Elec. Privacy Info. Ctr. v. U.S. Dep't of Commerce

• Decision Date: 08 February 2019
• Docket Number: No. 18-cv-2711 (DLF),18-cv-2711 (DLF)
• Citation: 356 F.Supp.3d 85
• Parties: ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff, v. U.S. DEPARTMENT OF COMMERCE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

356 F.Supp.3d 85

ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff,

v.U.S. DEPARTMENT OF COMMERCE, et al., Defendants.

No. 18-cv-2711 (DLF)

United States District Court, District of Columbia.

Signed February 8, 2019

John L. Davisson, Washington, DC, for Plaintiff.

MEMORANDUM OPINION

DABNEY L. FRIEDRICH, United States District Judge

Plaintiff Electronic Privacy Information Center (EPIC), a non-profit organization dedicated to privacy and civil liberties issues, brings this action against the U.S. Department of Commerce and the U.S. Census Bureau under the Administrative Procedure Act (APA) and the Declaratory Judgment Act. The plaintiff claims that the E-Government Act requires the defendants to conduct and release "privacy impact assessments" addressing Secretary of Commerce Wilbur Ross's March 26, 2018 decision to include a citizenship question in the 2020 Census. The defendants agree, but insist they still have plenty of time to do so "before" actually "initiating a new collection of information" within the meaning of the E-Government Act.¹ Before the Court is the plaintiff's Motion for a Preliminary Injunction, Dkt. 8, seeking to enjoin Commerce and the Bureau from implementing Secretary Ross's decision to add a citizenship question to the Census, see Dkt. 8-2. For the following reasons, the Court will deny the motion.

I. BACKGROUND

A. Statutory Background

The E-Government Act requires federal agencies to "conduct a privacy impact assessment,""ensure the review of the privacy impact assessment," and, "if practicable, ... make the privacy impact assessment publicly available" "before" "initiating a new collection of information" that "will be collected, maintained or disseminated using information technology" and that "includes any information in an identifiable form permitting the physical or online contacting of a specific individual, if identical questions have been posed to[ ] ... 10 or more persons." E-Government Act § 208(b)(1)(A)–(B).

The term "collection of information" is defined by statute as "the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions ... regardless of form or format, calling for" "answers to identical questions posed to ... ten or more persons[.]" 44 U.S.C. § 3502(3)(A) ; see also E-Government Act § 201 (incorporating § 3502 definitions by reference). The same term is also used in OMB regulations to "refer[ ] to the act of collecting or disclosing information, to the information to be collected or disclosed, to a plan and/or an instrument calling for the collection or disclosure of information, or any of these, as appropriate." 5 C.F.R. § 1320.3(c). The term "initiating" has no statutory or regulatory definition.

A privacy impact assessment—or "PIA"—must "address" "what information is to be collected;" "why the information is being collected;" "the intended use of the agency of the information;" "with whom the information will be shared;" "what notice or opportunities for consent would be provided to individuals regarding what information is collected and how that information is shared;" "how the information will be secured;" and "whether a system of records is being created under [the Privacy Act]." E-Government Act § 208(b)(2)(B)(ii).

B. Factual Background

On March 26, 2018, Secretary of Commerce Wilbur Ross announced his decision to include a citizenship question on the 2020 Decennial Census questionnaire. See Bachman Decl. ¶ 12, Dkt. 12-1. That decision has been challenged elsewhere on a number of grounds.² For present purposes, all that matters is whether—and, more importantly, when —the decision to collect citizenship information had to be addressed in one or more PIAs.

The Bureau is no stranger to PIAs. When Secretary Ross announced the inclusion of the citizenship question in March 2018, the Bureau was already planning to conduct an annual PIA for the primary information technology system used for the decennial census. Bachman Decl. ¶¶ 3, 9. That system—called "CEN08"—shares Census-related information with four other systems: "CEN21," "CEN05," "CEN11," and "CEN13." Id. ¶ 14. And a sixth information technology system—called "CEN18"—enables the flow of information between CEN08 and the other four systems. Id.

The Bureau maintains and regularly updates PIAs for each of these systems. See id. ¶¶ 9, 15. The PIA for CEN08 was updated in June and September of 2018, and another update is in progress and scheduled for release in February or March of 2019. Id. ¶ 9. The PIAs for the remaining systems were all updated in June 2018 and will be reviewed and updated again "within the next two months" as part of the Bureau's annual PIA process. Id. ¶ 15. In the meantime, the current PIAs for these systems are available to the public online.³

The existing PIAs say little about the collection of citizenship information in particular. The PIAs for CEN05,⁴ CEN13,⁵ and CEN18⁶ do not mention citizenship at all. And the PIAs for CEN08⁷ and CEN11⁸ mention citizenship only once, in a field labeled "Other general personal data (specify)," without any analysis or further context.⁹

Unsatisfied with this level of treatment, EPIC filed this action on November 20, 2018. The complaint asserts two counts under the APA and one count under the Declaratory Judgment Act. Count I alleges that the defendants acted unlawfully by adding the citizenship question to the Census without first conducting, reviewing, and releasing PIAs to address that decision. Compl. ¶¶ 64–70 (citing 5 U.S.C. § 706(2)(a), (c) ). Count II alleges that the defendants unlawfully withheld agency action by failing to conduct, review, or release PIAs as required. Id. ¶¶ 71–76 (citing 5 U.S.C. § 706(1) ). And Count III seeks a declaration of rights and relations consistent with counts I and II. Id. ¶¶ 77–78 (citing 28 U.S.C. § 2201(a) ).

On January 15, 2019, a federal district court in New York permanently enjoined Commerce and the Bureau from including the citizenship question on the Census. See New York v. U.S. Dep't of Commerce, 351 F.Supp.3d at 679–80, 2019 WL 190285, at *125. Three days later, EPIC filed this motion for a preliminary injunction, which the Court now resolves.

II. LEGAL STANDARD

A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). To warrant a preliminary injunction, a plaintiff "must make a clear showing" that (1) he "is likely to succeed on the merits"; (2) he "is likely to suffer irreparable harm in the absence of preliminary relief"; (3) the "balance of equities" tips in his favor; and (4) "an injunction is in the public interest." Id. at 20, 129 S.Ct. 365 ; League of Women Voters of United States v. Newby , 838 F.3d 1, 6 (D.C. Cir. 2016). The last two factors "merge when the Government is the opposing party." Nken v. Holder , 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). The plaintiff "bear[s] the burdens of production and persuasion" when moving for a preliminary injunction. Qualls v. Rumsfeld , 357 F.Supp.2d 274, 281 (D.D.C. 2005) (citing Cobell v. Norton , 391 F.3d 251, 258 (D.C. Cir. 2004) ).

"Before the Supreme Court's decision in Winter , courts weighed the preliminary injunction factors on a sliding scale, allowing a weak showing on one factor to be overcome by a strong showing on another factor." Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs , 205 F.Supp.3d 4, 26 (D.D.C. 2016). The D.C. Circuit, however, has "suggested, without deciding, that Winter should be read to abandon the sliding-scale analysis in favor of a ‘more demanding burden’ requiring a plaintiff to independently demonstrate both a likelihood of success on the merits and irreparable harm." Id. (quoting Sherley v. Sebelius , 644 F.3d 388, 392–93 (D.C. Cir. 2011) ); see also Davis v. Pension Benefit Guar. Corp. , 571 F.3d 1288, 1292 (D.C. Cir. 2009).

"Both before and after Winter , however, one thing is clear: a failure to show a likelihood of success on the merits alone is sufficient to defeat the motion." Hudson v. Am. Fed'n of Gov't Employees , 308 F.Supp.3d 121, 127 (D.D.C. 2018) (citing Ark. Dairy Co-op Ass'n, Inc. v. USDA , 573 F.3d 815, 832 (D.C. Cir. 2009) ). "[A]bsent a substantial indication of likely success on the merits, there would be no justification for the Court's intrusion into the ordinary processes of administration and judicial review.’ " Archdiocese of Washington v. Washing Metro. Area Transit Auth. , 281 F.Supp.3d 88, 99 (D.D.C. 2017) (internal quotation marks omitted), aff'd , 897 F.3d 314 (D.C. Cir. 2018). Accordingly, "[u]pon finding that a plaintiff has failed to show a likelihood of success on the merits, the Court may deny a motion for preliminary injunction without analyzing the remaining factors." In re Akers , 487 B.R. 326, 331 (D.D.C. 2012) ; see also Hudson , 308 F.Supp.3d at 131–32 (same).

Likewise, "it is clear" before and after Winter "that failure to show a likelihood of irreparable harm remains, standing alone, sufficient to defeat the motion." Navajo Nation v. Azar , 292 F.Supp.3d 508, 512 (D.D.C. 2018).

III. ANALYSIS

A. Likelihood of Success on the Merits

The defendants concede that they must eventually prepare PIAs that adequately address the collection of citizenship data in the 2020 Census. See, e.g. , Defs.' Opp'n at 1, 12, Dkt. 12. But they disagree with the plaintiff that they were required to do so before Secretary Ross announced his decision to add the citizenship question on March 26, 2018. As the defendants point out, the E-Government Act requires agencies to conduct (and, if practicable, release) a PIA only before "initiating a new collection of information." E-Government Act § 208(b)(1)(A)(ii) (emphasis added). And "initiating" the collection of information, the defendants argue, means more than just announcing a decision to collect...