City of Detroit v. United States Dep't of Commerce

• Decision Date: 28 March 2023
• Docket Number: 22-cv-12205
• Parties: THE CITY OF DETROIT, Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE, et al. Defendants.
• Court: U.S. District Court — Eastern District of Michigan

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THE CITY OF DETROIT, Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE, et al. Defendants.

No. 22-cv-12205

United States District Court, E.D. Michigan, Southern Division

March 28, 2023

OPINION AND ORDER DISMISSING COUNT I OF THE AMENDED COMPLAINT AND TERMINATING AS MOOT PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION.

ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

Plaintiff the City of Detroit (“Detroit”) brings this lawsuit against Defendants United States Department of Commerce and United Census Bureau (the “Census Bureau” or the “Bureau”), as well as their head officials. (ECF No. 12.) Detroit seeks a writ of mandamus and asserts that Defendants have violated federal law and the Constitution. (Id.) The claims arise out of the purportedly undercounted 2021 annual population estimate and the Census Bureau's refusal to consider Detroit's challenge thereto. (Id.)

Related to its request for mandamus (Count I), Detroit also moves for a preliminary injunction, asking the court to direct Defendants to consider Detroit's challenge to the Census Bureau's 2021 annual population estimate immediately. (ECF No. 13.) In response to Detroit's motion, Defendants simultaneously move to dismiss Detroit's Amended Complaint. (ECF No. 17). Both motions are fully briefed. A hearing is scheduled for April 4, 2022. (ECF No. 28.)

Having reviewed the briefings, the court finds that it is unnecessary to hold a hearing on certain readily determinable issues. E.D. Mich. LR 7.1(f)(2). For the sake of judicial economy and to streamline the discussion on the upcoming hearing, the court will dismiss Counts I of the Amended Complaint for lack of subject matter jurisdiction and terminate as moot Plaintiff's motion for preliminary injunction (ECF No. 13). The court will decide the remainder of Defendants' motion after the April 4, 2022 hearing.

I. BACKGROUND

A. The Population Estimate Challenge Program

“Between decennial censuses, the Census Bureau annually prepares statistical estimates of the number of people residing in states and their governmental units.” 15 C.F.R §90.1; see 13 U.S.C. §181(a) (requiring the Census Bureau to, “[d]uring the intervals between each census of population, . . . to the extent feasible, . . . annually produce and publish for each State, county, and local unit of general purpose government which has a population of fifty thousand or more, current data on total population and population characteristics.”) According to the Census Bureau:

It is the policy of the Census Bureau to provide the most accurate population estimates possible given the constraints of time, money, and available statistical techniques. It is also the policy of the Census Bureau to provide governmental units the opportunity to seek a review and provide additional data to these estimates and to present evidence relating to the accuracy of the estimates.

15 C.F.R. § 90.2. Consequently, the Census Bureau promulgated regulations “prescribing the administrative procedure available to government units to request a challenge to the most current of [the Census Bureau's] estimates,” 15 C.F.R. § 90.1, otherwise known as the Population Estimate Challenge Program (the “Program”). See also 15 C.F.R. § 90.4. The regulations are codified in 15 CFR Part 90 and effective as of February 4, 2013.

B. The Amended Complaint's Allegations

On January 9, 2020, the Census Bureau notified the public that the Program is suspended during 2020 and 2021 to accommodate taking the 2020 decennial census. (ECF No. 12, PageID.143-44; ECF No. 12-4); see U.S. Census Bureau, Temporary Suspension of the Population Estimates Challenge Program, 85 Fed.Reg. 1100 (Jan. 9, 2020).^[1]The notice further stated:

The Population Estimates Challenge Program will resume in 2022 after the Census Bureau concludes its responsibilities in the conduct of the decennial census. The Census Bureau will resume accepting challenges to the population estimates by publishing in the Federal Register a document that announces the date when it will begin to accept challenges. At that time, states, counties, and other units of general-purpose government may initiate challenges to population estimates under the procedures set forth in 15 CFR part 90. The Census Bureau would accept challenges beginning with the 2021 population estimates. The 2021 population estimates will be based upon the 2020 Census counts and are scheduled for release in 2022.

Id. at 1101.

In February 2022, the Bureau posted on its website, “A Federal Register Notice announcing the resumption of the program will be posted in 2022. The program is expected to resume in 2023.” U.S. Census Bureau, Population Estimates Challenge Program (Feb. 2, 2022), https://perma.cc/55QF-2QA5.

In May 2022, the Census Bureau released its estimate of Detroit's population as of July 1, 2021, which allegedly undercounted Detroit population, especially that of Black and Hispanic communities. (ECF No. 12, PageID.142-43, 150.) On August 4, 2022, Detroit's Mayor sent a letter to the Census Bureau to “‘request a derivation sheet containing the components used to create the population estimate' for Detroit for the vintage 2021 estimate of the City's population.” (ECF No. 12-5, PageID.201.) This is supposed to be the first step in submitting a challenge. (ECF No. 12, PageID.158.) In an email sent on the same day, the Census Bureau's Assistant Division Chief for Estimates and Projections rejected Detroit's request, indicating:

[W]e cannot honor the request at this time. The Population Estimates Challenge Program was suspended in January 2020, as is a usual practice surrounding the [] decennial census year, and the resumption of the program has not taken effect yet. Presently, we are working to prepare the Federal Register Notice that will reinstate the program. We expect it to be available later this year, which will enable us to accept challenges to our July 1, 2022 estimates.

(ECF No. 12, PageID.158-59; ECF No.17-5.)

On September 20, 2022, Detroit filed the instant lawsuit, seeking (among other relief) an order compelling the Census Bureau to promptly accept and fairly evaluate challenges to the 2021 population estimates. (ECF No. 12, PageID.159; ECF No. 1, PageID.33-34.) Allegedly in response to Detroit's lawsuit, the Census Bureau issued a rule on November 22, 2022, titled “Resumption of the Population Estimates Challenge Program.” (ECF No. 12, PageID.159; ECF No. 12-6); see U.S. Census Bureau, Resumption of the Population Estimates Challenge Program, 87 Fed.Reg. 71240 (Nov. 22, 2022). In relevant part, the rule states:

The Census Bureau will resume accepting challenges to the population estimates as of November 22, 2022. At that time, states, counties, and other units of general-purpose government may initiate challenges to population estimates under the procedures set forth in 15 CFR part 90. The Census Bureau will accept challenges to the estimates for 2021 and subsequent years in forthcoming estimates series, beginning with the Vintage 2022 series that is scheduled to be published in March and May of 2023. Challenges to previous estimates series will not be accepted. See 15 CFR 90.6(a) (“A request for a challenge to a population estimate may be filed any time up to 90 days after the release of the estimate by the Census Bureau.”). Although the Census Bureau has the discretion to accept untimely requests in certain circumstances, see Id. § 90.6(b), this is not an appropriate circumstance to exercise such discretion, given the need to prioritize the agency's limited resources to prepare the forthcoming 2022 estimates, and to ensure that sufficient resources and program materials are available to support the operation of the Challenge Program and the evaluation of future challenges received.

Id. at 71241. Detroit claims that it understood the rule to mean that the Census Bureau would begin accepting challenges to the 2021 population estimate beginning on November 22, 2022. (ECF No. 12, PageID.160.) On that day, Detroit's Mayor made a second request for the “derivation sheet.” (Id., PageID.161; ECF No. 12-7.) On December 5, 2022, Detroit sent a request for a status update, to which the Census Bureau's Assistant Division Chief for Estimates and Projections replied, in relevant part:

The Federal Register Notice specifies that “[t]he Census Bureau will accept challenges to the estimates for 2021 and subsequent years in forthcoming estimate series, beginning with the Vintage 2022 series that is scheduled to be published in March and May of 2023.” 87 Fed.Reg. at 71241 (citing 15 C.F.R. §90.6(a)). “Challenges to previous estimates series will not be accepted.” Id. “Although the Census Bureau has the discretion to accept untimely requests in certain circumstances,” see 15 C.F.R. § 90.6(b), “this is not an appropriate circumstance to exercise such discretion, given the need to prioritize the agency's limited resources to prepare the forthcoming 2022 estimates, and to ensure that sufficient resources and program materials are available to support the operation of the Challenge Program and the evaluation of future challenges received.” Id.

For these reasons, because Mayor Duggan's letter is in furtherance of a challenge to “previous estimates series” that the agency has already announced “will not be accepted,” id., we cannot honor Mayor Duggan's request at this time. Following the release of the Vintage 2022 estimates in 2023 - which will include revised 2021 estimates - we will begin to respond to requests for derivation sheets, and to accept and process all properly filed challenges. That release is currently scheduled for May of 2023, for city and town population estimates.

(ECF No. 12, PageID.161; ECF No. 17-6, PageID.343-44.) Detroit alleges that it was “stymied” by...