City of New York v. US Dept. of Commerce
| Decision Date | 27 April 1989 |
| Docket Number | No. 88 CV 3474.,88 CV 3474. |
| Citation | 713 F. Supp. 48 |
| Parties | The CITY OF NEW YORK, The State of New York, the People of the State of California ex rel. John K. Van De Kamp, Attorney General, the City of Los Angeles, the City of Chicago, Dade County, Florida, the U.S. Conference of Mayors, the National League of Cities, the League of United Latin American Citizens, the National Association for the Advancement of Colored People, Marcella Maxwell, Donald H. Elliott, John Mack, Olga Morales, Timothy W. Wright III, Raymond G. Romero, Antonio Gonzales, and Athalie Range, Plaintiffs, v. UNITED STATES DEPARTMENT OF COMMERCE, C. William Verity, as Secretary of the United States Department of Commerce, Robert Ortner, as Under Secretary for Economic Affairs of the United States Department of Commerce, Bureau of the Census, John G. Kane, as Director of the Bureau of the Census, Ronald W. Reagan, as President of the United States, and Donald K. Anderson, as Clerk of the United States House of Representatives, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Defendants move pursuant to Fed.R.Civ. P. 12(b)(1) to dismiss this action for want of subject matter jurisdiction. In the alternative, defendants move pursuant to Fed.R. Civ.P. 12(b)(6) or 56(b) for an order dismissing the Complaint. For the reasons discussed below, the motions are denied.
The Census Bureau is about to embark on its constitutionally mandated task of conducting the 1990 census. Plaintiffs bring this action challenging the methodology of conducting that census. Defendants object that plaintiffs do not have standing to sue.
Plaintiffs are the States of New York and California; the Cities of New York, Los Angeles, Chicago and Houston; Dade County, Florida; the United States Conference of Mayors; the National League of Cities; the League of United Latin American Citizens; and the NAACP. The individual plaintiffs are citizens and taxpayers of the aforementioned cities and states.
On the standing issue, the Court accepts all material allegations of the Complaint as true. Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). Since plaintiffs have had an opportunity to supplement the Complaint with affidavits, the Court must be satisfied that plaintiffs' standing adequately appears from the record.
To establish standing under Article III of the Constitution, a plaintiff must demonstrate (1) "a personal stake in the outcome of the controversy," Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), which amounts to a "distinct and palpable injury to himself," Warth v. Seldin, supra, 422 U.S. at 501, 95 S.Ct. at 2206; (2) that is redressable by the Court, Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 39, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976); and (3) "a fairly traceable causal connection between the injury and the challenged conduct." Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2629, 57 L.Ed.2d 595 (1978).
The decennial census determines, among other things, the apportionment of representatives in Congress and in state legislatures, the allocation of Electoral College votes in presidential elections, and the equitable distribution of federal funds for housing, education, and transportation. Although Article I, § 2 of the Constitution has been interpreted to require that the census be as accurate as practicable, see Karcher v. Daggett, 462 U.S. 725, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), since 1940, the decennial census has consistently undercounted the American population. Minority groups comprise a large portion of the undercount. Plaintiffs seek to secure their constitutional and statutory rights to maintain both the efficacy of their votes and their entitlement to an equitable portion of federal funds.1 Defendants argue that this claimed injury is not "concrete" and is based on mere speculation that the 1990 will be inaccurate.
To invoke the jurisdiction of this Court, plaintiffs must demonstrate more than a mere "conjectural" or "hypothetical" injury —they also must show that they have sustained or are in immediate danger of sustaining a direct injury as a result of the challenged conduct. City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983).
Defendants concede that plaintiffs' allegation of loss of federal funds satisfies the injury requirement of standing for the State and municipal plaintiffs. Because, however, a question has been raised whether the individual plaintiffs have standing to pursue their constitutional claims, see FAIR v. Klutznick, 486 F.Supp. 564, 569 n. 9 (D.D.C.), appeal dismissed, 447 U.S. 916, 100 S.Ct. 3005, 65 L.Ed.2d 1109 (1980), the Court will determine whether loss of political representation is sufficiently concrete for standing purposes.
Defendants argue that even if a disproportionate undercount occurs, and that it has an effect on the national apportionment of the United States House of Representatives, plaintiffs cannot demonstrate specifically where that effect will fall. In other words, defendants contend that no one, including plaintiffs, can determine in advance of the census which geographical area of the United States will be undercounted.
Plaintiffs, in response have submitted affidavits by persons who are former employees of the Census Bureau, tending to show (1) that, as defendants concede, there will be an undercount of minorities in the 1990 census; (2) that a disproportionate number of minorities reside in plaintiff States and municipalities; and (3) that as a result thereof, plaintiffs are now and will continue to be underrepresented in Congress.
I find that these factually supported allegations are sufficient to meet the requirement that plaintiffs suffer immediate threat of injury. The Court therefore concludes: that the individual plaintiffs have established a concrete injury in the form of alleged dilution of their votes; and that the State and municipal plaintiffs have established an injury in the form of loss of federal funding.
Plaintiffs must also demonstrate that there exists a "`substantial likelihood' that the relief requested will redress the injury claimed." Duke Power Co., supra, 438 U.S. at 75 n. 20, 98 S.Ct. at 2631 n. 20. As indicated earlier, the specific injuries are loss of political representation and loss of federal funding. The relief plaintiffs request would require defendants to conduct a full-scale "post-enumeration survey" and take any other steps necessary to correct the 1990 census for undercounts and overcounts in population. The question thus distills to whether there is a "substantial likelihood" that a "post-enumeration survey" will create the most accurate 1990 census possible thereby ensuring fair representation in Congress and equitable distribution of federal funds.
Defendants point out that even if a post-enumeration survey were ordered by this Court, it is unlikely that this relief would create the most accurate 1990 census. Defendants assert indeed that a post-enumeration survey would actually create a less accurate 1990 census. Evidence submitted by defendants demonstrates that the relief plaintiffs request would require the Census Bureau to make major changes in the census now planned and employ a method of adjusting the census that is untested and, hence, unproven. Defendants also note that the implementation of adjustment techniques will jeopardize their ability to meet their deadline, set by Congress at 13 U.S.C. § 141(b), to present a tabulation of total population by states to the President by December 31, 1990.
The latter argument, which addresses the operational feasibility of the adjustment, however, is a red herring. The nine-month time period between April and December set forth at § 141(b) is neither "sacred," as the Second Circuit recognized in Carey v. Klutznick, 637 F.2d 834, 837 (2d Cir.1980), nor "mandatory" as held by Judge Gilmore in Young v. Klutznick, 497 F.Supp. 1318 (E.D.Mich.1980), rev'd on other grounds, 652 F.2d 617 (6th Cir.1981), cert. denied, 455 U.S. 939, 102 S.Ct. 1430, 71 L.Ed.2d 650 (1982). It is not Congress' intent to sacrifice accuracy for the sake of timeliness. If the Census Bureau demonstrates that accurate adjusted figures cannot be compiled by December 31, 1990, this Court is empowered to grant it a reasonable extension of time.
Plaintiffs, on the other hand, submit evidence that adjustment of the census calculation is operationally feasible. See Plaintiff's Motion for Preliminary Injunction, Exhibit 24. Since most, if not all, of defendants' concern with the employment of a post-enumeration adjustment surrounds the operational feasibility of the adjustment, and since the adjustment can be made either within the statutory time frame or a judicial extension thereof, the dispositive question becomes whether a post-enumeration survey is technically feasible.
To support the technical feasibility of a post-enumeration survey, plaintiffs submit affidavits from Dr. Stephen Feinberg and Dr. Eugene Ericksen. These experts have concluded that correction methodology has been tested successfully, is feasible and would result in a substantially more accurate census. Plaintiffs also submit an affidavit from Dr. Barbara Bailar, who not only worked for the Census Bureau for 30 years, but was its Associate Director for Statistical Standards and Methodology. Dr. Bailar also opines that statistical adjustment is feasible. She is supported in that position by the Census Bureau Undercount Research Staff and each professional group from whom the Bureau sought an opinion—the Committee on National Statistics of the National Academy of Sciences;...
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