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

• Citation: 928 F.3d 95
• Decision Date: 28 June 2019
• Docket Number: No. 19-5031,19-5031
• Parties: ELECTRONIC PRIVACY INFORMATION CENTER, Appellant v. UNITED STATES DEPARTMENT OF COMMERCE and Bureau of the Census, Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

928 F.3d 95

ELECTRONIC PRIVACY INFORMATION CENTER, Appellant

v.UNITED STATES DEPARTMENT OF COMMERCE and Bureau of the Census, Appellees

No. 19-5031

United States Court of Appeals, District of Columbia Circuit.

Argued May 8, 2019

Decided June 28, 2019

Rehearing En Banc Denied September 16, 2019

John Davisson argued the cause for appellant. With him on the briefs were Alan Butler and Marc Rotenberg.

Sarah Carroll, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief was Mark B. Stern, Attorney.

Before: Henderson and Millett, Circuit Judges, and Sentelle, Senior Circuit Judge.

Sentelle, Senior Circuit Judge:

On March 26, 2018, the Department of Commerce announced that a citizenship question would be added to the 2020 Census. The Electronic Privacy Information Center (EPIC) contends that, before this announcement was made, its members were entitled to a Privacy Impact Assessment by law. EPIC sued to enjoin the addition of the question on this basis, and now appeals the district court’s denial of its motion for a preliminary injunction. Because EPIC lacks standing, we remand to the district court with instructions to dismiss.

I. Background

A. The E-Government Act

In 2002, Congress passed the E-Government Act to modernize and regulate the government’s use of information technology. Pub. L. No. 107-347, 116 Stat. 2899 (codified at 44 U.S.C. § 3501 note) (hereinafter "E-Government Act"). The Act outlines eleven purposes. Nine involve improving government efficiency, organization, and decision-making. E-Government Act § 2(b). In addition to these predominantly agency-centric goals, however, the Act also aims to "provide increased opportunities for citizen participation in Government," and "[t]o make the Federal Government more transparent and accountable." §§ 2(b)(2), (9).

Section 208 of the Act contains privacy provisions. Its stated purpose is to "ensure sufficient protections for the privacy of personal information as agencies implement citizen-centered electronic Government." E-Government Act § 208(a). To effectuate this purpose, § 208 requires federal agencies to conduct, review, and, "if practicable," publish, a Privacy Impact Assessment (PIA) before "initiating a new collection of information" that involves personally identifiable information that will be "collected, maintained, or disseminated using information technology." § 208(b)(1)(A)–(B). A "collection of information" is defined as "obtaining, causing to be obtained, soliciting, or requiring the disclosure ... of facts or opinions" through "identical questions posed to ... ten or more persons." 44 U.S.C. § 3502(3)(A). The word "initiating" is not defined by statute.

A PIA required by a new collection of information must address, at a minimum: what information will be collected, why it is being collected, how it will be used, how it will be secured, with whom it will be shared, whether a system of records is being created under the Privacy Act, and what "notice or opportunities for consent" will be provided to those impacted. E-Government Act § 208(b)(2)(B)(ii).

B. The Census

To apportion representatives among the several States, the Census Clause of the United States Constitution requires an "actual Enumeration" of the United States population. U.S. Const. art. I, § 2, cl. 3. The census occurs every ten years, "in such Manner as [Congress] shall by Law direct." Id. Pursuant to this command, Congress passed a series of census laws directing the Secretary of Commerce to conduct a decennial census and establishing the Census Bureau as an agency within the Department of Commerce. 13 U.S.C. §§ 2, 141(a). These laws give the Secretary broad authority to "obtain such other census information as necessary." Id. § 141(a). The census has historically included a wide variety of demographic questions, often including questions about citizenship status. With few exceptions, a refusal to answer "any of the questions" on the census is a violation of law. 13 U.S.C. § 221.

The Census Bureau operates at least six information technology (IT) systems that process, store, and disseminate personally identifiable information from census responses. The primary system used for the census is called "CEN08." This system shares information with five other systems: "CEN21," "CEN05," "CEN11," "CEN13," and "CEN18." The Bureau maintains a PIA for each system on a publicly-available website. Because the use of the systems changes regularly, the Bureau reviews and updates each assessment at least once per year.

C. The Challenge

On March 26, 2018, the Secretary of Commerce, Wilbur Ross, announced that a citizenship question would be added to the 2020 Census. A variety of legal challenges to the merits of that decision followed.

This case presents a narrow question: when does the addition of the citizenship question need to be addressed in a PIA? The parties agree that the E-Government Act requires the government to complete a PIA before "initiating a new collection of information." E-Government Act § 208(b)(1)(A)(ii). Their disagreement involves the meaning of the word "initiating." The Census Bureau believes that it does not initiate a collection of information until it solicits information from the public. If this is correct, then the Bureau is not required to produce PIAs until questionnaires are mailed out in 2020. The Government has consistently provided assurances, both before the district court and here on appeal, that the assessments will be completed "before it distributes any 2020 Decennial Census questionnaires." See, e.g. , Gov. Br. at 30. Indeed, the PIA updates have been in progress as this litigation proceeded, and an updated PIA addressing the citizenship question was published for one of the six relevant IT systems (CEN08) a few days before this Court heard oral argument. Notwithstanding these assurances and evidence of progress, EPIC, a public interest research center focused on privacy and civil liberties, challenges the Government’s interpretation. In EPIC’s view, the decision to add the question was the initiation of information collection. If this interpretation is correct, the completed PIAs were required before the decision to add the question was announced on March 26, 2018.

Eight months after Secretary Ross’s announcement, EPIC filed a complaint in the district court. It alleged three counts against the Department of Commerce and the Bureau of the Census—two under the Administrative Procedure Act and one under the Declaratory Judgment Act. Count One alleges that the Secretary committed an unlawful act under 5 U.S.C. § 706(2)(a) and (c) when he announced the decision to add the citizenship question before completing the PIAs. Similarly, Count Two alleges that the government unlawfully withheld agency action, in violation of 5 U.S.C. § 706(1), by failing to timely complete and publish the PIAs. Count Three seeks a declaration of rights under 28 U.S.C. § 2201(a). Among other requested relief, EPIC asks the court to: (1) set aside the decision to add the citizenship question; (2) order that the decision be revoked until the PIAs are completed and published; and (3) order the completion and publication of the PIAs.

On January 18, 2019, EPIC moved for a preliminary injunction. In the text of the proposed order submitted with its motion, EPIC asked that the Census Bureau be "enjoined from initiating any collection of citizenship status information." Pl.’s Mot. Prelim. Inj. Attach. 2 at 1 (emphasis added). This is curious, since EPIC’s entire argument is that such collection has already been initiated. Nevertheless, the district court denied the motion because EPIC failed to show a likelihood of success on the merits or a likelihood of irreparable harm. EPIC v. U.S. Dep’t of Commerce , 356 F. Supp. 3d 85, 89, 95–97 (D.D.C. 2019). The district court held that EPIC was not likely to succeed on the merits because "initiating a new collection of information" requires more than a decision to collect information at some point in the future. Id. at 89–91. The court agreed with the Government that collection did not begin until the first set of census questions was mailed out. Id. at 90. The district court also concluded that EPIC was not likely to suffer irreparable harm since the collection of citizenship information—set to occur in 2020—was not imminent. Id. at 95–97. EPIC timely appealed the denial of its motion.

II. Jurisdiction

We have the statutory jurisdiction to review the denial of a preliminary injunction under 28 U.S.C. § 1292(a)(1). Before we review the merits of this appeal, however, we must consider whether federal courts have the constitutional power to decide this case in the first place. "Every federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review ...." Arizonans for Official English v. Arizona , 520 U.S. 43, 73, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (internal quotations omitted). "When the lower federal court lacks jurisdiction, we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit." Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (internal quotations omitted).

"The Constitution limits our ‘judicial Power’ to ‘Cases’ and ‘Controversies,’ U.S. Const. art. III, § 2, cl. 1." West v. Lynch , 845 F.3d 1228, 1230 (D.C. Cir. 2017) (citing Steel Co. , 523 U.S. at 102, 118 S.Ct. 1003 ). "[T]here is no justiciable case or controversy unless the plaintiff has standing." Id. "To establish standing, the plaintiff must show (1) it has suffered a concrete and particularized injury (2) that is fairly traceable to the challenged action of the defendant and (3) that is likely to be redressed by a favorable decision, i.e., a decision granting the plaintiff the relief it seeks." EPIC v. Presidential Advisory Comm’n...