Com. of Mass. v. Mosbacher, Civ. A. No. 91-11234-WD.

• Citation: 785 F. Supp. 230
• Decision Date: 20 March 1992
• Docket Number: Civ. A. No. 91-11234-WD.
• Parties: COMMONWEALTH OF MASSACHUSETTS, Edward F. Berlin and Karen J. Kepler, Plaintiffs, v. Robert MOSBACHER, as Secretary of the United States Department of Commerce, Michael Darby, as Undersecretary of Economic Affairs of the United States Department of Commerce, the Bureau of the Census, Barbara Bryant, as Director of the Bureau of the Census, George Herbert Walker Bush, 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 — District of Massachusetts

785 F. Supp. 230

COMMONWEALTH OF MASSACHUSETTS, Edward F. Berlin and Karen J. Kepler, Plaintiffs, v. Robert MOSBACHER, as Secretary of the United States Department of Commerce, Michael Darby, as Undersecretary of Economic Affairs of the United States Department of Commerce, the Bureau of the Census, Barbara Bryant, as Director of the Bureau of the Census, George Herbert Walker Bush, as President of the United States, and Donald K. Anderson, as Clerk of the United States House of Representatives, Defendants.

Civ. A. No. 91-11234-WD.

United States District Court, D. Massachusetts.

February 20, 1992.

On Motions For Reconsideration and For Stay March 13, 1992.

Certiorari Denied March 20, 1992.

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Edward P. Liebensperger, Sp. Asst. Atty. Gen. with whom John P. Driscoll and Neil P. Motenko, Sp. Asst. Attys. Gen., and Nutter, McClennen & Fish, Boston, Mass., were on the briefs for plaintiffs, arguing the apportionment claim.

Scott Harshbarger, Atty. Gen., Dwight Golann, Asst. Atty. Gen., Chief, Government Bureau, with whom William P. Lee and Steve Berenson, Asst. Attys. Gen., Boston, Mass., were on the briefs for plaintiffs, arguing the overseas census claim.

Mark H. Murphy, Atty., Civ. Div., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Dennis G. Linder, Director, Federal Programs Branch, Civ. Div., and Sandra M. Schraibman, Susan Korytkowski, Attys., Civ. Div., Washington, D.C., and Wayne A. Budd, U.S. Atty., and Judith S. Yogman, Associate U.S. Atty., Boston, Mass., were on the briefs for defendants.

Kenneth O. Eikenberry, Atty. Gen., and James M. Johnson, Sp. Asst. Atty. Gen., Olympia, Wash., on the brief for the State of Wash., amicus curiae.

Before BOWNES, Senior Circuit Judge, BOYLE, District Judge, WOODLOCK, District Judge.

Certiorari Denied March 20, 1992. See 112 S.Ct. 1462.

WOODLOCK, District Judge.

The Commonwealth of Massachusetts and two of its registered voters bring this action challenging the manner by which the Congress of the United States has apportioned the 435 seats in the United States House of Representatives. The plaintiffs contend 1) that the method for allocating House seats among the 50 states violated the constitutionally grounded principle of "one person, one vote" (the "apportionment claim"); and 2) that the method used in the 1990 census for counting federal employees serving overseas was improper (the "overseas census claims").

The plaintiffs seek declaratory relief and an injunction directing the defendants—the executive and legislative officers variously charged with overseeing the conduct of the census, the methodology for the allocation of congressional seats, and the certification of the allocation¹—to reallocate the seats apportioned to the several states as a consequence of the 1990 census.

The animating concern which prompted this litigation was the loss by Massachusetts of one of its current eleven congressional seats as a result of the congressional reapportionment process necessitated by the 1990 census. The parties have stipulated (A) that if the plaintiffs prevail on their apportionment claim, Massachusetts will continue to have eleven seats in the House of Representatives while the State of Oklahoma will lose one of the six seats it has been allocated under the challenged apportionment methodology; or, alternatively, (B) that if the plaintiffs prevail on their overseas census claims, Massachusetts will continue to have eleven seats in the House of Representatives while the State of Washington will lose one of the nine seats it has received under the challenged census methodology. At issue is not merely the size of the Massachusetts delegation in the House of Representatives, but also the relative strength of the Massachusetts voice in the selection of the president through the electoral college, where a state's share of the 535 electors is "equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." U.S. Const., art. II, § 1, cl. 2.

The case has been presented to us by cross motions for summary judgment, supported by a stipulation of facts and affidavits. The parties agree that there is no genuine issue of material fact in dispute. While we conclude that the congressional judgment regarding the allocation of congressional seats was not violative of the Constitution and therefore reject plaintiffs' apportionment claim on the merits, we also conclude that the administrative judgment regarding the method of counting overseas personnel in the 1990 census was arbitrary and capricious, and an abuse of discretion in violation of the Administrative Procedure Act. Consequently, conditioned upon timely action by the defendant Commonwealth of Massachusetts, we will order the defendants to recertify state entitlements to seats in the House of Representatives.

In order to reach the merits of the case we have had to pass through a jurisdictional and justiciability thicket. Part of this thicket came with the territory, which required us to explore the breadth of the jurisdiction conferred by the three-judge court statute. The other part was cultivated by the defendants and the State of Washington as amicus curiae, who variously raised standing, the indispensability of absent parties, and the political question doctrine as justiciability impediments to plaintiffs' claims. Our passage through the several parts of the thicket helps to stake out the merits of the claims at the substantive heartland of the case. Accordingly, we turn first to a report of our passage before discussing the merits of the claims.

I THE JURISDICTION AND JUSTICIABILITY THICKET

A. THE JURISDICTION OF THE THREE-JUDGE COURT

Congress has mandated that "a district court of three judges shall be convened ... when an action is filed challenging the constitutionality of the apportionment of congressional districts." 28 U.S.C. § 2284(a). Section 2284(b)(1) calls for the convening of the three-judge court "upon the filing of a request for three judges." None of the parties, however, initially filed a request for the convening of a three-judge court in this action.

Upon prompting by the single judge to whom this case was initially assigned and after a ruling by the United States District Court for the District of Montana before which a similar challenge to the congressional method of apportioning congressional districts among the states was mounted, Montana v. United States Dep't of Commerce, (decision of single judge denying motion to dissolve three-judge court) 775 F.Supp. 1358, 1360 (D.Mont., 1991) (three-judge court opinion on merits affirming, inter alia, decision to convene three-judge court) prob. juris. noted, ___ U.S. ___, 112 S.Ct. 656, 116 L.Ed.2d 747 (1991) (No. 91-860), the plaintiffs requested that a three-judge court be convened at least as to the apportionment claim. Plaintiffs also maintained at that time that the overseas census claims merited adjudication by a three-judge court. The defendants opposed the request. This three-judge court was convened without prejudice to the right to move to dissolve it. The defendants made such a motion.

At oral argument, the defendants, recognizing that the Solicitor General had recently conceded in his submissions to the Supreme Court the propriety of the three-judge district court in the Montana litigation, Jurisdictional Statement, United States Dep't of Commerce v. Montana, U.S. No. 91-860, at 25-28, abandoned their motion to dissolve this three-judge court as to the apportionment claim. The defendants, however, maintained that three-judge court consideration of the overseas census claims standing alone was inappropriate. The plaintiffs, while continuing their request for three-judge court treatment of the apportionment claim, expressed themselves at oral argument as indifferent on the question whether a three-judge court should dispose of the overseas census claims.

Because we believe the question of the propriety of a three-judge court cannot be left to the variable dispositions of the parties but rather is a jurisdictional issue always open to review,² we have undertaken our own independent analysis of the question.

1. The Apportionment Claim

In their initial opposition to the convening of a three-judge court, even as to the apportionment claim, the defendants relied upon a distinction they perceived between intrastate and interstate apportionment disputes. Noting that until the Montana decision, all litigated challenges to the constitutionality of the apportionment of congressional districts had been directed at the decisions of state legislatures in the apportioning of districts within particular states, the defendants contended that interstate apportionment of districts could not have been within the contemplation of Congress when it revised the three-judge district court provisions in 1976.

The distinction drawn by the defendants makes no material difference under § 2284. It is well recognized that the three-judge court procedure imposes heavy logistical demands on the federal judiciary. But the burden has been perceived necessary as a means for "the saving of state and federal statutes from improvident doom at the hands of a single judge." MTM, Inc. v. Baxley, 420 U.S. 799, 804, 95 S.Ct. 1278, 1281, 43 L.Ed.2d 636 (1975) (per curiam). In no area is that concern more critical to the legitimacy of judicial decisionmaking than in the politically charged context of legislative reapportionment. And Congress made a deliberate decision to continue the application of three-judge court procedures to reapportionment cases when it narrowed the jurisdiction of those courts in 1976.

The provisions for district courts sitting as a panel of three judges, one of whom must be a judge of the court of appeals— together with the opportunity for direct appeal to the Supreme Court—are useful in diminishing any perception that...