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National Association for Advancement of Colored People v. Bureau of the Census

United States District Court, D. Maryland, Southern Division

August 1, 2019

BUREAU OF THE CENSUS, et al., Defendants.


          Paul W. Grimm United States District Judge

         On February 1, 2019, the Bureau of the Census (“Bureau”) released Version 4.0 of its 2020 Census Operational Plan (“Final Operational Plan”). 2020 Census Operational Plan: A New Design for the 21st Century (Version 4.0), U.S. Census Bureau (December 2018), /planning-docs/operational-plan.html. Two weeks later, on February 15, 2019, Congress appropriated to the Bureau of the Census (“Bureau”) $3, 551, 388, 000 for the 2020 Census, ending the longest shutdown of the U.S. government in history. See Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, 133 Stat. 13 (Feb. 15, 2019) (“2019 Appropriations Act”).

         During the government shutdown and shortly before the Bureau released its Final Operational Plan, I had denied Defendants' motion to dismiss Plaintiffs' Enumeration Clause claim for declaratory relief with regard to the funding of the 2020 Census.[1] NAACP v. Bureau of Census, 382 F.Supp.3d 349, 356 (D. Md. 2019). I concluded that sole claim was justiciable while granting the motion as to Plaintiffs' other Enumeration Clause claims challenging the Bureau's preparedness for the 2020 Census. Id. Against the backdrop of an imminent lapse in funds to continue preparation for the 2020 Census (and a prolonged government shutdown, during which no further funds were forthcoming), I noted that it was “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, ” and I allowed for targeted discovery to determine whether an evidentiary basis existed for Plaintiffs' remaining claim. Id.

         Plaintiffs sought leave to amend the Amended Complaint to add Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., claims and allegations about recent factual developments, and I granted their request, while denying their request to reintroduce their dismissed Enumeration Clause claims. Feb. 28, 2019 Ltr. Order, ECF No. 76. I also granted Defendants' request to file a motion to dismiss the funding claim as moot and the APA claims “for lack of agency action.” Id. at 4.

         Plaintiffs filed their Second Amended Complaint, ECF No. 91, and Defendants' Motion to Dismiss that pleading, ECF No. 95, now is fully briefed and ripe for resolution, ECF Nos. 95-1, 98, 108, 131, 132. A hearing is not necessary. See Loc. R. 105.6. Because the 2019 Appropriations Act moots the funding claim, which no longer is justiciable, the Motion to Dismiss is granted as to that claim. And, because the Final Operational Plan is not final agency action reviewable under the APA, the Motion to Dismiss is granted as to the APA claims as well.

         Standard of Review

         Defendants challenge this Court's subject matter jurisdiction based on their belief that the 2019 Appropriations Act moots Plaintiffs' remaining Enumerations Clause claim. They also argue the Court lacks authority to redress the injury that Plaintiffs allege the underfunding of the census will cause and, further, that the Final Operational Plan is not subject to judicial review because it was not a final agency action.[2] When a defendant moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, asserting a facial challenge that “a complaint simply fails to allege facts upon which subject matter jurisdiction can be based, ” as Defendants do here, “the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a 12(b)(6) consideration.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); see Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (noting that, on a motion to dismiss, a plaintiff's pleading of the elements of standing is “presum[ed] [to] embrace those specific facts that are necessary to support the claim” (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889 (1990))).

         Pursuant to Rule 12(b)(6), a plaintiff's claims are subject to dismissal if they “fail[ ] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), and must state “a plausible claim for relief, ” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Rule 12(b)(6)'s purpose “is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012) (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)).

         Whether considering a Rule 12(b)(1) factual challenge or a Rule 12(b)(6) motion, the Court may take judicial notice of “fact[s] that [are] not subject to reasonable dispute” because they “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b)(2). Additionally, the Court may “consider documents that are explicitly incorporated into the complaint by reference.” Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016). The Final Operational Plan, which is available on the Bureau's website and which Plaintiffs cite to and quote from extensively in their Second Amended Complaint, e.g., Sec. Am. Compl. 3, ¶¶ 32-33, 66-67, 70-71, 74, 76, 90-92, 107-09, 116, 132- 33, 137, 147, 153, 157-60, falls into both of these categories. Likewise, I may consider the President's 2020 Census budget request for $3, 551, 388, 000 for Fiscal Year (“FY”) 2019, see App'x, Proposed Budget of the U.S. Gov't, FY 2019 at 184, (cited at Defs.' Mem. 5 n.4), as well as the Bureau's 2020 Census budget request for $6.4 billion for FY 2020, presented to Congress in March 2019, see U.S. Census Bureau's Budget FY 2020, at 59, files/2019-03/fy2020censuscongressionalbudgetjustification0.pdf (cited in Sec. Am. Compl. ¶ 57). See Fed. R. Evid. 201(b)(2).

         Moreover, when a defendant attaches documents to its motion to dismiss that are “integral to the complaint and their authenticity is not disputed, ” the Court may consider those documents. 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 provide a link to the online version of the Final Operational Plan, Defs.' Mem. 4 n.1, and Plaintiffs provide the web address for it as well, Pls.' Opp'n 4 n.1; it is integral to Plaintiffs' pleading, and they do not challenge its authenticity. Accordingly, I may consider it on this basis also. See Sposato, 2013 WL 1308582, at *2.

         Enumerations Clause Claim for Underfunding


         Article III of the Constitution limits the judicial power to “actual, ongoing cases or controversies.” Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990) (citations omitted). The “case-or-controversy” requirement subsists through all stages of federal judicial proceedings. Id. Thus, an actual controversy must exist “at all stages of review, not merely at the time the complaint is filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (internal quotation marks and citations omitted). A case becomes moot when the issues presented are “no longer ‘live' or the parties lack a legally cognizable interest in the outcome.” City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). To show that the case is moot, Defendants must meet a “heavy” burden by demonstrating that “‘there is no reasonable expectation . . .' that the alleged violation will recur, ” and that “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” County of Los Angeles, 440 U.S. at 631 (citations omitted).

         Defendants contend that Plaintiffs' underfunding claim is moot now that Congress has appropriated more than $3.5 billion to the Bureau, and they insist that my earlier Memorandum Opinion made clear that the underfunding claim only was viable in light of the government shutdown, which since has ended. Defs.' Mem. 4-5, 8.[3] Indeed, I previously observed the significance of the government shutdown's detrimental effects on the Bureau's funding, stating, inter alia:

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.

NAACP, 382 F.Supp.3d at 376. On that narrow ground, with the government shutdown and no appropriations bill in place, I concluded that Plaintiffs' underfunding claim was justiciable. Id. at 384. Plaintiffs insist that receipt of the current level of funding is not the same thing as having received sufficient funding to conduct an accurate enumeration of the population. Pls.' Opp'n 22.

         Plainly, there has been a significant change in the facts relevant to Plaintiffs' underfunding claim, in that the Bureau now has funding in the amount of $3, 551, 388, 000 through 2021. 2019 Appropriations Act. Given that the Bureau not only received funding, but received the exact amount requested for it in the President's budget request to Congress, compare 2019 Appropriations Act, with App'x, Proposed Budget of the U.S. Gov't, FY 2019, at 184, Defendants have established that “‘there is no reasonable expectation . . .' that the [likely underfunding] will recur.” See County of Los Angeles, 440 U.S. at 631. Further, the 2019 Appropriations Act and its grant of the entire funding request submitted by the Administration on behalf of the Bureau is “interim relief or events” that “completely and irrevocably eradicated the effects of the alleged violation.” See Id. Simply put, the Bureau now has the funding it previously lacked, and there is no likelihood that the funding will be revoked.

         Moreover, given the change in circumstances, I must reassess the justiciability of Plaintiffs' underfunding claim to confirm that this Court still has jurisdiction, see Fed. R. Civ. P. 12(h)(3), focusing specifically on their standing to bring this claim and the political question doctrine, to determine whether an issue remains that the Court may decide. Each consideration raises overlapping issues of redressability.


         For standing, a plaintiff must have “suffered an ‘injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical, ” and it must be “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” 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 v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (same).[4] An “imminent” injury is one that “is not too speculative, ” i.e., one that “is ‘certainly impending.'” Lujan, 504 U.S. at 564 (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)).

         Imminent Injury

         Previously, I concluded that Plaintiffs' injury was “not too speculative” to be “imminent” because no funding was projected beyond April 2019 at the time I issued the January 29, 2019 Memorandum Opinion and Order, and Plaintiffs could not later “undo the likely absence of funding.” See NAACP, 382 F.Supp.3d 349 at 376 (emphasis added) (citing Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 733 (1998)). But now the shutdown has ended and the 2019 Appropriations Act passed, including $3, 551, 388, 000 dedicated to the 2020 Census through 2021. Further, the amount appropriated for the 2020 Census for FY 2019 matched the President's request for the Bureau. Compare 2019 Appropriations Act, with App'x, Proposed Budget of the U.S. Gov't, FY 2019, at 184. Thus, this is not a situation where Congress appropriated less than requested, creating doubt about whether the agency could fulfill its responsibilities or making it possible or even likely that funding still was insufficient after the appropriation. Consequently, the absence of funding no longer is likely. Simply put, there is no absence of funding.

         But, even if the current appropriation should prove to be less than required to complete the 2020 Census, Congress has the power to appropriate supplemental funds. See U.S. Const. art. I, § 9, cl. 7; N.L.R.B. v. Noel Canning, 573 U.S. 513, 601 (2014) (noting Congress's ability to make a supplemental appropriation). Now that the Bureau has received all the funding requested on its behalf for FY 2019, there is nothing in the pleadings or the documents I have judicially noticed to suggest that it will not receive additional funding upon further request. Indeed, the Bureau in March 2019 presented its FY 2020 budget to Congress, including a proposed $6.4 billion for the 2020 Census. See U.S. Census Bureau's Budget FY 2020, at 59. Congress previously listened to the President's request for funding, and nothing in the Second Amended Complaint or the materials I am permitted to consider in resolving this motion suggests that it is unlikely to do so again. Consequently, it would be speculative to conclude that Congress will fail to appropriate those funds, and speculative harm is insufficient for justiciability. See Lujan, 504 U.S. at 564; Whitmore, 495 U.S. at 158; see also Bishop, 575 F.3d at 423; Zaycer, 896 F.Supp.2d at 408.


         As for the redressability prong, it must be “likely, and not merely speculative, that a favorable decision will remedy the injury.” Friends of the Earth, Inc. v. Gaston Cooper Recycling Corp., 204 F.3d 149, 154 (4th Cir. 2000). I already have noted (and Plaintiffs agree) that the Court cannot order the appropriation of funds. NAACP, 382 F.Supp.3d at 382. Yet I also noted that this Court can make a declaration regarding Defendants' obligations under the Enumeration Clause, and that circumstances may exist in which Congress is likely to follow a judicial declaration, even though not required to do so. See Id. (citing Franklin v. Massachusetts, 505 U.S. 788, 803 (1992)). If Congress's adherence to such a declaration were likely to remedy Plaintiffs' injuries-and the harm were not merely speculative-, then Plaintiffs would have standing. Id. at 381. But the willingness of Congress to adhere to a non-binding judicial declaration is not a given, and necessarily depends on what that declaration says, and the underlying authority of the Court to declare it.

         Previously, I concluded that Plaintiffs' underfunding claim satisfied the redressability prong because the Court could declare specifically that “Congress and the President ha[d] failed to agree upon and finalize legislation to provide the funding actually needed to conduct the census in 2020-when the Secretary is constitutionally obligated to do so.” Id. at 382. But now, Congress and the President have agreed upon and finalized the 2019 Appropriations Act, which provides what they have determined to be the funding necessary for conducting the 2020 Census. And, as discussed below, the Constitution vests broad authority in Congress (and in its designee, the Secretary of Commerce, as part of the President's Administration) to design and execute the census, and in Congress alone to determine the proper level at which to fund it. In the face of such explicit authority, it is far from clear that, once it has been executed by those assigned to do so by the Constitution, Congress would be willing to follow a contrary, non-binding judicial funding declaration. Consequently, the proposed remedy has been rendered moot by Congress's action, and Plaintiffs no longer have standing. See Friends of the Earth, 204 F.3d at 154.

         Significantly, despite their previous concession that the Court cannot order the appropriation of funds, Plaintiffs now seek just that. In their request to file a motion for emergency relief, ECF No. 146, they seek a Court order directing the Bureau to spend the money it is holding in reserve. Apparently, it no longer is sufficient for the Court to declare that Congress should appropriate funds, or even that they should appropriate a certain amount of funds; Plaintiffs want the Court to tell the Bureau when and how to spend the funds and, in effect, take supervisory control over the execution of the 2020 Census.

         That is not a remedy that a court has the authority, expertise, or time to provide. Rather, Congress determined that it was the Bureau that was best equipped to complete this task. 13 U.S.C. § 141(a). This is ...

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