City of Camden v. Plotkin

• Decision Date: 31 October 1978
• Docket Number: Civ. A. No. 77-1827.
• Citation: 466 F. Supp. 44
• Parties: CITY OF CAMDEN, a Municipal corporation of the State of New Jersey et al. v. Manuel PLOTKIN, etc., et al.
• Court: U.S. District Court — District of New Jersey

466 F. Supp. 44

CITY OF CAMDEN, a Municipal corporation of the State of New Jersey et al. v. Manuel PLOTKIN, etc., et al.

Civ. A. No. 77-1827.

United States District Court, D. New Jersey.

October 31, 1978.

COPYRIGHT MATERIAL OMITTED

Peter J. O'Connor, Cherry Hill, N. J., for plaintiffs.

Robert J. Del Tufo, U. S. Atty. by Mary Catherine Cuff, Asst. U. S. Atty., Trenton, N. J., for defendants.

BROTMAN, District Judge.

Presently before the court is defendants' motion to dismiss for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), and for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6). The motion was argued on May 19, 1978, at which time this court reserved judgment.

In this civil action, plaintiffs seek judicial review of the manner in which the defendants Bureau of the Census and its Director conducted the 1976 "Pretest Census" in Camden, New Jersey. Plaintiffs are the City of Camden, a municipal corporation of the State of New Jersey, and three individual plaintiffs who seek to bring the action on behalf of themselves and those similarly situated. Two of the individual plaintiffs, one black and one Puerto Rican Camden resident, are currently employed in federally-funded CETA¹ jobs. The third named plaintiff is a black Camden resident who has been certified eligible for the CETA program, but cannot be employed under the federal program due to limited funding allocations to Camden.

Plaintiffs allege that defendants' undercounting of national population in general and of minority groups in particular in and since the 1970 decennial census has caused Camden to be shortchanged in its allocation of federal funds. The individual plaintiffs in the first group allege that they are threatened with loss of their CETA-funded jobs and the individual plaintiff in the second group alleges that his present lack of such a job is due to the asserted undercounting.

The controversy stems from an experimental program or "pretest" census undertaken by defendants in response to a 1973 study by one of its statisticians. This study analyzed the 1970 census and concluded that it underestimated national population, particularly undercounting blacks. Camden was one of three cities which voluntarily participated in the pretest census, undertaken there in September 1976. The 1970 census set Camden's population at 102,550. In January 1977, Camden was advised that the pretest indicated a population of 87,305, later revised upward to 90,292.

Later that month, Camden was further advised that the annual population estimate for 1975 was 89,214 and that this figure would be forwarded to the Office of Revenue Sharing as the basis for the City's funding allocations. Plaintiffs challenge both figures as inaccurate, alleging that the 1975 estimate is based on data from the pretest census. (Plaintiffs' Brief in Opposition, p. 1, n. 2; Amended Complaint ¶¶ 9 through 11). Plaintiffs allege that the pretest figures are "replete with error" facially (Amended Complaint ¶ 4), and that both the pretest and estimate figures are extrapolations from the admittedly incorrect 1970 census figures (Amended Complaint ¶ 22). In addition, plaintiffs list seventy-seven "administrative problems" with the conduct of the pretest census. (Exhibit I to Plaintiffs' Brief in Opposition).

The City was informed at the time it received the pretest results that it would have ten days to review the figures and respond. Defendants forwarded to the City certain "unrefined" data to assist the City's review. The City objected and requested further explanatory documentation. This administrative challenge to both the pretest figures and the 1975 estimate was rejected, and the estimate forwarded to the Revenue Sharing Director was made final.

In March 1977, the City's attorney submitted a letter request to the defendant Bureau pursuant to the Freedom of Information Act hereafter "FOIA", seeking information regarding the conduct of the pretest census. The majority of the specific requests were denied, based on the sections of the Census Act mandating confidentiality for certain categories of census data. See 13 U.S.C. §§ 8, 9. However, defendants granted the request for some of the information requested.²

The instant action followed. The individual plaintiffs assert that the denial of access to census documents deprived them of an opportunity to present comment, to which they were entitled by defendant Bureau's "Local Review" procedure for the pretest census. They challenge this as violative of substantive and procedural due process within the fifth amendment. (Count II). All plaintiffs claim that both the pretest census and the population estimates based thereon, particularly the 1975 estimate, represent arbitrary and capricious agency action within § 10 of the Administrative Procedures Act hereafter "APA", 5 U.S.C. § 706(2)(A). (Counts III and IV). Finally, plaintiffs assert that defendants' undercounting of minority groups is in violation of the 1968 Civil Rights Act, 42 U.S.C. § 3601 et seq., entitled "Fair Housing." Plaintiffs claim that § 3608(c) of that subchapter places an affirmative duty on defendant to rectify the undercounting of minorities in order to promote nondiscriminatory housing. (Count VI).³

Defendants' motion to dismiss attacks the individual plaintiffs' standing to challenge the census figures on either the constitutional grounds or under the APA. Defendants also assert that the census determinations are not judicially reviewable under the APA, as agency action committed to agency discretion by law, within 5 U.S.C. § 701(a)(2). Finally, defendants argue that the 1968 Civil Rights Act provides no private right of action, and consequently plaintiffs have failed to state a claim upon which relief can be granted.

I. Standing of Individual Plaintiffs

The APA, 5 U.S.C. § 702, authorizes judicial review of agency action by "a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute."

In Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), the United States Supreme Court formulated a two-step test for standing under § 702. First, a plaintiff must satisfy the "case or controversy" requirement of Article III by alleging an "injury in fact, economic or otherwise." Id. at 152, 90 S.Ct. at 829. Second, plaintiffs must assert an interest to be protected which is "arguably within the zone of interests to be protected or regulated by the statute . . . in question." Id. at 153, 90 S.Ct. at 830. See, e. g., Concerned Residents of Buck Hill Falls v. Grant, 537 F.2d 29 (3rd Cir. 1976); Davis v. Romney, 490 F.2d 1360 (3rd Cir. 1974).

(a) Injury in Fact

Plaintiffs allege that Camden will lose federal and state funding generally, and specifically that the City will lose its "prime sponsor" status with regard to the CETA program due to defendants' undercounting in the pretest census and the annual estimate. (Amended Complaint ¶¶ 27, 28). The individual plaintiffs, Diaz and Broome, who are presently employed in CETA-funded jobs, allege that they are threatened with loss of those jobs if funds are cut based on the pretest and estimate census figures erroneously indicating a decline in Camden's population below the 100,000 figure needed for "prime sponsor" status under the CETA program. See 29 U.S.C. § 812(a)(2). Plaintiff Langford who has been certified eligible for CETA but who is not employed because of inadequate funds alleges that her injury stems from the erroneous undercounting of Camden's population.⁴

As a preliminary matter, we note that this is a motion to dismiss at which stage we must accept as true all material factual allegations of the complaint and construe it in the light most favorable to plaintiffs. Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Accordingly, we assume that the population of Camden was undercounted in the 1970 census, that the pretest census figures underestimate Camden's population, and that the annual population estimate was derived from the erroneous pretest results and therefore also undercounts Camden's true population. Further, we assume that the undercounted population figures have been or will be forwarded to federal officials who allocate funds to localities on the basis of population figures, particularly the Secretary of Labor for the CETA program. Finally, we assume that the Secretary has underallocated CETA funds to Camden because of the census pretest undercount.

The individual plaintiffs allege an indirect injury. That is, due to the undercount, they are deprived of CETA-funded jobs which they otherwise would have had because defendants' undercounting caused another agency to shortchange Camden in its federal funding. In support of their claim to standing, plaintiffs rely principally on United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973).⁵ In that case, the Supreme Court upheld the standing of a student environmental group to challenge an ICC order which allowed an increase in freight rates. The SCRAP plaintiffs alleged that this would discourage use of recyclable materials and would cause greater exploitation of natural resources. They further claimed that this would injure them in their enjoyment of those natural resources and would force them to pay higher prices for finished goods. While the Court conceded that the allegations involved an "attenuated line of causation to the eventual injury," id. at 688, 93 S.Ct. at 2416, it upheld the plaintiffs' standing when challenged in a motion to dismiss.

The SCRAP Court emphasized the assumption of truth which must be accorded to a plaintiff's allegations on a motion to dismiss. All that is necessary, according to the SCRAP Court, is that plaintiffs have alleged "a specific and perceptible harm that distinguished them from other...