Paul W. Grimm, United States District Judge.
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, 505 U.S. 788, 803, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992). Specifically, it is the Secretary of Commerce ("Secretary") to whom the Congress has delegated the duty of conducting the decennial census, and who has broad discretion in fulfilling his duty. 13 U.S.C. § 141; Wisconsin v. City of New York, 517 U.S. 1, 19-20, 116 S.Ct. 1091, 134 L.Ed.2d 167 (1996); La Unión del Pueblo Entero v. Ross ("LUPE"), No. GJH-18-1570, 353 F.Supp.3d 381, 386, 2018 WL 5885528, at *2 (D. Md. Nov. 9, 2018). The results of this headcount are important in many regards, not the least of which are the apportionment of Congressional representatives and the allocation of federal resources based on population. See id.; U.S. Const. am. XIV, § 2 ("Apportionment Clause"). Congress has found that "[t]he decennial enumeration of the population is one of the most critical constitutional functions our Federal Government performs." Dep'ts of Commerce, Justice, & State, the Judiciary, & Related Agencies Appropriations Act ("1998 Appropriations Act"), Pub. L. No. 105-119, § 209(a)(5), 111 Stat. 2440, 2480 (1997).
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." Id. (Finding No. 6). Yet, decade after decade, "[t]he census has historically undercounted racial and ethnic minorities." Am. Compl. ¶ 22, ECF No. 38;
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 Clause 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"), 5 U.S.C. § 701 et seq. Indeed, unlike almost all, if not the entirety, of the robust body of litigation surrounding past censuses, this case challenges agency action before the Bureau has finalized its preparations for the 2020 Census. And, as relief, the Plaintiffs request nothing short of this Court injecting itself directly into the final planning of the Census to superintend the process.
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 time. 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.
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, 13 Cornell J.L. & Pub. Pol'y 637, 655 (2004). Thus, the "constitutional goal" was "equal representation" (although, as noted, "equal representation" did not account for slaves). Franklin v. Massachusetts, 505 U.S. 788, 804, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992). The Framers vigorously debated the representation the States should have in the federal legislature. See Sincock v. Duffy, 215 F.Supp. 169, 186 (D. Del. 1963) (noting that "[t]he Constitutional Convention was deadlocked"), aff'd sub nom. Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964); Clemons v. U.S. Dep't of Commerce, 710 F.Supp.2d 570, 576 (N.D. Miss. 2010) (noting that, in drafting the Constitution, "[t]he debate
Sincock, 215 F.Supp. at 186. The compromise they reached provided for "two Houses, one with equal and the other with proportional representation," with "direct taxation [linked to] representation in the House of Representatives," the House with proportional representation. Id.
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, 353 F.Supp.3d at 386, 2018 WL 5885528, at *2 (citing 13 U.S.C. § 141 et seq.). Specifically, Congress enacted the Census Act, which directs the Secretary to "take a decennial census of population as of the first day of April" every ten years "in such form and content as he may determine, including the use of sampling procedures and special surveys," and it "authorized [the Secretary] to obtain such other census information as necessary." 13 U.S.C. § 141(a).
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 respective numbers, counting the whole number of persons in each state."); Wisconsin v. City of New York, 517 U.S. 1, 24, 116 S.Ct. 1091, 134 L.Ed.2d 167 (1996) ("The Constitution confers upon Congress the responsibility to conduct an `actual Enumeration' of the American public every 10 years, with the primary purpose of providing a basis for apportioning political representation among the States."); id. at 5-6, 116 S.Ct. 1091 ("Because the Constitution provides that the number of Representatives apportioned to each State determines in part the allocation to each State of votes for the election of the President, the decennial census also affects the allocation of members of the electoral college. Today, census data also have important consequences not delineated in the Constitution: The Federal Government considers census data in dispensing funds through federal programs to the States, and the States use the results in drawing intrastate political districts." (internal
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. 517 U.S. at 6, 116 S.Ct. 1091. Congress has found that "[t]he sole constitutional purpose of the decennial enumeration of the population is the apportionment of Representatives in Congress among the several States." 1998 Appropriations Act § 209(a)(2). But, the federal government also considers census data in dispensing funds through federal programs to states, and states use census data to draw interstate political districts. Wisconsin, 517 U.S. at 6, 116 S.Ct. 1091; see Baldrige v. Shapiro, 455 U.S. 345, 353, 102 S.Ct. 1103, 71 L.Ed.2d 199 (1982) (noting that while the Enumeration Clause's "initial constitutional purpose was to provide a basis for apportioning representatives among the states in the Congress[,] [t]he census today serves an important function in the allocation of federal grants to states based on population" and "also provides important data for Congress and ultimately for the private sector"). Indeed, "[t]he statute authorizing the Secretary of Commerce to conduct the census, 13 U.S.C. § 141, `expresses the intent of Congress that census data be collected not only for reapportionment purposes but also for accurate distribution of funds.'" Texas v. Mosbacher, 783 F.Supp. 308, 314 (S.D. Tex. 1992) (quoting City of Willacoochee, Ga. v. Baldrige, 556 F.Supp. 551, 555 (S.D. Ga. 1983); noting that "[t]he zone of interest of § 141 includes anyone with an interest in fair reapportionment, which constitutionally concerns all citizens, and those with an interest in the fair distribution of the funds" (emphases added)).
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", 77 Wash. L. Rev. 1, 6 (2002) (quoting Dep't of Commerce v. U.S. House of Reps., 525 U.S. 316, 335, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999))). In 1964, Congress amended the Census Act, 13 U.S.C. § 1 et seq., to "permit[ ] the Bureau to replace the personal visit of the enumerator with a form delivered and returned via the Postal Service," and in 1970, "census officials conducted approximately 60 percent of the census through a new `mailout-mailback' system for the first time." Dep't of Commerce v. U.S. House of Reps., 525 U.S. 316, 336, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999) (citing M. Anderson, The American Census: A Social History 210-11 (1988)). Under the new approach, "[t]he Bureau ... conducted follow up visits to homes that failed to return census forms." Id. And, as of 1976, the Secretary may conduct the census "in such form and content as he may determine, including the use of sampling procedures and special surveys," except that sampling still may not be used "for the determination of population for purposes of apportionment of Representatives in Congress among the several States." Id. at 337-38, 119 S.Ct. 765 (quoting 13 U.S.C. §§ 141(a), 195).
Relevant legislation sets various census-related deadlines, and in Department of Commerce v. U.S. House of Representatives, Justice O'Connor described the sequence:
Id. at 321-22. The actual impact of a loss of a Representative in a state is not immediate. Rather, it is felt as of the next Congressional election following the census, when a lower number of Representatives will be elected based on the reapportionment.
"[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, 517 U.S. at 6, 116 S.Ct. 1091. Yet, "no census is recognized as having been wholly successful in achieving that goal." Id. The Supreme Court noted in 1996:
Id. (emphasis added) (citations and footnotes omitted); see also id. at 6 n.2, 116 S.Ct. 1091 ("Indeed, even the first census did not escape criticism. Thomas Jefferson, who oversaw the conduct of that census in 1790 as Secretary of State, was confident that it had significantly undercounted the young Nation's population." (citing C. Wright, History and Growth of the United States Census 16-17 (1900))). And, ironically, improvement in census planning and procedures does not necessarily correlate with improved accuracy. See U.S. House of Reps., 525 U.S. at 323, 119 S.Ct. 765. "Indeed, the 1990 census was `better designed and executed than any previous census,'" but "it was less accurate than its predecessor for the first time since the Bureau began measuring the undercount rate in 1940." Id. (quoting Census 2000 Report). Thus, however desirable a well-designed and executed census is, having one is not a guarantee of a more accurate enumeration. See id.
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
Wisconsin, 517 U.S. at 7-8, 116 S.Ct. 1091 (citations to record omitted).
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
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
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, 585 F.3d 187, 192 (4th Cir. 2009); see In re KBR, Inc., Burn Pit Litig., 925 F.Supp.2d 752, 758 (D. Md. 2013) (quoting Kerns, 585 F.3d at 192). This Court must act "on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted). The burden is on the plaintiff to establish jurisdiction. Sherill v. Mayor of Balt., 31 F.Supp.3d 750, 763 (D. Md. 2014) (citing Lovern v.
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, 2013 WL 1308582, at *2 (D. Md. Mar. 28, 2013); see CACI Int'l v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009). Defendants also urge me to take judicial notice of "publicly-available information," see Defs.' Mem. 5 n.6, but this is not the standard. Rather,
Fed. R. Evid. 201.
This Court may "adjudicate only actual cases and controversies." Zaycer v. Sturm Foods, Inc., 896 F.Supp.2d 399, 407 (D. Md. 2012) (citing U.S. Const. art. III, § 2; O'Shea v. Littleton, 414 U.S. 488, 493, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir. 2009)). This "constraint of Article III" has two distinct but overlapping facets that must be satisfied for a federal district court to have subject matter jurisdiction: standing (which addresses who may sue) and ripeness (which addresses when a party may bring a suit). See South Carolina v. United States, 912 F.3d 720, 730 (4th Cir. 2019) (quoting Scoggins v. Lee's Crossing Homeowners Ass'n, 718 F.3d 262, 269 (4th Cir. 2013)). The analysis of both issues is similar. See id. (citing Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006) (citing Erwin Chemerinsky, Federal Jurisdiction § 2.4 (4th ed. 2003))). The political question doctrine also limits the scope of federal district courts' subject matter jurisdiction, as 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, 336 F.Supp.3d 545, 561 (D. Md. 2018) (quoting Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986)).
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...." 13 U.S.C. § 141. Noting the breadth of this authority, Defendants insist that the Secretary has absolute discretion over the conduct of the decennial census, and the courts are powerless to review it.
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:
517 U.S. 1, 19-20, 116 S.Ct. 1091, 134 L.Ed.2d 167 (1996) (internal citations and footnotes omitted). Chief Justice Rehnquist observed that the Supreme Court's
Id. at 23, 116 S.Ct. 1091.
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:
958 F.2d 1411, 1417-18 (7th Cir. 1992) (internal citations omitted); accord Senate of Cal. v. Mosbacher, 968 F.2d 974, 977 (9th Cir. 1992) (quoting Tucker and noting that "[o]ther courts have disagreed and have found some law to apply to attacks on census methodology, even though the grant of authority to the Secretary does fairly exude deference"). Indeed, the process of conducting the census is complex and technical, and it usually is the case that there will be competing ideas about how to do it best. In choosing which method among competing suggestions, the Secretary is afforded great deference by the courts. See Wisconsin, 517 U.S. at 19-20, 116 S.Ct. 1091. And, while accuracy is the constitutional objective, complete accuracy is and always has been impossible to achieve. See id. at 6, 116 S.Ct. 1091 ("There have been 20 decennial censuses in the history of the United States. Although each was designed with the goal of
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, 517 U.S. at 19-20, 116 S.Ct. 1091; Dep't of Commerce v. U.S. House of Reps., 525 U.S. 316, 317, 331-32, 119 S.Ct. 765, 142 L.Ed.2d 797 (2002) (recognizing that voter's "expected loss of a Representative to the United States Congress undoubtedly satisfies the injury-in-fact requirement of Article III standing" because voters have an "`interest in maintaining the effectiveness of their votes,'" and "[w]ith one fewer Representative, [a state's] residents' votes will be diluted" (quoting Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962))). Since the Constitution caps the total number of Representatives to be apportioned among the states based on population, an inaccurate census that undercounts a state's population and leads to a loss of a Representative will cause vote dilution, which is inconsistent with the constitutional goal of equal representation. Therefore, the discretion of the Secretary and Congress itself cannot be absolute. Rather, a census so poorly designed and so underfunded as to fail to bear a "reasonable relationship to the accomplishment of an actual enumeration" (one that does not dilute the votes of a state's voters) would be unconstitutional, in violation of the Enumeration Clause.
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, 789 F.Supp. 1179, 1179, 1181-82 (D.D.C. 1992) (observing that, "as many courts have noted, the constitutional basis for the jurisdiction of Congress over the conduct of the Census does not provide a reason in every case to shield the Census from judicial review"; concluding that political question doctrine did not bar plaintiffs claim that defendants violated the Enumeration Clause and the Census Act; adopting the "arbitrary and capricious" standard from the APA to review the Census Bureau's decision to count prisoners as residents of the state where they are imprisoned for purposes of the census); Massachusetts v. Mosbacher, 785 F.Supp. 230, 265 (D. Mass.) (employing the arbitrary and capricious standard from the APA to review the Census Bureau's decision on how to count overseas personnel for census purposes), rev'd, Franklin v. Massachusetts, 505 U.S. 788, 796, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) (holding that "the final
Id.
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 cannot 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 5 U.S.C. § 704; City of New York, 913 F.3d at 430-31; cf. New York v. U.S. Dep't of Commerce, Nos. 18-2921 (JMF) & 18-5025 (JMF), 351 F.Supp.3d 502, 627, 2019 WL 190285, at *89 (S.D.N.Y. Jan. 15, 2019) (finding claim ripe where "[t]here [wa]s no dispute the Secretary Ross's decision [to include citizenship question] constitute[d] `final agency action' reviewable under the APA").
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, 353 F.Supp.3d 381, 389-90, 392-93, 2018 WL 5885528, at *5, *7 (D. Md. Nov. 9, 2018); Kravitz v. U.S. Dep't of Commerce, 336 F.Supp.3d 545, 566 (D. Md. 2018); New York v. U.S. Dep't of Commerce, 315 F.Supp.3d 766, 775 (S.D.N.Y. 2018); California v. Ross & City of San Jose v. Ross, Nos. 18-1865-RS & 18-2279-RS, slip op. at 9, 15, 17-20, 28, 2018 WL 7142099 (N.D. Cal. Aug. 17, 2018), ECF No. 47-1. But, Judge Furman dismissed the plaintiffs' pre-census Enumeration Clause claim for failure to state a claim, only allowing the APA and Due Process Clause claims to go forward. New York, 315 F.Supp.3d at 775. And, while the Enumeration Clause claims survived dismissal in the other cases, all of those more recent cases concerned a challenge to a discrete agency action that already was finalized— the decision to include a citizenship question on the 2020 Census questionnaire.
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
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., 525 U.S. 316, 332, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999).
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," id. at 323, 119 S.Ct. 765, as opposed to launching (as Plaintiffs do here) a sweeping challenge to the staffing, leadership, funding, design, and security of the 2020 Census. The Congressional findings also came in response to the Bureau's plan to use statistical sampling in the 2000 census. See id. at 326-27, 119 S.Ct. 765. Second, the suit (like the other 2020 Census cases) was brought after the Census Bureau had taken final action,
The Plaintiffs argue that, if they wait until after the planning for the 2020 Census
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." Id. Defendants also assert that the lawsuit itself interferes with their ability to prepare for the 2020 Census. Id. at 18. In their view, postponing judicial review would create only minimal hardship for Plaintiffs because their alleged injuries would not occur until after the Census. Id.
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, 523 U.S. 726, 732-33, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) ("[T]he ripeness requirement is designed `to prevent the courts, through avoidance of premature adjudication, from entangling
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, 523 U.S. at 733-34, 118 S.Ct. 1665 (observing, in reaching the conclusion that claim was not ripe: "Nor have we found that the Plan now inflicts significant practical harm upon the interests that the Sierra Club advances—an important consideration in light of this Court's modern ripeness cases. As we have pointed out, before the Forest Service can permit logging, it must focus upon a particular site, propose a specific harvesting method, prepare an environmental review, permit the public an opportunity to be heard, and (if challenged) justify the proposal in court. The Sierra Club thus will have ample opportunity later to bring its legal challenge at a time when harm is more imminent and more certain." (citing Abbott Labs.)).
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, 11 F.Supp.2d 76, 90 (D.D.C. 1998) (quoting Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998)), appeal dismissed, 525 U.S. 316, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999). For example, in New York v. U.S. Department of Commerce, the claim was ripe where plaintiffs were "already suffering harm from the addition of the citizenship question due to the diversion of valuable resources" and "time [wa]s of the essence" because "the Census Bureau `need[s] to begin printing the 2020 census questionnaire' in June 2019." Nos. 18-2921 (JMF) & 18-5025 (JMF), 351 F.Supp.3d 502, 626, 2019 WL 190285, at *88 (S.D.N.Y. Jan. 15, 2019). When, as here, a plaintiff alleges an injury that will result "from the procedure utilized for conducting the ... census, ... `the courts have applied the imminence requirement to the procedural violation, not to the discrete injury that might someday flow from such.'" U.S. House of Reps., 11 F.Supp.2d at 91 (quoting Nat'l Treas. Emps. Union v. United States, 101 F.3d 1423, 1430-31 (D.C. Cir. 1996)). In other words, "[t]he matter ... becomes ripe at the point at which use of th[e] [challenged] procedure is `certainly impending' — the point at which it is certain that the Bureau will employ [the challenged procedure] in conducting the apportionment enumeration." Id. The possibility that "Congress may yet pass supervening legislation or take other actions that could moot the controversy" does not make "[t]he claimed injuries ... fail the immediacy test." Id. at 92 ("To ask the court to stay its hand because Congress hypothetically may amend the statutory
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 id. 88 ("For the 2020 Census, the Census Bureau proposes to conduct only one in-person visit to each household." (emphasis added)). See Lujan v. Defs. of Wildlife, 504 U.S. 555, 564, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Yet, the immediacy of Defendants' actions is not tantamount to a certainty of injury or hardship to Plaintiffs in the absence of Court intervention at this time. And, despite the Plaintiffs' claims that they will be left without an adequate remedy if the Court declines to order the injunctive relief that they request, history has shown otherwise. As Chief Justice Rehnquist ruefully noted in Wisconsin, there are a "plethora of lawsuits that inevitably accompany each decennial census." 517 U.S. at 19, 116 S.Ct. 1091. As I already have noted, see supra at 22, 26-27, 116 S.Ct. 1091, the nearly universal characteristic shared by these challenges to previous censuses is that they were brought after the Census Bureau had made its final determinations regarding how the decennial census should be taken, and after the census already had been taken and preliminary population counts announced. These cases included those alleging the same types of injuries as the Plaintiffs do here: loss of federal and local representation and the loss of federal funding. See, e.g., Dist. of Columbia v. U.S. Dep't of Commerce, 789 F.Supp. 1179 (D.D.C. 1992); Massachusetts v. Mosbacher, 785 F.Supp. 230 (D. Mass.), rev'd, Franklin v. Massachusetts, 505 U.S. 788, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992); Texas v. Mosbacher, 783 F.Supp. 308 (S.D. Tex. 1992); City of Willacoochee, Ga. v. Baldrige, 556 F.Supp. 551 (S.D. Ga. 1983); City of Philadelphia v. Klutznick, 503 F.Supp. 663 (E.D. Pa. 1980); City of Camden v. Plotkin, 466 F.Supp. 44 (D.N.J. 1992). And, the relief requested included reallocation of congressional seats, see, e.g., Massachusetts, 785 F.Supp. at 233-34, and upwards adjustment of alleged differential undercounts of hard-to-count populations, see, e.g., Texas, 783 F.Supp. at 309-10; City of Camden, 466 F.Supp. at 47. These cases belie the Plaintiffs' argument that waiting until the Secretary has completed the plans for the 2020 Census, or even later, until after the enumeration has taken place, will deprive them of any effective remedy in the event of a differential undercount. See, e.g., Utah v. Evans, 536 U.S. 452, 463, 122 S.Ct. 2191, 153 L.Ed.2d 453 ("Nor (as we have just explained), if a lawsuit is brought soon enough after completion of the census and heard quickly enough is relief necessarily `impracticable.'"). Thus, they have not shown that
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, 504 U.S. at 561, 112 S.Ct. 2130; Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982).
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/senate-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), 351 F.Supp.3d 502, 627, 2019 WL 190285, at *89 (S.D.N.Y. Jan. 15, 2019). Here, if the Court were to interject itself into the Bureau's process during the critical final preparations, requiring—as Plaintiffs request—its monitoring and approval of the plans along the way, it is hard to imagine that this oversight would not hinder the process as opposed to facilitate it. Therefore, judicial intervention at this time likely would interfere with further administrative action.
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 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, 504 U.S. at 561, 112 S.Ct. 2130; Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). While Defendants are correct that the Court may take judicial notice of facts (if permitted by Fed. R. Evid. 201) in deciding a motion to dismiss, see Defs.' Supp. 10-11, I agree with Plaintiffs that neither the Reist Declaration nor the appendix included with Defendants' Supplemental Memorandum may be judicially noticed. Neither contains facts known within the territorial jurisdiction of the Court, and Plaintiffs' legitimate challenge to their accuracy also means that they are not capable of being established readily by reference to sources of unchallenged reliability. See Fed. R. Evid. 201. For this reason, prior census cases, including Judge Furman's decision in the Southern District of New York, have held that such filings are evidence, appropriate for consideration on summary judgment but not on a motion to dismiss. See New York v. U.S. Dep't of Commerce, 315 F.Supp.3d 766, 783 (S.D.N.Y. 2018); see also Lujan, 504 U.S. at 561, 112 S.Ct. 2130 ("At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we `presum[e] that general allegations embrace those specific facts that are necessary to support the claim.'" (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990))).
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
A plaintiff has standing if
Zaycer v. Sturm Foods, Inc., 896 F.Supp.2d 399, 408 (D. Md. 2012) (quoting Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir. 2009)); see also Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 (same). Notably, while a plaintiff must plead these elements to allege standing, these elements are more than "mere pleading requirements"; they are "an indispensable part of the plaintiff's case," and "each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan, 504 U.S. at 561, 112 S.Ct. 2130. And, the burden on Plaintiffs to overcome the deference afforded to the Secretary is substantial, and must be met through evidence, not allegations.
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, 504 U.S. at 561, 112 S.Ct. 2130 (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)). If the claim survives dismissal, however, and Plaintiffs must respond to a motion for summary judgment, they will not be able to "rest on such `mere allegations'" of injury resulting from Defendants' conduct. Id. At that juncture, they will have to "`set forth' by affidavit or other evidence `specific facts.'" Id. (citing Fed. R. Civ. P. 56). Then, "at the final stage, those facts (if controverted)
An "imminent" injury is one that "is not too speculative," i.e., one that "is `certainly impending.'" Lujan v. Defs. of Wildlife, 504 U.S. 555, 564, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)). Injury cannot be predicted "at some indefinite future time" or expected to result from acts "partly within the plaintiff's own control." Id.
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, 523 U.S. at 733, 118 S.Ct. 1665. Yet, according to Defendants, "[e]ven crediting Plaintiffs' allegations that preparations for the 2020 Census are deficient, Plaintiffs fail to allege that any supposed deficiencies will remain unremedied by the 2020 Census." Defs.' Mem. 9. But, I can judicially notice that the Bureau endured a 35-day lapse in appropriations during the recent partial shutdown of the federal government. And, the Defendants' own estimates demonstrate that the short-term deal that ended the shutdown does not itself add any funding beyond (at the latest) April 2019. This ongoing state of uncertainty bolsters Plaintiffs' position that Defendants will be unprepared (in terms of funding, workforce, and testing) for the 2020 Census, while weakening Defendants' argument that their preparedness may change over the coming months, of which fewer than fifteen remain.
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:
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., 658 F.3d 388, 390 (4th Cir. 2011). In any event, regardless of state database use, Plaintiffs have alleged sufficiently that, without adequate funding, Defendants will not have the means to conduct an accurate headcount and will disproportionately undercount Prince George's County residents as a result.
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, 497 U.S. 871, 883, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). The Enumeration Clause is intended to ensure equal representation, Franklin v. Massachusetts, 505 U.S. 788, 804, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992), and Plaintiffs allege that Defendants' approach to the 2020 Census may leave them with less representation and funding than an accurate tally would provide, Am. Compl. ¶¶ 106, 108. See La Unión del Pueblo Entero v. Ross ("LUPE"), No. GJH-18-1570, 353 F.Supp.3d 381, 391-92, 2018 WL 5885528, at *6 (D. Md. Nov. 9, 2018) (finding that plaintiffs satisfied the zone-of-interests requirement "by alleging that the citizenship question will lead to an inaccurate enumeration, causing malapportionment of political power and funding"); California v. Ross & City of San Jose v. Ross, Nos. 18-1865-RS & 18-2279-RS, slip op. 13-14, 2018 WL 7142099 (N.D. Cal. Aug. 17, 2018), ECF No. 47-1 (finding that the "allegations easily survive[d] the zone-of-interests test" where plaintiffs "alleged loss of funding and inadequate representation flowing from the Secretary's alleged failure to conduct an `actual Enumeration' as required by the Constitution").
Further, in Kravitz v. U.S. Department of Commerce, this Court agreed 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." 336 F.Supp.3d 545, 557, 558 (D. Md. 2018). Judge Hazel noted that "the Supreme Court has previously held that plaintiffs possess standing in census cases where they face an `expected loss of a Representative to the United States Congress.'" Id. at 557 (quoting Dep't of Commerce v. U.S. House of Reps., 525 U.S. 316, 331-32, 119 S.Ct. 765,
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 George'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, 336 F.Supp.3d 545, 559 (D. Md. 2018) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). But, "[f]or an injury to be `fairly traceable' to the defendant, the defendant's actions need not be `the very last step in the chain of causation.'" Id. (quoting Bennett v. Spear, 520 U.S. 154, 168-69, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)). Rather, "the causation element of standing is satisfied ... where the plaintiff suffers an injury that is `produced by [the] determinative or coercive effect' of the defendants' conduct `upon the action of someone else.'" Id. (quoting Lansdowne on the Potomac Homeowners Ass'n, Inc. v. OpenBand at Lansdowne, LLC, 713 F.3d 187, 197 (4th Cir. 2013) (quoting Bennett, 520 U.S. at 169, 117 S.Ct. 1154)). Notably, courts have held that "`there is a direct correlation between decennial census population counts and federal and state funding allocations,' and that `allegations of
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.'" 336 F.Supp.3d at 560. He reasoned:
Id. (citations to complaint omitted). And, in La Unión del Pueblo Entero v. Ross ("LUPE"), he concluded:
No. GJH-18-1570, 353 F.Supp.3d 381, 390, 2018 WL 5885528, at *5 (D. Md. Nov. 9, 2018) (citing Lansdowne on the Potomac Homeowners Ass'n, Inc. v. OpenBand at Lansdowne, LLC, 713 F.3d 187, 197 (4th Cir. 2013)).
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, 336 F.Supp.3d at 558. Therefore, they "have plausibly alleged that a disproportionate undercount would be `fairly traceable' to" Defendants' plans for conducting
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., 204 F.3d 149, 154 (4th Cir. 2000). When, as here, the decision sought includes a request for a declaratory judgment, there must be "a substantial controversy, between parties having adverse legal interest[s], of sufficient immediacy and reality" that the court's declaration of the parties' rights and/or obligations can remedy the injury. Icarom, PLC v. Howard Cty., Md., 904 F.Supp. 454, 457 (D. Md. 1995) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 S.Ct. 826 (1941)); see also 28 U.S.C. § 2201(a) (providing that, "[i]n a case of actual controversy within its jurisdiction," with exceptions not relevant here, this Court, "upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought"). The controversy must be "definite and concrete, touching the legal relations of the parties having adverse legal interest." Icarom, 904 F.Supp. at 457 (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 81 S.Ct. 617 (1937)). For example, in insurance litigation, where declaratory judgments are common, an actual controversy exists when there is a "dispute [that] relates to legal rights and obligations arising from the contracts of insurance." Aetna, 300 U.S. at 242, 57 S.Ct. 461; see also Hanover Ins. Co. v. Engineered Sys. All., LLC, No. TDC-15-0112, 2015 WL 8538481, at *2 (D. Md. Dec. 10, 2015) ("[A]n actual controversy exists between an insurer and an insured when the insurer seeks a declaratory judgment on its contractual duty to defend and indemnify the insured in a tort suit," even if the tort suit "has yet to be decided."). Simply put, Plaintiffs will have standing if there is a declaration that the Court can make regarding Defendants' obligations under the Enumeration Clause that likely will remedy Plaintiffs' injuries. Notably, the Supreme Court has observed that it is "substantially likely that the President and other executive and congressional officials would abide by an authoritative interpretation of the census statute and constitutional provision by the District Court, even though they would not be directly bound by such a determination." Franklin v. Massachusetts, 505 U.S. 788, 803, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992).
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, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). While it remains to be seen just how the Secretary, Congress and the President would react to a judicial declaration that the 2020 Census cannot be accomplished within the time required by the Constitution and the Census Act because of a lack of funding, thereby necessitating immediate additional funding (assuming the Plaintiffs can prove this), the Supreme Court has expressed its confidence that they are likely to follow such a declaration, even if they are not bound by it. See Utah, 536 U.S. at 460, 122 S.Ct. 2191; Franklin, 505 U.S. at 803, 112 S.Ct. 2767. Moreover, given the daily front-page news regarding the recent acrimonious partial government shutdown, which may yet re-emerge, phoenix-like, in the event that the three-week hiatus fails to result in more permanent funding,
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, 783 F.Supp. 308, 317 (S.D. Tex. 1992) (stating that, on a motion to dismiss, the court did not need to "spell out what shape any relief will take, if any in fact is needed, ... because there is no record before it which would allow it to venture such speculations").
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, 336 F.Supp.3d 545, 561 (D. Md. 2018) (quoting Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986)).
Kravitz, 336 F.Supp.3d at 561.
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." La Unión del Pueblo Entero v. Ross ("LUPE"), No. GJH-18-1570, 353 F.Supp.3d 381,
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, 353 F.Supp.3d at 390, 2018 WL 5885528, at *5; Kravitz, 336 F.Supp.3d at 562-63.
"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, 353 F.Supp.3d at 392, 2018 WL 5885528, at *7 (quoting Wisconsin v. City of New York, 517 U.S. 1, 20, 116 S.Ct. 1091, 134 L.Ed.2d 167 (1996)). And, "[a]lthough the Census Clause does not require the Census Bureau to achieve perfect accuracy, it does require that a preference be given for `distributive accuracy (even at the expense of some numerical accuracy).'" Id. (quoting Wisconsin, 517 U.S. at 20, 116 S.Ct. 1091).
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
Accordingly, it is, this
They also contend, in another footnote to their Supplemental Memorandum, that "the Court may dismiss this case as moot." Id. at 11 n.8. I will not do so, given that the case is not moot, as explained below.
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.
