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National Association for Advancement of Colored People v. Bureau of Census

United States Court of Appeals, Fourth Circuit

December 19, 2019

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; PRINCE GEORGE'S COUNTY, MARYLAND; PRINCE GEORGE'S COUNTY MARYLAND NAACP BRANCH; ROBERT E. ROSS; H. ELIZABETH JOHNSON, Plaintiffs - Appellants,
v.
BUREAU OF THE CENSUS; STEVEN DILLINGHAM, Acting Director, Bureau of the Census; WILBUR ROSS, Secretary of Commerce; THE UNITED STATES, Defendants - Appellees, and DONALD J. TRUMP, President of the United States Defendant.

          Argued: October 30, 2019

          Appeal from the United States District Court for the District of Maryland, at Greenbelt. Paul W. Grimm, District Judge. (8:18-cv-00891-PWG)

         ARGUED:

          Rachel Brown, YALE SCHOOL OF LAW, New Haven, Connecticut; Jessica Ring Amunson, JENNER & BLOCK, LLP, Washington, D.C., for Appellants.

          Thais-Lyn Trayer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

         ON BRIEF:

          Michael J. Wishnie, Renee Burbank, Nikita Lalwani, Joshua Zoffer, Daniel Ki, Peter Gruber Rule of Law Clinic, YALE LAW SCHOOL, New Haven, Connecticut; Susan J. Kohlmann, Jeremy M. Creelan, Michael W. Ross, Jacob D. Alderdice, Logan J. Gowdey, JENNER & BLOCK LLP, New York, New York; Anson C. Asaka, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC., Baltimore, Maryland, for Appellants.

          Joseph H. Hunt, Assistant Attorney General, Mark B. Stern, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Robert K. Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellees.

          Before GREGORY, Chief Judge, and KEENAN and RICHARDSON, Circuit Judges.

          BARBARA MILANO KEENAN, Circuit Judge.

         The Enumeration Clause of the Constitution requires that Congress conduct an "actual Enumeration" of the population every ten years, the results of which are used for the apportionment of Congressional representatives and the allocation of federal funding. U.S. Const. art. I, § 2, cl. 3; amend. XIV, § 2. But, despite its paramount importance in our constitutional scheme, no Census ever has counted the population accurately. Wisconsin v. City of New York, 517 U.S. 1, 6 (1996). Instead, it is widely acknowledged that each decennial Census inevitably results in an "undercount" of the American public.

         This undercount is not spread uniformly across the population. Id. The Census Bureau long has recognized that the undercount affects African Americans and other "racial and ethnic minority groups to a greater extent than it does whites." Id. And, because the results of the Census directly impact both political representation and the allocation of federal funding, this "differential undercount" has had the effect of disproportionately reducing the amount of political representation and funding that undercounted communities receive. Id.

         This appeal addresses a challenge to the "methods and means" that the Census Bureau has adopted for the 2020 Census, and the contention that the 2020 Census will produce an even greater differential undercount. Plaintiffs-Appellants are the National Association for the Advancement of Colored People (NAACP); Prince George's County, Maryland; Prince George's County, Maryland, NAACP Branch; Robert E. Ross; and H. Elizabeth Johnson (collectively, the plaintiffs). They represent "hard-to-count" communities that historically have suffered the greatest harms from differential undercounts, and that directly will lose federal funding if, as the plaintiffs assert, the differential undercount increases in 2020. Defendants-Appellees are the Census Bureau and its Director, the Secretary of Commerce, and the United States (collectively, the defendants).

         The plaintiffs' claims, brought under both the Enumeration Clause and the Administrative Procedures Act (APA, or Act), 5 U.S.C. §§ 701 et seq., were dismissed by the district court. The court first dismissed the Enumeration Clause claims, holding that they were unripe and would not be justiciable until after the Census was completed. Separately, the court held that the plaintiffs' claims under the APA failed to identify any "agency action" within the meaning of the Act, and therefore were not subject to judicial review.

         On appeal, the plaintiffs argue that the district court erred in dismissing both sets of claims. According to the plaintiffs, their claims under both the APA and the Enumeration Clause are based on "six discrete decisions" set forth in the Census Bureau's final plans for the 2020 Census, and each decision directly and imminently will exacerbate the differential undercount of the communities the plaintiffs represent. Thus, the plaintiffs contend that their claims are ripe and are subject to review under both the APA and the Enumeration Clause.

         Upon our review, we hold that the plaintiffs' APA claims, as pleaded, do not satisfy the jurisdictional limitations on judicial review set forth in the APA. Therefore, we affirm the district court's judgment dismissing those claims.

         Nevertheless, mindful of the Supreme Court's recent guidance affirming judicial review of "both constitutional and statutory challenges to census-related decision-making," Dep't of Commerce v. New York, 139 S.Ct. 2551, 2568 (2019), we conclude that the district court erred in dismissing the plaintiffs' Enumeration Clause claims as unripe, and in precluding the plaintiffs from filing an amended complaint regarding those claims after the defendants' plans for the 2020 Census became final. Additionally, we decline to address in the first instance the defendants' alternative arguments for affirming the district court's judgment. We therefore reverse the district court's ...


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