ¶¶ 118-24, and do not assert any violation of the APA.
The Bureau had determined and announced the type of statistical sampling it planned to use to augment the findings of the traditional census methods. See U.S. House of Reps. ,
Alternatively, there may come a date when a failure to have conducted the testing may itself be evidence that Defendants' preparations are insufficient. See Dep't of Commerce v. U.S. House of Reps. ,
See Nicholas Fandos, Sheryl Gay Stolberg & Peter Baker, Trump Signs Bill Reopening Government for 3 Weeks in Surprise Retreat From Wall , N.Y. Times (Jan. 25, 2019), https://www.nytimes.com/2019/01/25/us/politics/trump-shutdown-deal.html. This fact is appropriate for judicial notice because it meets Fed. R. Evid. 201.
It bears mentioning that, throughout the long government shutdown, during which they were required to work exceptionally long hours on this and the other pending census cases without pay, counsel for the Defendants, just as have counsel for the Plaintiffs, have performed their duties with diligence, skill, and professionalism.
Even though I am dismissing for the prеsent time Plaintiffs' claims regarding the methods and means of conducting the 2020 Census because they are not yet ripe, I nonetheless will consider Defendants' other justiciability arguments with respect to these claims (as well as the insufficient funding claim), as they may be reinstated.
Plaintiffs asserted at oral argument that the NAACP sues on behalf of its members in all states and therefore Plaintiffs need not be bound to facts alleged about Prince George's County alone. It is true that an organization can establish its own standing as a plaintiff by "alleg[ing] that its members, or any one of them , are suffering immediate or threatened injury as a result of the challenged action...." Hunt v. Wash. State Apple Advert. Comm'n ,
Previously, in cases in which this Court found that the plaintiffs who brought legal challenges to the 2020 Census had standing, the defendants did not dispute redressability. See LUPE ,
See U.S. Const. art. I, § 9, cl. 7 ("No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law."); Office of Pers. Mgmt. v. Richmond ,
See Pls.' Opp'n 4-5 ("Although, on March 23, 2018, President Trump signed an omnibus spending bill allocating $ 2.814 billion to the Census Bureau, the bill funds the government only through September 2018.... The Commerce Department has acknowledged the severity of underfunding; in October 2017, Defendant Secretary Ross told Congress that the lifecycle cost of the 2020 Census would be $ 3.3 billion above the Commerce Department's original estimate." (citing Am. Compl.) ).
See Nicholas Fandos, Sheryl Gay Stolberg & Peter Baker, Trump Signs Bill Reopening Government for 3 Weeks in Surprise Retreat From Wall , N.Y. Times (Jan. 25, 2019), https://www.nytimes.com/2019/01/25/us/politics/trump-shutdown-deal.html; David Nath, Furloughed Federal Workers Considering Career Change as Partial Government Shutdown Drags On , Fox News (Jan. 24, 2019), https://www.foxnews.com/politics/furloughed-federal-workers-consdiering-career-change-as-partial-government-shutdown-drags-on ("The partial government shutdown has now dragged on for over a month, and there's noend in sight...."); Rachel Martin, Still No End in Sight for the Longest Government Shutdown , Nat'l Pub. Radio (Jan. 21, 2019) (interview with White House correspondent Scott Horsley), https://www.npr.org/2019/01/21/687096061/still-no-end-in-sight-for-the-longest-government-shutdown ("President Trump has offered what he calls a compromise plan to end the partial government shutdown now the longest in history.").
Defendants rely on the decision of the U.S. District Court for the Northern District of Illinois in Tucker v. U.S. Department of Commerce ,