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,
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
from the United States District Court for the District of
Maryland, at Greenbelt. Paul W. Grimm, District Judge.
Brown, YALE SCHOOL OF LAW, New Haven, Connecticut; Jessica
Ring Amunson, JENNER & BLOCK, LLP, Washington, D.C., for
Thais-Lyn Trayer, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellees.
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.
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.
GREGORY, Chief Judge, and KEENAN and RICHARDSON, Circuit
BARBARA MILANO KEENAN, Circuit Judge.
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.
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.
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).
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
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
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.
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 ...