Utah v. Evans

ANDERSON, Before STEPHEN H. BENSON, Judge, Circuit DEE V. Chief WINDER, K. Judge, District and DAVID Judge. District MEMORANDUM OPINION ANDERSON, H. STEPHEN Circuit Judge.

By mandate, statutory constitutional and conducted, the federal decennial Census is Congress, by Secretary behalf has, turn, delegated Commerce who re- sponsibility conducting the Census to the Director of the Bureau. The persons “number of each State” enu- merated the Director in each Census is used, alia, apportion inter Lee, Lindon, Utah; states seats the United States House of Thomas R. Mark L. Shurtleff, General, Attorney Ray- Representatives. “if may summary judgment grant We decennial Cen-

In the 2000 depositions, answers to in- pleadings, its enumer- Bureau included within sus file, terrogatories, and admissions on to- for apportionment ation affidavits, any, with the show that gether overseas, mili- primarily living any genuine there is no issue as materi- dependents, and their but tary personnel moving party al fact and that the is enti- Americans over- excluded all other tled to as a matter of law.” were those not enumerated Among seas. 56(c). following Fed.R.Civ.P. For the rea- 11,000 for the missionaries approximately sons, grant we defendants’ interve- Latter-day Christ Church Jesus summary judg- nors’ cross-motions for (“LDS”) who were overseas Saints ment, deny plaintiffs’ and we motion for or eighteen-month of Utah on the state summary judgment. twenty-four-month proselytizing service Day their church on Census missions for BACKGROUND 2000). 1, of the (April As result 2000 pur is conducted The decennial Census on the ba- apportionment count calculated by Arti requirement imposed suant to the 2000, of North the State sis of Census and cle I of the United States Constitution Utah, Carolina, of was the State in the Fourteenth Amendment that seats seat in the House of awarded the 435th Representa of the States House United Representatives. tives be the several “apportioned Utah, Plaintiffs, its gover- of State num according respective to their States officials, nor, and numerous other elected bers, per the whole number of counting who were along with four Utah citizens Const, amend. sons each State.” U.S. missionaries on serving as LDS abroad Const, I, 2, XIV, 2; § cl. § art. U.S. 2000, against this suit Day brought Census “counting” persons of the “number of The Di- and the Secretary of Commerce accomplished by “actual in each State” injunctive of the Bureau for rector Census Enumeration,” every years, conducted ten relief, that the declaratory asserting by [Congress] “in Manner as shall such Bureau’s failure to enumerate LDS Census I, 2, 3; § art. cl. Law direct.” U.S. Const. abroad, while living missionaries Massachusetts, 788, v. Franklin 505 U.S. within its enumeration 2767, 120 L.Ed.2d 636 abroad, constitution- violated various (1992). provisions. The State of statutory al and by means of the Census Congress, and numerous of its elect- North Carolina 1-196, Act, delegated §§ has 13 U.S.C. action. intervened this ed officials of Com Secretary Department of the United three-judge panel This “take a decen responsibility merce pursu- District Court was convened States ... form population such nial census request under 28 U.S.C. ant to may content as he determine.” § a motion for sum- 2284. Plaintiffs filed 141(a). Secretary § The is assisted U.S.C. filed a mo- mary judgment. Defendants Director of the by in that endeavor or, alternatively, a cross- tion dismiss perform such Bureau who “shall Census summary judgment. Interve- motion for him may imposed upon be duties as summary nors filed cross-motion law, the Secre regulations, or orders of respon- have filed judgment. parties All Supreme § 21. The tary.” 13 U.S.C. pleadings, along with affidavits that “the text acknowledged sive has Court with vir Congress Defendants supporting materials. vests other Constitution discretion conducting tually unlimited filed an administrative record have (“A.R.”). and such wide dis- the decennial” by the known as the method of extraordinary defer- method

cretion commands York, equal proportions. City New ence. Wisconsin 1091, 1, 19, 134 L.Ed.2d 167 116 S.Ct. 2a(a). § The of the House U.S.C. Clerk (1996) added). Thus, (emphasis the Secre- Representatives then sends to “the ex- must tary’s conduct of the Census “bear ecutive of each State a certifícate of the relationship to the ac- only a reasonable Representatives number of such enumeration of complishment of an actual 2a(b). State is entitled.” U.S.C. With keeping in mind the consti- population, Secretary to Census of the census.” Id. at purpose tutional 2000 data Commerce delivered 1091; see also United States 116 S.Ct. 28, 2000, to the President December Montana, Dep’t Commerce v. President, turn, transmitted the 118 L.Ed.2d 87 Repre- counts to the Clerk of the House of (1992) (noting Congress’s “apparently January sentatives on 2001. The Clerk good-faith apportion- choice of a method of representa- notified of its number Representatives among ment of the sever- January tives on ‘according respective al States to their conducting commands far more deference” Numbers’ people Bureau allocates to their home decisions). districting than state according states to their “usual residence.” Act, “The term can mean more than mere tabulation “[t]he Under physical presence, and has been used ... population by of total States as re- broadly enough to include element of some quired apportionment Represen- allegiance or enduring place.” tie to a in Congress completed tatives ... shall be 505 U.S. at S.Ct. 2767. within 9 months after the census date and However, the term has “continued to hold reported by Secretary to the President broad connotations.” 112 141(b). Id. § United States.” 13 U.S.C. 2767. The Census Bureau defines it as Upon receipt Secretary’s report, of the place person “the where a and sleeps lives President: most of the time.” A.R. at 651. Congress shall transmit to the a state- showing ment the whole per- number of As in the Census Bureau did the 1970 sons in each ... State as ascertained decided, Census and the 1990 ... under the decennial census of the discussions, following meetings, various population, Repre- and the number of hearings, reports, to enumerate in sentatives to which each State would be only 2000 living those Americans apportionment entitled under an employed by overseas who were feder- existing Representatives government.1 then number of al apportionment pur- For 1. In zenship the Census Bureau formed a Cen- and "home of record” of Americans Contingency abroad); 2000 (worldwide sus Committee on Ameri- resource issues enumer- Abroad, produced report cans called costly ation of American citizens would be Contingency "Census 2000 Plan for Enumer- time, staff, "money, equipment, terms of ating Private U.S. Citizens Overseas.” A.R. at (it space”); legal/policy office issues [and] orga- 642-55. The Bureau met with various apply difficult Census Bureau's "usual representing living nizations Americans over- concept residence” to tiróse whose resi- usual seas, urged who the Bureau to enumerate all States); oper- dence is outside United ultimately of those Americans. The Bureau (worldwide ational issues enumeration of decided not to enumerate those Americans. require American citizens would coordination September In a memorandum dated Department orga- private with the State explained the Census Bureau its deci- require nizations and would and entities mas- following sion as based on the considerations: (the quality difficulty verifying data the citi- the other absent citizens from living temporarily abroad federal poses, in accor- states particular allocated to count.” Id. at As were record,” as des- above, with their “home dance the result which indicated Feder- personnel records. ignated their by these remedies would be proposed seek abroad were employees living al an the Census Bureau to requiring order for apportionment counted Census ap- in the either include LDS missionaries agree, only all parties As purposes. count, portionment or exclude all federal all Americans (excluding count resident apportion- from the overseas, including employ- count, thereby giving an addi- ment ees) redistricting, is used for denying seat and representative tional non- allocating funding, and other North Carolina such a seat. Following Cen- purposes. number Utah retained the same sus DISCUSSION Representatives House of of seats that, as begin by noting We Census, while North it had before the hearing at the on the counsel conceded an additional seat. was awarded Carolina summary judgment, plaintiffs motions for action under the brought Plaintiffs this equal protection pursued have not their Act, Declaratory Judgment 28 U.S.C. do address argument. We therefore Act, 2202; All §§ the Writs turn, therefore, issue. We 1651; Proce- the Administrative U.S.C. remaining three claims. (“APA”); Act, §§ 701-706 dure U.S.C. Act, 42 Freedom Restoration Religious I. APA Claim (“RFRA”); §§ 2000bb to 2000bb^ U.S.C. Act, 2a; § arbi challenge 2 the Census 13 U.S.C. Plaintiffs seek to as U.S.C. Clause, 1-196; §§ Apportionment the trary capricious and under the APA the Const, 2, 3; I, § Amend- art. cl. the First conduct connection Census Bureau’s Amendment; ment; and the Fourteenth satisfy To the statuto with Census 2000. the Fifth Equal Protection Clause of the APA, requirements of the ry standing They argue that LDS mis- Amendment. that defendants plaintiffs “must establish in all rele- are similar sionaries overseas for which there is agency took ‘final action ” employees over- respects vant to federal remedy in court.’ Col adequate no other seas, declaratory therefore seek a and Farm Fed. v. States orado Bureau United dispa- that “the Bureau’s (10th Serv., 1171, 220 F.3d 1173 Forest citi- similarly-situated of rate treatment 704). Cir.2000) § (quoting 5 U.S.C. APA, RFRA, 2, Title zens” violates final federal conduct constitutes “Whether Act, Appor- as well as the and the Census meaning of the agency action within First, and the Fourteenth tionment Clause a Id. The Su legal question.” APA is and Fifth Amendments Constitu- in Franklin v. preme Court’s decision Compl. Pis.’ Am. for Declar- tion. Second Massachusetts, 788, 112 S.Ct. 505 U.S. Injunctive and Relief at 18-19. atory (1992) 636 forecloses 120 L.Ed.2d injunction requiring “an They also seek plaintiffs’ APA claim. apply the ‘usual residence’ Defendants Franklin, challenged Massachusetts absent LDS mis- temporarily rule to the following determination apportionment undercounted sionaries who were overseas alternative, in which federal census, or, the 1990 ... an 2000 counted, which result- were Defendants to remove injunction requiring publicity campaign). A.R. at sive worldwide 1013-15.

1296 of their Congres- practices religious restrict because loss of in Massachusetts’ ed motivation, neutral, the law is not is three-judge panel A of the sional seat. justified aby compelling invalid unless it is the inclusion court held district narrowly tailored to ad employees was arbi- interest is such federal the Luku the APA. On vance that interest.” Church under trary capricious Hialeah, reversed, Aye, City Inc. v. hold- mi Babalu Supreme Court appeal, the APA 508 U.S. to Massachusetts’ ing, with omitted). (1993) (citations “[bjecause claim, per- L.Ed.2d 472 it is the President’s However, Congress “a law that is neutral and report sonal transmittal justified general applicability until need not be apportionment, he that settles agency compelling governmental action interest there is no determinate acts even the law has the incidental effect of challenge.” burdening particular religious practice.” 2767. Because the President RFRA, statutory was no Id. at 113 S.Ct. 2217. Under agency, not an there challenge “[government substantially shall not standing to controls, APA. That decision person’s religion.” under the burden a exercise of by plaintiffs’ 2000bb-l(a); at- unpersuaded and we are U.S.C. see also Kikumura (10th tempts distinguish Franklin.2 Hurley, F.3d Cir. 2001).4 Thus, causes of action re both Amendment Free II. RFRA and First Bu quire a demonstration that the Census Exercise Claims groups reau’s decision as to which of over Bu- argue that seas Americans to enumerate burdened Plaintiffs3 religion. missionaries from exercise of See Branch reau’s exclusion LDS count, Rossotti, while Ministries v. 211 F.3d (D.C.Cir.2000) (“To overseas, violated both sustain its claim under [RFRA], [plain Exercise either RFRA and the Free Clause the Constitution it burdened must first tiff] First Amendment because establish its free exer religious practice right substantially of their cise has been bur exercise dened.”). serving disagree. on missions abroad. We Clause, allege, the Free Exercise Plaintiffs and we accept Under true, “if object infringe upon missionary of a law is to or their assertion as that distinguish tary’s attempt by report 2.Plaintiffs to Franklin to the "more President like arguing challenging simply that are not tentative and recommendation than a final binding the decision to federal overseas em- determination.” Id. at 112 S.Ct. include count, ability ployees apportionment 2767. The President had that follow- in the as Mas- Franklin, ing Census no less than he did in sachusetts did in but "the Frank- rather lin to the discriminatory policy 1990 Census. such em- ployees excluding— at the while same time refusing gather even only to reliable data on— 3. Plaintiffs concede that LDS four. similarly temporarily missionary' standing bring situated individuals liv- have ing Reply abroad.” Pis.’ Mem. at 78. How- their RFRA Free Exercise claims. ever, Franklin itself refutes this distinction. majority explicitly Flores, The that Franklin noted City 4. While 521 U.S. 507 of Boerne , expressly required (1997), "is not to adhere President 138 L.Ed.2d 624 held policy to the reflected the Secre- decisions in applied RFRA unconstitutional as states, tary's report.” 505 U.S. at recently the Tenth Circuit held that ability S.Ct. 2767. It is the President's applicable RFRA remains constitutional and Kikumura, government. "reform census” and revisit Secre- to the federal See tary’s policy decisions that makes the Secre- F.3d at 959-60. impor- allegations are insufficient to withstand the most basic and work “is one of the LDS faith.” Worth- obligations summary judgment. grant tant We therefore Only one of the four LDS Decl. at en in- summary judgment defendants and an affidavit missionary plaintiffs has filed RFRA tervenors on and Free summary motion for support of them claims. Exercise Wayne Michael Plaintiff judgment. Apportionment III. that he was Clause Census

Anderson’s affidavit states two-year mis- away serving Act Claims 1, 2000, sincerely he April and that sion on indicated, Apportionment As Clause missionary work “performing believes Constitution, as amended obli- my important ... is one of most Amendment, requires an “ac- Fourteenth a member of the LDS Church.” gations as tual Enumeration” of the “whole number ¶Aff. 4. Anderson Const, persons each State.” U.S. however, for question, The Const, XIV, 2; 1, 2, § § art. amend. Clause, is RFRA and the Free Exercise requires cl. The Census Act a “decennial Bureau’s decision whether the Census 141(a). population.” census of 13 U.S.C. Ameri- non-federal-employee enumerate argue Plaintiffs the Census Bureau any April way cans abroad on requirements violated these includ- when burdened, tended to burden or or even a small subset of ed coerce, exercise of his Mr. Anderson’s free population the entire American performance belief in the of mis- religious (those govern- work for the who no evi- sionary present work. Plaintiffs ment) excluding similarly while situated at all that it did. Mr. Anderson’s dence (LDS missionaries). Americans overseas does not mention the nor affidavit complaint Plaintiffs’ second amended aware of the indicate that he was even injunctive seeks one of two remedies for when he decided to upcoming Census alleged violations: either include these Moreover, at the time serve his mission. LDS missionaries mission, to serve his Mr. Anderson decided count, employe or exclude federal overseas know, know, did not nor could he he Plaintiffs seek a declaration that the es.5 Bureau’s failure to whether “similarly Bureau must treat all at all any him would have effect enumerate Americans alike. We situated” overseas Repre- of House of on the each claim in turn. explore sentative seats to Utah. sum, nothing more plaintiffs present A. Inclusion of LDS missionaries conclusory completely speculative

than that, argue Plaintiffs practice religion that their allegations ap are counted overseas any way religious beliefs were burdened count, must LDS missionaries portionment not to by the Census Bureau’s decision they similarly are situ be as well because who were enumerate LDS missionaries They employees. overseas Day Conclusory ated to federal abroad on Census 2000. brief, hearing, they summary judgment did attempted at the reply 5. In their they sought remedy to include broaden the relief in their second not seek this broader following all possibility: "the addition of sought complaint, nor have amended Americans, including LDS mission- overseas complaint. Counsel ac- further amend their aries, using existing ad- can be counted who must, cordingly acknowledged, as he similar to those used to ministrative records only to seek the relief plaintiffs are bound employees.” Reply Mem. count federal Pis.' complaint. sought latest in their However, acknowledged at 3. as their counsel 1298 overwhelmingly favor vis-a-vis that Franklin holds that the would Utah Census

argue of that the any group forty-nine include over- all other states. Given Bureau must that, employ- is “to achieve a fair goal apportionment Americans like federal of seas overseas, country,” the entire particular retains ties to apportionment ees Montana, Dep’t Comm. v. reliably in fact be counted. states and can of 1415, disagree. 118 We (1992) added), com- (emphasis L.Ed.2d 87 clear, the “constitu- As Franklin made group enumeration of one manding the goal” underlying Apportionment tional obviously one state fails to further Frank- “equal representation.” Clause goal “equal represen- the constitutional lin, 806, at 112 S.Ct. 2767. We Indeed, tation.” inclusion of one such of the accordingly propriety evaluate the advantage one group to the clear state Bureau’s exercise of the broad dis- goal another would seem undermine it in deci- granted cretion Clause, Apportionment which is dis- goal in sions with that mind. Wisconsin, See accuracy. tributive do not know parties agree All that we (“[A] 20, preference U.S. at 116 S.Ct. 1091 any certainty with the number and distri (even accuracy at the ex- for distributive non-federal-employee Americans bution pense accuracy) of some numerical would any particular time. pur- seem to follow from the constitutional Prewitt, the Director of the Kenneth Cen census, viz., of the to determine the pose time, sus Bureau at the estimated Representatives that there were five million such Ameri States.”). Moreover, among the were we Thus, indisputa A.R. at 1200.6 it is cans. to direct the Census Bureau to enumerate 11,159 ble LDS missionaries from missionaries, we can only easily LDS envi- very proportion small of the were challenges sion constitutional to that deci- non-federal-employee total universe of sion from groups other Americans Americans abroad for various reasons in- religious purposes, abroad for or other However, April of all LDS mis abroad, cluding studying employ- students (24,251), April sionaries abroad on offices, companies ees of with overseas re- hugely disproportionate number of them tirees, groups and numerous other who are (46%) were abroad from Utah. See Swen- charitable, humanitarian, overseas for Aff., sen Ex. A. any number of other reasons.7 Plaintiffs would have us now direct the any group we to declare that enumerate, Were Bureau to out of the abroad, temporarily American citizens non-federal-employee entire universe of particular to a an April apparent Americans abroad on ties state and missionaries, state, LDS course of action intention to return to that could noted, however, reasons, similarly 6. He that estimates varied not so situated for several very from three million to ten million. A.R. at fact that such missionaries disproportionately are so distributed text, the states. As indicated in the distribu- accuracy proportionality impor- tive are concurring opinion misapprehends 7. The our Wisconsin, goals tant reaching Census. See basis for this conclusion. It as- 1091; Montana, U.S. at similarly sumes that LDS missionaries are 464, Accordingly, U.S. at 112 S.Ct. 1415. employees, to situated that, overseas federal and result, single group clearly inclusion a which so disproportionate as a the distribu- dramatically and tion is irrelevant. This the fact distorts distributive accura- overlooks that missionaries, state, impermissi- tiny cy, LDS a to the benefit of fraction of the entire one so, population overseas of five are ble. million the conclude that a fair reading for enumeration and We of Frank- up offer itself them, that precludes remedy. lin Bureau must enumerate we Census to that the compelled require would be Franklin, challenged Massachusetts in 2000 be re- census conducted decennial policy the Census Bureau’s at taken.8 As counsel conceded employees appor- overseas federal the this summary judgment hearing on on ground doing tionment count that actual, case, an practical, that is a if not I, so “violated the command of Article remedy and a impossibility Representa- cl. that the number of admittedly do not seek. We therefore per tives state be determined an ‘actu- request require to the Cen- deny plaintiffs’ respective al Enumeration’ of ‘their Num- to enumerate missionar- sus Bureau LDS bers,’ is, persons that a count of the ‘in’ April abroad on ies who were each State.” 112 S.Ct. 2767. The inclusion of overseas B. Exclusion of federal overseas em- apportionment pur- ployees poses had resulted Massachusetts actu- ally losing representative a seat. The Su- remedy for Plaintiffs’ alternative rejected preme Court Massachusetts’ Apportionment their claimed Clause/Cen challenge on its merits: Act to have us order the sus violation is case, Secretary Bureau to exclude all federal over In this of Commerce Census with, judgment, dependents seas and their made consonant by, the and though count derived from not dictated text Constitution, many remedy history would entail Census Such employees temporarily Bureau to recalculate stationed requiring had retained fifty count for all states their ties and could and should be counted and resubmit that count to the President. States indicates, adopt plaintiffs’ suggestion there Were we to 8. As the record in this case problems a host of well-documented are can use the records of the Census Bureau living attempting Church, enumerate all Americans to private organizations the LDS like Additionally, supra. abroad. See n. problems identifying we discern additional Prewitt, June Kenneth the Director applying criteria to evaluate the reliabili- Census, gave prepared the Bureau of the ty Although the LDS of such records. before the Subcommittee on the statement keeps meticulous records Church asserts Reform, Census, Committee on Government missionaries, order to about its overseas Representatives House obligation discharge independent its own Statement”). ("Prewitt reported He that the census, the Census Bureau conduct concluded, Census Bureau had after careful way develop would nonetheless have to some study, credibly that "it cannot review verifying reliability information population of American citi- enumerate compel the in such records. If we contained at 2. zens abroad.” Prewitt Statement direction, proceed Bureau to in that following problems trying He listed attempt- multiple problems it will encounter enumerate those Americans overseas: obtain- ing verify myriad private or- the records of data, ing particularly accurate without a con- ganizations, different records and each with follow-up permit for non- trol mechanism practices capabilities, in record-keeping effectively respondents, make a which would relating to the to inconsistencies addition voluntary census of Americans overseas identify organizations to willingness of such manipulation; subject to validation therefore themselves, obtained, cooperate, and not mount chal- in- and verification of information themselves, states, identify- lenges the various cluding preventing duplication and state; ing operational complexity; the home and the Census Bureau. and cost. in reau to exclude from the representation their toward States’ employees, plain- federal count overseas Congress.... Secretary’s The from underlying distinguish consti- cannot this case hamper not tiffs does equal Franklin. goal representation, tutional but, employees tempo- assuming that First, plaintiffs interpret Franklin to rarily abroad have indeed re- stationed that, proposition for the simply stand States, their home tained their ties to Americans group there is overseas equality. actually promotes particular that have retained ties to a state Id. at S.Ct. 2767. countable, they or states and are must be apportionment purposes. enumerated for they challenging argue Plaintiffs are not Moreover, did not they argue Franklin of federal simply the inclusion overseas require the inclusion of federal overseas rather, employees; they challenging are So, employees. argument goes, we are individuals with the the inclusion those compelled to include them. We do not not group refusal to include a simultaneous way. read Franklin that limited (LDS missionaries) they argue whom Franklin, group happened the enumerated similarly respects in all relevant situated federal and the did employees, to be Court They ar- employees. to federal overseas rationally note that the Census Bureau that gue distinguishes this case partic- retained ties to concluded that disagree. Franklin. We states and could be dependably ular count- It is true that the Franklin was Court ed. only ques- specifically presented with the Although impor- those two factors are tion of whether the Bureau acted tant, however, rely the Court did not consistently with consti- rationally two alone it upheld those features when goal equal representation tutional when the Census Bureau’s enumeration those it for apportionment decided include Rather, employees. acknowl- Court It employees federal overseas. edged employees unique that federal are a explicitly presented was not with another subset of Americans abroad. It noted that group claiming of Americans abroad be why there were several reasons the Cen- similarly employees situated to federal seeking on that to be sus Bureau decided to include them for basis enumerated.9 However, purposes. only Not obviously the Court knew that was employees only group bipartisan Congressional support federal were not the there abroad, that, by employees, of Americans enumer- inclusion of such but also there them, ating the Census Bureau enu- was a “should employees belief such not be from apportionment merated subset of Americans abroad. excluded Thus, it implicit temporary was Franklin what is counts because of and involun- explicit employees tary here: federal overseas residence overseas.” (quotation are one subset of the entire universe of U.S. at omitted). that, overseas Americans. We conclude The involuntariness of their reasons, for several to their posting, overseas the behest their request that we Bu- require government, differentiates most argument argument, very rejected holding 9. The same make court The (that the Census Bureau could not include proper was a exercise of the Census Bureau’s American federal overseas while conducting the Census to discretion in excluding non-federal-employee other Ameri- enumerate but overseas) Borough cans was made in Bethel groups other of Americans abroad. Stans, (3rd Cir.1971). Park v. 449 F.2d 575 employ- representa- affects the most non-federal from employees living overseas. tives. ees

Second, that expressly stated Finally, employees the Court federal overseas are appor- for employees federal inclusion of uniquely susceptible being accurately to the hamper not tionment “does counted because the Census Bureau has equal goal rep- constitutional underlying about access to data those individuals resentation.” Id. different in quality quan- which is both from all employees come Federal overseas data about tity from the available other states, presumably appor- are fifty Americans overseas. It has access to rec- fifty throughout the entire states. tioned ordinary ords maintained the course of Moreover, presented evidence this by government business that, while the case indicates distribution the government’s employees. own As employees among the of federal overseas the evidence presented support precisely does not mirror fifty states indicates, summary judgment motions populations, resident state distribution of simply group there is no other which can varia- present any it does not extreme also readily dependably be as identified and Thus, we do not among tions the states. counted employees as federal overseas. state, or a have a situation where one sum, Franklin held the.Secre- states, advantaged or group greatly is tary of decision to enumerate Commerce’s disadvantaged, compared remaining to the employees overseas was “conso- states, by the inclusion of its federal over- with, though by, nant not dictated text employees.10 seas Inclusion of federal em- history of the Constitution.” We can- the inclusion of various oth- ployees, unlike say that the same decision made for groups private er American citizens was than a anything Census 2000 other abroad, manipu- does not invite the kind of Secretary’s exercise of the discre- rational injection of local or lation states tion, Bureau, delegated which the wished parochial bias founders obligation conduct its to enumerate the to avoid. population apportionment purposes. for Third, if even inclusion of federal over- Accordingly, request we decline appor- seas causes a different Bureau to exclude require tionment than would a count of ap- federal overseas necessarily population, resident that is not portionment count. Indeed, is a constitutional violation. reasons, we foregoing For the GRANT happened what in the Franklin precisely the defendants’ and intervenors’ motions case: Massachusetts lost seat when summary judgment and DENY the federal overseas count was added to summary judgment. plaintiffs’ motion for pur- for apportionment resident count The clerk is directed to enter Thus, poses. Franklin makes clear that accordingly. constitutionally permissible the federal overseas count does not mirror employee BENSON, Judge, Concurring. District count, and it the resident is constitutional- I and II of the I concur Sections ly employ- if inclusion of such permissible majority opinion and the result reached apportionment purposes actually ees for Utah, Thus, divergences advantage proportional between the dramatic modest states, fifty would employee alone and the resi- overseas count the inclusion of LDS missionar- follow from dent count. ies, stands in stark contrast to the much more LDS possible inclusion of overseas separately I write because in Section III. III discussion in Section my may give in view the in future censuses missionaries only finding necessary too far. The goes than greater count to Utah proportionately Bureau is that the Census to our decision to other states. manner in

had a rational basis for the Census, and it carried out the 2000

which did not abuse its discretion

therefore any Ameri-

deciding not to count employees. beyond government

cans any analysis say, That is all we need America, UNITED STATES dicta, to that issue. should be limited however, is- majority opinion reaches unnecessary from and to our sues removed Gregory Hollis DAVIS.

holding. No. CR. 00-70-E. III, majority unnecessari- In Section Court, ly possible problems discusses with the United States District I see no sought plaintiffs. remedies Alabama, M.D. opinion an on these rem- express

reason to Eastern Division. already because we have determined edies June liability. example, is no For there majority may that there be some- suggests the inclusion of LDS

thing wrong with census because

missionaries serving abroad

has more LDS missionaries

than other states. This dictum is unneces- Furthermore, I

sary to our decision. dis- with it. If for some reason

agree in-

future the census takers determine to missionaries,

clude overseas LDS may

their discretion choose do reasons, variety I nothing see consti-

tutionally impermissible or otherwise

doing merely large so because a number of regard, are from Utah. In this I find

them inclusion significant of overseas

government employees precisely does not apportion-

mirror the domestic count for Indeed, purposes. reason

ment filed Franklin v. Massachu-

setts, (1992), inclu-

L.Ed.2d 636 was because the military personnel

sion of favored Wash- Massachusetts, for-

ington over with the gaining congressional

mer seat and the for that losing

latter one reason alone. Supreme

Yet the United States Court practice. Similarly,

found no error in that legal significance

I no in the fact that see

Case Details

Case Name: Utah v. Evans

Court Name: District Court, D. Utah

Date Published: Apr 17, 2001

Citation: 143 F. Supp. 2d 1290

Docket Number: 2:01CV0023B

Court Abbreviation: D. Utah