Nat'l Ass'n for the Advancement of Colored People v. Bureau of the Census

• Decision Date: 16 April 2020
• Docket Number: Case No.: PWG-18-891
• Parties: NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiffs, v. BUREAU OF the CENSUS, et al., Defendants.
• Court: U.S. District Court — District of Maryland

454 F.Supp.3d 542

NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiffs,

v.BUREAU OF the CENSUS, et al., Defendants.

Case No.: PWG-18-891

United States District Court, D. Maryland, Southern Division.

Filed April 16, 2020

Benjamin Dylan Alter, Pro Hac Vice, National Association for the Advancement of Colored People, Jacob Alderdice, Pro Hac Vice, Jeremy M. Creelan, Pro Hac Vice, Logan J. Gowdey, Pro Hac Vice, Michael W. Ross, Pro Hac Vice, Olivia Hoffman, Pro Hac Vice, Susan J. Kohlmann, Pro Hac Vice, Jenner and Block LLP, New York, NY, Renee Burbank, Michael J. Wishnie, Rule of Law Clinic, Yale Law School, New Haven, CT, for Plaintiffs National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch.

Jacob Alderdice, Pro Hac Vice, Jeremy M. Creelan, Pro Hac Vice, Logan J. Gowdey, Pro Hac Vice, Michael W. Ross, Pro Hac Vice, Olivia Hoffman, Pro Hac Vice, Susan J. Kohlmann, Pro Hac Vice, Jenner and Block LLP, New York, NY, Renee Burbank, Michael J. Wishnie, Rule of Law Clinic, Yale Law School, New Haven, CT, for Plaintiffs Maryland Prince George's County, Robert E. Ross, H. Elizabeth Johnson.

Carol Federighi, Stephen Ehrlich, Christopher M. Lynch, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

Paul W. Grimm, United States District Judge The Constitutionally-mandated decennial count of the population of the United States as of April 1, 2020 is underway. This complex and important endeavor has occurred every ten years since 1790, and every census to date has been challenged in the effort to accomplish "an ‘actual Enumeration’ of the population." Wisconsin v. New York , 517 U.S. 1, 6, 116 S.Ct. 1091, 134 L.Ed.2d 167 (1996). An unfortunate outcome of each census has been that "some segments of the population are ‘undercounted’ to a greater degree than are others, resulting in a phenomenon termed the ‘differential undercount.’ " Id. at 7, 116 S.Ct. 1091.¹ Some groups have proven more difficult to count; "hard-to-count" groups "include racial and ethnic minorities, lower income people, the homeless, undocumented immigrants, young and mobile people, children, LGBTQ individuals, and ‘persons who are angry at and/or distrust the government.’ " Third Am. Compl. ¶ 22, ECF No. 168. Plaintiffs² and Defendants³ in this litigation share a common goal—to accomplish a successful 2020 census that results in a more accurate enumeration and avoids or reduces a differential undercount of hard-to-count populations. The dispute here is about how best to secure those results.

This litigation began on March 28, 2018. Pending before me are the following motions: Defendants’ Motion to Dismiss [the Third Amended Complaint] and Motion for Summary Judgment (ECF No. 170); Plaintiffs’ Motion Pursuant to Federal Rule of Civil Procedure 56(d) (ECF No. 176); and Defendants’ Motion in Limine (ECF No. 179), which seeks to exclude Plaintiffs’ expert declarations. Although I advised counsel during the in-court hearing on the Plaintiffs’ Motion for a Preliminary Injunction held on March 5, 2020 that I was considering having another hearing on these other pending motions, the outbreak of the COVID-19 pandemic and its resulting restrictions on normal court proceedings has resulted in the suspension of in-court hearings. Faced with delaying a ruling until the unprecedented public health crisis has abated (a much-hoped-for date in the future that no one can predict at the present with any accuracy) or re-examining the filings to determine whether a ruling may be made without the need of a hearing, I have chosen to re-review the filings regarding the pending motions to assess whether a ruling without a hearing can be made. Having done so, I have concluded that a hearing is not necessary.⁴ See Loc. R. 105.6 (D. Md. 2018). Because Plaintiffs do not plausibly allege that the Census Bureau's plan fails to bear a reasonable relationship to an actual enumeration or that any of the Census Bureau's actions unreasonably compromise the distributive accuracy of the census, I shall GRANT Defendants’ Motion to Dismiss. Accordingly, the remaining motions shall be DENIED AS MOOT.

BACKGROUND

In brief,⁵ this litigation began when Plaintiffs filed a Complaint alleging one count of Defendants’ violating the Enumeration Clause of the United States Constitution. Compl., ECF No. 1. At that time, with the 2020 Census two years away, Plaintiffs alleged that the Census Bureau was not prepared to conduct the census in a manner that would result in an accurate count of the country's population, as required by the Enumeration Clause. Id. The Census Bureau was then without a permanent director or deputy director, it had canceled essential field tests, and in Plaintiffs’ view, it lacked "sufficient funding to address its many challenges." Id. I held that Plaintiffs’ claim challenging the Census Bureau's preparedness to conduct the census was not yet ripe and dismissed it without prejudice, but found that the lack-of-funding claim was ripe for relief and could proceed. Jan. Mem. Op. 6, 55.

Shortly thereafter, in February 2019, Congress appropriated $3.5 billion for the 2020 census, at the same time ending the longest shutdown of the United States government in history, and the Census Bureau also released its final operational plan. See Aug. Mem. Op. 1. Plaintiffs amended the Complaint to add Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq. , claims and allegations updating the factual developments, but I denied as not yet ripe Plaintiffs’ request to reinstate the dismissed Enumeration Clause claim. See Second Am. Compl., ECF No. 91; Feb. 28, 2019 Ltr. Order, ECF No. 76. In August 2019, I granted Defendants’ motion to dismiss the lack-of-funding claim as moot, and I also dismissed the APA claims because the Census Bureau's final plan is not a final agency action that is reviewable under the APA. Aug. Mem. Op. Plaintiffs appealed the dismissal of the APA claims as well as the denial of their request to reinstate the dismissed Enumeration Clause claim.

In December 2019, the Fourth Circuit affirmed the dismissal of the APA claims but ruled that Plaintiffs’ Enumeration Clause claim became ripe for review once the Census Bureau announced that the operational plan was final. See 945 F.3d at 192-93. In so holding, the Fourth Circuit did not review whether the Plaintiffs’ Enumeration Clause claim "state[d] facts plausibly establishing a constitutional violation." Id. at 193. On remand, Plaintiffs filed the Third Amended Complaint alleging only one claim—violation of the Enumeration Clause of the United States Constitution, Art. I, § 2, cl. 3. ¶¶ 183-88. They also filed a Motion for Preliminary Injunction, ECF No. 169, which I denied. See Order, Mar. 5, 2020, ECF No. 182. Defendants moved to dismiss the Third Amended Complaint or, in the alternative, to grant summary judgment to Defendants. Defs.’ Mot. Dismiss, ECF No. 170. In response, Plaintiff filed a motion pursuant to Federal Rule of Civil Procedure 56(d) requesting that I deny Defendants’ motion for summary judgment or defer ruling until Plaintiffs had the opportunity to take discovery on Defendants’ factual assertions. Pls.’ Mot. 56(d), ECF No. 176. Also pending before me is Defendants’ motion in limine to exclude the declarations of Plaintiffs’ experts, which I denied for purposes of the preliminary injunction motion, without prejudice to revisiting the motion for the purposes of the pending motions. See Mot. Limine, ECF No. 179; Order, Mar. 5, 2020 at n.1.

For the reasons that follow, I shall GRANT Defendants’ dismissal motion and the remaining motions shall be DENIED AS MOOT.

STANDARD OF REVIEW

Defendants contend that Plaintiffs’ claims are not justiciable because they are barred by the political question doctrine, Defs.’ Mot. 24, and even if justiciable, this Court lacks subject matter jurisdiction because Plaintiffs lack standing, id. at 26.⁶ Defendants’ also move to dismiss on the basis that Plaintiffs fail to plausibly allege, or create a genuine issue of material fact in support of, their claims. Id. at 33.

When a defendant moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, asserting a facial challenge that "a complaint simply fails to allege facts upon which subject matter jurisdiction can be based," as Defendants do here, "the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a 12(b)(6) consideration." Adams v. Bain , 697 F.2d 1213, 1219 (4th Cir. 1982) ; see Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (noting that, on a motion to dismiss, a plaintiff's pleading of the elements of standing are "presum[ed] [to] embrace those specific facts that are necessary to support the claim" (quoting Lujan v. Nat'l Wildlife Fed'n , 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) )).

Pursuant to Rule 12(b)(6), a plaintiff's claims are subject to dismissal if they "fail[ ] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and must state "a plausible claim for relief," Ashcroft v. Iqbal , 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Rule 12(b)(6) ’s purpose "is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Velencia v. Drezhlo , No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012) (quoting Presley v. City of Charlottesville...