Nat'l Ass'n v. Bureau of the Census

Decision Date01 August 2019
Docket NumberCase No.: PWG-18-891
Citation399 F.Supp.3d 406
Parties NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiffs, v. BUREAU OF THE CENSUS, et al., Defendants.
CourtU.S. District Court — District of Maryland

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.

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

MEMORANDUM OPINION AND ORDER

Paul W. Grimm, United States District Judge

On February 1, 2019, the Bureau of the Census ("Bureau") released Version 4.0 of its 2020 Census Operational Plan ("Final Operational Plan"). 2020 Census Operational Plan: A New Design for the 21st Century (Version 4.0), U.S. Census Bureau (December 2018), https://www.census.gov/programs-surveys/decennial-census/2020-census/planning-management /planning-docs/operational-plan.html. Two weeks later, on February 15, 2019, Congress appropriated to the Bureau of the Census ("Bureau") $3,551,388,000 for the 2020 Census, ending the longest shutdown of the U.S. government in history. See Consolidated Appropriations Act, 2019, Pub. L. No. 116-6, 133 Stat. 13 (Feb. 15, 2019) ("2019 Appropriations Act").

During the government shutdown and shortly before the Bureau released its Final Operational Plan, I had denied Defendants' motion to dismiss Plaintiffs' Enumeration Clause claim for declaratory relief with regard to the funding of the 2020 Census.1 NAACP v. Bureau of Census , 382 F. Supp. 3d 349, 356 (D. Md. 2019). I concluded that sole claim was justiciable while granting the motion as to Plaintiffs' other Enumeration Clause claims challenging the Bureau's preparedness for the 2020 Census. Id. Against the backdrop of an imminent lapse in funds to continue preparation for the 2020 Census (and a prolonged government shutdown, during which no further funds were forthcoming), I noted that it was "plausible that this Court could fashion declaratory relief that would make it likely that sufficient funds will be appropriated to enable the final planning and execution of the 2020 Census to take place," and I allowed for targeted discovery to determine whether an evidentiary basis existed for Plaintiffs' remaining claim. Id.

Plaintiffs sought leave to amend the Amended Complaint to add Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq. , claims and allegations about recent factual developments, and I granted their request, while denying their request to reintroduce their dismissed Enumeration Clause claims. Feb. 28, 2019 Ltr. Order, ECF No. 76. I also granted Defendants' request to file a motion to dismiss the funding claim as moot and the APA claims "for lack of agency action." Id. at 4.

Plaintiffs filed their Second Amended Complaint, ECF No. 91, and Defendants' Motion to Dismiss that pleading, ECF No. 95, now is fully briefed and ripe for resolution, ECF Nos. 95-1, 98, 108, 131, 132. A hearing is not necessary. See Loc. R. 105.6. Because the 2019 Appropriations Act moots the funding claim, which no longer is justiciable, the Motion to Dismiss is granted as to that claim. And, because the Final Operational Plan is not final agency action reviewable under the APA, the Motion to Dismiss is granted as to the APA claims as well.

Standard of Review

Defendants challenge this Court's subject matter jurisdiction based on their belief that the 2019 Appropriations Act moots Plaintiffs' remaining Enumerations Clause claim. They also argue the Court lacks authority to redress the injury that Plaintiffs allege the underfunding of the census will cause and, further, that the Final Operational Plan is not subject to judicial review because it was not a final agency action.2 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 is "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 , 464 F.3d 480, 483 (4th Cir. 2006) ).

Whether considering a Rule 12(b)(1) factual challenge or a Rule 12(b)(6) motion, the Court may take judicial notice of "fact[s] that [are] not subject to reasonable dispute" because they "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(2). Additionally, the Court may "consider documents that are explicitly incorporated into the complaint by reference." Goines v. Valley Cmty. Servs. Bd. , 822 F.3d 159, 166 (4th Cir. 2016). The Final Operational Plan, which is available on the Bureau's website and which Plaintiffs cite to and quote from extensively in their Second Amended Complaint, e.g. , Sec. Am. Compl. 3, ¶¶ 32–33, 66–67, 70–71, 74, 76, 90–92, 107–09, 116, 132–33, 137, 147, 153, 157–60, falls into both of these categories. Likewise, I may consider the President's 2020 Census budget request for $3,551,388,000 for Fiscal Year ("FY") 2019, see App'x, Proposed Budget of the U.S. Gov't, FY 2019 at 184, https://www.whitehouse.gov/wp-content/uploads/2018/02/appendix-fy2019.pdf (cited at Defs.' Mem. 5 n.4), as well as the Bureau's 2020 Census budget request for $6.4 billion for FY 2020, presented to Congress in March 2019, see U.S. Census Bureau's Budget FY 2020, at 59, https://www.commerce.gov/sites/default/files/2019-03/fy2020_census_congressional_budget_justification_0.pdf (cited in Sec. Am. Compl. ¶ 57). See Fed. R. Evid. 201(b)(2).

Moreover, when a defendant attaches documents to its motion to dismiss that are "integral to the complaint and their authenticity is not disputed," the Court may consider those documents. Sposato v. First Mariner Bank , No. CCB-12-1569, 2013 WL 1308582, at *2 (D. Md. Mar. 28, 2013) ; see CACI Int'l v. St. Paul Fire & Marine Ins. Co. , 566 F.3d 150, 154 (4th Cir. 2009). Defendants provide a link to the online version of the Final Operational Plan, Defs.' Mem. 4 n.1, and Plaintiffs provide the web address for it as well, Pls.' Opp'n 4 n.1; it is integral to Plaintiffs' pleading, and they do not challenge its authenticity. Accordingly, I may consider it on this basis also. See Sposato , 2013 WL 1308582, at *2.

Enumerations Clause Claim for Underfunding
Mootness

Article III of the Constitution limits the judicial power to "actual, ongoing cases or controversies." Lewis v. Cont'l Bank Corp. , 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (citations omitted). The "case-or-controversy" requirement subsists through all stages of federal judicial proceedings. Id. Thus, an actual controversy must exist "at all stages of review, not merely at the time the complaint is filed." Arizonans for Official English v. Arizona , 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (internal quotation marks and citations omitted). A case becomes moot when the issues presented are "no longer ‘live’ or the parties lack a legally cognizable interest in the outcome." City of Erie v. Pap's A.M. , 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (quoting County of Los Angeles v. Davis , 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) ). To show that the case is moot, Defendants must meet a "heavy" burden by demonstrating that " ‘there is no reasonable expectation...’ that the alleged violation will recur," and that "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." County of Los Angeles , 440 U.S. at 631, 99 S.Ct. 1379 (citations omitted).

Defendants contend that Plaintiffs' underfunding claim is moot now that Congress has appropriated more than $3.5 billion to the Bureau, and they insist that my earlier Memorandum Opinion made clear that the underfunding claim only was viable in light of the government shutdown, which since has ended. Defs.' Mem. 4–5, 8.3 Indeed, I previously observed the significance of the government shutdown's detrimental effects on the Bureau's funding, stating, inter alia :

I can judicially notice that the Bureau endured a 35-day lapse in appropriations during the recent partial shutdown of
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  • Nat'l Ass'n for the Advancement of Colored People v. Bureau of the Census
    • United States
    • U.S. District Court — District of Maryland
    • April 16, 2020
    ...Fourth Circuit Published Opinion (ECF No. 162-2). These decisions can also be found here: 382 F. Supp. 3d 349 (D. Md. 2019) ; 399 F. Supp. 3d 406 (D. Md. 2019) ; and 945 F.3d 183 (4th Cir. 2019).6 When a plaintiff does not have standing or presents a political question, its claim is not jus......

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