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Kravitz v. United States Department of Commerce

United States District Court, D. Maryland, Southern Division

December 28, 2018

ROBYN KRAVITZ, et al., Plaintiffs,
WILBUR ROSS, et al., Defendants.



         Plaintiffs in two related cases, Kravitz et al. v. United States Dep't of Commerce et al., 18-1041 and LUPE et al. v. Ross et al., 18-1570, challenge the U.S. Census Bureau's decision to include a citizenship question on the 2020 Census. Plaintiffs contend that the addition of a citizenship question violates the Administrative Procedures Act (APA) and the Constitution.[1]The LUPE Plaintiffs also allege that the question was added as part of a conspiracy to violate their civil rights in violation of 42 U.S.C. § 1985. The Defendants moved for summary judgment with respect to all claims asserted against them by both the Kravitz and LUPE Plaintiffs. ECF Nos. 67 (18-1041) and 82 (18-1570).[2] After a hearing, ECF No. 79 (18-1041), the Court entered an order on December 19, 2018, denying Defendants' Motions for Summary Judgment and permitting the parties to present evidence outside the administrative record at trial, ECF No. 80 (18-1041). This Memorandum Opinion explains that December 19, 2018 order and addresses the Kravitz Plaintiffs' Motion for Leave to File Third Amended Complaint, ECF No. 71 (18-1041), which is currently pending before the Court.

         I. BACKGROUND

         The factual background, as alleged in Plaintiffs' Complaints, is set forth in the Memorandum Opinions issued supporting the Court's Orders Denying Defendants' Motions to Dismiss. ECF No. 48 (18-1041); ECF No. 80 (18-1570). For efficiency sake, the Court in this Opinion will only highlight facts supported by record evidence that bare on the question of whether there are genuine disputes of material fact precluding summary judgment.


         Summary judgment is proper if there are no issues of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When ruling on a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         Summary judgment is often an appropriate mechanism for deciding claims arising under the APA. Audubon Naturalist Soc'y of The Cent. Atl. States, Inc. v. U.S. Dep't of Transp., 524 F.Supp.2d 642, 660 (D. Md. 2007). However, summary judgment will be inappropriate where resolution of a claim requires the fact-finder to make credibility determinations or inferences in favor of the moving party. See Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002) (courts must review summary judgment motions “without weighing the evidence or assessing the witnesses' credibility”); see also Buffalo Cent. Terminal v. United States, 886 F.Supp. 1031, 1047-48 (W.D.N.Y. 1995) (denying summary judgment on an APA claim because of credibility issues related to bad faith and pretext).


         In its Motions for Summary Judgment, Defendants argued that Plaintiffs lack standing, that the Court should not review evidence outside the administrative record to evaluate Plaintiffs' APA claims, and that, even considering extra-record evidence, no genuine disputes of material fact exist on the merits of Plaintiffs' claims and Defendants are entitled to judgment as a matter of law. Defendants also oppose the Kravitz Plaintiffs' Motion for Leave to File a Third Amended Complaint because they allege Plaintiffs acted with dilatory motive. Each of these arguments are addressed below.

         A. Standing

         The Article III standing doctrine requires a plaintiff, as the party invoking the Court's jurisdiction, to establish three elements at trial: (1) a concrete and particularized injury-in-fact, either actual or imminent; (2) a causal connection between the injury and defendants' challenged conduct, such that the injury is “fairly trace[able] to the challenged action of the defendant”; and (3) a likelihood that the injury suffered will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see also Spokeo, Inc. v. Robbins, 136 S.Ct. 1540, 1547 (2016). At the summary judgment stage, Plaintiffs must “set forth by affidavit or other evidence specific facts” that support a finding of standing, which the Court will view in the light most favorable to the non-movant, but which may be challenged at trial. 504 U.S. at 561.

         This Court previously concluded that Plaintiffs' Complaints included sufficient factual allegations for the Individual and Organizational Plaintiffs to meet the requirements of standing. ECF No. 48 (18-1041) at 10-17; ECF No. 80 (18-1570) at 9-13. Now, the Individual Plaintiffs have supported their factual allegations-that a citizenship question is substantially likely to lead to a disproportionate undercount, harming Plaintiffs' communities by reducing their political power and federal funding-with evidence. Similarly, the Organizational Plaintiffs have introduced sufficient evidence, viewed in the light most favorable to them as the non-movant, to support their standing allegations.

         1. Concrete injury-in-fact

         To establish standing's injury-in-fact element, a plaintiff must show it “has sustained or is immediately in danger of sustaining a direct injury” as a result of the challenged action. Spokeo, 136 S.Ct. at 1552 (quotation omitted). A plaintiff's injury or threat of injury must be “concrete and particularized, ” not conjectural or hypothetical. Lujan, 504 U.S. at 560. If standing is based upon an alleged future injury, the plaintiff must demonstrate a substantial risk the harm will occur. See Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013).

         a. Injury to the Individual Plaintiffs

          The Kravitiz Individual Plaintiffs point to evidence that a citizenship question will cause a disproportional undercount, harming their communities because they live in areas with a higher percentage of those likely to be undercounted. By a conservative estimate the citizenship question will reduce response rates to the 2020 Census among households with a noncitizen by 5.1 percentage points, relative to households with only U.S. citizens. ECF No. 70 (18-1041) at 774. Further, there is evidence that a citizenship question will cause a decline in responses by Hispanic households. Id. at 629, 630, 724-25, 745; see also ECF No. 70-6 (18-1041) at 36, 75- 76; ECF No. 70-1 (18-1041) at 8, 43. Additionally, Plaintiffs' expert Dr. Nancy Mathiowetz explains that a citizenship question is likely to lead to so-called roster omissions where, fearing the consequences of providing sensitive information about noncitizen household members, households respond to the Census questionnaire but conceal individual members. ECF No. 70-6 (18-1041) at 34, 73. Specifically, Dr. Mathiowetz writes: “[i]n light of the empirical evidence concerning rostering errors, it is reasonable to estimate that rostering errors motivated by the addition of the citizenship question will be on the order of five percent and these rostering errors will impact both households with noncitizens as well as households with Hispanic members.” Id. at 73.[3]

         Defendants' argument that corrective measures will undisputedly remedy an undercount, ECF No. 67-1 (18-1041) at 16-18, is unconvincing at this stage. These corrective measures include non-response follow up (NRFU) with households that do not initially respond to the Census, attempts to contact a nearby proxy (i.e. neighbor or building manager), and use of administrative records to supplement data where households are nonresponsive. ECF No. 67-1 (18-1041) at 15-18. However, at the very least, it is disputed whether NRFU efforts will be successful because “[t]hose refusing to self-respond due to the citizenship question are particularly likely to refuse to respond in NRFU as well, ” ECF No. 70 (18-1041) at 652, and NRFU cannot remedy expected roster omissions, id. at 862. Individuals choosing not to respond to the Census out of fear are not likely to be reassured by someone intrusively showing up at their homes. See Id. at 652.

         Defendants next argument, that the undisputed facts show an alleged undercount would not dilute Plaintiffs' votes or affect their communities' federal funding, is also flawed. To the contrary, evidence exists that the Kravitz Individual Plaintiffs will be harmed by a differential undercount through vote dilution and loss of federal funding. E.g., ECF No. 70-2 (18-1041) at 12; ECF No. 70-3 (18-1041) at 11. Specifically, Plaintiffs point to an expert opinion that a differential undercount of noncitizens and Hispanics will lead to vote dilution from malapportionment of congressional seats in California, Texas, and Arizona. ECF No. 70-2 (18-1041) at 11. Plaintiffs' expert found that a disproportionate undercount will result in vote dilution from intra-state redistricting because states use Census data to draw districts of equal population. Id. at 13. Further, Plaintiffs' experts opine that a disproportionate undercount will result in a loss of Medicaid, transportation, and Title I funding to Plaintiffs' communities. See ECF No. 70-5 (18-1041) at 6, 12, 14-15; ECF No. 70-7 (18-1041) at 5-6, 11-14.

         Because evidence exists to support the Kravitz Plaintiffs' claim that a citizenship question will lead to a disproportionate undercount, vote dilution, and loss of funding, Defendants in that case are not entitled to summary judgment on standing's injury-in-fact element. Further, the LUPE Individual Plaintiffs point to essentially the same evidence discussed above to establish a substantial risk of a disproportionate undercount, differential vote dilution, and funding losses. See ECF No. 85 at 11-17. Thus, the LUPE Individual Plaintiffs have also demonstrated that genuine disputes of material fact remain as to standing's injury requirement.

         b. Injury to the Organizational Plaintiffs

         Although “the presence of one party with standing is sufficient to satisfy Article III's case-or-controversy requirement, ” Rumsfeld v. Forum for Academic & Institutional Rights, Inc.,547 U.S. 47, 52 n. 2 (2006), the LUPE Organizational Plaintiffs have also introduced evidence that they or their members will sustain a direct injury because of a citizenship question, see e.g., ECF No. 82-2 (18-1570) ¶¶ 61-62 & n. 52; ECF No. 85-9 (18-1570) ¶¶ 4, 10 & 12-15. An organizational plaintiff may establish standing's injury-in-fact element under the representational standing doctrine by showing that its members have sustained an injury. Am. Humanist Ass'n v. Maryland-Nat'l Capital Park & Planning Comm'n, 874 F.3d 195, 203-04 (4th Cir. 2017). Alternatively, organizations may establish associational standing injuries by showing “(1) frustration of its organizational mission; and (2) ...

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