Case: 8:18-cv-891 As of: 07/19/2020 11:46 AM EDT 1 of 21
CASREF,CLOSED
U.S. District Court District of Maryland (Greenbelt) CIVIL DOCKET FOR CASE #: 8:18−cv−00891−PWG

National Association for the Advancement of Colored People et al v. Bureau of the Census et al Assigned to: Judge Paul W. Grimm Referred to: Magistrate Judge Timothy J. Sullivan Case in other court: USCA, 19−01863 Cause: 28:1331 Violation of Constitutional Rights
Plaintiff

Date Filed: 03/28/2018 Date Terminated: 04/16/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

National Association for the Advancement of Colored People

represented by Benjamin Dylan Alter National Association for the Advacement of Colored People 50 Broadway 31st Fl. New York, NY 10004 2126266412 Fax: 2122485250 Email: balter@naacpnet.org TERMINATED: 08/23/2019 PRO HAC VICE

Jacob D Alderdice Jenner and Block LLP 919 Third Ave. New York, NY 10022 2128911625 Fax: 2128911699 Email: jalderdice@jenner.com PRO HAC VICE ATTORNEY TO BE NOTICED

Jeremy M Creelan Jenner and Block LLP 919 Third Ave. New York, NY 10022 2128911678 Fax: 2129090858 Email: jcreelan@jenner.com PRO HAC VICE ATTORNEY TO BE NOTICED

Jonathan Diaz Jenner and Block LLP 919 Third Ave. New York, NY 10022 2124071774 Fax: 2128911688 Email: jmdiaz@jenner.com TERMINATED: 08/09/2018 PRO HAC VICE

Khyla Danielle Craine Michigan Secretary of State Legal Services Administration Richard H. Austin Building 430 W. Allegan St. Lansing, MI 48933 Email: kcraine@naacpnet.org TERMINATED: 04/08/2019

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Logan J Gowdey Jenner and Block LLP 919 Third Ave. New York, NY 10022 2128911691 Fax: 2128911699 Email: lgowdey@jenner.com PRO HAC VICE ATTORNEY TO BE NOTICED

Michael W Ross Jenner and Block LLP 919 Third Ave. New York, NY 10022 2128911669 Fax: 2129090840 Email: mross@jenner.com PRO HAC VICE ATTORNEY TO BE NOTICED

Olivia Hoffman Jenner and Block LLP 919 Third Ave. New York, NY 10022 2128911690 Fax: 2128911699 Email: ohoffman@jenner.com PRO HAC VICE ATTORNEY TO BE NOTICED

Renee Burbank Rule of Law Clinic, Yale Law School P.O. Box 209090 New Haven, CT 06520−9090 203 432 3928 Fax: 203−432−1426 Email: renee.burbank@ylsclinics.org ATTORNEY TO BE NOTICED

Susan J Kohlmann Jenner and Block LLP 919 Third Ave. New York, NY 10022 2128911690 Fax: 2128911699 Email: skohlmann@jenner.com PRO HAC VICE ATTORNEY TO BE NOTICED

Michael J Wishnie Rule of Law Clinic Yale Law School 127 Wall Street New Haven, CT 06511 203−432−4800 Fax: 203−432−1426 Email: michael.wishnie@yale.edu ATTORNEY TO BE NOTICED

Plaintiff Prince George's County, Maryland

represented by Jacob D Alderdice (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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Plaintiff
Prince George's County Maryland NAACP Branch

Jeremy M Creelan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Diaz (See above for address) TERMINATED: 08/09/2018 PRO HAC VICE
Logan J Gowdey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael W Ross (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Olivia Hoffman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Renee Burbank (See above for address) ATTORNEY TO BE NOTICED
Susan J Kohlmann (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Michael J Wishnie (See above for address) ATTORNEY TO BE NOTICED
represented by Benjamin Dylan Alter (See above for address) TERMINATED: 08/23/2019 PRO HAC VICE
Jacob D Alderdice (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jeremy M Creelan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Diaz (See above for address) TERMINATED: 08/09/2018 PRO HAC VICE
Khyla Danielle Craine (See above for address) TERMINATED: 04/08/2019

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Logan J Gowdey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael W Ross (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Olivia Hoffman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Renee Burbank (See above for address) ATTORNEY TO BE NOTICED

Susan J Kohlmann (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael J Wishnie (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Robert E Ross

represented by Jacob D Alderdice (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jeremy M Creelan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jonathan Diaz (See above for address) TERMINATED: 08/09/2018 PRO HAC VICE

Logan J Gowdey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael W Ross (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Olivia Hoffman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Renee Burbank (See above for address) ATTORNEY TO BE NOTICED

Susan J Kohlmann

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(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael J Wishnie (See above for address) ATTORNEY TO BE NOTICED

Plaintiff H. Elizabeth Johnson

represented by Jacob D Alderdice (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jeremy M Creelan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Jonathan Diaz (See above for address) TERMINATED: 08/09/2018 PRO HAC VICE

Logan J Gowdey (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael W Ross (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Olivia Hoffman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Renee Burbank (See above for address) ATTORNEY TO BE NOTICED

Susan J Kohlmann (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Michael J Wishnie (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Bureau of the Census

represented by Carol Federighi U.S. Department of Justice Civil Division Federal Programs Branch PO Box 883 Washington, DC 20530 2025141903 Email: carol.federighi@usdoj.gov LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Christopher M Lynch US DOJ 1100 L St. NW Washington, DC 20005 2023534537 Fax: 2026168470 Email: Christopher.M.Lynch@usdoj.gov ATTORNEY TO BE NOTICED

Stephen Ehrlich U.S. Department of Justice Civil Division, Federal Programs Branch 1100 L Street, N.W. Washington, DC 20005 202−305−9803 Email: stephen.ehrlich@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
Steven Dillingham Acting Director, Bureau of the Census

represented by Carol Federighi (See above for address) LEAD ATTORNEY

Christopher M Lynch (See above for address) ATTORNEY TO BE NOTICED

Stephen Ehrlich (See above for address) ATTORNEY TO BE NOTICED

Defendant
Wilbur Ross Secretary of Commerce

represented by Carol Federighi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher M Lynch (See above for address) ATTORNEY TO BE NOTICED

Stephen Ehrlich (See above for address) ATTORNEY TO BE NOTICED

Defendant
Donald J. Trump President of the United States TERMINATED: 01/29/2019

represented by Carol Federighi (See above for address) LEAD ATTORNEY

Stephen Ehrlich (See above for address) ATTORNEY TO BE NOTICED

Defendant The United States

represented by Carol Federighi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Christopher M Lynch (See above for address) ATTORNEY TO BE NOTICED
Stephen Ehrlich (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/28/2018
03/29/2018
03/29/2018 03/29/2018 03/29/2018 03/29/2018 03/29/2018
03/29/2018
03/29/2018
03/30/2018 03/30/2018

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 0416−7233608.), filed by Prince George's County Maryland NAACP Branch, PRINCE GEORGE'S COUNTY,MD, National Association for the Advancement of Colored People, Robert E Ross, H. Elizabeth Johnson.(Wishnie, Michael) (Entered: 03/28/2018)
2 QC NOTICE: 1 Complaint, filed by National Association for the Advancement of Colored People, Prince George's County, Maryland, Robert E Ross, H. Elizabeth Johnson and Prince George's County Maryland NAACP Branch was filed incorrectly. **The following attachments are missing − Civil Cover Sheet and Proposed Summons. To correct this problem, file the Civil Cover Sheet and Proposed Summons using the civil event Notice (Other) and link the Civil Cover Sheet and Proposed Summons to 1 Complaint. (jf3s, Deputy Clerk) (Entered: 03/29/2018)
3 Letter Order Regarding the Filing of Motions. Signed by Judge Paul W. Grimm on 3/28/2018. (jf3s, Deputy Clerk) (Entered: 03/29/2018)
4 NOTICE by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross re 1 Complaint, Civil Cover Sheet (Wishnie, Michael) (Entered: 03/29/2018)
5 NOTICE by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross Proposed Summons (Wishnie, Michael) (Entered: 03/29/2018)
6 NOTICE by National Association for the Advancement of Colored People Rule 7.1 Corporate Disclosure Statement (Wishnie, Michael) (Entered: 03/29/2018)
7 MOTION to Appear Pro Hac Vice for Susan J. Kohlmann (Filing fee $100, receipt number 0416−7238086.) by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross(Wishnie, Michael) (Entered: 03/29/2018)
8 MOTION to Appear Pro Hac Vice for Jacob D. Alderdice (Filing fee $100, receipt number 0416−7238113.) by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross(Wishnie, Michael) (Entered: 03/29/2018)
9 MOTION to Appear Pro Hac Vice for Jonathan M. Diaz (Filing fee $100, receipt number 0416−7238125.) by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross(Wishnie, Michael) (Entered: 03/29/2018)
10 PAPERLESS ORDER granting 7 Motion to Appear Pro Hac Vice on behalf of Susan Kohlmann. Directing attorney Susan Kohlmann to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 3/30/2018. (srd, Deputy Clerk) (Entered: 03/30/2018)
11 PAPERLESS ORDER granting 8 Motion to Appear Pro Hac Vice on behalf of Jacob Alderdice. Directing attorney Jacob Alderdice to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 3/30/2018. (srd, Deputy Clerk) (Entered: 03/30/2018)

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03/30/2018 04/02/2018

12 PAPERLESS ORDER granting 9 Motion to Appear Pro Hac Vice on behalf of Jonathan Diaz. Directing attorney Jonathan Diaz to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 3/30/2018. (srd, Deputy Clerk) (Entered: 03/30/2018)
13 NOTICE of Appearance by Khyla Danielle Craine on behalf of National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch (Craine, Khyla) (Entered: 04/02/2018)

04/03/2018

14 Summons Issued 60 days as to Bureau of the Census, Ron Jarmin, Wilbur Ross, The United States, Donald J. Trump, U.S. Attorney and U.S. Attorney General(jf3s, Deputy Clerk) (Entered: 04/03/2018)

04/07/2018

15 NOTICE of Appearance by Michael J Wishnie on behalf of All Plaintiffs (Attachments: # 1 Exhibit Order Granting Petition for Certification of Law Students)(Wishnie, Michael) (Entered: 04/07/2018)

04/09/2018 04/17/2018 04/20/2018 04/26/2018

16 ACKNOWLEDGEMENT OF SERVICE Executed as to 13 Notice of Appearance Acknowledgement filed by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross.(Craine, Khyla) (Entered: 04/09/2018)
17 MOTION to Appear Pro Hac Vice for Jeremy M. Creelan (Filing fee $100, receipt number 0416−7275215.) by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross(Wishnie, Michael) (Entered: 04/17/2018)
18 PAPERLESS ORDER granting 17 Motion to Appear Pro Hac Vice on behalf of Jeremy Creelan. Directing attorney Jeremy Creelan to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 4/20/2018. (srd, Deputy Clerk) (Entered: 04/20/2018)
19 Request for Conference (Attachments: # 1 Exhibit Local Rule 104.7 Certificate)(Wishnie, Michael) (Entered: 04/26/2018)

04/26/2018 20 NOTICE of Appearance by Stephen Ehrlich on behalf of All Defendants (Ehrlich, Stephen) (Entered: 04/26/2018)

04/26/2018 04/26/2018
04/27/2018 04/27/2018

21 PAPERLESS ORDER SCHEDULING PRE−MOTION TELEPHONE CONFERENCE on May 8, 2018 at 4:00PM AND DIRECTING Plaintiff's counsel to initiate the call to chambers or circulate a conference call number to the parties. Signed by Judge Paul W. Grimm on 4/26/2018. (ats, Chambers) (Entered: 04/26/2018)
22 (FILED IN ERROR) AFFIDAVIT of Service for Complaint; Summons; Civil Cover Sheet; Letter Order Regarding the Filing of Motions served on Bureau of the Census; Dr. Ron Jarmin; Wilbur Ross; Donald J. Trump; Jefferson B. Sessions; United States Attorney's Office (D. Md.); Department of Commerce General Counsel's Office on April 4, 2018, filed by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross.(Wishnie, Michael) Modified on 4/27/2018 (jf3s, Deputy Clerk). (Entered: 04/26/2018)
23 QC NOTICE: 22 Affidavit of Service, filed by National Association for the Advancement of Colored People, Prince George's County, Maryland, Robert E Ross, H. Elizabeth Johnson and Prince George's County Maryland NAACP Branch was filed incorrectly. **Please re−file documents by selecting Service of Process Summons Returned Executed. It has been noted as FILED IN ERROR, and the document link has been disabled. (jf3s, Deputy Clerk) (Entered: 04/27/2018)
24 SUMMONS Returned Executed by Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, National Association for the Advancement of Colored People, Robert E Ross, H. Elizabeth Johnson. All Defendants.(Wishnie, Michael) (Entered: 04/27/2018)

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05/03/2018 05/08/2018

25 NOTICE of Appearance by Carol Federighi on behalf of All Defendants (Federighi, Carol) (Entered: 05/03/2018)
26 Telephone Conference held on 5/8/2018 before Judge Paul W. Grimm.(FTR− Hibbs − 4B.) (jmhs, Deputy Clerk) (Entered: 05/08/2018)

05/10/2018

27 PAPERLESS ORDER MEMORIALIZING the May 8, 2018 conference call as follows: Defendants' answer or pre−motion conference request is due June 8, 2018. Before then, Plaintiffs shall reach out to the Government and identify the targeted discovery they seek and then inform the Court of the targeted discovery by filing a letter with the Court. A follow−up call is set for Wednesday, June 13, at 1 p.m. Plaintiffs may file an amended complaint to add the parties' addresses to the caption. Signed by Judge Paul W. Grimm on 5/10/18. (Grimm, Paul) (lyb) (Entered: 05/10/2018)

05/16/2018

28 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of telephone conference held on 5/8/18, before Judge Paul W. Grimm. Total number of pages filed: 16. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber, 301−344−3104, before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 6/6/2018. Redacted Transcript Deadline set for 6/18/2018. Release of Transcript Restriction set for 8/14/2018.(krcs, Deputy Clerk) (Entered: 05/16/2018)

05/31/2018 06/05/2018
06/08/2018 06/11/2018

29 Correspondence re: June 13, 2018 Teleconference (Ehrlich, Stephen) (Entered: 05/31/2018)
30 PAPERLESS ORDER APPROVING 29 request for agency counsel for Department of Commerce to listen in to June 13, 2018 conference call. Signed by Judge Paul W. Grimm on 6/5/18. (Grimm, Paul)(lyb) (Entered: 06/05/2018)
31 Request for Conference (Ehrlich, Stephen) (Entered: 06/08/2018)
32 LETTER ORDER scheduling a telephone conference call for Wednesday, June 13, 2018 at 1:00 PM. Signed by Judge Paul W. Grimm on 6/11/2018. (ss5s, Deputy Clerk) (Entered: 06/11/2018)

06/11/2018

33 LETTER ORDER scheduling a pre−motion telephone conference call for June 13, 2018 at 1:00 p.m. Signed by Judge Paul W. Grimm on 6/11/2018. (aos, Deputy Clerk) (Entered: 06/11/2018)

06/12/2018

34 Correspondence re: the Court's instructions during the May 8, 2018 telephone conference and its May 10, 2018 Docket Order (Dkt. No. 27), to summarize the parties' positions and update the Court on Plaintiffs requests in advance of the June 13, 2018 telephone conference (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Craine, Khyla) (Entered: 06/12/2018)

06/12/2018
06/13/2018 06/14/2018

35 (FILED IN ERROR) AMENDED COMPLAINT against Bureau of the Census, Ron Jarmin, Wilbur Ross, The United States, Donald J. Trump, filed by Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, National Association for the Advancement of Colored People, Robert E Ross, H. Elizabeth Johnson.(Wishnie, Michael) Modified on 6/14/2018 (jf3s, Deputy Clerk). (Entered: 06/12/2018)
36 Telephone Conference held on 6/13/2018 before Judge Paul W. Grimm.(FTR−SRS−4B.) (ss5s, Deputy Clerk) (Entered: 06/13/2018)
37 QC NOTICE: 35 Amended Complaint, filed by National Association for the Advancement of Colored People, Prince George's County, Maryland, Robert E Ross, H. Elizabeth Johnson, Prince George's County Maryland NAACP Branch needs to be corrected. It has been noted as FILED IN ERROR, and the document link has been disabled. The following corrective actions are needed regarding missing or incomplete information: **Redline copy has not been filed. Please re−file the clean version of the amended complaint as the main document and the redline version as an attachment to the amended complaint. (jf3s, Deputy Clerk) (Entered: 06/14/2018)

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06/14/2018 06/22/2018

38 AMENDED COMPLAINT against Bureau of the Census, Ron Jarmin, Wilbur Ross, The United States, Donald J. Trump, filed by Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, National Association for the Advancement of Colored People, Robert E Ross, H. Elizabeth Johnson. (Attachments: # 1 Redline Version of the Amended Complaint)(Wishnie, Michael) (Entered: 06/14/2018)
39 Correspondence re: plaintiff's targeted discovery requests (Attachments: # 1 Exhibit A)(Kohlmann, Susan) (Entered: 06/22/2018)

06/22/2018 40 Correspondence re: Plaintiffs' Requests for Expedited Materials (Ehrlich, Stephen) (Entered: 06/22/2018)

06/25/2018

41 PAPERLESS ORDER MEMORIALIZING the June 13, 2018 conference call as follows: Defendants shall file their motion to dismiss by July 13, 2018. Plaintiffs shall file their opposition by August 13, 2018. Defendants shall file their reply by September 4, 2018. As for preliminary discovery, I have received the parties' status reports 39 , 40 , stating their opposing positions on preliminary discovery after having conferred on the matter. I will review these submissions. Signed by Judge Paul W. Grimm on 6/25/18. (Grimm, Paul) (lyb) (Entered: 06/25/2018)

07/05/2018 07/13/2018 08/07/2018
08/09/2018

42 LETTER ORDER regarding Submissions at 39 and 40 . Signed by Judge Paul W. Grimm on 7/5/2018. (jf3s, Deputy Clerk) (Entered: 07/05/2018)
43 MOTION to Dismiss by Bureau of the Census, Ron Jarmin, Wilbur Ross, The United States, Donald J. Trump (Attachments: # 1 Memorandum in Support)(Ehrlich, Stephen) (Entered: 07/13/2018)
44 MOTION to Withdraw as Attorney (Jonathan M. Diaz) by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross (Attachments: # 1 Text of Proposed Order)(Kohlmann, Susan) (Entered: 08/07/2018)
45 PAPERLESS ORDER GRANTING 44 Motion to Withdraw as Attorney. Attorney Jonathan Diaz terminated. Signed by Judge Paul W. Grimm on 8/9/2018. (ats, Chambers) (Entered: 08/09/2018)

08/13/2018

46 RESPONSE in Opposition re 43 MOTION to Dismiss filed by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross.(Wishnie, Michael) (Entered: 08/13/2018)

08/20/2018

47 NOTICE by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross re 46 Response in Opposition to Motion, Notice of Supplemental Authority Supporting Plaintiffs' Opposition to Defendants' Motion to Dismiss (Attachments: # 1 Decision on Motions to Dismiss)(Wishnie, Michael) (Entered: 08/20/2018)

08/23/2018
09/04/2018 11/13/2018

48 NOTICE by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross re 46 Response in Opposition to Motion, Notice of Supplemental Authority Supporting Plaintiffs' Opposition to Defendants' Motion to Dismiss (Attachments: # 1 Decision on Motion to Dismiss)(Wishnie, Michael) (Entered: 08/23/2018)
49 REPLY to Response to Motion re 43 MOTION to Dismiss filed by Bureau of the Census, Ron Jarmin, Wilbur Ross, The United States, Donald J. Trump.(Ehrlich, Stephen) (Entered: 09/04/2018)
50 NOTICE by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross re 46 Response in Opposition to Motion, Notice of Supplemental Authority Supporting Plaintiffs' Opposition to Defendants' Motion to Dismiss (Attachments: # 1 Attachment Decision on Motion to Dismiss)(Wishnie, Michael) (Entered: 11/13/2018)

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12/06/2018 01/02/2019

51 NOTICE of Hearing: Motion Hearing set for 1/14/2019 01:00 PM in Courtroom 4B, 6500 Cherrywood Lane, Greenbelt, Maryland 20770, before Judge Paul W. Grimm. (ats, Chambers) (Entered: 12/06/2018)
52 MOTION to Continue Hearing Due to Lapse in Appropriations by Bureau of the Census, Ron Jarmin, Wilbur Ross, The United States, Donald J. Trump(Ehrlich, Stephen) (Entered: 01/02/2019)

01/03/2019

53 PAPERLESS ORDER DIRECTING Plaintiffs to file a letter not to exceed 3 pages by noon on Monday, January 7, 2019 responding to the Government's motion to continue hearing due to a lapse in appropriations, 52 . Signed by Judge Paul W. Grimm on 1/3/19. (lmys, Chambers) (Entered: 01/03/2019)

01/06/2019

54 RESPONSE re 52 MOTION to Continue Hearing Due to Lapse in Appropriations filed by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross.(Wishnie, Michael) (Entered: 01/06/2019)

01/07/2019 01/08/2019 01/14/2019
01/14/2019

55 ORDER denying 52 Motion to Continue. Signed by Judge Paul W. Grimm on 1/7/2019. (jf3s, Deputy Clerk) (Entered: 01/07/2019)
56 NOTICE by Bureau of the Census, Ron Jarmin, Wilbur Ross, The United States, Donald J. Trump of Confirmation of Director, U.S. Census Bureau (Ehrlich, Stephen) (Entered: 01/08/2019)
57 Motion Hearing held on 1/14/2019 re 43 MOTION to Dismiss filed by Ron Jarmin, Wilbur Ross, Bureau of the Census, The United States, Donald J. Trump before Judge Paul W. Grimm.(Court Reporter: Renee Ewing−4B) (ss5s, Deputy Clerk) (Entered: 01/14/2019)
58 PAPERLESS ORDER MEMORIALIZING today's hearing as follows: The parties will submit simultaneous briefs of 15 pages or less by Tuesday, February 22, 2019 to address the questions asked in Court today. Defendants will include in their submission the support for the facts they raised in their argument regarding changes in Census preparation that moot portions of Plaintiffs' allegations and that are appropriate for the Court to consider under Rule 12(b)(1) or 12(b)(6). Defendants also will include cases decided in their favor on motions to dismiss and will address the notion of the still uncertain funding for the Bureau beyond February 2019. Plaintiffs will identify cases in which the injury that was the subject of relief did not involve representation in the House but rather monetary consequences and reference any case they rely on that was a successful pre−census challenge to the procedures the Secretary planned to conduct the census. Plaintiffs also will address whether Maryland has lost any representation in the prior three censuses as a result of the undercounts they pleaded. Signed by Judge Paul W. Grimm on 1/14/19. (lmys, Chambers) (Entered: 01/14/2019)

01/15/2019

59 PAPERLESS ORDER CLARIFYING that the additional briefing is due January 22, 2019, not February 22, 2019. Signed by Judge Paul W. Grimm on 1/15/19. (lmys, Chambers) (Entered: 01/15/2019)

01/17/2019

60 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 1/14/2019, before Judge Grimm. Court Reporter/Transcriber Renee Ewing, Telephone number 301−344−3227. Total number of pages filed: 113. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 2/7/2019. Redacted Transcript Deadline set for 2/19/2019. Release of Transcript Restriction set for 4/17/2019.(re, Court Reporter) (Entered: 01/17/2019)

01/21/2019 01/22/2019

61 Memorandum re 43 MOTION to Dismiss filed by Bureau of the Census, Ron Jarmin, Wilbur Ross, The United States, Donald J. Trump. (Attachments: # 1 Declaration of Burton H. Reist)(Ehrlich, Stephen) (Entered: 01/22/2019)
62 PAPERLESS ORDER directing Plaintiffs to file their supplemental submission not later than 8:00 PM EST on 1/22/19. The submission shall not exceed 15 pages, exclusive of exhibits. Signed by Judge Paul W. Grimm on 1/22/2019. (sb2, Chambers) (Entered: 01/22/2019)

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01/22/2019 01/29/2019

63 Memorandum re 43 MOTION to Dismiss filed by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross.(Wishnie, Michael) (Entered: 01/22/2019)
64 MEMORANDUM OPINION AND ORDER granting in part and denying in part 43 MOTION to Dismiss; dismissing by Consent Claims against President Donald J. Trump. Signed by Judge Paul W. Grimm on 1/29/2019. (jf3s, Deputy Clerk) (Entered: 01/29/2019)

01/30/2019

65 PAPERLESS ORDER SCHEDULING TELEPHONE STATUS CONFERENCE on February 6, 2019 at 5:00PM AND DIRECTING Plaintiff's counsel to initiate the call to chambers or circulate a conference call number to the parties. Signed by Judge Paul W. Grimm on 1/30/2019. (ats, Chambers) (Entered: 01/30/2019)

02/06/2019

66 PAPERLESS ORDER MEMORIALIZING today's conference call as follows: Plaintiffs will submit a pre−motion letter of three pages or less by February 11, 2019 regarding their proposed motion to amend, and Defendants will file a response of three pages or less by February 18, 2019. Defendants will not file their answer until the issue of amendment has been resolved. The parties will submit a proposed plan for discovery regarding the funding issue in five pages or less by February 19, 2019. Signed by Judge Paul W. Grimm on 2/6/19. (lmys, Chambers) (Entered: 02/06/2019)

02/08/2019 02/11/2019 02/18/2019
02/19/2019

67 Status Conference held on 2/6/2019 before Judge Paul W. Grimm. (ats, Chambers) (Entered: 02/08/2019)
68 Correspondence re: Planned Motion for Leave to File Second Amended Complaint (Wishnie, Michael) (Entered: 02/11/2019)
69 RESPONSE re 68 Miscellaneous Correspondence filed by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States.(Ehrlich, Stephen) (Entered: 02/18/2019)
70 PAPERLESS ORDER SCHEDULING TELEPHONE STATUS CONFERENCE on March 6, 2019 at 11:30AM AND Plaintiff's counsel is DIRECTED to initiate the call to chambers or circulate a conference call number to the parties. Signed by Judge Paul W. Grimm on 2/19/2019. (ats, Chambers) (Entered: 02/19/2019)

02/19/2019

71 PAPERLESS ORDER DIRECTING Plaintiffs to file a letter reply of no more than three single−spaced pages with regard to their proposed letter motion to amend 68 and Defendants' response 69 by February 26, 2019. Signed by Judge Paul W. Grimm on 2/19/19. (lmys, Chambers) (Entered: 02/19/2019)

02/19/2019 72 Joint Correspondence re: Discovery (Wishnie, Michael) (Entered: 02/19/2019)

02/25/2019 02/26/2019
02/27/2019 02/28/2019

73 PAPERLESS ORDER NOTIFYING Counsel that I will address the discovery plans 72 during the March 6, 2019 conference call. Signed by Judge Paul W. Grimm on 2/25/19. (lmys, Chambers) (Entered: 02/25/2019)
74 RESPONSE re 69 Response − Plaintiffs' reply regarding their planned motion for leave to file a Second Amended Complaint filed by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross.(Kohlmann, Susan) (Entered: 02/26/2019)
75 Request for Pre−Motion Conference (Ehrlich, Stephen) (Entered: 02/27/2019)
76 ORDER granting in part and denying in part 68 Letter Motion to Amend Complaint; granting Defendants leave to file a Motion to Dismiss Second Amended Complaint. Signed by Judge Paul W. Grimm on 3/28/2019. (jf3s, Deputy Clerk) (Entered: 03/01/2019)

03/01/2019

77 MOTION to Appear Pro Hac Vice for Benjamin Alter (Filing fee $100, receipt number 0416−7868401.) by National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch(Craine, Khyla) (Entered: 03/01/2019)

03/01/2019 78 CORRECTED MOTION to Appear Pro Hac Vice for Benjamin Alter by National Association for the Advancement of Colored People, Prince George's County

Case: 8:18-cv-891 As of: 07/19/2020 11:46 AM EDT 13 of 21

03/04/2019
03/04/2019 03/05/2019
03/06/2019 03/06/2019 03/11/2019 03/11/2019 03/20/2019 03/20/2019 03/20/2019 03/26/2019 03/28/2019 04/01/2019
04/05/2019 04/08/2019 04/10/2019
04/15/2019

Maryland NAACP Branch. The fee has already been paid.(Craine, Khyla) (Entered: 03/01/2019)
79 PAPERLESS ORDER granting 77 and 78 Motion to Appear Pro Hac Vice on behalf of Benjamin Alter. Directing attorney Benjamin Alter to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 3/4/2019. (srd, Deputy Clerk) (Entered: 03/04/2019)
80 NOTICE of Appearance by Michael J Wishnie on behalf of All Plaintiffs (Attachments: # 1 Order Granting Petition for Certification of Law Students)(Wishnie, Michael) (Entered: 03/04/2019)
81 PAPERLESS ORDER DIRECTING PARTIES to use the following conference call number for the status conference scheduled for March 6, 2019 at 11:30AM: Dial−In Number: (877) 848−7030 Access Code: 9549728 Participant Password: 030619. Signed by Judge Paul W. Grimm on 3/5/2019. (ats, Chambers) (Entered: 03/05/2019)
82 Status Conference held on 3/6/2019 before Judge Paul W. Grimm.(FTR−SRS−4B.) (ss5s, Deputy Clerk) (Entered: 03/06/2019)
83 Status Conference held on 3/6/2019 before Judge Paul W. Grimm. (ats, Chambers) (Entered: 03/06/2019)
84 DISCOVERY ORDER. Signed by Judge Paul W. Grimm on 3/11/2019. (Attachments: # 1 Initial Discovery Protocols)(jf3s, Deputy Clerk) (Entered: 03/11/2019)
85 LETTER ORDER memorializing the conference call held March 06, 2019 re 72 Joint Correspondence re discovery. Signed by Judge Paul W. Grimm on 3/11/2019. (jf3s, Deputy Clerk) (Entered: 03/11/2019)
86 Joint Correspondence re: Scheduling Order (Wishnie, Michael) (Entered: 03/20/2019)
87 Correspondence re: the Deliberative Process Privilege (Wishnie, Michael) (Entered: 03/20/2019)
88 Correspondence re: Defendants' Deliberative Process Privilege (Ehrlich, Stephen) (Entered: 03/20/2019)
89 SCHEDULING ORDER: Status Report due by 8/28/2019. Signed by Judge Paul W. Grimm on 3/25/2019. (jf3s, Deputy Clerk) (Entered: 03/26/2019)
90 NOTICE of Appearance by Renee Burbank on behalf of All Plaintiffs (Burbank, Renee) (Entered: 03/28/2019)
91 AMENDED COMPLAINT against Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States, filed by Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, National Association for the Advancement of Colored People, Robert E Ross, H. Elizabeth Johnson. (Attachments: # 1 Redline Second Amended Complaint)(Wishnie, Michael) (Entered: 04/01/2019)
92 MOTION to Withdraw as Attorney Khyla D. Craine by National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch (Attachments: # 1 Text of Proposed Order)(Craine, Khyla) (Entered: 04/05/2019)
93 ORDER granting 92 Motion to Withdraw as Attorney. Attorney Khyla Danielle Craine terminated. Signed by Judge Paul W. Grimm on 4/8/2019. (jf3s, Deputy Clerk) (Entered: 04/08/2019)
94 NOTICE by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross of Renewed and Amended Law Student Certifications Under Local Rule 702 (Attachments: # 1 Order Renewing Certification of Third−Year Law Students, # 2 Order Amending Certification of Second−Year Law Students)(Wishnie, Michael) (Entered: 04/10/2019)
95 MOTION to Dismiss Plaintiffs' Second Amended Complaint by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States (Attachments: # 1 Memorandum in Support)(Ehrlich, Stephen) (Entered: 04/15/2019)

Case: 8:18-cv-891 As of: 07/19/2020 11:46 AM EDT 14 of 21

04/16/2019 04/29/2019

96 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Status Conference held on 3/6/19, before Judge Paul W. Grimm. Total number of pages filed: 33. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber, 301−344−3104, before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 5/7/2019. Redacted Transcript Deadline set for 5/17/2019. Release of Transcript Restriction set for 7/15/2019.(krc, Deputy Clerk) (Entered: 04/29/2019)
97 Correspondence re: Document Discovery (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3)(Kohlmann, Susan) (Entered: 04/29/2019)

04/29/2019

98 RESPONSE in Opposition re 95 MOTION to Dismiss Plaintiffs' Second Amended Complaint filed by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross.(Kohlmann, Susan) (Entered: 04/29/2019)

05/02/2019

99 PAPERLESS ORDER: In their letter 97 , Plaintiffs raise concerns about whether Defendants will meet their obligation to respond timely (by May 6, 2019) to some of Plaintiffs' document production requests, as well as concerns that the parties have not agreed to a schedule for rolling production after May 6. Given that May 6 has not passed, Defendants' production is not untimely. Defendants are reminded that the Discovery Order 84 requires more than just compliance with Court deadlines and substantive discovery obligations; it also requires effective communication and cooperation between the parties. Plaintiffs understandably are seeking some information about what they may expect to receive by May 6 and what Defendants expect to provide at a later date. I can think of no reason why it would be disadvantageous for Defendants to give Plaintiffs an indication of what to expect as of May 6. Indeed, doing so would be the hallmark of cooperation. Signed by Judge Paul W. Grimm on 5/2/19. (lmys, Chambers) (Entered: 05/02/2019)

05/03/2019
05/07/2019 05/08/2019
05/08/2019

100 STIPULATION Regarding Non−Waiver of Privileges and Protections by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States (Attachments: # 1 Stipulation and Order)(Ehrlich, Stephen) (Entered: 05/03/2019)
101 Request for Conference (Ehrlich, Stephen) (Entered: 05/07/2019)
102 Correspondence re: Seeking Leave to File Response (Attachments: # 1 Proposed Response Re 30(b)(6) Deposition, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E)(Creelan, Jeremy) (Entered: 05/08/2019)
103 Request for Conference (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Certificate of Compliance)(Creelan, Jeremy) (Entered: 05/08/2019)

05/09/2019

104 PAPERLESS ORDER SCHEDULING a conference call regarding the parties' discovery disputes raised in their recent correspondence 101 , 102 , 103 for Monday, May 13, 2019 at 4 p.m. The parties shall call 877−848−7030. The passcode is 9549728 and the access code is 051319. Signed by Judge Paul W. Grimm on 5/9/2019. (lmys, Chambers) (Entered: 05/09/2019)

05/10/2019 105 Stipulated Order Regarding Non−Waiver of Privileges and Protections. Signed by Judge Paul W. Grimm on 5/10/2019. (jf3s, Deputy Clerk) (Entered: 05/10/2019)

05/10/2019
05/13/2019 05/13/2019

106 MOTION to Appear Pro Hac Vice for Olivia G. Hoffman (Filing fee $100, receipt number 0416−8007113.) by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross(Wishnie, Michael) (Entered: 05/10/2019)
107 ORDER REFERRING CASE to Magistrate Judge Timothy J. Sullivan for Discovery. Signed by Judge Paul W. Grimm on 5/13/2019. (jnls, Deputy Clerk) (Entered: 05/13/2019)
108 REPLY to Response to Motion re 95 MOTION to Dismiss Plaintiffs' Second Amended Complaint filed by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States. (Attachments: # 1 Exhibit)(Ehrlich, Stephen) (Entered: 05/13/2019)

Case: 8:18-cv-891 As of: 07/19/2020 11:46 AM EDT 15 of 21

05/13/2019 05/14/2019

109 Status Conference held on 5/13/2019 before Judge Paul W. Grimm.(FTR−4B.) (ss5s, Deputy Clerk) (Entered: 05/13/2019)
110 PAPERLESS ORDER: For the reasons stated on the record in the conference call held yesterday regarding the parties' discovery disputes, in which I provided guidance as to the resolution of these disputes, Magistrate Judge Sullivan will continue to work with the parties to resolve their disputes fully. Signed by Judge Paul W. Grimm on 5/14/2019. (lmys, Chambers) (Entered: 05/14/2019)

05/16/2019

111 PAPERLESS ORDER granting 106 Motion to Appear Pro Hac Vice on behalf of Olivia Hoffman. Directing attorney Olivia Hoffman to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 5/16/2019. (srds, Deputy Clerk) (Entered: 05/16/2019)

05/17/2019 112 Telephone Conference held on 5/17/2019 before Magistrate Judge Timothy J. Sullivan. (bc, Chambers) (Entered: 05/17/2019)

05/20/2019 05/23/2019
05/28/2019 05/30/2019

113 ORDER scheduling a telephone conference on May 30, 2019 at 10:00 a.m. A joint status report shall be filed by May 28, 2019. Signed by Magistrate Judge Timothy J. Sullivan on 5/20/2019. (bc, Chambers) (Entered: 05/20/2019)
114 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of telephone conference held on 5/13/19, before Judge Paul W. Grimm. Total number of pages filed: 39. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber, 301−344−3104, before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 6/13/2019. Redacted Transcript Deadline set for 6/24/2019. Release of Transcript Restriction set for 8/21/2019.(krc, Deputy Clerk) (Entered: 05/23/2019)
115 STATUS REPORT Regarding the Parties' Positions on Discovery (Joint) by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States (Attachments: # 1 McKenzie Declaration, # 2 Taylor Declaration)(Ehrlich, Stephen) (Entered: 05/28/2019)
116 ORDER regarding 2019 Lifecycle Cost Estimate. Signed by Magistrate Judge Timothy J. Sullivan on 5/30/2019. (bc, Chambers) (Entered: 05/30/2019)

05/30/2019 117 PAPERLESS ORDER scheduling a telephone conference on 6/10/2019 at 10:00 a.m. My chambers will send call−in instructions to counsel. Signed by Magistrate Judge Timothy J. Sullivan on 5/30/2019. (bc, Chambers) (Entered: 05/30/2019)

05/30/2019 05/31/2019 06/03/2019
06/05/2019 06/06/2019

118 Telephone Conference held on 5/30/2019 before Magistrate Judge Timothy J. Sullivan. (FTR − Derro − 3A) (tds, Deputy Clerk) (Entered: 05/30/2019)
119 NOTICE of Appearance by Christopher M Lynch on behalf of All Defendants (Lynch, Christopher) (Entered: 05/31/2019)
120 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of telephone conference held on 5/30/19, before Judge Timothy J. Sullivan. Total number of pages filed: 61. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber, 301−344−3104, before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 6/24/2019. Redacted Transcript Deadline set for 7/5/2019. Release of Transcript Restriction set for 9/3/2019.(krc, Deputy Clerk) (Entered: 06/03/2019)
121 STIPULATION re 116 Order STIPULATED PROTECTIVE ORDER (JOINT) by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States, Donald J. Trump(Lynch, Christopher) (Entered: 06/05/2019)
122 Stipulated Protective Order Regarding Confidentiality Information. Signed by Magistrate Judge Timothy J. Sullivan on 6/6/2019. (jf3s, Deputy Clerk) (Entered: 06/06/2019)

06/07/2019

123 STATUS REPORT by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Creelan, Jeremy) (Entered: 06/07/2019)

Case: 8:18-cv-891 As of: 07/19/2020 11:46 AM EDT 16 of 21

06/07/2019 06/10/2019

124 Status Report Submitted by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States (Lynch, Christopher) (Entered: 06/07/2019)
125 ORDER memorializing the outcome of the telephone conference held on 6/10/2019. Signed by Magistrate Judge Timothy J. Sullivan on 6/10/2019. (bc, Chambers) (Entered: 06/10/2019)

06/10/2019 126 Telephone Conference held on 6/10/2019 before Magistrate Judge Timothy J. Sullivan.(FTR − Singletary − 3B) (ts2s, Deputy Clerk) (Entered: 06/11/2019)

06/14/2019 127 Correspondence re: Spreadsheets Protected by Deliberative Process Privilege (Lynch, Christopher) (Entered: 06/14/2019)

06/14/2019 06/17/2019 06/19/2019 06/28/2019

128 Status Report Submitted Regarding the Plaintiffs' Requests for Production (Joint) by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross (Creelan, Jeremy) (Entered: 06/14/2019)
129 MARGINAL ORDER approving 128 Joint Status Report Regarding the Plaintiffs' Requests for Production. Signed by Magistrate Judge Timothy J. Sullivan on 6/17/2019. (bc, Chambers) (Entered: 06/17/2019)
130 Correspondence re: /responding to Defendants' June 14 letter (ECF No. 127) concerning spreadsheets protected by deliberative process privilege (Creelan, Jeremy) (Entered: 06/19/2019)
131 NOTICE by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross re 98 Response in Opposition to Motion, Notice of Supplemental Authority Supporting Plaintiffs' Opposition to Defendants' Motion to Dismiss (Attachments: # 1 U.S. Supreme Court Decision)(Creelan, Jeremy) (Entered: 06/28/2019)

07/01/2019 132 RESPONSE re 131 Notice (Other), Defendants' Response to Plaintiffs' Notice of Supplemental Authority filed by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States, Donald J. Trump.(Lynch, Christopher) (Entered: 07/01/2019)

07/01/2019 07/10/2019 07/10/2019 07/11/2019 07/12/2019

133 Correspondence re: Deliberative Process Privilege (Creelan, Jeremy) (Entered: 07/01/2019)
134 MOTION to Appear Pro Hac Vice for Michael W. Ross (Filing fee $100, receipt number 0416−8116892.) by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross(Burbank, Renee) (Entered: 07/10/2019)
135 MOTION to Appear Pro Hac Vice for Logan J. Gowdey (Filing fee $100, receipt number 0416−8116901.) by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross(Burbank, Renee) (Entered: 07/10/2019)
136 Correspondence re: objecting to the Government's responses to Plaintiffs' Requests for Production ("RFPs"), and requesting further in camera review of documents withheld by the Government from the July 8 production on grounds of deliberative process privilege (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Kohlmann, Susan) (Entered: 07/11/2019)
137 PAPERLESS ORDER granting 134 Motion to Appear Pro Hac Vice on behalf of Michael W Ross. Directing attorney Michael W Ross to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 7/12/2019. (srd, Deputy Clerk) (Entered: 07/12/2019)

07/12/2019

138 PAPERLESS ORDER granting 135 Motion to Appear Pro Hac Vice on behalf of Logan Gowdey. Directing attorney Logan Gowdey to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 7/12/2019. (srd, Deputy Clerk) (Entered: 07/12/2019)

Case: 8:18-cv-891 As of: 07/19/2020 11:46 AM EDT 17 of 21

07/15/2019 07/16/2019

139 RESPONSE re 136 Miscellaneous Correspondence, filed by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States.(Lynch, Christopher) (Entered: 07/15/2019)
140 MARGINAL ORDER approving 139 Correspondence re: time to respond. Signed by Magistrate Judge Timothy J. Sullivan on 7/16/2019. (bc, Chambers) (Entered: 07/16/2019)

07/16/2019 141 REQUEST for Extension of Time to File / Letter Re: Expert Disclosures (Creelan, Jeremy) (Entered: 07/16/2019)

07/16/2019 142 MEMORANDUM OPINION AND ORDER regarding the Defendants' assertion of the deliberative process privilege. Signed by Magistrate Judge Timothy J. Sullivan on 7/16/2019. (jf3s, Deputy Clerk) (Entered: 07/16/2019)

07/16/2019
07/19/2019 07/23/2019 07/25/2019

143 ORDER approving 141 REQUEST for Extension of Time to File Expert Disclosures. The schedule is modified to extend the time for Plaintiffs and Defendants to file their expert disclosures by one week. Otherwise, the schedule remains the same. Signed by Magistrate Judge Timothy J. Sullivan on 7/16/2019. (bc, Chambers) (Entered: 07/16/2019)
144 RESPONSE re 133 Miscellaneous Correspondence, 136 Miscellaneous Correspondence, filed by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States. (Attachments: # 1 Exhibit Email from Jeremy Creelan)(Lynch, Christopher) (Entered: 07/19/2019)
145 Correspondence re: deliberative process privilege (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Creelan, Jeremy) (Entered: 07/23/2019)
146 Correspondence re: Plaintiffs' motion for emergency relief (Creelan, Jeremy) (Entered: 07/25/2019)

07/26/2019 147 RESPONSE re 146 Miscellaneous Correspondence filed by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States.(Ehrlich, Stephen) (Entered: 07/26/2019)

07/28/2019 07/29/2019 07/29/2019
07/31/2019 07/31/2019

148 MOTION to Compel by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Creelan, Jeremy) (Entered: 07/28/2019)
149 PAPERLESS ORDER directing Defendants to respond to Plaintiffs' 148 MOTION to Compel by 7/31/2019. Signed by Magistrate Judge Timothy J. Sullivan on 7/29/2019. (bc, Chambers) (Entered: 07/29/2019)
150 PAPERLESS ORDER PERMITTING Plaintiffs to file their proposed emergency motion as requested in 146 . I will not address this motion until I have ruled on the pending motion to dismiss, which I expect to do this week. By July 31, 2019, the parties shall submit a proposed schedule for expeditious briefing of the emergency motion. Signed by Judge Paul W. Grimm on 7/29/2019. (lmys, Chambers) (Entered: 07/29/2019)
151 RESPONSE in Opposition re 148 MOTION to Compel filed by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States. (Attachments: # 1 Exhibit Declaration of Patrick Cantwell)(Lynch, Christopher) (Entered: 07/31/2019)
152 RESPONSE re 150 Order, − Proposed Briefing Schedule for Plaintiffs' Emergency Motion filed by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross.(Creelan, Jeremy) (Entered: 07/31/2019)

07/31/2019 153 RESPONSE re 150 Order, filed by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States.(Ehrlich, Stephen) (Entered: 07/31/2019)

08/01/2019

154 MEMORANDUM OPINION AND ORDER Granting 95 Defendant's Motion to Dismiss Second Amended Complaint; plaintiffs' claims are dismissed; directing the Clerk to close this case. Signed by Judge Paul W. Grimm on 8/1/2019. (heps, Deputy Clerk) (Entered: 08/01/2019)

Case: 8:18-cv-891 As of: 07/19/2020 11:46 AM EDT 18 of 21

08/06/2019 08/06/2019

155 NOTICE OF APPEAL as to 154 Memorandum Opinion, Order Dismissing Case by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross. (Creelan, Jeremy) (Entered: 08/06/2019)
157 USCA Appeal Fees received $ 505.00 receipt number 0416.8163288 re 155 Notice of Appeal, filed by National Association for the Advancement of Colored People, Prince George's County, Maryland, Robert E Ross, H. Elizabeth Johnson, Prince George's County Maryland NAACP Branch (krc, Deputy Clerk) (Entered: 08/08/2019)

08/08/2019

156 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 155 Notice of Appeal,. IMPORTANT NOTICE: To access forms which you are required to file with the United States Court of Appeals for the Fourth Circuit please go to http://www.ca4.uscourts.gov and click on Forms & Notices.(krcs, Deputy Clerk) (Additional attachment(s) added on 8/8/2019: # 1 Revised Transmittal) (krc, Deputy Clerk). (Entered: 08/08/2019)

08/12/2019

158 USCA Case Number 19−1863 for 155 Notice of Appeal, filed by National Association for the Advancement of Colored People, Prince George's County, Maryland, Robert E Ross, H. Elizabeth Johnson, Prince George's County Maryland NAACP Branch. Case Manager − Michael Radday (sp2, Deputy Clerk) (Entered: 08/12/2019)

08/19/2019
08/22/2019 08/23/2019 12/19/2019

159 ORDER of USCA amending its 8/12/19 order as follows: Upon consideration of the motion to seal, the court construes the motion to seal as a certificate of confidentiality and places the unredacted versions of Exhibit 1 and Exhibit 2 filed at ECF 6 under seal. Sealing of the motion to seal and certificate of confidentiality filed at ECF 6 is not required, and these documents areunsealed. Sealing of the redacted versions of Exhibit 1 and Exhibit 2 filed at ECF 5 is not required, and those documents are unsealed as to 155 Notice of Appeal, filed by National Association for the Advancement of Colored People, Prince George's County, Maryland, Robert E Ross, H. Elizabeth Johnson, Prince George's County Maryland NAACP Branch (krcs, Deputy Clerk) (Entered: 08/20/2019)
160 MOTION to Withdraw as Attorney by National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch (Attachments: # 1 Text of Proposed Order)(Alter, Benjamin) (Entered: 08/22/2019)
161 PAPERLESS ORDER GRANTING 160 Motion to Withdraw as Attorney. Attorney Benjamin Dylan Alter terminated. Signed by Judge Paul W. Grimm on 8/23/2019. (ats, Chambers) (Entered: 08/23/2019)
162 JUDGMENT of USCA (certified copy) affirming in part and reversing in part the judgment of the District Court. This case is remanded to the district court for further proceedings consistent with the court's decision as to 155 Notice of Appeal, filed by National Association for the Advancement of Colored People, Prince George's County, Maryland, Robert E Ross, H. Elizabeth Johnson, Prince George's County Maryland NAACP Branch (Attachments: # 1 Notice of judgment, # 2 Published opinion)(nu, Deputy Clerk) (Entered: 12/19/2019)

12/19/2019

163 PAPERLESS ORDER directing the parties to confer and propose a schedule for the Plaintiffs' filing of an amended complaint, complying with Local Rule 103.6(c), and any expected dismissal motion that Defendants plan to file. To expedite review, the parties are directed to make the motion and opposition briefs as concise as possible, and I request that the parties advise me whether they can make do with memoranda in support and opposition to the motion to dismiss that do not exceed 25 pages. The reply brief should not exceed 15 pages. The parties are also directed to highlight key language in any exhibits. Local Rules 102.2 and 105 remain in effect other than the modification to page limits as stated. Further, lengthy footnotes are discouraged. Please submit your proposal to me by January 6, 2020. If you wish to have a conference call to discuss scheduling, please contact my chambers to arrange it. Signed by Judge Paul W. Grimm on 12/19/2019. (imws, Chambers) (Entered: 12/19/2019)

01/06/2020

164 RESPONSE re 163 Order,,, filed by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross.(Wishnie, Michael) (Entered: 01/06/2020)

Case: 8:18-cv-891 As of: 07/19/2020 11:46 AM EDT 19 of 21

01/06/2020 01/07/2020

165 RESPONSE re 163 Order,,, filed by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States.(Lynch, Christopher) (Entered: 01/06/2020)
166 LETTER ORDER setting Briefing Schedule. Signed by Judge Paul W. Grimm on 1/7/2020. (jf3s, Deputy Clerk) (Entered: 01/07/2020)

01/09/2020

167 MANDATE of USCA as to 155 Notice of Appeal, filed by National Association for the Advancement of Colored People, Prince George's County, Maryland, Robert E Ross, H. Elizabeth Johnson, Prince George's County Maryland NAACP Branch (nu, Deputy Clerk) (Entered: 01/10/2020)

01/10/2020

168 AMENDED COMPLAINT against Bureau of the Census, Steven Dillingham, Wilbur Ross, filed by Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, National Association for the Advancement of Colored People, Robert E Ross, H. Elizabeth Johnson. (Attachments: # 1 Redline Second Amended Complaint)(Wishnie, Michael) (Entered: 01/10/2020)

01/21/2020 02/11/2020 02/13/2020 02/14/2020

169 MOTION for Preliminary Injunction by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross (Attachments: # 1 Memorandum in Support, # 2 Attachment Expert Declaration of D. Sunshine Hillygus, # 3 Attachment Expert Declaration of Mark Doms, # 4 Attachment Declaration of Euniesha Davis, # 5 Attachment Declaration of H. Elizabeth Johnson, # 6 Attachment Declaration of Robert Ross, # 7 Attachment Declaration of Jamal Watkins, # 8 Attachment Declaration of Michael Wishnie, # 9 Exhibit Exhibits for Declaration of Michael Wishnie)(Wishnie, Michael) (Entered: 01/21/2020)
170 MOTION to Dismiss for Failure to State a Claim, MOTION to Dismiss for Lack of Jurisdiction , MOTION for Summary Judgment Opposition to Motion for Preliminary Injunction by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States (Attachments: # 1 Affidavit Declaration of Benjamin K Taylor, # 2 Affidavit Declaration of Deborah Stempowski and Exhibit A, # 3 Affidavit Declaration of Deirdre Dalpiaz Bishop and Exhibit A, # 4 Affidavit Declaration of Burton H Reist, # 5 Affidavit Declaration of Patrick J. Cantwell)(Lynch, Christopher) (Entered: 02/11/2020)
171 LETTER ORDER scheduling a hearing for March 5, 2020 at 10:00 a.m. and requesting documents re 169 MOTION for Preliminary Injunction filed by National Association for the Advancement of Colored People, Prince George's County, Maryland, Robert E Ross, H. Elizabeth Johnson, Prince George's County Maryland NAACP Branch. Signed by Judge Paul W. Grimm on 2/13/2020. (kns, Deputy Clerk) (Entered: 02/13/2020)
172 Correspondence re: the Court's February 13, 2020 Order (Attachments: # 1 Exhibit A: GAO Report, # 2 Exhibit B: Indictment)(Ehrlich, Stephen) (Entered: 02/14/2020)

02/18/2020

173 PAPERLESS ORDER thanking Defendants for the documents filed in response to my request, and confirming that the motion hearing to be held on Thursday March 5, 2020 is on Plaintiff's preliminary injunction motion only and shall proceed as scheduled. If a hearing is deemed necessary on Defendants' motions, it will be scheduled separately after the briefing of Defendants' motions is completed. Signed by Judge Paul W. Grimm on 2/18/2020. (imws, Chambers) (Entered: 02/18/2020)

02/25/2020

174 NOTICE by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States re 170 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction MOTION for Summary Judgment Opposition to Motion for Preliminary Injunction Notice of Errata (Lynch, Christopher) (Entered: 02/25/2020)

02/25/2020 02/25/2020

175 REPLY to Response to Motion re 169 MOTION for Preliminary Injunction , 170 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction MOTION for Summary Judgment Opposition to Motion for Preliminary Injunction filed by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross.(Wishnie, Michael) (Entered: 02/25/2020)
176 MOTION pursuant to Federal Rule of Civil Procedure 56(d) by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross

Case: 8:18-cv-891 As of: 07/19/2020 11:46 AM EDT 20 of 21

03/04/2020 03/04/2020 03/04/2020 03/05/2020 03/05/2020 03/05/2020 03/18/2020 03/20/2020 03/20/2020 03/25/2020
03/30/2020 04/08/2020

(Attachments: # 1 Declaration of Jeremy M. Creelan, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3)(Wishnie, Michael) (Entered: 02/25/2020)
177 MOTION for Leave to File Excess Pages by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States (Attachments: # 1 Memorandum in Support Reply ISO Defendants' Motion to Dismiss and Motion for Summary Judgment, # 2 Affidavit of Deborah Stempowski, # 3 Affidavit Patrick Cantwell, # 4 Affidavit Kevin Smith)(Lynch, Christopher) (Entered: 03/04/2020)
178 RESPONSE in Opposition re 176 MOTION pursuant to Federal Rule of Civil Procedure 56(d) filed by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States. (Attachments: # 1 Affidavit of Christopher Lynch & Exhibits A−E)(Lynch, Christopher) (Entered: 03/04/2020)
179 MOTION in Limine to Exclude the Declarations of Mark Doms and Sunshine Hillygus by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States (Attachments: # 1 Memorandum in Support)(Ehrlich, Stephen) (Entered: 03/04/2020)
180 PAPERLESS ORDER granting 177 Motion for Leave to File Excess Pages. Signed by Judge Paul W. Grimm on 3/5/2020. (imws, Chambers) (Entered: 03/05/2020)
181 Motion Hearing held on 3/5/2020 re 169 MOTION for Preliminary Injunction filed by National Association for the Advancement of Colored People, Prince George's County, Maryland, Robert E Ross, H. Elizabeth Johnson, Prince George's County Maryland NAACP Branch before Judge Paul W. Grimm. (Court Reporter: Linda Marshall−4B) (ss5s, Deputy Clerk) (Entered: 03/05/2020)
182 ORDER denying 169 Plaintiff's Motion for Preliminary Injunction. Signed by Judge Paul W. Grimm on 3/5/2020. (jf3s, Deputy Clerk) (Entered: 03/05/2020)
183 REPLY to Response to Motion re 176 MOTION pursuant to Federal Rule of Civil Procedure 56(d) filed by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross.(Creelan, Jeremy) (Entered: 03/18/2020)
184 NOTICE by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States re 170 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction MOTION for Summary Judgment Opposition to Motion for Preliminary Injunction, 176 MOTION pursuant to Federal Rule of Civil Procedure 56(d) Notice of Supplemental Authority (Lynch, Christopher) (Entered: 03/20/2020)
185 NOTICE by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States re 184 Notice (Other), Exhibit A to Notice of Supplemental Authority (Lynch, Christopher) (Entered: 03/20/2020)
186 NOTICE by Bureau of the Census, Steven Dillingham, Wilbur Ross, The United States re 170 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction MOTION for Summary Judgment Opposition to Motion for Preliminary Injunction, 184 Notice (Other), 176 MOTION pursuant to Federal Rule of Civil Procedure 56(d) Addendum to Notice of Supplemental Authority (Attachments: # 1 Exhibit 1 (Transcript of 3/18/20 SDNY Hearing))(Lynch, Christopher) (Entered: 03/25/2020)
187 NOTICE by H. Elizabeth Johnson, National Association for the Advancement of Colored People, Prince George's County Maryland NAACP Branch, Prince George's County, Maryland, Robert E Ross re 184 Notice (Other), Response to Defendants' Notice of Supplemental Authority (Wishnie, Michael) (Entered: 03/30/2020)
188 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 3−5−20, before Judge Grimm. Court Reporter/Transcriber Linda C Marshall, Telephone number 301−344−3229. Total number of pages filed: 144. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 4/29/2020. Redacted Transcript Deadline set for 5/11/2020. Release of Transcript Restriction set for 7/7/2020.(lcm, Court Reporter) (Entered: 04/08/2020)

Case: 8:18-cv-891 As of: 07/19/2020 11:46 AM EDT 21 of 21

04/16/2020

189 MEMORANDUM OPINION AND ORDER granting in part and denying in part 170 Defendant's Motion to Dismiss [the Third Amended Complaint] and Motion for Summary Judgment; denying as moot 176 Plaintiff's Motion pursuant to Federal Rule of Civil Procedure 56(d) ; denying as moot 179 Defendant's Motion in Limine; directing the Clerk to close this case. Signed by Judge Paul W. Grimm on 4/16/2020. (jf3s, Deputy Clerk) (Entered: 04/16/2020)

 
 Case 8:18-cv-00891-PWG Document 1 Filed 03/28/18 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

________________________________________ NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; PRINCE GEORGE’S COUNTY MARYLAND; PRINCE GEORGE’S COUNTY MARYLAND NAACP BRANCH; ROBERT E. ROSS; and H. ELIZABETH JOHNSON,
Plaintiffs,

Civil Action No. _______ COMPLAINT

v.

BUREAU OF THE CENSUS; RON JARMIN, Acting Director, Bureau of the Census; WILBUR ROSS, Secretary of Commerce; DONALD TRUMP, President of the United States; and THE UNITED STATES,

Defendants. _______________________________________

Article I, Section 2 of the United States Constitution imposes one of the few

affirmative obligations on the federal government: to conduct an “actual Enumeration”

of all residents every ten years. Despite this duty, the United States has undercounted

people of color since the nation’s founding, starting with the decision to treat African

American slaves as only three-fifths of a person. The Three-Fifths Clause appeared in the

same constitutional provision that mandates a decennial census.

The failure fully to count African Americans has persisted to the present. In the

2010 Census, for example, there was a 2.1% net undercount of African Americans.

Accordingly, in the past, federal officials have made considerable efforts to enumerate

what the Census Bureau calls “hard-to-count” individuals, including African Americans,

non-English speakers, and young people. These efforts reflect the recognition that an

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inaccurate census hurts some communities more than others, depriving them of their constitutional right to representation and their fair share of resources.
The government’s preparations for the 2020 Census, however, are so conspicuously deficient as to extend far beyond the failures of past censuses, such that they violate Defendants’ constitutional duty to conduct an “actual Enumeration.” U.S. Const., Art. I, § 2. Sufficient staffing, funding, and preparation in advance of the census are essential to such a monumental undertaking. Yet, only two years from the 2020 Census, the Census Bureau lacks both a permanent director and a deputy director. A presidential hiring freeze has limited the Bureau’s capacity to fill routine staff vacancies. The Bureau also canceled essential field tests last year and two of three “dress rehearsal” sites this year.
Moreover, the Bureau’s intention to adopt substantial new technologies for the 2020 Census makes these cancellations especially dangerous. Defendants are unprepared to conduct the first-ever digital census, which will exacerbate undercounts and leave the census vulnerable to cyber-attack. Despite these imminent threats to the accuracy and integrity of the 2020 Census, the Bureau has been operating on the cheap, without sufficient funding to address its many challenges.
These deficiencies will result in a massive undercount of communities of color. The effects of an inaccurate census will be felt across the country, and especially in places like Prince George’s County, Maryland that are home to many “hard-to-count” people. Such a dramatic undercount will especially dilute the votes of racial and ethnic minorities, deprive their communities of critical federal funds, and undervalue their voices and interests in the political arena.
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Plaintiffs the National Association for the Advancement of Colored People (NAACP), the Prince George’s County Maryland Branch NAACP, Prince George’s County, Robert Ross, and Elizabeth Johnson, ask this Court to address this grave and imminent threat to the accuracy of the census. Absent judicial intervention, Defendants will violate their constitutional obligation to conduct an actual enumeration of all people residing in the United States. Plaintiffs bring this action to compel Defendants to fulfill their constitutional duty.
JURISDICTION AND VENUE 1. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and Article III of the U.S. Constitution. 2. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) and (e) because Plaintiff Prince George’s County Maryland NAACP Branch maintains its principal place of business in, Plaintiffs Robert Ross and Elizabeth Johnson reside in, and Plaintiff Prince George’s County is located in, the District of Maryland, Southern Division; the events or omissions giving rise to the claim occurred in this district and division; and no real property is involved in the action. 3. Venue is also proper pursuant to 28 U.S.C. § 1391(e) because Defendants Bureau of the Census and its Acting Director, Ron Jarmin, are located in Suitland, Maryland, also in the District of Maryland, Southern Division.
PARTIES 4. Plaintiff National Association for the Advancement of Colored People (NAACP), a § 501(c)(3) non-profit, is the nation’s oldest and largest grassroots-based civil rights organization. Its mission is to ensure the political, educational, social, and
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economic equality of rights of all persons and to eliminate race-based discrimination. The NAACP is headquartered in Baltimore, Maryland, and has over two thousand local units nationwide. These units have helped and will continue to help promote the accuracy of the census by conducting outreach to community members.
5. Plaintiff Prince George’s County Maryland NAACP Branch is the local affiliate of the NAACP in Prince George’s County. It was founded in 1935. Hester V. King served as the first branch President and continued in that role for nearly thirty years, during which time she worked to desegregate the Upper Marlboro courthouse, schools, and other public accommodations in the county. Mrs. King also helped conduct a statewide drive for passage of an equal accommodations bill by the State Legislature. The branch is headquartered in Upper Marlboro, Maryland, and devotes resources to ensuring the voting rights of its members.
6. Plaintiff Prince George’s County is a majority African American county in southeastern Maryland. Prince George’s County has been repeatedly undercounted in past censuses. In the 2000 Census, the undercount in the county was 1.91%, and in 2010, the net undercount was 2.3%. In 2010, the County suffered the largest net census undercount of any large county in Maryland, and one of the largest undercounts in the entire United States for any county of 100,000 or more residents. The County is allocated federal funds and political representation depending on its population as determined by the census.
7. Plaintiff Robert Ross has resided in Prince George’s County, Maryland since 2001 and has served as the President of the Prince George’s County Maryland NAACP Branch since 2010. Mr. Ross drives on roads in Prince George’s County that
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depend on federal funding for upkeep and repair and in other ways is affected by the level of federal funding allocated to the County based on the census.
8. Plaintiff Elizabeth Johnson has resided in Prince George’s County, Maryland since 1974. Ms. Johnson serves on the Executive Committee of the Prince George’s County Maryland NAACP Branch and chairs the Branch’s Housing Committee. Ms. Johnson drives on roads in Prince George’s County that depend on federal funding for upkeep and repair and in other ways is affected by the level of federal funding allocated to the County based on the census.
9. Defendant the Bureau of the Census is the agency within the United States Department of Commerce that oversees and implements the decennial census. The Census Bureau is headquartered and maintains its principal offices in Suitland, Maryland.
10. Defendant Ron Jarmin is currently performing the nonexclusive functions and duties of the Director of the Bureau of the Census, which is charged with completing the decennial census. He is sued in his official capacity.
11. Defendant Secretary Wilbur Ross, as Secretary of the U.S. Department of Commerce, oversees all operations of the Department of Commerce, including the operations of the Census Bureau. He is sued in his official capacity.
12. Defendant Donald Trump is the President of the United States. He is sued in his official capacity.
13. Defendant United States has a constitutional obligation to conduct an actual enumeration every ten years.
FACTUAL ALLEGATIONS 14. Article I, Section 2 of the Constitution requires the federal government to
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conduct an “actual Enumeration,” or count of every resident of the United States, every ten years.
15. The federal government uses census data to allocate hundreds of billions of dollars in public funding. These funds considerably impact the public sector’s ability to provide for high quality education, health care, housing, transportation, and other vital services.
16. Census data is also used for seat apportionment in the U.S. House of Representatives; drawing boundaries for congressional districts and many state legislative districts; and voting rights enforcement.
17. Maryland is among the states that use census data for purposes of state legislative districting.
History and Background of the Census 18. The Founders were deeply concerned with ensuring an accurate census. The founding generation knew that counts of residents have been conducted since ancient times, and as recently as the 1750s there had been significant public controversy over how to count the British population. 19. The drafters of the Constitution also knew “that the calculation of populations could be and often were skewed for political or financial purposes,” Utah v. Evans, 536 U.S. 452, 500 (2002) (Thomas, J., dissenting), and therefore sought to draft a constitutional provision that would avoid these problems. 20. John Randolph, for example, in discussing the accuracy of the census, remarked that “if a fair representation of the people be not secured, the injustice of the government will shake it to its foundations.”
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21. At the time of the first census, in 1790, the authorizing legislation required enumerators to visit each household, post completed census schedules in public places in every jurisdiction, and submit the final tally to the president.
Recent Efforts to Promote an Accurate Census 22. The census has historically undercounted racial and ethnic minorities. 23. The Census Bureau has identified what it terms “hard-to-count” populations. These include racial and ethnic minorities, non-English speakers, 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.” 24. In 2010, the census had a net undercount of 2.1% of African Americans and 1.5% of Hispanic Americans, according to an official government post-census study. 25. The 2010 Census did not account for 1.5 million black and Hispanic residents, which would be enough people to fill two Congressional districts. 26. The census has also undercounted other populations. In 2010, for example, home renters were undercounted by 1.1% and children under the age of five were undercounted by 4.6%. 27. By contrast, the census has overcounted homeowners and non-Hispanic whites. In 2010, the net overcount was 0.6% for homeowners and 0.8% for non-Hispanic whites.
Imminent Risk of a Constitutionally Deficient 2020 Census 28. While past censuses have resulted in troubling undercounts of African Americans and other racial and ethnic minorities, Defendants’ preparations for the 2020
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Census are so deficient as to raise imminent concerns of a substantially greater undercount than in past years, particularly affecting such “hard-to-count” populations.
29. The deficiencies risked by the 2020 Census preparations are not simply the result of a choice of methodology. Rather, they are a result of conspicuous neglect of a constitutional duty, through underfunding, understaffing, and under-planning, inadequacies that are all the more dangerous because of the roll-out of untested new technology.
30. Defendants are well behind the typical pace of funding, staffing and preparation at this stage of a census cycle, even before considering the ambitious technological approach that Defendants have decided to undertake.
31. Given the size and scope of the decennial census, immediate relief is necessary to ensure that Defendants have ample opportunity to implement the changes necessary to ensure a constitutionally sufficient census.
Underfunding 32. The cost of the decennial census has roughly doubled each decade from 1970 to the present. 33. However, Congress directed that the budget for the 2020 Census not exceed the cost of the 2010 enumeration. 34. Typically, at this point in the preparations, funding for the Census Bureau escalates to prepare for the decennial census. Between 2007 and 2008, for example, the Bureau’s budget increased 61 percent.
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35. However, Congress approved only $1.47 billion for the Census Bureau in the 2017 fiscal year, approximately 10 percent below what the Obama Administration had requested.
36. The Trump Administration’s 2018 budget request for the Census Bureau asked for an increase of only two percent from 2017 levels.
37. The Department of Commerce has acknowledged the severity of underfunding. In October 2017, Defendant Ross told Congress that the lifecycle cost of the 2020 Census would be $3.3 billion above the original estimate and that the administration would request an additional $187 million for Fiscal Year 2018.
38. Former Bureau officials, outside experts, members of Congress, and Government Accountability Office (GAO) staff have all expressed alarm about the Bureau’s funding shortage.
39. A senior GAO official recently testified that the cost estimate for the 2020 Census “was not reliable and did not adequately account for risk.”
40. Former Bureau Directors Kenneth Prewitt and Vincent Barabba described the 2020 Census as “under threat by uncertain funding.”
41. The two former directors explained, “This is a critical period in which to begin operations, including well-researched advertising messages, staffing and training an army of temporary workers, opening field offices and testing new technology. The Census Bureau cannot do any of this at the last minute, just as the Defense Department cannot prepare for military action when a threat is imminent.”
42. The Census Bureau has already had to scale back critical planning activities due to budgetary uncertainty and shortfalls.
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43. Then-Census Bureau Director John Thompson testified on May 3, 2017, at an oversight hearing of the House Committee on Appropriations that, “[i]n order to concentrate our resources on systems readiness in this fiscal year, we had to make difficult decisions to descope some aspects of the program and pause others.”
44. In recent months, Defendants have: *canceled 2017 field tests in Puerto Rico, North Dakota, South Dakota, and Washington State; *canceled two of three sites for the 2018 End-to-End Census Test, dress rehearsals that serve as the basis for many final decisions about decennial census methods and operations; *delayed opening six Regional Census Centers.
45. Moreover, in the nine West Virginia counties that Defendants eliminated from the 2018 test, 31 percent of the population lacks access to high-quality residential broadband. As a result, the Bureau will not be able to test its novel digitization strategy in rural areas that are most susceptible to undercounting, leaving virtually no opportunity to test census operations in rural communities before the 2020 Census.
46. Due to inadequate funding, the Bureau has thus far hired only about 40 partnership specialists for this outreach effort in 2018.
47. The damage caused by Hurricanes Harvey and Irma will also require considerable funding to ensure that affected communities are accurately counted. It is extremely unlikely that the Census Bureau will be able to devote additional resources to these areas, given the existing impact of underfunding on its planned operations.
48. Lack of funding will also make it more difficult to assess inaccuracies in the final census count.
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49. The Census Bureau typically conducts a so-called Census Coverage Measurement, which evaluates the size of the undercount and overcount. Funding uncertainty has led the Bureau to pause planning for this program, and the Bureau will not test this operation in the 2018 End-to-End Test as planned.
50. On March 23, 2018, the President signed an omnibus spending bill that allocated $2.814 billion to the Census Bureau, $2.544 billion of which is set aside for Periodic Censuses and Programs, including the 2020 Census.
51. The report from the appropriations committee that accompanies the bill states that the omnibus “provides half of the amount needed for the 2020 Census for” fiscal years 2019 and 2020. Congress has not specified what portion of the fiscal year 2018 appropriation, if any, the Census Bureau should reserve to spend in fiscal years 2019 and 2020.
52. This omnibus bill funds the government only through September 2018 and is inadequate to redress the long term and cumulative underfunding problems set forth above.
53. There is no guarantee, and strong reason to doubt, that the Census Bureau will receive an increase in the current funding level for the 2020 Census after September 2018, as Congress consistently has failed to pass new spending bills for the subsequent fiscal year in a timely way. On March 23, 2018, upon signing the omnibus bill, President Trump stated: “There are a lot of things that we shouldn’t have had in this bill, but we were, in a sense, forced — if we want to build our military — we were forced to have. There are some things that we should have in the bill . . . But I say to Congress: I will never sign another bill like this again. I’m not going to do it again.”
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54. The President’s proposed Census Bureau budget of $3.8 billion for fiscal year 2019 is also far short of the funding necessary to conduct a fair and accurate census. By contrast, the Census Bureau received $4.2 billion in fiscal year 2009 to fund the 2010 Census.
Understaffing 55. On January 23, 2017, Defendant Trump issued a Presidential Memorandum instituting a hiring freeze throughout much of the executive branch. Hiring Freeze, 82 Fed. Reg. 8493 (Jan. 23, 2017). 56. As of April 10, 2017, the hiring freeze had prevented filling at least 157 jobs at the Census Bureau. 57. The Office of Management and Budget lifted the hiring freeze on April 12, 2017, but immediately imposed a new order directing agencies to submit plans for personnel cuts and other restructuring moves to fit the budget blueprint. 58. The Department of Commerce has not publicly disclosed these plans, or how they will affect the Bureau’s plans to hire up to half a million temporary workers to conduct the enumeration. 59. The effect of the Presidential Memorandum and the subsequent personnel directive has been to prevent the Census Bureau from hiring staff necessary to ensure an “actual enumeration” in 2020.
Lack of Leadership 60. The Bureau lacks permanent or senior leadership.
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61. On May 9, 2017, just days after testifying to Congress about imminent threats to the accuracy and integrity of the 2020 count, then-Census Director John Thompson abruptly announced his resignation, effective June 30, 2017.
62. Mr. Thompson was, at the time, statutorily eligible to serve until the end of 2017, and was eligible to be reappointed to a second five-year term.
63. The President has not nominated a director of the Census Bureau. 64. The position of deputy director also has been vacant since the previous deputy director stepped down in early 2017. The President has not posted the position to be filled through the competitive civil service process, as has been done historically. 65. In November 2017, it was reported that the President selected Thomas Brunell as deputy director of the Census Bureau. Mr. Brunell’s primary experience at the time was serving as an expert witness in defense of partisan and racial gerrymanders. After widespread criticism of his qualifications, Mr. Brunell withdrew from consideration. 66. There are no pending nominees or candidates for director or deputy director for the 2020 Census.
Design Flaws 67. The Census Bureau’s plans for the 2020 Census reflect serious design defects that, if unresolved, will exacerbate the undercount. 68. These design problems include (a) the first-time large-scale use of on-line census forms instead of paper surveys delivered by mail; (b) the failure to safeguard online census systems from cyber threats; (c) a significant reduction in on-the-ground
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presence and field workers; and (d) improper reliance on state administrative databases of varying quality.
69. The Census Bureau will digitize the census for the first time in 2020. 70. The 2020 Census will deploy electronic and internet-based tools to collect responses. Such digitization is a radical departure from the paper and in-person methods used in all previous censuses. 71. The 2010 Census delivered approximately 360 million questionnaires to 133 million housing units. 72. This cycle, Defendants instead intend to encourage self-response primarily by internet and to reduce the number of in-person visits to households that do not selfrespond. 73. In 2020, Defendants will mail census questionnaires initially to only 20 percent of U.S. households. 74. Defendants will mail the remaining 80 percent of U.S. households a notification inviting them to complete the census questionnaire online. Should these households not complete the questionnaire online or by telephone, Defendants plan to mail a paper version. 75. A largely online census will likely have a devastating impact on communities that have low or little access to reliable broadband internet, many of which are communities of color and low-income households. 76. The “digital divide” in the U.S. is stark. Only half of households earning incomes less than $30,000 per year have access to broadband internet.
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77. In addition, many rural residents have significantly reduced access to the internet.
78. Communities of color, including African Americans and Hispanics, are more likely to have reduced access to internet than their White counterparts.
79. Defendants’ design flaws, coupled with their insufficient funding, planning and staffing deficiencies, have left them unprepared for the challenges that digitization presents.
80. At a recent congressional hearing, Defendant Ross admitted that, of the forty-three technology systems the Bureau is supposed to prepare for testing in 2018, Defendants have completed development of only four, and less than half of the fortythree systems have some functionality.
81. Digitizing the census also raises significant cybersecurity concerns. 82. The Census Bureau has not explained how it will protect the personal information of hundreds of millions of Americans. 83. Moreover, the Bureau’s cancellation of planned tests deprives it of comprehensive opportunities to test critical cybersecurity infrastructure. 84. These technical issues are compounded by the fact that even perceived data insecurity could dissuade digital responses, in light of recent high-profile and largescale data breaches for clients of Equifax, Yahoo!, and Uber, among others. 85. The Census Bureau has also decided to cut its on-the-ground presence and field infrastructure significantly. It has reduced the number of area offices and workers, and will conduct in-person visits at a fraction of past rates.
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86. In conducting the census, the Census Bureau typically makes initial contact with households via mail, and follows up with in-person visits if there is no response. Households that do not respond to the initial mailing are characterized as “hardto-count.”
87. In prior censuses, the Census Bureau has made in-person visits to households up to six times in order to ensure completion of census forms.
88. For the 2020 Census, the Census Bureau proposes to conduct only one inperson visit to each household.
89. If the in-person visit is unsuccessful, the Census Bureau plans to use federal and state administrative records to attempt to determine the residents for an undetermined number of the households that have not responded.
90. State administrative data is often unreliable and of poor quality, and the quality of the information between states varies significantly. Moreover, these databases generally do not include data that the census collects with respect to race, ethnicity, and the relationship of household members to each other.
91. The Census Bureau has not yet reached agreements with all states to use the states’ administrative databases. If the Census Bureau fails to secure agreements with all states, this failure will result in inconsistent counting methodologies between states.
92. The Census Bureau plans to use state administrative data as a substitute for in-person enumeration only for those households that are already “hard-to-count,” including communities of color. Using unreliable state data as the basis for compiling final census data for households that are disproportionately minority and low-income will lead to an even higher undercount for these groups.
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93. State administrative databases often lack accurate data on young children and undocumented individuals.
94. Because many states do not collect data on race and ethnicity, using state administrative data would create incomplete census records, and would harm communities of color during the post-2020 redistricting process.
The Impact of Defendants’ Failings on Plaintiffs 95. Plaintiff Prince George’s County is the only majority African American county in the state of Maryland. It was the nation’s first majority African American suburban county. 96. Prince George’s County is well-known for its status as an AfricanAmerican middle-class community. For example, the Brookings Institution has described Prince George’s County as “a pathway to the middle class for large numbers of lowerincome, working minorities.” 97. Prince George’s County has been hailed by residents and civil rights advocates alike as representing a model of racial and economic integration, interracial communal relations, and African American political, academic, and economic leadership. 98. However, census undercounts have threatened this model, causing political and economic harm to Prince George’s County. 99. The Census Bureau has characterized parts of Prince George’s County as “hard-to-count,” and the County has faced consistent census undercounts. 100. In the 1990, 2000, and 2010 Censuses, the County’s net undercounts were 3.0%, 1.91%, and 2.3% respectively.
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101. In 2010, Prince George’s County had the highest net undercount of any county in Maryland, and one of the highest net undercounts in the nation among counties with 100,000 residents or more.
102. This undercount data is all the more significant given that the net undercount is the rate of omissions offset by the number of erroneous enumerations (people counted twice or included by mistake).
103. Accordingly, in the 2010 Census, the total rate of omissions amounted to 8.3% of Prince George’s County residents—or approximately 73,351 individuals.
104. After the 1990 Census, the Chairman of the County Planning Board concluded that had the census count been accurate, the County would have received $20 million more in federal funds per year, or a total of $200 million in grants and loans over the course of the decade.
105. Based on the 2000 Census undercount, the County lost almost $27 million in federal funding for eight prominent federal programs between 2002 and 2012.
106. Defendants’ current failings threaten to result in a significantly higher undercount for Prince George’s County, leading to an even greater loss of funding.
107. A census undercount carries with it significant political consequences as well. The state legislature uses census data for state and congressional redistricting purposes. An undercount in Prince George’s County therefore deprives county residents of fair and equitable representation in the state legislature and in Congress.
108. Moreover, Defendants’ failure to conduct a constitutionally sufficient census and the resulting dramatic undercount of Prince George’s County residents
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increases the risk of Maryland losing seats in Congress. This loss would deprive Prince George’s County residents of fair and equitable representation.
109. NAACP members, including Prince George’s County residents Robert Ross and Elizabeth Johnson, and the organization itself face actual and imminent injuries based on Defendants’ constitutional violations.
110. NAACP members face impending and imminent political underrepresentation and loss of federal funding. This has frustrated the core of the NAACP’s mission to ensure the welfare of communities of color.
111. The NAACP organization has also had to divert resources from other pressing concerns in order to address Defendants’ shortcomings. For example, the NAACP organization is preparing to provide extensive training for NAACP members on how to compensate for Defendants’ inadequate preparations for the 2020 Census.
112. Similarly, Prince George’s County Maryland Branch NAACP members also face actual and imminent injury.
113. Branch members face impending political underrepresentation. Branch members also face imminent injury due to the loss of federal funding that would result from an undercount of the Prince George’s County population.
114. The Branch faces an impending need to expend substantial resources to educate community members about the importance of the census and to encourage them to respond to the census questionnaire.
115. The harm faced by all Plaintiffs is impending as of the date of the filing of this lawsuit. Defendants’ unconstitutional failures to fund, staff, and plan for the 2020 Census are compounding with each day that the 2020 Census draws nearer.
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116. Defendants’ choices in procedures, such as their approach to digitization, and cut-back in field and mailing outreach, have already been made. As Defendants have already decided on these approaches for the 2020 Census, Plaintiffs are at imminent risk of harm.
117. If a court does not act promptly to remedy these constitutional failures, the deficiencies currently present in the 2020 Census will become irremediable, and there will be no amount of funding, hiring, or appropriate planning that can fix the serious existing deficiencies in time for the census.
CAUSE OF ACTION COUNT 1: ACTUAL ENUMERATION 118. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 117 of the complaint. 119. The Constitution obligates Defendants to conduct a fair and accurate count of all persons in the United States in 2020. 120. Defendants have already cancelled numerous important field tests and dress rehearsals in 2017 and 2018. Defendants have thus squandered priceless opportunities to ensure that adequate systems and plans are in place for the 2020 Census. 121. Defendants have adopted a program for the 2020 Census that is understaffed and underfunded, that lacks leadership, that inadequately addresses the challenge of reaching hard-to-count populations, and that fails to safeguard the census from cyber-attack. 122. Defendants have violated and are at imminent risk of violating the “actual Enumeration” clause of the United States Constitution, Art. I § 2 cl. 3.
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123. Defendants’ violation will lead to an undercount of racial and ethnic

minorities and harm the Plaintiffs. This violation will deprive Plaintiffs of their

constitutional right to representation and their fair share of resources.

124. Defendants’ violation has caused and will continue to cause ongoing,

irreparable harm to Plaintiffs.

REQUESTED RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court:

1. Assume jurisdiction over this matter;

2. Declare that the Defendants are obligated to ensure an accurate actual

enumeration of the people;

3. Enjoin Defendants from violating their constitutional duty to conduct an

accurate actual enumeration of the people;

4. Enter an injunction that requires Defendants to propose and implement,

subject to this Court’s approval and monitoring, a plan to ensure that hard-to-count

populations will be actually enumerated in the decennial census; and

5. Grant any other and further relief the Court deems appropriate.

Respectfully submitted,

/s/ Michael J. Wishnie
Benjamin Alter* Varun Char* Sameer Jaywant* Erinma Kalu* Brandon Levin* Abigail Olson* Joseph Schottenfeld* Charlotte Schwartz*

Jeffrey Zalesin* Michael J. Wishnie (Bar No. 20350) Rule of Law Clinic Yale Law School 127 Wall Street New Haven, CT 06511 Tel: (203) 436-4780 Fax: (203) 432-1426 michael.wishnie@ylsclinics.org
* Law student interns. Petition to practice forthcoming.

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Counsel for all Plaintiffs Jeremy M. Creelan** Susan J. Kohlmann** Jacob D. Alderdice** Jonathan M. Diaz** Jenner & Block LLP 919 Third Avenue New York, NY 10022-3908 Counsel for all Plaintiffs Bradford M. Berry** Janette Louard** Anson Asaka** Khyla Craine** National Association for the Advancement
of Colored People, Inc. 4805 Mt. Hope Drive Baltimore, MD 21215 Tel: (410) 580-5797 Fax: (410) 358-9350 Counsel for Plaintiff NAACP
** Motion for admission pro hac vice forthcoming
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 Case 8:18-cv-00891-PWG Document 38 Filed 06/14/18 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, 4805 Mt. Hope Drive, Baltimore, Maryland 21215, Baltimore County; PRINCE GEORGE’S COUNTY MARYLAND, 14741 Gov. Oden Bowie Drive, Suite 5121, Upper Marlboro, Maryland 20772, Prince George’s County; PRINCE GEORGE’S COUNTY MARYLAND NAACP BRANCH, 9201 Basil Court, Suite 115, Largo, Maryland 20774, Prince George’s County; ROBERT E. ROSS, 10900 Wharton Drive Upper Marlboro, Maryland 20774, Prince George’s County; and H. ELIZABETH JOHNSON, 5406 Stratford Lane, Temple Hills, Maryland 20748, Prince George’s County,
Plaintiffs,
v.
BUREAU OF THE CENSUS, service at 4600 Silver Hill Road, Suitland, MD 20746; RON JARMIN, Acting Director, Bureau of the Census, 4600 Silver Hill Road, Suitland, MD 20746, Prince George’s County; WILBUR ROSS, Secretary of Commerce, 1401 Constitution Ave NW, Washington, DC 20230; DONALD TRUMP, President of the United States, 1600 Pennsylvania Ave. NW, Washington, DC 20500; and THE UNITED STATES, service at 6406 Ivy Lane, Suite 800, Greenbelt, MD 20770
Defendants.

Case No. 8:18-cv-00891-PWG AMENDED COMPLAINT

Case 8:18-cv-00891-PWG Document 38 Filed 06/14/18 Page 2 of 22
Article I, Section 2 of the United States Constitution imposes one of the few affirmative obligations on the federal government: to conduct an “actual Enumeration” of all residents every ten years. Despite this duty, the United States has undercounted people of color since the nation’s founding, starting with the decision to treat African American slaves as only three-fifths of a person. The Three-Fifths Clause appeared in the same constitutional provision that mandates a decennial census.
The failure fully to count African Americans has persisted to the present. In the 2010 Census, for example, there was a 2.1% net undercount of African Americans. Accordingly, in the past, federal officials have made considerable efforts to enumerate what the Census Bureau calls “hard-to-count” individuals, including African Americans, non-English speakers, and young people. These efforts reflect the recognition that an inaccurate census hurts some communities more than others, depriving them of their constitutional right to representation and their fair share of resources.
The government’s preparations for the 2020 Census, however, are so conspicuously deficient as to extend far beyond the failures of past censuses, such that they violate Defendants’ constitutional duty to conduct an “actual Enumeration.” U.S. Const., Art. I, § 2. Sufficient staffing, funding, and preparation in advance of the census are essential to such a monumental undertaking. Yet, only two years from the 2020 Census, the Census Bureau lacks both a permanent director and a deputy director. A presidential hiring freeze has limited the Bureau’s capacity to fill routine staff vacancies. The Bureau also canceled essential field tests last year and two of three “dress rehearsal” sites this year.
Moreover, the Bureau’s intention to adopt substantial new technologies for the
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2020 Census makes these cancellations especially dangerous. Defendants are unprepared to conduct the first-ever digital census, which will exacerbate undercounts and leave the census vulnerable to cyber-attack. Despite these imminent threats to the accuracy and integrity of the 2020 Census, the Bureau has been operating on the cheap, without sufficient funding to address its many challenges.
These deficiencies will result in a massive undercount of communities of color. The effects of an inaccurate census will be felt across the country, and especially in places like Prince George’s County, Maryland that are home to many “hard-to-count” people. Such a dramatic undercount will especially dilute the votes of racial and ethnic minorities, deprive their communities of critical federal funds, and undervalue their voices and interests in the political arena.
Plaintiffs the National Association for the Advancement of Colored People (NAACP), the Prince George’s County Maryland Branch NAACP, Prince George’s County, Robert Ross, and Elizabeth Johnson, ask this Court to address this grave and imminent threat to the accuracy of the census. Absent judicial intervention, Defendants will violate their constitutional obligation to conduct an actual enumeration of all people residing in the United States. Plaintiffs bring this action to compel Defendants to fulfill their constitutional duty.
JURISDICTION AND VENUE 1. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and Article III of the U.S. Constitution. 2. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) and (e) because Plaintiff Prince George’s County Maryland NAACP Branch maintains its
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principal place of business in, Plaintiffs Robert Ross and Elizabeth Johnson reside in, and Plaintiff Prince George’s County is located in, the District of Maryland, Southern Division; the events or omissions giving rise to the claim occurred in this district and division; and no real property is involved in the action.
3. Venue is also proper pursuant to 28 U.S.C. § 1391(e) because Defendants Bureau of the Census and its Acting Director, Ron Jarmin, are located in Suitland, Maryland, also in the District of Maryland, Southern Division.
PARTIES 4. Plaintiff National Association for the Advancement of Colored People (NAACP), a § 501(c)(3) non-profit, is the nation’s oldest and largest grassroots-based civil rights organization. Its mission is to ensure the political, educational, social, and economic equality of rights of all persons and to eliminate race-based discrimination. The NAACP is headquartered in Baltimore, Maryland, and has over two thousand local units nationwide. These units have helped and will continue to help promote the accuracy of the census by conducting outreach to community members. 5. Plaintiff Prince George’s County Maryland NAACP Branch is the local affiliate of the NAACP in Prince George’s County. It was founded in 1935. Hester V. King served as the first branch President and continued in that role for nearly thirty years, during which time she worked to desegregate the Upper Marlboro courthouse, schools, and other public accommodations in the county. Mrs. King also helped conduct a statewide drive for passage of an equal accommodations bill by the State Legislature. The branch is headquartered in Upper Marlboro, Maryland, and devotes resources to ensuring the voting rights of its members.
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6. Plaintiff Prince George’s County is a majority African American county in southeastern Maryland. Prince George’s County has been repeatedly undercounted in past censuses. In the 2000 Census, the undercount in the county was 1.91%, and in 2010, the net undercount was 2.3%. In 2010, the County suffered the largest net census undercount of any large county in Maryland, and one of the largest undercounts in the entire United States for any county of 100,000 or more residents. The County is allocated federal funds and political representation depending on its population as determined by the census.
7. Plaintiff Robert Ross has resided in Prince George’s County, Maryland since 2001 and has served as the President of the Prince George’s County Maryland NAACP Branch since 2010. Mr. Ross drives on roads in Prince George’s County that depend on federal funding for upkeep and repair and in other ways is affected by the level of federal funding allocated to the County based on the census.
8. Plaintiff Elizabeth Johnson has resided in Prince George’s County, Maryland since 1974. Ms. Johnson serves on the Executive Committee of the Prince George’s County Maryland NAACP Branch and chairs the Branch’s Housing Committee. Ms. Johnson drives on roads in Prince George’s County that depend on federal funding for upkeep and repair and in other ways is affected by the level of federal funding allocated to the County based on the census.
9. Defendant the Bureau of the Census is the agency within the United States Department of Commerce that oversees and implements the decennial census. The Census Bureau is headquartered and maintains its principal offices in Suitland, Maryland.
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10. Defendant Ron Jarmin is currently performing the nonexclusive functions and duties of the Director of the Bureau of the Census, which is charged with completing the decennial census. He is sued in his official capacity.
11. Defendant Secretary Wilbur Ross, as Secretary of the U.S. Department of Commerce, oversees all operations of the Department of Commerce, including the operations of the Census Bureau. He is sued in his official capacity.
12. Defendant Donald Trump is the President of the United States. He is sued in his official capacity.
13. Defendant United States has a constitutional obligation to conduct an actual enumeration every ten years.
FACTUAL ALLEGATIONS 14. Article I, Section 2 of the Constitution requires the federal government to conduct an “actual Enumeration,” or count of every resident of the United States, every ten years. 15. The federal government uses census data to allocate hundreds of billions of dollars in public funding. These funds considerably impact the public sector’s ability to provide for high quality education, health care, housing, transportation, and other vital services. 16. Census data is also used for seat apportionment in the U.S. House of Representatives; drawing boundaries for congressional districts and many state legislative districts; and voting rights enforcement. 17. Maryland is among the states that use census data for purposes of state legislative districting.
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History and Background of the Census 18. The Founders were deeply concerned with ensuring an accurate census. The founding generation knew that counts of residents have been conducted since ancient times, and as recently as the 1750s there had been significant public controversy over how to count the British population. 19. The drafters of the Constitution also knew “that the calculation of populations could be and often were skewed for political or financial purposes,” Utah v. Evans, 536 U.S. 452, 500 (2002) (Thomas, J., dissenting), and therefore sought to draft a constitutional provision that would avoid these problems. 20. John Randolph, for example, in discussing the accuracy of the census, remarked that “if a fair representation of the people be not secured, the injustice of the government will shake it to its foundations.” 21. At the time of the first census, in 1790, the authorizing legislation required enumerators to visit each household, post completed census schedules in public places in every jurisdiction, and submit the final tally to the president.
Recent Efforts to Promote an Accurate Census 22. The census has historically undercounted racial and ethnic minorities. 23. The Census Bureau has identified what it terms “hard-to-count” populations. These include racial and ethnic minorities, non-English speakers, 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.”
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24. In 2010, the census had a net undercount of 2.1% of African Americans and 1.5% of Hispanic Americans, according to an official government post-census study.
25. The 2010 Census did not account for 1.5 million black and Hispanic residents, which would be enough people to fill two Congressional districts.
26. The census has also undercounted other populations. In 2010, for example, home renters were undercounted by 1.1% and children under the age of five were undercounted by 4.6%.
27. By contrast, the census has overcounted homeowners and non-Hispanic whites. In 2010, the net overcount was 0.6% for homeowners and 0.8% for non-Hispanic whites.
Imminent Risk of a Constitutionally Deficient 2020 Census 28. While past censuses have resulted in troubling undercounts of African Americans and other racial and ethnic minorities, Defendants’ preparations for the 2020 Census are so deficient as to raise imminent concerns of a substantially greater undercount than in past years, particularly affecting such “hard-to-count” populations. 29. The deficiencies risked by the 2020 Census preparations are not simply the result of a choice of methodology. Rather, they are a result of conspicuous neglect of a constitutional duty, through underfunding, understaffing, and under-planning, inadequacies that are all the more dangerous because of the roll-out of untested new technology. 30. Defendants are well behind the typical pace of funding, staffing and preparation at this stage of a census cycle, even before considering the ambitious technological approach that Defendants have decided to undertake.
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31. Given the size and scope of the decennial census, immediate relief is necessary to ensure that Defendants have ample opportunity to implement the changes necessary to ensure a constitutionally sufficient census.
Underfunding 32. The cost of the decennial census has roughly doubled each decade from 1970 to the present. 33. However, Congress directed that the budget for the 2020 Census not exceed the cost of the 2010 enumeration. 34. Typically, at this point in the preparations, funding for the Census Bureau escalates to prepare for the decennial census. Between 2007 and 2008, for example, the Bureau’s budget increased 61 percent. 35. However, Congress approved only $1.47 billion for the Census Bureau in the 2017 fiscal year, approximately 10 percent below what the Obama Administration had requested. 36. The Trump Administration’s 2018 budget request for the Census Bureau asked for an increase of only two percent from 2017 levels. 37. The Department of Commerce has acknowledged the severity of underfunding. In October 2017, Defendant Ross told Congress that the lifecycle cost of the 2020 Census would be $3.3 billion above the original estimate and that the administration would request an additional $187 million for Fiscal Year 2018. 38. Former Bureau officials, outside experts, members of Congress, and Government Accountability Office (GAO) staff have all expressed alarm about the Bureau’s funding shortage.
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39. A senior GAO official recently testified that the cost estimate for the 2020 Census “was not reliable and did not adequately account for risk.”
40. Former Bureau Directors Kenneth Prewitt and Vincent Barabba described the 2020 Census as “under threat by uncertain funding.”
41. The two former directors explained, “This is a critical period in which to begin operations, including well-researched advertising messages, staffing and training an army of temporary workers, opening field offices and testing new technology. The Census Bureau cannot do any of this at the last minute, just as the Defense Department cannot prepare for military action when a threat is imminent.”
42. The Census Bureau has already had to scale back critical planning activities due to budgetary uncertainty and shortfalls.
43. Then-Census Bureau Director John Thompson testified on May 3, 2017, at an oversight hearing of the House Committee on Appropriations that, “[i]n order to concentrate our resources on systems readiness in this fiscal year, we had to make difficult decisions to descope some aspects of the program and pause others.”
44. In recent months, Defendants have: *canceled 2017 field tests in Puerto Rico, North Dakota, South Dakota, and Washington State; *canceled two of three sites for the 2018 End-to-End Census Test, dress rehearsals that serve as the basis for many final decisions about decennial census methods and operations; *delayed opening six Regional Census Centers.
45. Moreover, in the nine West Virginia counties that Defendants eliminated from the 2018 test, 31 percent of the population lacks access to high-quality residential broadband. As a result, the Bureau will not be able to test its novel digitization strategy in
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rural areas that are most susceptible to undercounting, leaving virtually no opportunity to test census operations in rural communities before the 2020 Census.
46. Due to inadequate funding, the Bureau has thus far hired only about 40 partnership specialists for this outreach effort in 2018.
47. The damage caused by Hurricanes Harvey and Irma will also require considerable funding to ensure that affected communities are accurately counted. It is extremely unlikely that the Census Bureau will be able to devote additional resources to these areas, given the existing impact of underfunding on its planned operations.
48. Lack of funding will also make it more difficult to assess inaccuracies in the final census count.
49. The Census Bureau typically conducts a so-called Census Coverage Measurement, which evaluates the size of the undercount and overcount. Funding uncertainty has led the Bureau to pause planning for this program, and the Bureau will not test this operation in the 2018 End-to-End Test as planned.
50. On March 23, 2018, the President signed an omnibus spending bill that allocated $2.814 billion to the Census Bureau, $2.544 billion of which is set aside for Periodic Censuses and Programs, including the 2020 Census.
51. The report from the appropriations committee that accompanies the bill states that the omnibus “provides half of the amount needed for the 2020 Census for” fiscal years 2019 and 2020. Congress has not specified what portion of the fiscal year 2018 appropriation, if any, the Census Bureau should reserve to spend in fiscal years 2019 and 2020.
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52. This omnibus bill funds the government only through September 2018 and is inadequate to redress the long term and cumulative underfunding problems set forth above.
53. There is no guarantee, and strong reason to doubt, that the Census Bureau will receive an increase in the current funding level for the 2020 Census after September 2018, as Congress consistently has failed to pass new spending bills for the subsequent fiscal year in a timely way. On March 23, 2018, upon signing the omnibus bill, President Trump stated: “There are a lot of things that we shouldn’t have had in this bill, but we were, in a sense, forced — if we want to build our military — we were forced to have. There are some things that we should have in the bill . . . But I say to Congress: I will never sign another bill like this again. I’m not going to do it again.”
54. The President’s proposed Census Bureau budget of $3.8 billion for fiscal year 2019 is also far short of the funding necessary to conduct a fair and accurate census. By contrast, the Census Bureau received $4.2 billion in fiscal year 2009 to fund the 2010 Census.
Understaffing 55. On January 23, 2017, Defendant Trump issued a Presidential Memorandum instituting a hiring freeze throughout much of the executive branch. Hiring Freeze, 82 Fed. Reg. 8493 (Jan. 23, 2017). 56. As of April 10, 2017, the hiring freeze had prevented filling at least 157 jobs at the Census Bureau.
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57. The Office of Management and Budget lifted the hiring freeze on April 12, 2017, but immediately imposed a new order directing agencies to submit plans for personnel cuts and other restructuring moves to fit the budget blueprint.
58. The Department of Commerce has not publicly disclosed these plans, or how they will affect the Bureau’s plans to hire up to half a million temporary workers to conduct the enumeration.
59. The effect of the Presidential Memorandum and the subsequent personnel directive has been to prevent the Census Bureau from hiring staff necessary to ensure an “actual enumeration” in 2020.
Lack of Leadership 60. The Bureau lacks permanent or senior leadership. 61. On May 9, 2017, just days after testifying to Congress about imminent threats to the accuracy and integrity of the 2020 count, then-Census Director John Thompson abruptly announced his resignation, effective June 30, 2017. 62. Mr. Thompson was, at the time, statutorily eligible to serve until the end of 2017, and was eligible to be reappointed to a second five-year term. 63. The President has not nominated a director of the Census Bureau. 64. The position of deputy director also has been vacant since the previous deputy director stepped down in early 2017. The President has not posted the position to be filled through the competitive civil service process, as has been done historically. 65. In November 2017, it was reported that the President selected Thomas Brunell as deputy director of the Census Bureau. Mr. Brunell’s primary experience at the
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time was serving as an expert witness in defense of partisan and racial gerrymanders. After widespread criticism of his qualifications, Mr. Brunell withdrew from consideration.
66. There are no pending nominees or candidates for director or deputy director for the 2020 Census.
Design Flaws 67. The Census Bureau’s plans for the 2020 Census reflect serious design defects that, if unresolved, will exacerbate the undercount. 68. These design problems include (a) the first-time large-scale use of on-line census forms instead of paper surveys delivered by mail; (b) the failure to safeguard online census systems from cyber threats; (c) a significant reduction in on-the-ground presence and field workers; and (d) improper reliance on state administrative databases of varying quality. 69. The Census Bureau will digitize the census for the first time in 2020. 70. The 2020 Census will deploy electronic and internet-based tools to collect responses. Such digitization is a radical departure from the paper and in-person methods used in all previous censuses. 71. The 2010 Census delivered approximately 360 million questionnaires to 133 million housing units. 72. This cycle, Defendants instead intend to encourage self-response primarily by internet and to reduce the number of in-person visits to households that do not selfrespond. 73. In 2020, Defendants will mail census questionnaires initially to only 20 percent of U.S. households.
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74. Defendants will mail the remaining 80 percent of U.S. households a notification inviting them to complete the census questionnaire online. Should these households not complete the questionnaire online or by telephone, Defendants plan to mail a paper version.
75. A largely online census will likely have a devastating impact on communities that have low or little access to reliable broadband internet, many of which are communities of color and low-income households.
76. The “digital divide” in the U.S. is stark. Only half of households earning incomes less than $30,000 per year have access to broadband internet.
77. In addition, many rural residents have significantly reduced access to the internet.
78. Communities of color, including African Americans and Hispanics, are more likely to have reduced access to internet than their White counterparts.
79. Defendants’ design flaws, coupled with their insufficient funding, planning and staffing deficiencies, have left them unprepared for the challenges that digitization presents.
80. At a recent congressional hearing, Defendant Ross admitted that, of the forty-three technology systems the Bureau is supposed to prepare for testing in 2018, Defendants have completed development of only four, and less than half of the fortythree systems have some functionality.
81. Digitizing the census also raises significant cybersecurity concerns. 82. The Census Bureau has not explained how it will protect the personal information of hundreds of millions of Americans.
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83. Moreover, the Bureau’s cancellation of planned tests deprives it of comprehensive opportunities to test critical cybersecurity infrastructure.
84. These technical issues are compounded by the fact that even perceived data insecurity could dissuade digital responses, in light of recent high-profile and largescale data breaches for clients of Equifax, Yahoo!, and Uber, among others.
85. The Census Bureau has also decided to cut its on-the-ground presence and field infrastructure significantly. It has reduced the number of area offices and workers, and will conduct in-person visits at a fraction of past rates.
86. In conducting the census, the Census Bureau typically makes initial contact with households via mail, and follows up with in-person visits if there is no response. Households that do not respond to the initial mailing are characterized as “hardto-count.”
87. In prior censuses, the Census Bureau has made in-person visits to households up to six times in order to ensure completion of census forms.
88. For the 2020 Census, the Census Bureau proposes to conduct only one inperson visit to each household.
89. If the in-person visit is unsuccessful, the Census Bureau plans to use federal and state administrative records to attempt to determine the residents for an undetermined number of the households that have not responded.
90. State administrative data is often unreliable and of poor quality, and the quality of the information between states varies significantly. Moreover, these databases generally do not include data that the census collects with respect to race, ethnicity, and the relationship of household members to each other.
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91. The Census Bureau has not yet reached agreements with all states to use the states’ administrative databases. If the Census Bureau fails to secure agreements with all states, this failure will result in inconsistent counting methodologies between states.
92. The Census Bureau plans to use state administrative data as a substitute for in-person enumeration only for those households that are already “hard-to-count,” including communities of color. Using unreliable state data as the basis for compiling final census data for households that are disproportionately minority and low-income will lead to an even higher undercount for these groups.
93. State administrative databases often lack accurate data on young children and undocumented individuals.
94. Because many states do not collect data on race and ethnicity, using state administrative data would create incomplete census records, and would harm communities of color during the post-2020 redistricting process.
The Impact of Defendants’ Failings on Plaintiffs 95. Plaintiff Prince George’s County is the only majority African American county in the state of Maryland. It was the nation’s first majority African American suburban county. 96. Prince George’s County is well-known for its status as an AfricanAmerican middle-class community. For example, the Brookings Institution has described Prince George’s County as “a pathway to the middle class for large numbers of lowerincome, working minorities.”
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97. Prince George’s County has been hailed by residents and civil rights advocates alike as representing a model of racial and economic integration, interracial communal relations, and African American political, academic, and economic leadership.
98. However, census undercounts have threatened this model, causing political and economic harm to Prince George’s County.
99. The Census Bureau has characterized parts of Prince George’s County as “hard-to-count,” and the County has faced consistent census undercounts.
100. In the 1990, 2000, and 2010 Censuses, the County’s net undercounts were 3.0%, 1.91%, and 2.3% respectively.
101. In 2010, Prince George’s County had the highest net undercount of any county in Maryland, and one of the highest net undercounts in the nation among counties with 100,000 residents or more.
102. This undercount data is all the more significant given that the net undercount is the rate of omissions offset by the number of erroneous enumerations (people counted twice or included by mistake).
103. Accordingly, in the 2010 Census, the total rate of omissions amounted to 8.3% of Prince George’s County residents—or approximately 73,351 individuals.
104. After the 1990 Census, the Chairman of the County Planning Board concluded that had the census count been accurate, the County would have received $20 million more in federal funds per year, or a total of $200 million in grants and loans over the course of the decade.
105. Based on the 2000 Census undercount, the County lost almost $27 million in federal funding for eight prominent federal programs between 2002 and 2012.
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106. Defendants’ current failings threaten to result in a significantly higher undercount for Prince George’s County, leading to an even greater loss of funding.
107. A census undercount carries with it significant political consequences as well. The state legislature uses census data for state and congressional redistricting purposes. An undercount in Prince George’s County therefore deprives county residents of fair and equitable representation in the state legislature and in Congress.
108. Moreover, Defendants’ failure to conduct a constitutionally sufficient census and the resulting dramatic undercount of Prince George’s County residents increases the risk of Maryland losing seats in Congress. This loss would deprive Prince George’s County residents of fair and equitable representation.
109. NAACP members, including Prince George’s County residents Robert Ross and Elizabeth Johnson, and the organization itself face actual and imminent injuries based on Defendants’ constitutional violations.
110. NAACP members face impending and imminent political underrepresentation and loss of federal funding. This has frustrated the core of the NAACP’s mission to ensure the welfare of communities of color.
111. The NAACP organization has also had to divert resources from other pressing concerns in order to address Defendants’ shortcomings. For example, the NAACP organization is preparing to provide extensive training for NAACP members on how to compensate for Defendants’ inadequate preparations for the 2020 Census.
112. Similarly, Prince George’s County Maryland Branch NAACP members also face actual and imminent injury.
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113. Branch members face impending political underrepresentation. Branch members also face imminent injury due to the loss of federal funding that would result from an undercount of the Prince George’s County population.
114. The Branch faces an impending need to expend substantial resources to educate community members about the importance of the census and to encourage them to respond to the census questionnaire.
115. The harm faced by all Plaintiffs is impending as of the date of the filing of this lawsuit. Defendants’ unconstitutional failures to fund, staff, and plan for the 2020 Census are compounding with each day that the 2020 Census draws nearer.
116. Defendants’ choices in procedures, such as their approach to digitization, and cut-back in field and mailing outreach, have already been made. As Defendants have already decided on these approaches for the 2020 Census, Plaintiffs are at imminent risk of harm.
117. If a court does not act promptly to remedy these constitutional failures, the deficiencies currently present in the 2020 Census will become irremediable, and there will be no amount of funding, hiring, or appropriate planning that can fix the serious existing deficiencies in time for the census.
CAUSE OF ACTION COUNT 1: ACTUAL ENUMERATION 118. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 117 of the complaint. 119. The Constitution obligates Defendants to conduct a fair and accurate count of all persons in the United States in 2020.
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120. Defendants have already cancelled numerous important field tests and dress rehearsals in 2017 and 2018. Defendants have thus squandered priceless opportunities to ensure that adequate systems and plans are in place for the 2020 Census.
121. Defendants have adopted a program for the 2020 Census that is understaffed and underfunded, that lacks leadership, that inadequately addresses the challenge of reaching hard-to-count populations, and that fails to safeguard the census from cyber-attack.
122. Defendants have violated and are at imminent risk of violating the “actual Enumeration” clause of the United States Constitution, Art. I § 2 cl. 3.
123. Defendants’ violation will lead to an undercount of racial and ethnic minorities and harm the Plaintiffs. This violation will deprive Plaintiffs of their constitutional right to representation and their fair share of resources.
124. Defendants’ violation has caused and will continue to cause ongoing, irreparable harm to Plaintiffs.
REQUESTED RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: 1. Assume jurisdiction over this matter; 2. Declare that the Defendants are obligated to ensure an accurate actual enumeration of the people; 3. Enjoin Defendants from violating their constitutional duty to conduct an accurate actual enumeration of the people; 4. Enter an injunction that requires Defendants to propose and implement, subject to this Court’s approval and monitoring, a plan to ensure that hard-to-count
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populations will be actually enumerated in the decennial census; and

5. Grant any other and further relief the Court deems appropriate.

Respectfully submitted,

/s/ Michael J. Wishnie

Varun Char, Law Student Intern Erinma Kalr, Law Student Intern Brandon Levin, Law Student Intern Abigail Olson, Law Student Intern Joseph Schottenfeld, Law Student Intern Charlotte Schwartz, Law Student Intern Jeffrey Zalesin, Law Student Intern Michael J. Wishnie (Bar No. 20350) Rule of Law Clinic Yale Law School 127 Wall Street NewTeHl:av(2e1n2, )C8T9016-1561718 Tel: (203) 436-4780 Fax: (203) 432-1426 michael.wishnie@ylsclinics.org Counsel for all Plaintiffs

Khyla Craine (Bar No. 14117) Anson Asaka (Bar No. 20456) National Association for the Advancement of Colored People, Inc. 4805 Mt. Hope Drive Baltimore, MD 21215 Tel: (410) 580-5797 Fax: (410) 358-9350 Counsel for Plaintiffs NAACP and Prince George’s County NAACP Branch

Jeremy M. Creelan, pro hac vice Susan J. Kohlmann, pro hac vice Jacob D. Alderdice, pro hac vice Jonathan M. Diaz, pro hac vice Jenner & Block LLP 919 Third Avenue New York, NY 10022-3908 Counsel for all Plaintiffs

22

 
 Case 8:18-cv-00891-PWG Document 43 Filed 07/13/18 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al.,
Plaintiffs,
v.
BUREAU OF THE CENSUS, et al.,
Defendants.

No. 8:18-cv-00891 PWG

MOTION TO DISMISS Defendants Bureau of the Census; Ron Jarmin, in his official capacity as an employee of the U.S. Census Bureau performing the nonexclusive functions and duties of the Director of the U.S. Census Bureau; Wilbur L. Ross, Jr., in his official capacity as Secretary of Commerce; Donald Trump, in his official capacity as President of the United States, and the United States (collectively, “Defendants”), by and through their undersigned counsel, move the Court to dismiss the claims against them under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Defendants’ arguments in support of this motion are fully set forth in the attached Memorandum of Law.

Case 8:18-cv-00891-PWG Document 43 Filed 07/13/18 Page 2 of 3
Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
BRETT A. SHUMATE Deputy Assistant Attorney General
JOHN R. GRIFFITHS Director, Federal Programs Branch
CARLOTTA P. WELLS Assistant Director, Federal Programs Branch
/s/ Stephen Ehrlich KATE BAILEY GARRETT COYLE STEPHEN EHRLICH CAROL FEDERIGHI Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 Tel.: (202) 305-9803 Fax: (202) 616-8470 Email: stephen.ehrlich@usdoj.gov
Counsel for Defendants

Case 8:18-cv-00891-PWG Document 43 Filed 07/13/18 Page 3 of 3
CERTIFICATE OF SERVICE I certify that on this 13th day of July, 2018, I caused a copy of the Motion to Dismiss to be sent to all parties receiving CM/ECF notices in this case.
/s/ Stephen Ehrlich Stephen Ehrlich Trial Attorney

 
 Case 8:18-cv-00891-PWG Document 55 Filed 01/07/19 Page 1 of 2

CHAMBERS OF PAUL W. GRIMM UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND
6500 CHERRYWOOD LANE GREENBELT, MARYLAND 20770
(301) 344-0670 (301) 344-3910 FAX

January 7, 2019
RE: NAACP v. Bureau of the Census PWG-18-891

Dear Counsel:

LETTER ORDER

Defendants have filed a Motion to Continue Hearing Due to Lapse in Appropriations, ECF No. 52, and Plaintiffs have filed an Opposition, ECF No. 54. Defendants assert that they cannot work on cases “even on a voluntary basis, except in very limited circumstances, including ‘emergencies involving the safety of human life or the protection of property.” Defs.’ Mot. ¶ 2 (quoting 31 U.S.C. § 1342). Given the undisputed economic consequences of the 2020 Census in terms of appropriation of federal funds, I find that this case, and specifically the hearing set for January 14, 2019, does impact property. Indeed, as Plaintiffs assert, the current shutdown—which the President publicly stated may extend for “months or even years”1—supports Plaintiffs’ argument that Defendants will not be prepared to conduct the 2020 Census to ensure an actual enumeration. Additionally, I note that the 2020 Census is only fifteen months way, and therefore the issues must be addressed promptly if any effective relief is to be available to the Plaintiffs in the event that they prevail in the litigation. See Order Denying Mot. to Stay 2, ECF No. 95 in La Unión del Pueblo Entero v. Ross, No. 18-1570-GJH, (D. Md. Dec. 28, 2018) (“[T]he issuance of a stay would substantially prejudice the Plaintiffs who seek efficient resolution of their claims so that their sought after relief—an injunction denying the addition of a citizenship question to the 2020 Census—does not become unattainable as the 2020 Census nears.”). As Plaintiffs observed, “Defendants have requested similar delays in other ongoing census litigation and, due to similar concerns, all of the courts to have considered the issue have denied defendants’ request.” Pls.’ Opp’n 1 (citing Order Denying Mot. to Stay 2, ECF No. 95 in La Unión del Pueblo; Order Denying Stay Due to Lapse of Appropriations, ECF No. 122 in California v. Ross, No. 18-1865-RS (N.D. Cal. Dec. 26, 2018); Order re: 569 Standing Order M10-468, ECF No. 570 in State of New York v. U.S. Dep’t of Commerce, No. 18-2921-JMF (S.D.N.Y. Jan. 2, 2019)).
I understand that this places the Government’s attorneys in a difficult position, and I am respectful of it. I will not require them to appear for the January 14, 2019 hearing, if they believe

1 Madeleine Carlisle, Olivia Paschal, & Elaine Godfrey, The Atlantic Politics & Policy Daily: My Shutdown Will Go On (Jan. 4, 2019), https://www.theatlantic.com/politics/archive/2019/01/ shutdown-for-months-or-even-years-the-atlantic-politics-policy-daily/579514/.

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that they are not able to do so, but it will go forward as planned. Their Motion to Continue, ECF No. 52, IS DENIED.
For purposes of preparing for the hearing, please be advised that Local Rule 702 governs the procedures for student attorneys to appear in court. It establishes to following requirements:
a. The conduct of the case must be under the supervision of a member of the Bar of this District and that supervisor must be present with and prepared to assist the student at any court appearances, assume full professional responsibility for the student's work, and read, approve and co-sign all documents filed with the Court. b. The student must be in his or her final two (2) years of law school. c. The student must be enrolled for credit in a law school clinical program. d. The program must maintain professional liability insurance for its activities and those of its supervisors and participating students. e. The student may not accept personal compensation from a client or other source, although the supervisor or the law school clinical program may accept compensation. Loc. R. 702(2). Additionally, [b]efore a student shall be eligible under this Rule, the dean of the student’s law school shall file with the Clerk of this Court a petition listing the names of the enrolled students, the names of the supervisors and the address of an office to which the Court may send all notices in connection with this Rule. The petition shall include a certification that, in the opinion of the dean and the faculty, the students have adequate knowledge of the procedural rules and substantive law, and that the activities of the students will be adequately supervised as required by this Rule. Upon written approval by the Chief Judge or a designated judge, of this District, to be filed with the Clerk of this Court, the listed students shall be authorized to practice pursuant to this Rule and subject to the further order of this Court. The written approval of the said judge as to both students and supervisors shall remain in effect for twelve (12) months from the date of approval, unless withdrawn or unless, by further petition by the dean, the said judge shall extend the privilege. Loc. R. 702(3). Although informal, this is an Order of the Court and shall be docketed as such.
Sincerely,
/S/ Paul W. Grimm United States District Judge
2

 
 Case 8:18-cv-00891-PWG Document 64 Filed 01/29/19 Page 1 of 55

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division

*

NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED

*

PEOPLE, et al.,

*

Plaintiffs,

*

v.

*

BUREAU OF THE CENSUS, et al.,

*

Defendants.

*

Case No.: PWG-18-891

* * * * * * * * * * * * **

MEMORANDUM OPINION AND ORDER

Every ten years, beginning in 1790, the United States has counted its population as of the first of April, as required by the Enumeration Clause of the United States Constitution. U.S. Const. art. I, § 2, cl. 3 (“Enumeration Clause” or “Census Clause”); see Franklin v. Massachusetts, 505 U.S. 788, 803 (1992). Specifically, it is the Secretary of Commerce (“Secretary”) to whom the Congress has delegated the duty of conducting the decennial census, and who has broad discretion in fulfilling his duty. 13 U.S.C. § 141; Wisconsin v. City of New York, 517 U.S. 1, 19–20 (1996); La Unión del Pueblo Entero v. Ross (“LUPE”), No. GJH-18-1570, --- F. Supp. 3d ----, 2018 WL 5885528, at *2 (D. Md. Nov. 9, 2018). The results of this headcount are important in many regards, not the least of which are the apportionment of Congressional representatives and the allocation of federal resources based on population. See id.; U.S. Const. am. XIV, § 2 (“Apportionment Clause”). Congress has found that “[t]he decennial enumeration of the population is one of the most critical constitutional functions our Federal Government performs.” Dep’ts of Commerce,

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Justice, & State, the Judiciary, & Related Agencies Appropriations Act (“1998 Appropriations Act”), Pub. L. No. 105-119, § 209(a)(5), 111 Stat. 2440, 2480 (1997).
Congress also has found that “[i]t is essential that the decennial enumeration of the population be as accurate as possible consistent with the Constitution and Laws of the United States.” Id. (Finding No. 6). Yet, decade after decade, “[t]he census has historically undercounted racial and ethnic minorities.” Am. Compl. ¶ 22, ECF No. 38;1 see also Wisconsin, 517 U.S. at 6, 7 (“Although each [of the first twenty censuses] was designed with the goal of accomplishing an ‘actual Enumeration’ of the population, no census is recognized as having been wholly successful in achieving that goal. . . . Since at least 1940, the Census Bureau has thought that the undercount affects some racial and ethnic minority groups to a greater extent than it does whites.”). Indeed, before the passage of the Fourteenth Amendment, the Enumeration Clause actually required a calculated undercount, counting only “three fifths of all other persons” who were not “free Persons,” that is, three-fifths of the slave population. U.S. Const. art I, § 2, cl. 3.
The Fourteenth Amendment ostensibly removed the inequality by providing that “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of the persons in each state . . . .”2 Id. am. XIV, § 2 (emphasis added). Still, more than 150 years after the Fourteenth Amendment’s passage, the Bureau of the Census (“Bureau”) acknowledges that “racial and ethnic minorities,” as well as a slew of others— “non-English speakers, lower income people, the homeless, undocumented immigrants, young and mobile people, children, LGBTQ individuals, and ‘persons who are angry at and/or distrust the
1 I accept Plaintiffs’ well-pleaded allegations as true for purposes of Defendants’ Motion to Dismiss. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). 2 “Indians not taxed” were excluded from the count before and after the amendment. Compare U.S. Const. art I, § 2, cl. 3, with id. am. XIV, § 2.
2

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government’”—, are “‘hard-to-count.’” Am. Compl. ¶ 23; see also Wisconsin, 517 U.S. at 6 (“Despite consistent efforts to improve the quality of the count, errors persist.”). And, the 2020 decennial census (“2020 Census”) will depart in significant ways from the manner in which the decennial census has been conducted for more than fifty years (by mailing the census questionnaire and then following up with personal visits to non-responders), as it will feature electronic surveys and online responses, heightening the need for field testing and “dress rehearsals” to ensure that the results are as accurate as possible, and the process itself protected from cybersecurity threats. See Am. Compl. ¶¶ 69–75.
In March 2018, with the 2020 Census only two years away, Plaintiffs3 filed the lawsuit now before me, focusing on the Bureau’s preparedness to conduct the 2020 Census in a manner that will result in an accurate count of the United States of America’s population, as the Enumeration Clause requires. This single-count complaint asserts only an Enumeration Clause violation. Compl., ECF No. 1; see Am. Compl. When Plaintiffs filed suit, the Bureau, a division of the United States Department of Commerce, was without a permanent director or deputy director. Am. Compl. 23.4 Further, it had “canceled essential field tests . . . and two of three ‘dress rehearsal’ sites,” and (at least in Plaintiffs’ view) it lacked “sufficient funding to address its many
3 Plaintiffs are the National Association for the Advancement of Colored People (“NAACP”); Prince George’s County (the “County”); Prince George’s County Maryland NAACP Branch (the “County NAACP”); Robert E. Ross, President of the County NAACP; and H. Elizabeth Johnson, County NAACP Executive Committee member. Am. Compl. 1, ¶¶ 7–8. 4 On January 2, 2019, after the position had been vacant for eighteen months, the Senate unanimously confirmed Steven Dillingham as Director of the Bureau. Notice, ECF No. 56; see Tara Bahrampour, Senate confirms new Census Bureau director as 2020 survey approaches, Wash. Post (Jan. 3, 2019), https://www.washingtonpost.com/local/social-issues/senate-confirmsnew-census-bureau-director-as-2020-survey-approaches/2019/01/03/5599b2d2-0fa0-11e9-831f3aa2c2be4cbd_story.html?utm_term=.038a4677f030.
3

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challenges.” Id. Defendants5 did not then dispute the status of their leadership, and while the Bureau now has a director, Defendants do not dispute the status of the testing they have (or, more pointedly, have not) conducted, or the amount of funding allocated to the Bureau. And, they unflinchingly acknowledge their obligation to count the United States population accurately. Defs.’ Reply 7, ECF No. 49.
What Defendants dispute in the pending Motion to Dismiss is whether Plaintiffs’ Enumeration Clause claim is properly before this Court and, if so, whether they have stated a claim. Defendants argue that Plaintiffs’ claim is not ripe, they lack standing to bring this litigation, the political question doctrine bars this suit, and they have not stated a claim under the Enumeration Clause. Defs.’ Mot., ECF No. 43.6 Certainly, this suit is not the first challenge to the Bureau’s plans for the 2020 Census, as other citizens and citizen groups repeatedly have sued the Department of Commerce and its Secretary, Wilbur Ross, regarding the planned 2020 reintroduction of a citizenship question to the census questionnaire. See LUPE, 2018 WL 5885528; Kravitz v. U.S. Dep’t of Commerce, 336 F. Supp. 3d 545 (D. Md. 2018); California v. Ross & City of San Jose v. Ross, Nos. 18-1865-RS & 18-2279-RS (N.D. Cal. Aug. 17, 2018) (slip op.), ECF No. 47-1; New York v. U.S. Dep’t of Commerce, 315 F. Supp. 3d 766 (S.D.N.Y. 2018). And, similar challenges by the defendants to the plaintiffs’ claims in these other lawsuits have not
5 Plaintiffs named the following Defendants: the Bureau; Ron Jarmin, Acting Director of the Bureau; Wilbur Ross, Secretary of Commerce; President Donald J. Trump; and the United States of America. The Clerk shall substitute Steven Dillingham for Ron Jarmin as Defendant on the docket. Plaintiffs consent to the dismissal of their claims against President Trump. Pls.’ Opp’n 3 n.1, ECF No. 46. 6 The parties fully briefed the motion. ECF Nos. 43-1, 46, 49; see also ECF Nos. 47, 48, 50 (Plaintiffs’ notices of supplemental authority). A hearing was held on January 14, 2019, after which the parties provided supplemental briefing, ECF Nos. 61, 63.
4

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succeeded, with this Court and two other federal district courts concluding that the plaintiffs had
standing, presented claims that were not barred as political questions, and asserted claims that were
adequately pleaded.7 Further, at least one group has achieved a favorable judgment following a
bench trial. See New York v. U.S. Dep’t of Commerce, Nos. 18-2921 (JMF) & 18-5025 (JMF),
--- F. Supp. 3d ----, 2019 WL 190285, at *3–4, *88–90, *123 (S.D.N.Y. Jan. 15, 2019) (holding
that “most, if not all, of Plaintiffs ha[d] standing to bring their claims” because they “proved by a
preponderance of the evidence that they w[ould] be harmed in various ways as a result of the
addition of a citizenship question on the census and that a favorable ruling will redress those
harms”; claim was ripe;8 and inclusion of citizenship question violated Administrative Procedure
Act (“APA”), 5 U.S.C. § 701 et seq.; enjoining defendants from adding citizenship question to
2020 Census without first completing preliminary steps).
Yet this case is distinctly different from the other litigation to date leading up to the 2020
Census, as it does not challenge a discrete agency decision and does not include a claim under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq. Indeed, unlike almost all, if not
7 In LUPE, Judge Hazel of this Court denied the defendants’ motion to dismiss, in which they argued that the plaintiffs lacked standing, the political question doctrine barred the claims, and plaintiffs failed to state a claim for, inter alia, violation of the Enumeration Clause. 2018 WL 5885528, at *5, *7. Similarly, in Kravitz, Judge Hazel denied the defendants’ motion to dismiss, which also was based on standing and failure to state a claim for violation of the Enumeration Clause. 336 F. Supp. 3d at 566; see also Kravitz v. U.S. Dep’t of Commerce, --- F. Supp. 3d ----, 2018 WL 6830226, at *1 (D. Md. Dec. 28, 2018) (denying defendants’ summary judgment motions in Kravitz and LUPE). Likewise, in California and City of San Jose, the court denied the defendants’ motions to dismiss, which were based on standing, political question doctrine, and failure to state a claim for, inter alia, violation of the Enumeration Clause. Slip op. at 9, 15, 17– 20, 28. And, in New York, 315 F. Supp. 3d at 775, the court rejected the defendants’ arguments for dismissal based on standing and political question doctrine but granted their motion to dismiss for failure to state a claim for violation of the Enumeration Clause; it permitted claims under the Administrative Procedure Act and Due Process Clause to proceed. 8 In New York, the defendants “did not raise the issue of ripeness until their post-trial briefs—and then raised it only in response to a query from the Court.” 2019 WL 190285, at *88.
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the entirety, of the robust body of litigation surrounding past censuses, this case challenges agency action before the Bureau has finalized its preparations for the 2020 Census. And, as relief, the Plaintiffs request nothing short of this Court injecting itself directly into the final planning of the Census to superintend the process.
The crux of this suit is Plaintiffs’ belief that the Bureau should have done more to prepare for the 2020 Census than it has at this time. But, ripeness bars Plaintiffs’ claim for injunctive relief with respect to the method and means of conducting the 2020 Census, at least at this time. The claim will be dismissed without prejudice to being reinstated at a later time. But, Plaintiffs’ claim that there are insufficient funds available for the Bureau to conduct the 2020 Census, which, they allege, also will result in an Enumeration Clause violation, may be ripe for declaratory relief (assuming an evidentiary basis exists to support their allegations). And, it is 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. Therefore, I find that Plaintiffs have standing, and I will deny Defendants’ Motion to Dismiss as to their insufficient-funding claim for declaratory relief. This claim will proceed, and targeted discovery will be permitted to determine whether there is an evidentiary basis for the declaratory relief they seek.
Background Why the Census Is Conducted When the United States Constitution was drafted in 1787, the Framers “believed the correct apportionment of political power would be the ‘fundamental … instrument’ of this republican government.” Robert R. McCoy, A Battle on Two Fronts: A Critique of Recent Supreme Court Jurisprudence Establishing the Intent and Meaning of the Constitution’s Actual Enumeration
6

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Clause, 13 Cornell J.L. & Pub. Pol’y 637, 655 (2004). Thus, the “constitutional goal” was “equal representation” (although, as noted, “equal representation” did not account for slaves). Franklin v. Massachusetts, 505 U.S. 788, 804 (1992). The Framers vigorously debated the representation the States should have in the federal legislature. See Sincock v. Duffy, 215 F. Supp. 169, 186 (D. Del. 1963) (noting that “[t]he Constitutional Convention was deadlocked”), aff’d sub nom. Roman v. Sincock, 377 U.S. 695 (1964); Clemons v. U.S. Dep’t of Justice, 710 F. Supp. 2d 570, 576 (N.D. Miss. 2010) (noting that, in drafting the Constitution, “[t]he debate over representation in Congress was among the most contentious”), vacated on other grounds sub nom. Clemons v. Dep’t of Commerce, 562 U.S. 1105 (2010).
[T]he larger States supported the so-called Virginia plan to create a bicameral legislature in which the rights of suffrage ought to be proportioned to the quotas of contributions or to the number of free inhabitants of the respective States. The more populous States, since they thought that they would have to bear a greater burden taxwise and in other respects, sought a proportionally larger share of control of the central government, and the smaller States, such as Delaware, understandably did not desire to be controlled by their larger sisters. . . . The problem was one of balance of power in a federation of States differing greatly in size, wealth and population. Sincock, 215 F. Supp. at 186. The compromise they reached provided for “two Houses, one with equal and the other with proportional representation,” with “direct taxation [linked to] representation in the House of Representatives,” the House with proportional representation. Id.
The Framers introduced the Enumeration Clause “to determine how political power would be apportioned among the ‘disparate’ population of the New Republic.” McCoy, 13 Cornell J.L. & Pub. Pol’y at 655. The Enumeration Clause of the U.S. Constitution requires that an “actual Enumeration” of the people in the United States “shall be made . . . every . . . ten Years, in such Manner as [the United States Congress] shall by Law direct.” U.S. Const. art. I, § 2, cl. 3. The Framers assigned the task of enumeration to the federal government “to make the apportionment
7

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count as objective as possible” and “to avoid the possibility of corruption by state politics.” McCoy, 13 Cornell J.L. & Pub. Pol’y at 656. Congress has “delegate[d] the duty of conducting the decennial census to the Secretary of Commerce.” LUPE, 2018 WL 5885528, at *2 (citing 13 U.S.C. § 141 et seq.). Specifically, Congress enacted the Census Act, which directs the Secretary to “take a decennial census of population as of the first day of April” every ten years “in such form and content as he may determine, including the use of sampling procedures and special surveys,” and it “authorized [the Secretary] to obtain such other census information as necessary.” 13 U.S.C. § 141(a).
The “primary purpose” of the enumeration, as noted, is to determine the number of Congressional representatives; but also significant is its use in allocating federal funding among the states. See U.S. Const. am. XIV, § 2 (“Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state.”); Wisconsin v. City of New York, 517 U.S. 1, 24 (1996) (“The Constitution confers upon Congress the responsibility to conduct an ‘actual Enumeration’ of the American public every 10 years, with the primary purpose of providing a basis for apportioning political representation among the States.”); id. at 5–6 (“Because the Constitution provides that the number of Representatives apportioned to each State determines in part the allocation to each State of votes for the election of the President, the decennial census also affects the allocation of members of the electoral college. Today, census data also have important consequences not delineated in the Constitution: The Federal Government considers census data in dispensing funds through federal programs to the States, and the States use the results in drawing intrastate political districts.” (internal citation to U.S. Const. art. II, § 1, cl. 2 omitted)).
8

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In Wisconsin, Chief Justice Rehnquist observed that the results of the census are used to apportion the members of the House of Representatives among the States. 517 U.S. at 6. Congress has found that “[t]he sole constitutional purpose of the decennial enumeration of the population is the apportionment of Representatives in Congress among the several States.” 1998 Appropriations Act § 209(a)(2). But, the federal government also considers census data in dispensing funds through federal programs to states, and states use census data to draw interstate political districts. Wisconsin, 517 U.S. at 6; see Baldrige v. Shapiro, 455 U.S. 345, 353 (1982) (noting that while the Enumeration Clause’s “initial constitutional purpose was to provide a basis for apportioning representatives among the states in the Congress[,] [t]he census today serves an important function in the allocation of federal grants to states based on population” and “also provides important data for Congress and ultimately for the private sector”). Indeed, “[t]he statute authorizing the Secretary of Commerce to conduct the census, 13 U.S.C. § 141, ‘expresses the intent of Congress that census data be collected not only for reapportionment purposes but also for accurate distribution of funds.’” Texas v. Mosbacher, 783 F. Supp. 308, 314 (S.D. Tex. 1992) (quoting City of Willacoochee, Ga. v. Baldrige, 556 F. Supp. 551, 555 (S.D. Ga. 1983); noting that “[t]he zone of interest of § 141 includes anyone with an interest in fair reapportionment, which constitutionally concerns all citizens, and those with an interest in the fair distribution of the funds” (emphases added)).
How the Census Is Conducted
Originally, census data was collected “by an actual inquiry at every dwelling-house . . . and not otherwise.” McCoy, 13 Cornell J.L. & Pub. Pol’y at 640 (quoting Thomas R. Lee, The Original Understanding of the Census Clause: Statistical Estimates and the Constitutional Requirement of an “Actual Enumeration”, 77 Wash. L. Rev. 1, 6 (2002) (quoting Dep’t of Commerce v. U.S.
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House of Reps., 525 U.S. 316, 335 (1999))). In 1964, Congress amended the Census Act, 13 U.S.C. § 1 et seq., to “permit[] the Bureau to replace the personal visit of the enumerator with a
form delivered and returned via the Postal Service,” and in 1970, “census officials conducted
approximately 60 percent of the census through a new ‘mailout-mailback’ system for the first time.” Dep’t of Commerce v. U.S. House of Reps., 525 U.S. 316, 336 (1999) (citing M. Anderson, The American Census: A Social History 210–11 (1988)). Under the new approach, “[t]he Bureau . . . conducted follow up visits to homes that failed to return census forms.” Id. And, as of 1976,
the Secretary may conduct the census “in such form and content as he may determine, including
the use of sampling procedures and special surveys,” except that sampling still may not be used
“for the determination of population for purposes of apportionment of Representatives in Congress among the several States.” Id. at 337–38 (quoting 13 U.S.C. §§ 141(a), 195).
Relevant legislation sets various census-related deadlines, and in Department of Commerce v. U.S. House of Representatives, Justice O’Connor described the sequence:
The [Census] Act provides that the Secretary “shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as of the first day of April of such year.” [13 U.S.C.] § 141(a). It further requires that “[t]he tabulation of total population by States ... as required for the apportionment of Representatives in Congress among the several States shall be completed within 9 months after the census date and reported by the Secretary to the President of the United States.” § 141(b). Using this information, the President must then “transmit to the Congress a statement showing the whole number of persons in each State ... and the number of Representatives to which each State would be entitled.” 2 U.S.C. § 2a(a). Within 15 days thereafter, the Clerk of the House of Representatives must “send to the executive of each State a certificate of the number of Representatives to which such State is entitled.” 2 U.S.C. § 2a(b) (1994 ed., Supp. III). Id. at 321–22. The actual impact of a loss of a Representative in a state is not immediate. Rather,
it is felt as of the next Congressional election following the census, when a lower number of
Representatives will be elected based on the reapportionment.
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Historical [In]Accuracy of the Census
“[I]t is essential that the decennial enumeration of the population be as accurate as possible consistent with the Constitution and laws of the United States.” 1998 Appropriations Act § 209(a)(6). Thus, each census from 1790 to 1990 “was designed with the goal of accomplishing an ‘actual Enumeration’ of the population.” Wisconsin, 517 U.S. at 6. Yet, “no census is recognized as having been wholly successful in achieving that goal.” Id. The Supreme Court noted in 1996:
There have been 20 decennial censuses in the history of the United States. . . . Despite consistent efforts to improve the quality of the count, errors persist. Persons who should have been counted are not counted at all or are counted at the wrong location; persons who should not have been counted (whether because they died before or were born after the decennial census date, because they were not a resident of the country, or because they did not exist) are counted; and persons who should have been counted only once are counted twice. It is thought that these errors have resulted in a net “undercount” of the actual American population in every decennial census. In 1970, for instance, the Census Bureau concluded that the census results were 2.7% lower than the actual population. Id. (emphasis added) (citations and footnotes omitted); see also id. at 6 n.2 (“Indeed, even the first census did not escape criticism. Thomas Jefferson, who oversaw the conduct of that census in 1790 as Secretary of State, was confident that it had significantly undercounted the young Nation’s population.” (citing C. Wright, History and Growth of the United States Census 16–17 (1900))). And, ironically, improvement in census planning and procedures does not necessarily correlate with improved accuracy. See U.S. House of Reps., 525 U.S. at 323. “Indeed, the 1990 census was ‘better designed and executed than any previous census,’” but “it was less accurate than its predecessor for the first time since the Bureau began measuring the undercount rate in 1940.” Id. (quoting Census 2000 Report). Thus, however desirable a well-designed and executed census is, having one is not a guarantee of a more accurate enumeration. See id.
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Critical in the case before me is the concept known as the “differential undercount.” As
noted, according to Plaintiffs’ well-pleaded allegations, the Bureau “has identified what it terms
‘hard-to-count’ populations . . . includ[ing] racial and ethnic minorities, non-English speakers,
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.” Am.
Compl. ¶ 23. The Supreme Court has observed:
The undercount is not thought to be spread consistently across the population: Some segments of the population are “undercounted” to a greater degree than are others, resulting in a phenomenon termed the “differential undercount.” Since at least 1940, the Census Bureau has thought that the undercount affects some racial and ethnic minority groups to a greater extent than it does whites. In 1940, for example, when the undercount for the entire population was 5.4%, the undercount for blacks was estimated at 8.4% (and the undercount for whites at 5.0%). The problem of the differential undercount has persisted even as the census has come to provide a more numerically accurate count of the population. In the 1980 census, for example, the overall undercount was estimated at 1.2%, and the undercount of blacks was estimated at 4.9%.
The Census Bureau has recognized the undercount and the differential undercount as significant problems, and in the past has devoted substantial effort toward achieving their reduction. Most recently, in its preparations for the 1990 census, the Bureau initiated an extensive inquiry into various means of overcoming the impact of the undercount and the differential undercount. As part of this effort, the Bureau created two task forces: the Undercount Steering Committee, responsible for planning undercount research and policy development; and the Undercount Research Staff (URS), which conducted research into various methods of improving the accuracy of the census. In addition, the Bureau consulted with state and local governments and various outside experts and organizations.
Largely as a result of these efforts, the Bureau adopted a wide variety of measures designed to reduce the rate of error in the 1990 enumeration, including an extensive advertising campaign, a more easily completed census questionnaire, and increased use of automation, which among other things facilitated the development of accurate maps and geographic files for the 1990 census. The Bureau also implemented a number of improvements specifically targeted at eliminating the differential undercount; these included advertising campaigns developed by and directed at traditionally undercounted populations and expanded questionnaire assistance operations for non-English speaking residents.
Wisconsin, 517 U.S. at 7–8 (citations to record omitted).
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2020 Census and Plaintiffs’ Allegations Despite these considerable concerns about conducting an accurate enumeration, Defendants’ preparations and funding to undertake this Herculean task are, in Plaintiffs’ view, abysmal. Am. Compl. ¶¶ 28–30. The Amended Complaint inventories these perceived deficiencies. First, while each census for the past half century has been considerably more costly than the one before, id. ¶ 32, and Secretary Ross “told Congress that the lifecycle cost of the 2020 Census would be $3.3 billion above the original estimate and that the administration would request an additional $187 million for Fiscal Year 2018,” id. ¶ 37, Congress nonetheless “directed that the budget for the 2020 Census not exceed the cost of the 2010 enumeration,” id. ¶ 33, and funding for the Bureau has not “escalate[d] to prepare for the decennial census” as it typically would. Id. ¶¶ 34–37, 54. As a result, the Bureau “has already had to scale back critical planning activities due to budgetary uncertainty and shortfalls,” by, for example, canceling field tests and “dress rehearsals that serve as the basis for many final decisions about decennial census methods and operations.” Id. ¶¶ 42, 44. Second, the combined effects of a hiring freeze in 2017 and an “order directing agencies to submit plans for personnel cuts” have “prevent[ed] the Census Bureau from hiring staff necessary to ensure an ‘actual enumeration’ in 2020.” Id. ¶¶ 55–59. Also, although the Bureau has a director as of January 2, 2019, the position previously was vacant for eighteen months. See Tara Bahrampour, Senate confirms new Census Bureau director as 2020 survey approaches, Wash. Post (Jan. 3, 2019), https://www.washingtonpost.com/local/social-issues/senate-confirmsnew-census-bureau-director-as-2020-survey-approaches/2019/01/03/5599b2d2-0fa0-11e9-831f3aa2c2be4cbd_story.html?utm_term=.0c26387d9e74.
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Third, as for the design of the census itself, the 2020 Census will be the first digitized census, “a radical departure from the paper and in-person methods used in all previous censuses.” Am. Compl. ¶¶ 68–70. Consequently, there is a risk that it will face cybersecurity threats that Defendants have not properly guarded against. Id. ¶ 68. And, in its new digitized form, it may “improper[ly] rel[y] on state administrative databases of varying quality,” id., which may “result in inconsistent counting methodologies between states” and “an even higher undercount” for hardto-count groups. Id. ¶¶ 91–94. The new approach also means “a significant reduction in on-theground presence and field workers,” id. ¶ 68, which Plaintiffs believe “will likely have a devastating impact on communities that have low or little access to reliable broadband internet, many of which are communities of color and low-income households” and “rural residents,” id. ¶¶ 75, 77; see also id. ¶¶ 71–78. According to Plaintiffs, “Defendants’ design flaws, coupled with their insufficient funding, planning and staffing deficiencies, have left them unprepared for the challenges that digitization presents.” Id. ¶ 79.
Plaintiffs filed suit to ensure that Defendants reasonably prepare—before it is too late—to enumerate the population accurately. They claim that “[i]f a court does not act promptly to remedy these constitutional failures, the deficiencies currently present in the 2020 Census will become irremediable, and there will be no amount of funding, hiring, or appropriate planning that can fix the serious existing deficiencies in time for the census.” Id. ¶ 117. In their one-count Amended Complaint, they allege that “Defendants have violated and are at imminent risk of violating the ‘actual Enumeration’ clause of the United States Constitution, Art. I § 2 cl. 3.” Am. Compl. ¶ 122. Plaintiffs ask the Court to
[1.] Declare that the Defendants are obligated to ensure an accurate actual enumeration of the people; [2.] Enjoin Defendants from violating their constitutional duty to conduct an accurate actual enumeration of the people;
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[3.] Enter an injunction that requires Defendants to propose and implement, subject to this Court’s approval and monitoring, a plan to ensure that hard-to-count populations will be actually enumerated in the decennial census; and
[4.] Grant any other and further relief the Court deems appropriate. Id. at 21–22. Although not requested in so many words, Plaintiffs’ catch-all request for relief
necessarily encompasses the possibility of a declaratory judgment targeted at the impact of the
Bureau’s alleged lack of funding. See id.
Standard of Review
Defendants contend that this Court lacks subject matter jurisdiction because Plaintiffs lack
standing, Defs.’ Mem. 7–15, and even if they have standing, their claims still are not justiciable
because they are not ripe and, even if ripe, they are barred by the political question doctrine, id. at
16–24.9 They also move to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Id.
at 25. 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,10 “the facts alleged in the
9 When a plaintiff does not have standing or presents a political question or a claim that is not ripe, its claim is not justiciable. Flast v. Cohen, 392 U.S. 83, 95 (1968); Lansdowne on the Potomac Homeowners Ass’n, Inc. v. OpenBand at Lansdowne, LLC, 713 F.3d 187, 198 (4th Cir. 2013). “Justiciability is an issue of subject-matter jurisdiction.” Hamilton v. Pallozzi, 848 F.3d 614, 619 (4th Cir.), cert. denied, 138 S. Ct. 500 (2017). 10 I note that, while Defendants argue that some circumstances have changed, in their view mooting many of Plaintiffs’ arguments, they did not contend in their Motion to Dismiss and Memorandum in Support that any of Plaintiffs’ jurisdictional allegations were not true. See Defs.’ Mem. In a footnote to their Supplemental Memorandum, Defendants acknowledge that they “primarily assert a 12(b)(1) facial challenge,” but state that “the Court may construe Defendants’ motion as a 12(b)(1) factual challenge, see Kerns v. United States, 585 F.3d 187, 192 (4th Cir 2009), in which case ‘[t]he Court regards the pleadings’ allegations as mere evidence on the issue and its consideration of additional evidence does not convert the proceeding to one for summary judgment.’” Defs.’ Supp. 10–11 n.7 (quoting Musari v. Countrywide Home Loans, No. PWG-153028, 2016 WL 4124227, at *3 (D. Md. Aug. 3, 2016)). Defendants assert that “[t]he Court may
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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 (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 (1990))).
Thus, “the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009); see In re KBR, Inc., Burn Pit Litig., 925 F. Supp. 2d 752, 758 (D. Md. 2013) (quoting Kerns, 585 F.3d at 192). This Court must act “on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007) (citations omitted). The burden is on the plaintiff to establish jurisdiction. Sherill v. Mayor of Balt., 31 F. Supp. 3d 750, 763 (D. Md. 2014) (citing Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999)).
Even on a facial challenge, the Court’s review on a motion to dismiss is not necessarily limited to the pleadings. In addition to the operative complaint, I “may consider . . . documents attached to the motion to dismiss, if they are integral to the complaint and their authenticity is not disputed.” Sposato v. First Mariner Bank, No. CCB-12-1569, 2013 WL 1308582, at *2 (D. Md.
then resolve all factual disputes on the basis of outside evidence.” Id. Given that Defendants only brought a facial challenge, I will not consider outside evidence that is not properly the subject of judicial notice. In any event, as discussed in this Memorandum Opinion, consideration of the documents Defendants identify would not change my analysis.
They also contend, in another footnote to their Supplemental Memorandum, that “the Court may dismiss this case as moot.” Id. at 11 n.8. I will not do so, given that the case is not moot, as explained below.
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Mar. 28, 2013); see CACI Int’l v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009). Defendants also urge me to take judicial notice of “publicly-available information,” see Defs.’ Mem. 5 n.6, but this is not the standard. Rather,
[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201.
Justiciability
This Court may “adjudicate only actual cases and controversies.” Zaycer v. Sturm Foods, Inc., 896 F. Supp. 2d 399, 407 (D. Md. 2012) (citing U.S. Const. art. III, § 2; O’Shea v. Littleton, 414 U.S. 488, 493 (1974); Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir. 2009)). This “constraint of Article III” has two distinct but overlapping facets that must be satisfied for a federal district court to have subject matter jurisdiction: standing (which addresses who may sue) and ripeness (which addresses when a party may bring a suit). See South Carolina v. United States, --- F.3d ----, No. 18-1684, 2019 WL 124267, at *7 (4th Cir. Jan. 8, 2019) (quoting Scoggins v. Lee’s Crossing Homeowners Ass’n, 718 F.3d 262, 269 (4th Cir. 2013)). The analysis of both issues is similar. See id. (citing Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006) (citing Erwin Chemerinsky, Federal Jurisdiction § 2.4 (4th ed. 2003))). The political question doctrine also limits the scope of federal district courts’ subject matter jurisdiction, as courts cannot “review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Kravitz v. U.S. Dep’t of Commerce, 336 F. Supp. 3d 545, 561 (D. Md. 2018) (quoting Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986)).
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Among the reasons that Defendants say this case should be dismissed for lack of subject
matter jurisdiction is that this Court lacks the authority to review the actions of the Secretary
regarding the methods and means chosen to conduct the 2020 Census. The argument goes like
this: Pursuant to Article 1, Section 2, Clause 3 of the Constitution, Congress has the authority to
conduct the decennial census “in such Manner as they shall by Law direct.” Congress, in turn, has
delegated the same authority to the Secretary, who “shall, in the year 1980 and every 10 years
thereafter, take a decennial census of population as of the first day of April of such year . . . in such
form and content as he may determine . . . .” 13 U.S.C. § 141. Noting the breadth of this authority,
Defendants insist that the Secretary has absolute discretion over the conduct of the decennial
census, and the courts are powerless to review it.
It is hardly surprising that the Defendants make this argument, since, as noted, the Supreme
Court also has spoken expansively of the discretion the Secretary enjoys when planning the decennial census. In Wisconsin v. City of New York, Chief Justice Rehnquist, writing for the Court
explained:
The text of the Constitution vests Congress with virtually unlimited discretion in conducting the decennial “actual Enumeration,” and notwithstanding the plethora of lawsuits that inevitably accompany each decennial census, there is no basis for thinking that Congress’ discretion is more limited than the text of the Constitution provides. Through the Census Act, Congress has delegated its broad authority over the census to the Secretary [of Commerce]. Hence, so long as the Secretary’s conduct of the census is “consistent with the constitutional language and the constitutional goal of equal representation,” it is within the limits of the Constitution. In light of the Constitution’s broad grant of authority to Congress, the Secretary’s decision not to adjust [the results of the 1990 census to account for a differential undercount] need bear only a reasonable relationship to the accomplishment of an actual enumeration of the population, keeping in mind the constitutional purpose of the census. 517 U.S. 1, 19–20 (1996) (internal citations and footnotes omitted). Chief Justice Rehnquist
observed that the Supreme Court’s
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deference arises not from the highly technical nature of [the Secretary’s] decision, but rather from the wide discretion bestowed by the Constitution upon Congress, and by Congress upon the Secretary. Regardless of the Secretary’s statistical expertise, it is he to whom Congress has delegated its constitutional authority over the census. For that same reason, the mere fact that the Secretary’s decision overruled the views of some of his subordinates is by itself of no moment in any judicial review of his decision. Id. at 23.
Moreover, some circuit courts have gone so far as to suggest that there simply is no law that establishes standards by which a court could review the Secretary’s decision. Take, for example, Judge Posner’s observation in Tucker v. U.S. Department of Commerce:
The Constitution directs Congress to conduct a decennial census, and the implementing statutes delegate this authority to the Census Bureau. There is a little more to the statutes—they specify a timetable, and a procedure for translating fractional into whole seats—but they say nothing about how to conduct a census or what to do about undercounts. So nondirective are the relevant statutes that it is arguable that there is no law for a court to apply in a case like this—that you might as well turn it over to a panel of statisticians and political scientists and let them make the decision, for all that a court could do to add to its rationality or fairness. 958 F.2d 1411, 1417–18 (7th Cir. 1992) (internal citations omitted); accord Senate of Cal. v. Mosbacher, 968 F.2d 974, 977 (9th Cir. 1992) (quoting Tucker and noting that “[o]ther courts have
disagreed and have found some law to apply to attacks on census methodology, even though the
grant of authority to the Secretary does fairly exude deference”). Indeed, the process of conducting
the census is complex and technical, and it usually is the case that there will be competing ideas
about how to do it best. In choosing which method among competing suggestions, the Secretary is afforded great deference by the courts. See Wisconsin, 517 U.S. at 19–20. And, while accuracy
is the constitutional objective, complete accuracy is and always has been impossible to achieve. See id. at 6 (“There have been 20 decennial censuses in the history of the United States. Although
each was designed with the goal of accomplishing an ‘actual Enumeration’ of the population, no
census is recognized as having been wholly successful in achieving that goal.”).
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That does not mean that the Secretary’s decisions are unreviewable, as the Constitution and case law impose a limit on the Secretary’s discretion: To the extent possible, the census must be conducted in a way that will not thwart the goal of equal representation, because the accuracy of the census impacts how representation is apportioned. See Wisconsin, 517 U.S. at 19–20; Dep’t of Commerce v. U.S. House of Reps., 525 U.S. 316, 317, 331–32 (2002) (recognizing that voter’s “expected loss of a Representative to the United States Congress undoubtedly satisfies the injuryin-fact requirement of Article III standing” because voters have an “‘interest in maintaining the effectiveness of their votes,’” and “[w]ith one fewer Representative, [a state’s] residents’ votes will be diluted” (quoting Baker v. Carr, 369 U.S. 186 (1962))). Since the Constitution caps the total number of Representatives to be apportioned among the states based on population, an inaccurate census that undercounts a state’s population and leads to a loss of a Representative will cause vote dilution, which is inconsistent with the constitutional goal of equal representation. Therefore, the discretion of the Secretary and Congress itself cannot be absolute. Rather, a census so poorly designed and so underfunded as to fail to bear a “reasonable relationship to the accomplishment of an actual enumeration” (one that does not dilute the votes of a state’s voters) would be unconstitutional, in violation of the Enumeration Clause.11 See Wisconsin, 517 U.S. at 19–20.
11 Defendants asserted at oral argument that Judge Furman rejected the “reasonable relationship” standard in New York v. U.S. Dep’t of Commerce, 315 F. Supp. 3d 766 (S.D.N.Y. 2018). More accurately, Judge Furman stated specifically that “Wisconsin cannot be read to suggest, let alone hold, that each and every question on the census must bear a ‘reasonable relationship’ to the goal of an actual enumeration” because “[d]oing so would contravene the Supreme Court’s own acknowledgment that the census ‘fulfills many important and valuable functions,’ including ‘in the allocation of federal grounds to states based on population[.]’” Id. at 804 (quoting Baldrige v. Shapiro, 455 U.S. 345, 353 (1982)).
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Consistent with this law, a host of district courts have been less cautious than the Circuit Courts that concluded that they could not review the Secretary’s decisions. These trial courts vigorously have rejected arguments that they are powerless to review decisions of the Secretary regarding the conduct of the census. See, e.g., Dist. of Columbia v. U.S. Dep’t of Commerce, 789 F. Supp. 1179, 1179, 1181–82 (D.D.C. 1992) (observing that, “as many courts have noted, the constitutional basis for the jurisdiction of Congress over the conduct of the Census does not provide a reason in every case to shield the Census from judicial review”; concluding that political question doctrine did not bar plaintiff’s claim that defendants violated the Enumeration Clause and the Census Act; adopting the “arbitrary and capricious” standard from the APA to review the Census Bureau’s decision to count prisoners as residents of the state where they are imprisoned for purposes of the census); Massachusetts v. Mosbacher, 785 F. Supp. 230, 265 (D. Mass.) (employing the arbitrary and capricious standard from the APA to review the Census Bureau’s decision on how to count overseas personnel for census purposes), rev’d, Franklin v. Massachusetts, 505 U.S. 788, 796 (1992) (holding that “the final agency action complained of [the calculation of the number of Representatives per states and the transmittal of the calculation to Congress] is that of the President, and the President is not an agency within the meaning of the Act” and therefore “there [wa]s no final agency action that may be reviewed under the APA standards”); Texas v. Mosbacher, 783 F. Supp. 308, 315 (S.D. Tex. 1992) (“The Census Act does not purport to restrict judicial review and furthermore, the impairment of plaintiffs’ right to an undiluted vote may not be foreclosed from judicial review by operation of the Administrative Procedure Act.”); City of Willacoochee, Ga. v. Baldrige, 556 F. Supp. 551, 555 (S.D. Ga. 1983) (“Necessarily implicit in the Census Act is the command that the census be accurate. Accordingly, the Census Act circumscribes the defendants’ discretion in compiling the final census figures and
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in disposing of any objections to those figures. At the very least, the Census Act requires that the defendants’ actions not be arbitrary or capricious.”); City of Philadelphia v. Klutznick, 503 F. Supp. 663, 675 (E.D. Pa. 1980) (concluding that the “arbitrary and capricious” standard under APA § 706 was the proper test for reviewing challenges by the City of Philadelphia and others to the accuracy of the 1980 census); City of Camden v. Plotkin, 466 F. Supp. 44, 46 (D.N.J. 1978) (denying a motion to dismiss for lack of standing a suit against the Secretary claiming that there was an undercount of the population of Camden, New Jersey, that would lead to the loss of federal program funds; adopting the arbitrary and capricious standard of the APA as the proper test to review the decisions of the Census Bureau in connection with a 1979 census “pretest”). In City of Philadelphia v. Klutznick, the Eastern District of Pennsylvania observed that “[t]he census is more than a statistic. It is an essential element in the democratic process.” 503 F. Supp. at 675. In concluding that it could review the Bureau’s decisions regarding the decennial census, it reasoned:
To hold that the agency charged with its tabulation is not subject to judicial review is to hold that the Bureau is free to adopt any numbers, regardless of bias, manipulation, fraud or similarly grave abuse, which is exactly the type of conduct and temptation the Framers wished to avoid by entrusting the census to the federal government. This cannot be. Id. But the usefulness of this line of cases in addressing the issues in this case seems limited for two reasons. First, unlike the present case, the challenges brought by the plaintiffs in those cases were initiated after the Census Bureau had acted—not in the midst of the planning process. This distinction is quite important for purposes of applicability of the arbitrary and capricious standard that applies to APA claims, as “[j]udicial review under the APA . . . is limited to ‘final agency actions.’”12 See City of New York v. U.S. Dep’t of Def., No. 18-1699, --- F.3d ----, 2019
12 As noted, in this case, Plaintiffs state a single count for violation of the Enumeration Clause of the U.S. Constitution, Am. Compl. ¶¶ 118–24, and do not assert any violation of the APA.
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WL 208080, at *4 (4th Cir. Jan. 16, 2019) (quoting 5 U.S.C. § 704). Second, all of these cases were decided before the Supreme Court issued a string of decisions interpreting the Enumeration Clause of the Constitution and the Census Act, most notably the Wisconsin decision, which established the test for an Enumeration Clause challenge: the Secretary’s decision how to conduct a decennial census need bear only a “reasonable relationship to the accomplishment of an actual enumeration of the population, keeping in mind the purpose of the census,” which is “equal representation.” 517 U.S. at 19–20. Thus, as Chief Justice Rehnquist observed, “notwithstanding the plethora of lawsuits that inevitably accompany each decennial census, there is no basis for thinking that Congress’ discretion is more limited than the text of the Constitution provides.” See id. at 19 (footnote omitted). Rather, in light of the Constitution’s broad grant of authority to Congress, the Secretary’s decision on how to conduct the census need bear only a “reasonable relationship to the accomplishment of an actual enumeration of the population, keeping in mind the constitutional purpose of the census, . . . equal representation.” Id. at 19–20.
Moreover, the Supreme Court’s failure to incorporate the APA’s “arbitrary and capricious” or “abuse of discretion” language into the test for reviewing an Enumeration Clause challenge to the Secretary’s decisions regarding how to conduct a decennial census cannot be ignored. And here, the only claim brought by Plaintiffs is an Enumeration Clause claim—not an APA claim. Additionally, even if they were to seek amendment of the complaint to assert an APA challenge, it is hard to imagine that it would be ripe at the present time, since the Secretary is in the process of making his decisions about how to conduct the 2020 census, and therefore there is no final agency action to examine. See 5 U.S.C. § 704; City of New York, 2019 WL 208080, at *4; cf. New York v. U.S. Dep’t of Commerce, Nos. 18-2921 (JMF) & 18-5025 (JMF), --- F. Supp. 3d ----, 2019 WL 190285, at *89 (S.D.N.Y. Jan. 15, 2019) (finding claim ripe where “[t]here [wa]s no dispute
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the Secretary Ross’s decision [to include citizenship question] constitute[d] ‘final agency action’ reviewable under the APA”).
Certainly, more recently, this Court and others have exercised their discretion to review the Bureau’s pre-census decisions regarding the 2020 Census. See La Unión del Pueblo Entero v. Ross (“LUPE”), No. GJH-18-1570, --- F. Supp. 3d ----, 2018 WL 5885528, at *5, *7 (D. Md. Nov. 9, 2018); Kravitz v. U.S. Dep’t of Commerce, 336 F. Supp. 3d 545, 566 (D. Md. 2018); New York v. U.S. Dep’t of Commerce, 315 F. Supp. 3d 766, 775 (S.D.N.Y. 2018); California v. Ross & City of San Jose v. Ross, Nos. 18-1865-RS & 18-2279-RS, slip op. at 9, 15, 17–20, 28 (N.D. Cal. Aug. 17, 2018), ECF No. 47-1. But, Judge Furman dismissed the plaintiffs’ pre-census Enumeration Clause claim for failure to state a claim, only allowing the APA and Due Process Clause claims to go forward. New York, 315 F. Supp. 3d at 775. And, while the Enumeration Clause claims survived dismissal in the other cases, all of those more recent cases concerned a challenge to a discrete agency action that already was finalized—the decision to include a citizenship question on the 2020 Census questionnaire.
Defendants argue that, under the circumstances of this case, in which Plaintiffs challenge their alleged inaction rather than any discrete actions they have taken toward conducting the census, an Enumeration Clause challenge cannot be brought until after the 2020 Census has been taken and the results are announced by the Secretary, because only then will it be possible to determine without speculation whether their alleged failure to prepare has caused a differential undercount. But by then, Plaintiffs argue, it will be too late to correct the effect of the undercount—the Court must act now to superintend the design of the 2020 Census before it takes place.
It is true that, as noted, Congress itself has found that
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the decennial enumeration of the population is a complex and vast undertaking and if such enumeration is conducted in a manner that does not comply with the requirements of the Constitution or the laws of the United States, it would be impracticable for the States to obtain, and the Courts to provide, meaningful relief after such enumeration has been conducted. 1998 Appropriations Act § 209(a)(8). And, the Supreme Court rejected a standing challenge to a suit brought prior the conduct of the census to prevent the Secretary’s planned use of statistical sampling during the 2000 decennial census, concluding that it was “certainly not necessary for this Court to wait until the census has been conducted to consider the issues presented here, because such a pause would result in extreme—possibly irremediable—hardship.” Dep’t of Commerce v. U.S. House of Reps., 525 U.S. 316, 332 (1999). But the circumstances that led to those Congressional findings and that lawsuit were far different from this case, for three reasons. First, the challenge in U.S. House of Representatives (like the citizenship question challenges in the 2020 Census cases) was to a discrete decision of the Census Bureau. There, the plaintiffs challenged the Bureau’s decision to use two specific types of “statistical sampling to supplement data obtained through traditional census methods,” id. at 323, as opposed to launching (as Plaintiffs do here) a sweeping challenge to the staffing, leadership, funding, design, and security of the 2020 Census. The Congressional findings also came in response to the Bureau’s plan to use statistical sampling in the 2000 census. See id. at 326–27. Second, the suit (like the other 2020 Census cases) was brought after the Census Bureau had taken final action,13 not to interrupt the planning for the census as it was taking place. The Congressional finding also followed the Bureau’s “final agency action.” See id. Third, and
13 The Bureau had determined and announced the type of statistical sampling it planned to use to augment the findings of the traditional census methods. See U.S. House of Reps., 525 U.S. at 326– 27 (noting that, in the 1998 Appropriations Act, Congress stated that “the Census 2000 Report and the Bureau’s Census 2000 Operational Plan ‘shall be deemed to constitute final agency action regarding the use of statistical methods in the 2000 decennial census’”).
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perhaps most tellingly, the bringing of a lawsuit to challenge the use of statistical sampling in the 2000 census prior to its completion was specifically authorized by Congress—in the 1998 Appropriations Act, which included the Congressional finding. Id. at 326–27 (noting that Congress ordered the Census Bureau to provide a report detailing its “proposed methodologies for conducting the 2000 Decennial Census,” particularly “including an explanation of any planned use of statistical methodologies that may be used,” and that, “[a]fter receiving the Report, Congress passed the 1998 Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, which provide[d] that the Census 2000 Report and the Bureau’s Census 2000 Operational Plan ‘shall be deemed to constitute final agency action regarding the use of statistical methods in the 2000 decennial census’” and “[t]he Act also permit[ted] any person aggrieved by the plan to use statistical sampling in the decennial census to bring a legal action and require[d] that any action brought under the Act be heard by a three-judge district court” (emphasis added) (citations to 1998 Appropriations Act omitted)).
The Plaintiffs argue that, if they wait until after the planning for the 2020 Census has been completed and the Census has been conducted to bring a lawsuit to challenge any differential undercount affecting them, there will be no effective relief that the Court can order. But this argument flies in the face of decades of litigation that legions of plaintiffs have brought, making nearly identical claims, after the challenged census methodology had been finalized and the census had been conducted. See, e.g., Dist. of Columbia v. Dep’t of Commerce, 789 F. Supp. 1179 (D.D.C. 1992) (suit brought under the Enumeration Clause, the Fifth Amendment, and the Census Act, alleging that the decision of the Census Bureau to apply the “usual residence rule” to count prisoners of Lorton Prison as residents of Virginia instead of the District of Columbia would “cause the District of Columbia to lose $60 million in federal funds over the next ten years”);
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Massachusetts v. Mosbacher, 785 F. Supp. 230, 233–34 (D. Mass. 1992) (suit challenging how

the 1990 census had apportioned the 435 seats in the House of Representatives, and seeking a court

order “to reallocate the seats apportioned to the several states as a consequence of the 1990 census”); Texas v. Mosbacher, 783 F. Supp. 308, 309–10 (S.D. Tex. 1992) (suit by plaintiffs of

“hispanic origin” filed after the 1990 census, alleging a differential undercount that deprived them

of the right to elect federal, state and local representatives, and the loss of federal funds; seeking “a statistical adjustment to the census numbers”); City of Willacoochee, Ga. v. Baldrige, 556 F.

Supp. 551 (S.D. Ga. 1983) (suit by city challenging the accuracy of its population count in the

1980 census and the allegedly arbitrary and capricious failure of the Census Bureau to correct the undercount, resulting in the loss of eligibility for federal funds); City of Philadelphia v. Klutznick,

503 F. Supp. 663 (E.D. Pa. 1980) (suit brought after the 1980 census, challenging its accuracy and

the conduct of the Census Bureau, which allegedly resulted in an undercount in Philadelphia; claiming loss of federal and state representation and eligibility for federal funding); City of Camden v. Plotkin, 466 F. Supp. 44, 47 (D.N.J. 1992) (suit filed by City, challenging the manner

in which the Census Bureau had conducted the 1976 “pretest census” and alleging that the

undercount would result in the loss of federal funding; seeking court order to “rectify the

undercounting of minorities”).

Ripeness

The foregoing discussion brings us to considerations of ripeness. Defendants argue that

“Plaintiffs’ challenge to the Census Bureau’s supposedly deficient preparations for the 2020

census is not fit for judicial review some two years before the census because each of the alleged

deficiencies in the [Amended Complaint] depends on future uncertainties, as the [Amended

Complaint] itself acknowledges.” Defs.’ Mem. 17. Defendants contend that budgetary and

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staffing deficiencies could be remedied through “decisions in the next two years.” Id. Defendants also assert that the lawsuit itself interferes with their ability to prepare for the 2020 Census. Id. at 18. In their view, postponing judicial review would create only minimal hardship for Plaintiffs because their alleged injuries would not occur until after the Census. Id.
As relevant to this case, the ripeness doctrine protects against premature adjudication of issues by courts before the facts are sufficiently developed to warrant judicial intervention. Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 732–33 (1998) (“[T]he ripeness requirement is designed ‘to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.’” (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148–49) (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977))); see also South Carolina v. United States, --- F.3d ----, No. 18-1684, 2019 WL 124267, at *8 (4th Cir. Jan. 8, 2019) (same). The ripeness inquiry has three elements: “(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented.” Ohio Forestry, 523 U.S. at 733.
Delayed Review Whether delayed review will impose a hardship on Plaintiffs depends on whether the alleged injury that Plaintiffs expect to suffer could be remedied in a later lawsuit, or whether harm to Plaintiffs is imminent, requiring redress now. See Ohio Forestry, 523 U.S. at 733–34 (observing, in reaching the conclusion that claim was not ripe: “Nor have we found that the Plan now inflicts significant practical harm upon the interests that the Sierra Club advances—an
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important consideration in light of this Court’s modern ripeness cases. As we have pointed out, before the Forest Service can permit logging, it must focus upon a particular site, propose a specific harvesting method, prepare an environmental review, permit the public an opportunity to be heard, and (if challenged) justify the proposal in court. The Sierra Club thus will have ample opportunity later to bring its legal challenge at a time when harm is more imminent and more certain.” (citing Abbott Labs.)).
To be ripe, a claim cannot “rest[] upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’” U.S. House of Reps. v. U.S. Dep’t of Commerce, 11 F. Supp. 2d 76, 90 (D.D.C. 1998) (quoting Texas v. United States, 523 U.S. 296, 300 (1998)), appeal dismissed, 525 U.S. 316 (1999). For example, in New York v. U.S. Department of Commerce, the claim was ripe where plaintiffs were “already suffering harm from the addition of the citizenship question due to the diversion of valuable resources” and “time [wa]s of the essence” because “the Census Bureau ‘need[s] to begin printing the 2020 census questionnaire’ in June 2019.” Nos. 18-2921 (JMF) & 18-5025 (JMF), --- F. Supp. 3d ----, 2019 WL 190285, at *88 (S.D.N.Y. Jan. 15, 2019). When, as here, a plaintiff alleges an injury that will result “from the procedure utilized for conducting the . . . census, . . . ‘the courts have applied the imminence requirement to the procedural violation, not to the discrete injury that might someday flow from such.’” U.S. House of Reps., 11 F. Supp. 2d at 91 (quoting Nat’l Treas. Emps. Union v. United States, 101 F.3d 1423, 1430–31 (D.C. Cir. 1996)). In other words, “[t]he matter . . . becomes ripe at the point at which use of th[e] [challenged] procedure is ‘certainly impending’ – the point at which it is certain that the Bureau will employ [the challenged procedure] in conducting the apportionment enumeration.” Id. The possibility that “Congress may yet pass supervening legislation or take other actions that could moot the controversy” does not make “[t]he claimed
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injuries . . . fail the immediacy test.” Id. at 92 (“To ask the court to stay its hand because Congress hypothetically may amend the statutory framework of the Census Act as it now exists, or change the current methodology by attaching a rider to a future appropriations bill, or create a “census crisis” by refusing to fund the decennial enumeration, is asking the court to stay its hand based upon nothing more than mere speculation—the kind of speculation typically offered by a plaintiff. . . . [T]he fact that a case is capable of being rendered moot by congressional action does not, without more, make it unripe.”). “Where ‘delayed resolution of (the) issues would foreclose any relief from the present injury suffered by (plaintiff)’ and review would also be beneficial to the defendant, there is no reason to defer consideration of the issues presented.” Carey v. Klutznick, 508 F. Supp. 404, 412 (S.D.N.Y. 1980) (quoting Duke Power Co. v. Carolina Envtl. Study, 438 U.S. 59, 82 (1979)).
Plaintiffs allege that “Defendants’ choices in procedures, such as their approach to digitization, and cut-back in field and mailing outreach, have already been made,” and therefore “Plaintiffs are at imminent risk of harm.” Am. Compl. ¶ 116 (emphasis added). This alleged action is not speculative, even if it has not been finalized, see id. 88 (“For the 2020 Census, the Census Bureau proposes to conduct only one in-person visit to each household.” (emphasis added)). See Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 (1992). Yet, the immediacy of Defendants’ actions is not tantamount to a certainty of injury or hardship to Plaintiffs in the absence of Court intervention at this time. And, despite the Plaintiffs’ claims that they will be left without an adequate remedy if the Court declines to order the injunctive relief that they request, history has shown otherwise. As Chief Justice Rehnquist ruefully noted in Wisconsin, there are a “plethora of lawsuits that inevitably accompany each decennial census.” 517 U.S. at 19. As I already have noted, see supra at 22, 26–27, the nearly universal characteristic shared by these challenges to
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previous censuses is that they were brought after the Census Bureau had made its final determinations regarding how the decennial census should be taken, and after the census already had been taken and preliminary population counts announced. These cases included those alleging the same types of injuries as the Plaintiffs do here: loss of federal and local representation and the loss of federal funding. See, e.g., Dist. of Columbia v. U.S. Dep’t of Commerce, 789 F. Supp. 1179 (D.D.C. 1992); Massachusetts v. Mosbacher, 785 F. Supp. 230 (D. Mass.), rev’d, Franklin v. Massachusetts, 505 U.S. 788 (1992); Texas v. Mosbacher, 783 F. Supp. 308 (S.D. Tex. 1992); City of Willacoochee, Ga. v. Baldrige, 556 F. Supp. 551 (S.D. Ga. 1983); City of Philadelphia v. Klutznick, 503 F. Supp. 663 (E.D. Pa. 1980); City of Camden v. Plotkin, 466 F. Supp. 44 (D.N.J. 1992). And, the relief requested included reallocation of congressional seats, see, e.g., Massachusetts, 785 F. Supp. at 233–34, and upwards adjustment of alleged differential undercounts of hard-to-count populations, see, e.g., Texas, 783 F. Supp. at 309–10; City of Camden, 466 F. Supp. at 47. These cases belie the Plaintiffs’ argument that waiting until the Secretary has completed the plans for the 2020 Census, or even later, until after the enumeration has taken place, will deprive them of any effective remedy in the event of a differential undercount. See, e.g., Utah v. Evans, 536 U.S. 452, 463 (“Nor (as we have just explained), if a lawsuit is brought soon enough after completion of the census and heard quickly enough is relief necessarily ‘impracticable.’”). Thus, they have not shown that “delayed resolution of (the) issues would foreclose any relief” from their alleged injury.” See Duke Power Co., 438 U.S. at 82; Carey, 508 F. Supp. at 412. Nor have they alleged a specific procedural violation (as opposed to a change in procedure and/or timing) to which I can “appl[y] the imminence requirement” to find that the matter is ripe. See Nat’l Treas. Emps. Union, 101 F.3d at 1430–31; U.S. House of Reps., 11 F. Supp. 2d at 91.
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Interference with Further Administrative Action Defendants noted during oral argument and in their Supplement, Defs.’ Supp. 7, 10–11 & App’x, that, since the filing of this lawsuit, many of the factual allegations in the Amended Complaint may no longer hold true. Plaintiffs disputed at oral argument and in their Supplement— with good reason—the admissibility of a number of the “facts” that Defendants insist moot Plaintiffs’ allegations. See Pls.’ Supp. 14–15. Federal Rule of Evidence 201(b) only permits the Court to take judicial notice of facts known within its territorial jurisdiction or that are capable of being established readily by reference to sources the reliability of which cannot reasonably be challenged. Here, Plaintiffs reasonably challenge the reliability of Defendants’ “facts.” See Pls.’ Supp. 14–15. Thus, neither Defendants’ arguments nor evidence that is not properly before the Court can negate Plaintiffs’ well-pleaded allegations at this juncture. See Lujan, 504 U.S. at 561; Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). But, even without considering Defendants’ disputed “facts,” it is undisputed that the President has nominated and the Senate confirmed a permanent Director of the Census Bureau. Notice, ECF No. 56; see Tara Bahrampour, Senate confirms new Census Bureau director as 2020 survey approaches, Wash. Post (Jan. 3, 2019), https://www.washingtonpost.com/local/socialissues/senate-confirms-new-census-bureau-director-as-2020-survey-approaches/2019/01/03 /5599b2d2-0fa0-11e9-831f-3aa2c2be4cbd_story.html?utm_term=.bb8d954ee588. Further, the beginning of the 2020 Census is a year or more away. Assuming there is sufficient continued funding appropriated by Congress and signed into law by the President (discussed below), then it is inevitable that many of the alleged deficiencies in staffing, census design, and testing will be addressed and, where deficient, corrected. This case is unlike New York v. U.S. Department of
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Commerce, which concerned “final agency action” that the defendants already had taken in deciding to include the citizenship question. Nos. 18-2921 (JMF) & 18-5025 (JMF), --- F. Supp. 3d ----, 2019 WL 190285, at *89 (S.D.N.Y. Jan. 15, 2019). Here, if the Court were to interject itself into the Bureau’s process during the critical final preparations, requiring—as Plaintiffs request—its monitoring and approval of the plans along the way, it is hard to imagine that this oversight would not hinder the process as opposed to facilitate it. Therefore, judicial intervention at this time likely would interfere with further administrative action.
Benefit of Further Factual Development Finally, the Court clearly would benefit from further factual development before being called to evaluate whether the procedures finally approved for the 2020 Census are sufficient to survive an Enumeration Clause challenge (i.e., whether they bear a reasonable relationship to the accomplishment of an actual enumeration). For example, completing the testing that the Bureau so far has postponed will provide essential information regarding the accuracy of digital procedures that will be employed in the 2020 Census.14 Absent this information, the Court would be forced to decide based on speculative assumptions advanced by the parties. Assuming adequate funding, the more-than-a-year remaining before the start of the 2020 Census will put to the test the new procedures the Secretary has planned to adopt, and the conduct of the Census itself will result
14 Alternatively, there may come a date when a failure to have conducted the testing may itself be evidence that Defendants’ preparations are insufficient. See Dep’t of Commerce v. U.S. House of Reps., 525 U.S. 316, 332 (1999) (“It is clear that if the Bureau is going to alter its plan to use sampling in the 2000 census, it must begin doing so by March 1999. See Oversight of the 2000 Census: Putting the Dress Rehearsals in Perspective, Hearing before the Subcommittee on the Census of the House Committee on Government Reform and Oversight, 105th Cong., 2d Sess., 84 (1998) (statement of James F. Holmes, Acting Director of the Bureau) (‘I must caution that by this time next year [i.e., March 1999] the train for census 2000 has to be on one track. If the uncertainty continues, if our staff continues to have to do two jobs, ... [the census] will truly be imperiled’). See also § 209, 111 Stat. 2480 (providing that the Bureau’s plan to use statistical sampling in the 2000 census constitutes ‘final agency action’).”). But that time has not come.
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in a preliminary population count that will determine whether the differential undercount that the Plaintiffs fear will adversely affect their federal and local representation and future federal funding. Again, this case stands in stark contrast to New York, where “the administrative and trial records” were “plainly sufficient to present the issues in a manner fit for judicial decision making.” 2019 WL 190285, at *89. Therefore, the third element of ripeness also militates against hearing these claims at this time. Further, the inability of the Plaintiffs to cite any decision where a lawsuit such as this one has resulted in the sweeping relief that they seek here (an injunction requiring “Defendants to propose and implement, subject to this Court’s approval and monitoring, a plan to ensure that hard-to-count populations will be actually enumerated in the decennial census,” Am. Compl. 21), speaks volumes about the authority (not to mention ability) of courts to second-guess the Secretary’s planning of the decennial census as it is taking place, or the standards under which they might attempt to do so. Nonetheless, as Defendants themselves concede, Defs.’ Reply 9, the fact that this aspect of Plaintiffs’ claim is not ripe at present does not mean that it will not be ripe at some point in the future. For that reason, Plaintiffs’ challenges to the methods and means the Bureau plans to employ in the 2020 Census will be dismissed without prejudice to being reinstated later.
The One Ripe Claim for Relief The fact that Plaintiffs have failed to establish that they are entitled to all the relief they seek does not mean that they are not entitled to any of it, assuming they can demonstrate evidentiary support for their allegations. This is because they also challenge the adequacy of the Bureau’s funding, Am. Compl. ¶¶ 32–37, 79, and they also seek declaratory relief, see id. at 21. As noted, the Court could issue a declaratory judgment that Congress has failed to appropriate sufficient funds for the Secretary to perform the Constitutionally required “actual Enumeration”
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of the population as of April 1, 2020. Indeed, “Congress [has] committed [itself] to providing the level of funding that is required to perform the entire range of constitutional census activities, with a particular emphasis on accurately enumerating all individuals who have historically been undercounted.” 1998 Appropriations Act § 209(a)(9). Moreover, “towards this end, Congress expects— (A) aggressive and innovative promotion and outreach campaigns in hard-to-count communities” and “(B) the hiring of enumerators from within those communities.” Id. Unlike the challenge to the methods and means of conducting the 2020 Census, the non-funding claim is ripe.
Notably, Defendants argued at oral argument that the Bureau’s work is not disrupted at this time. They insist that “Plaintiffs’ claims are mooted day by day,” as the Bureau’s funding has increased, census centers have opened, a number of operations have been deployed successfully, and the Bureau no longer plans to rely on state administrative records. And, along with their Supplement, Defendants filed an affidavit from a Census Bureau official, ostensibly to show that the Bureau has funding. Reist Decl., ECF No. 61-1. But, as discussed, argument of counsel and the Reist Declaration are inappropriate for consideration in ruling on a motion to dismiss, where the facts that the Court may consider are circumscribed. See Lujan, 504 U.S. at 561; Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). While Defendants are correct that the Court may take judicial notice of facts (if permitted by Fed. R. Evid. 201) in deciding a motion to dismiss, see Defs.’ Supp. 10–11, I agree with Plaintiffs that neither the Reist Declaration nor the appendix included with Defendants’ Supplemental Memorandum may be judicially noticed. Neither contains facts known within the territorial jurisdiction of the Court, and Plaintiffs’ legitimate challenge to their accuracy also means that they are not capable of being established readily by reference to sources of unchallenged reliability. See Fed. R. Evid. 201. For this reason, prior census cases, including Judge Furman’s
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decision in the Southern District of New York, have held that such filings are evidence, appropriate for consideration on summary judgment but not on a motion to dismiss. See New York v. U.S. Dep’t of Commerce, 315 F. Supp. 3d 766, 783 (S.D.N.Y. 2018); see also Lujan, 504 U.S. at 561 (“At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim.’” (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990))).
But, even if I were to consider the assertions at oral argument and in the affidavit, the most they would show is that funding will be exhausted at the end of April 2019, or perhaps sometime in early April. Given what must be done in 2019 to keep on track, this evidence actually demonstrates that there is a justiciable claim as to sufficiency of funding given the government shutdown (the longest in the nation’s history, and still looming like a Damoclean sword if the three-week extension of a continuing resolution fails to result in congressional appropriation of lasting funding that is signed into law by the President15) and appropriations lapse. While Plaintiffs’ other claims could be addressed through post-census litigation, census funding obviously cannot be increased after the fact. Moreover, the federal government shutdown recent ended through a continuing resolution that only allows the Bureau to continue with already-funded operations for three weeks, but adds no additional funding beyond that already appropriated. Thus,
15 See Nicholas Fandos, Sheryl Gay Stolberg & Peter Baker, Trump Signs Bill Reopening Government for 3 Weeks in Surprise Retreat From Wall, N.Y. Times (Jan. 25, 2019), https://www.nytimes.com/2019/01/25/us/politics/trump-shutdown-deal.html. This fact is appropriate for judicial notice because it meets Fed. R. Evid. 201.
It bears mentioning that, throughout the long government shutdown, during which they were required to work exceptionally long hours on this and the other pending census cases without pay, counsel for the Defendants, just as have counsel for the Plaintiffs, have performed their duties with diligence, skill, and professionalism.
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given the prediction that, even by Defendants’ estimate, current census funding will run out by April 2019 (if not earlier)—a full year before the 2020 Census—, “delayed review would cause hardship to the plaintiffs.” See Ohio Forestry, 523 U.S. at 733. Additionally, “judicial intervention” would not “inappropriately interfere with further administrative action”—it will require no more than elementary school arithmetic to demonstrate (from the Bureau’s existing estimates) what funds are needed to complete the 2020 Census, and the shortfall the funding lapse has caused. Finally, narrowly targeted discovery that will not unduly interfere with the Bureau’s preparations (while the current funding lasts) will accomplish whatever factual development is needed of the impact of the lapse of funding. Therefore, Plaintiffs’ insufficient funding claim is ripe.
Standing16 A plaintiff has standing if (1) [the plaintiff] has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Zaycer v. Sturm Foods, Inc., 896 F. Supp. 2d 399, 408 (D. Md. 2012) (quoting Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir. 2009)); see also Lujan, 504 U.S. at 560–61 (same). Notably, while a plaintiff must plead these elements to allege standing, these elements are more than “mere pleading requirements”; they are “an indispensable part of the plaintiff’s case,” and “each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.”
16 Even though I am dismissing for the present time Plaintiffs’ claims regarding the methods and means of conducting the 2020 Census because they are not yet ripe, I nonetheless will consider Defendants’ other justiciability arguments with respect to these claims (as well as the insufficient funding claim), as they may be reinstated.
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Lujan, 504 U.S. at 561. And, the burden on Plaintiffs to overcome the deference afforded to the Secretary is substantial, and must be met through evidence, not allegations.
But, significantly, “[a]t the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice,” because “on a motion to dismiss [the Court] ‘presume[s] that general allegations embrace those specific facts that are necessary to support the claim.’” Lujan, 504 U.S. at 561 (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)). If the claim survives dismissal, however, and Plaintiffs must respond to a motion for summary judgment, they will not be able to “rest on such ‘mere allegations’” of injury resulting from Defendants’ conduct. Id. At that juncture, they will have to “‘set forth’ by affidavit or other evidence ‘specific facts.’” Id. (citing Fed. R. Civ. P. 56). Then, “at the final stage, those facts (if controverted) must be ‘supported adequately by evidence adduced at trial.’” Id. (quoting Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 115 n.31 (1979)).
Injury in Fact An “imminent” injury is one that “is not too speculative,” i.e., one that “is ‘certainly impending.’” Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). Injury cannot be predicted “at some indefinite future time” or expected to result from acts “partly within the plaintiff’s own control.” Id. As noted in the related arena of ripeness, “delayed review would cause hardship to the plaintiffs” because they could not undo the likely absence of funding. See Ohio Forestry, 523 U.S. at 733. Yet, according to Defendants, “[e]ven crediting Plaintiffs’ allegations that preparations for the 2020 Census are deficient, Plaintiffs fail to allege that any supposed deficiencies will remain unremedied by the 2020 Census.” Defs.’ Mem. 9. But, I can judicially notice that the Bureau endured a 35-day lapse in appropriations during the recent partial shutdown of the federal
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government. And, the Defendants’ own estimates demonstrate that the short-term deal that ended the shutdown does not itself add any funding beyond (at the latest) April 2019. This ongoing state of uncertainty bolsters Plaintiffs’ position that Defendants will be unprepared (in terms of funding, workforce, and testing) for the 2020 Census, while weakening Defendants’ argument that their preparedness may change over the coming months, of which fewer than fifteen remain.
While Defendants offer an affidavit to show that the Bureau currently has funding, as discussed above, the affidavit also shows that funding will expire with a year to go before the 2020 Census. Additionally, it appears that printing of the census questionnaire is imminent, as it “is set to take place this summer,” yet “the company contracted to print the forms went bankrupt” and the Bureau has not “announce[d] a new one” (and may not be able to pay one this summer), which strengthens Plaintiffs’ argument that Defendants cannot prepare without proper funding. See Tara Bahrampour, Senate confirms new Census Bureau director as 2020 survey approaches, Wash. Post (Jan. 3, 2019), https://www.washingtonpost.com/local/social-issues/senate-confirms-newcensus-bureau-director-as-2020-survey-approaches/2019/01/03/5599b2d2-0fa0-11e9-831f3aa2c2be4cbd_story.html?utm_term=.c1974a3eb3fc.
Defendants also contend that “Plaintiffs fail to allege facts suggesting that households that would otherwise respond to the 2020 Census will now choose not to do so as a result of deficiencies in funding, staffing, or leadership,” Defs.’ Mem. 10, or that “their geographic area (Prince George’s County) will lose funding and seats even if potential undercounts in other geographic areas are taken into account,” id. at 11 (emphasis in brief). I disagree that Plaintiffs have not alleged that the 2020 Census plans will not disproportionately impact them.17 Rather, Plaintiffs
17 Plaintiffs asserted at oral argument that the NAACP sues on behalf of its members in all states and therefore Plaintiffs need not be bound to facts alleged about Prince George’s County alone. It
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allege that Defendants’ preparations for the 2020 Census will exacerbate the undercount Prince
George’s County historically experiences. Am. Compl. ¶¶ 85–104. Specifically, they allege that
Prince George’s County is a “majority African American county” with regions that “[t]he Census
Bureau has characterized . . . as ‘hard-to-count,’” and that “the County has faced consistent census
undercounts.” Am. Compl. ¶¶ 95, 99. They claim that, “[i]n 2010, Prince George’s County had
the highest net undercount of any county in Maryland, and one of the highest net undercounts in the nation among counties with 100,000 residents or more.” Id. ¶ 101 (emphasis omitted). The
effect of the 1990 undercount, they allege, was a loss of “$200 million in [federal] grants and loans over the course of the decade.” Id. ¶ 104.
According to Plaintiffs, the underfunded Bureau has “decided to cut its on-the-ground
presence and field infrastructure significantly” and “has reduced the number of area offices and workers, and will conduct in-person visits at a fraction of past rates.” Id. ¶ 85. For example,
instead of visiting households in person “up to six times in order to ensure completion of census
forms[,] . . . [f]or the 2020 Census, the Census Bureau proposes to conduct only one in-person visit to each household.” Id. ¶ 88. As for the effects of this approach, Plaintiffs allege:
is true that an organization can establish its own standing as a plaintiff by “alleg[ing] that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action . . . .” Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 342 (1977) (emphasis added). Thus, NAACP clearly can sue on behalf of the Prince George’s County residents identified in the Amended Complaint. See id. But, if there is a differential undercount in one state, resulting in a loss of a Representative, then another state necessarily gains a Representative, because the total number of Representatives is static. Therefore, logically, NAACP cannot have standing to represent all hard-to-count populations across the United States in a census challenge where the injury to some is to the benefit of others. Standing under these circumstances would mean that any national organization with members in all states would have standing to challenge a census resulting in reapportionment, because the reapportionment necessarily would cause some of its members to lose Congressional representation. Moreover, Plaintiffs only plead claims on behalf of Prince George’s County, and an opposition to a motion to dismiss is not a vehicle for amending a complaint. See Whitten v. Apria Healthcare Grp., Inc., No. PWG-14-3193, 2015 WL 2227928, at *7 (D. Md. May 11, 2015).
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If the in-person visit is unsuccessful, the Census Bureau plans to use federal and state administrative records to attempt to determine the residents for an undetermined number of the households that have not responded.
State administrative data is often unreliable and of poor quality, and the quality of the information between states varies significantly. Moreover, these databases generally do not include data that the census collects with respect to race, ethnicity, and the relationship of household members to each other.
The Census Bureau has not yet reached agreements with all states to use the states’ administrative databases. If the Census Bureau fails to secure agreements with all states, this failure will result in inconsistent counting methodologies between states.
The Census Bureau plans to use state administrative data as a substitute for in-person enumeration only for those households that are already “hard-to-count,” including communities of color. Using unreliable state data as the basis for compiling final census data for households that are disproportionately minority and low-income will lead to an even higher undercount for these groups.
State administrative databases often lack accurate data on young children and undocumented individuals.
Because many states do not collect data on race and ethnicity, using state administrative data would create incomplete census records, and would harm communities of color during the post-2020 redistricting process.
. . . Moreover, Defendants’ failure to conduct a constitutionally sufficient census and the resulting dramatic undercount of Prince George’s County residents increases the risk of Maryland losing seats in Congress. This loss would deprive Prince George’s County residents of fair and equal representation.
Am. Compl. ¶¶ 89–94, 108 (paragraph numbers omitted; emphasis added). Thus, Plaintiffs allege
a concrete and particularized injury in the form of underfunding leading to a disproportionate
undercount, which in turn would result in reduced funding and representation; it is neither highly
attenuated nor merely hypothetical.
According to the Reist Declaration, Defendants will not be relying on state databases. Reist
Decl. 16. But, I cannot judicially notice this fact, see Fed. R. Evid. 201(b), and therefore it is not
properly before me on Defendants’ Motion to Dismiss, as I must accept Plaintiffs’ well-pleaded
allegations, see Aziz v. Alcolac, 658 F.3d 388, 290 (4th Cir. 2011). In any event, regardless of state
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database use, Plaintiffs have alleged sufficiently that, without adequate funding, Defendants will not have the means to conduct an accurate headcount and will disproportionately undercount Prince George’s County residents as a result.
Moreover, contrary to Defendants’ assertion, Defs.’ Mem. 12, Plaintiffs have alleged prudential standing because this injury “falls within the ‘zone of interests’ sought to be protected by the [Enumeration Clause].” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990). The Enumeration Clause is intended to ensure equal representation, Franklin v. Massachusetts, 505 U.S. 788, 804 (1992), and Plaintiffs allege that Defendants’ approach to the 2020 Census may leave them with less representation and funding than an accurate tally would provide, Am. Compl. ¶¶ 106, 108. See La Unión del Pueblo Entero v. Ross (“LUPE”), No. GJH-18-1570, --- F. Supp. 3d ----, 2018 WL 5885528, at *6 (D. Md. Nov. 9, 2018) (finding that plaintiffs satisfied the zoneof-interests requirement “by alleging that the citizenship question will lead to an inaccurate enumeration, causing malapportionment of political power and funding”); California v. Ross & City of San Jose v. Ross, Nos. 18-1865-RS & 18-2279-RS, slip op. 13–14 (N.D. Cal. Aug. 17, 2018), ECF No. 47-1 (finding that the “allegations easily survive[d] the zone-of-interests test” where plaintiffs “alleged loss of funding and inadequate representation flowing from the Secretary’s alleged failure to conduct an ‘actual Enumeration’ as required by the Constitution”).
Further, in Kravitz v. U.S. Department of Commerce, this Court agreed with the plaintiffs that “they face a concrete injury in that their states and communities will be disproportionately undercounted as a result of the addition of the citizenship question to the 2020 Census.” 336 F. Supp. 3d 545, 557, 558 (D. Md. 2018). Judge Hazel noted that “the Supreme Court has previously held that plaintiffs possess standing in census cases where they face an ‘expected loss of a Representative to the United States Congress.’” Id. at 557 (quoting Dep’t of Commerce v. U.S.
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House of Reps., 525 U.S. 316, 331–32 (1999)). He also observed that “a number of courts” have found that plaintiffs satisfied the injury-in-fact requirement in claiming that their votes would be diluted within their states and that they would lose federal funding. Id. at 558 (discussing Carey v. Klutznick, 637 F.2d 834, 838 (2d Cir. 1980) (standing based on injury “in the form of dilution of [plaintiffs’] votes and decreased federal funds flowing to their city”); Glavin v. Clinton, 19 F. Supp. 2d 543, 550 (E.D. Va. 1998) (stating that “allegations of decreased federal and state funding is fairly traceable to population counts reported in the decennial census”); City of Philadelphia v. Klutznick, 503 F. Supp. 663, 672 (E.D. Pa. 1980) (standing where injury is loss of funds)); see also LUPE, 2018 WL 5885528, at *5 (“For the reasons discussed in Kravitz, Plaintiffs’ alleged votedilution injury satisfies the injury-in-fact requirement.”); California & City of San Jose, slip op. at 12 (“[C]ourts have consistently held that individual plaintiffs have standing where they allege a loss of federal funding to their states and localities resulting from a census undercount.” (citing Carey, City of Philadelphia, and Glavin)). Additionally, “[w]hile it may be, as defendants assert, that undercounts in other states [or counties] will offset the effect on [Prince George’s County] in the final apportionment calculation, that is a determination on the merits,” and “Defendants cannot defeat plaintiffs’ as yet to be proven assertions about [Prince George’s County’s] projected loss of congressional representation with equally unproven assertions regarding lack of impact.” California & City of San Jose, slip op. at 12. Likewise, while Defendants may challenge the likelihood of an undercount, this “argument[] also go[es] to issues of proof,” and “there is no requirement, at this juncture, that plaintiffs produce ‘definitive, empirical’ evidence regarding the effect [of Defendants’ preparations, or lack thereof, for the 2020 Census] in order to survive a motion to dismiss.” Id. at 11.
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Traceable Injury Defendants argue that the alleged injury is not traceable to their actions because “Plaintiffs’ theory of harm relies on a multi-step causal chain” that involves (1) Prince George’s County residents failing to respond, (2) state and local governments reducing their “spending on the particular roads and other programs that Plaintiffs use” if and when their federal funding decreases, and (3) Maryland “us[ing] unadjusted census figures for its state-level redistricting.” Defs.’ Mem. 13–14. It is true that “a plaintiff may not have standing where the alleged injury is solely ‘th[e] result [of] the independent action of some third party not before the court.’” Kravitz v. U.S. Dep’t of Commerce, 336 F. Supp. 3d 545, 559 (D. Md. 2018) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). But, “[f]or an injury to be ‘fairly traceable’ to the defendant, the defendant’s actions need not be ‘the very last step in the chain of causation.’” Id. (quoting Bennett v. Spear, 520 U.S. 154, 168–69 (1997)). Rather, “the causation element of standing is satisfied . . . where the plaintiff suffers an injury that is ‘produced by [the] determinative or coercive effect’ of the defendants’ conduct ‘upon the action of someone else.’” Id. (quoting Lansdowne on the Potomac Homeowners Ass’n, Inc. v. OpenBand at Lansdowne, LLC, 713 F.3d 187, 197 (4th Cir. 2013) (quoting Bennett, 520 U.S. at 169)). Notably, courts have held that “‘there is a direct correlation between decennial census population counts and federal and state funding allocations,’ and that ‘allegations of decreased federal and state funding [are] fairly traceable to population counts reported in the decennial census.’” Id. at 558 (quoting Glavin v. Clinton, 19 F. Supp. 2d 543, 550 (E.D. Va. 1998) (citing cases)). In Kravitz, Judge Hazel concluded that the plaintiffs “pleaded that their alleged injuries are ‘fairly traceable’ to the Census Bureau’s conduct” by “plausibly plead[ing] that the addition of the
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citizenship question to the 2020 Census will determinatively or coercively cause individuals to
‘fail or refuse to respond.’” 336 F. Supp. 3d at 560. He reasoned:
[W]hile it is true that if an undercount occurs it will occur only because private individuals choose not to respond to the census surveys, Plaintiffs have plausibly alleged that the citizenship question will have a “determinative or coercive effect” on those individuals’ decision not to respond. Plaintiffs cite statements by former Census Bureau officials indicating that the citizenship question may cause the Census Bureau to be “perceived as an enforcement agency” which would cause respondents to “misunderstand or mistrust the census and fail or refuse to respond.” Plaintiffs allege that the Census Bureau’s own internal findings revealed that, in response to citizenship questions, respondents were more likely to fail to respond or falsify responses. Id. (citations to complaint omitted). And, in La Uniόn del Pueblo Entero v. Ross (“LUPE”), he
concluded:
Just as the Kravitz plaintiffs plausibly alleged standing’s causation element by pleading that the citizenship question would have a coercive effect on individuals’ decisions not to respond to the Census, the Plaintiffs here have plausibly alleged that a disproportionate undercount would be “fairly traceable” to the addition of a citizenship question. Although it is true that for an undercount to occur, private individuals would have to choose not to respond to the Census, Plaintiffs allege that government action will directly cause through “coercive effect” those individuals to refuse to answer.
No. GJH-18-1570, --- F. Supp. 3d ----, 2018 WL 5885528, at *5 (D. Md. Nov. 9, 2018) (citing
Lansdowne on the Potomac Homeowners Ass’n, Inc. v. OpenBand at Lansdowne, LLC, 713 F.3d
187, 197 (4th Cir. 2013)).
Here, Plaintiffs allege that, as a result of underfunding, Defendants have canceled field
tests and have not hired enough “partnership specialists” to “test its novel digitization strategy in
rural areas that are most susceptible to undercounting.” Am. Compl. ¶¶ 44–46. They also allege
more broadly that Defendants have not “hir[ed] staff necessary to ensure an ‘actual enumeration’
in 2020.” Id. ¶ 59. And, they allege that the “reduced . . . number of area offices and workers”
and reduced number of “in-person visit[s] to each household” will result in reliance on “State
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administrative data” that “is often unreliable and of poor quality,” as well as “inconsistent” across states, and “will lead to an even higher undercount” of “minority and low-income” individuals, young children, and undocumented individuals. Id. ¶¶ 85–93. Moreover, the alleged underfunding leaves the Bureau unable to remedy the purported staffing deficiencies. Thus, as in LUPE and Kravitz, Plaintiffs have satisfied the causation requirement by alleging that the undercount will be “‘produced by [the] determinative or coercive effect’ of the defendants’ conduct ‘upon the action of someone else.’” Kravitz, 336 F. Supp. 3d at 558. Therefore, they “have plausibly alleged that a disproportionate undercount would be ‘fairly traceable’ to” Defendants’ plans for conducting the 2020 Census, including understaffing and underfunding. See LUPE, 2018 WL 5885528, at *5; Kravitz, 336 F. Supp. 3d at 560.
Redressability
A plaintiff’s allegations satisfy the redressability prong if it is “likely, and not merely speculative, that a favorable decision will remedy the injury.” Friends of the Earth, Inc. v. Gaston Cooper Recycling Corp., 204 F.3d 149, 154 (4th Cir. 2000). When, as here, the decision sought includes a request for a declaratory judgment, there must be “a substantial controversy, between parties having adverse legal interest[s], of sufficient immediacy and reality” that the court’s declaration of the parties’ rights and/or obligations can remedy the injury. Icarom, PLC v. Howard Cty., Md., 904 F. Supp. 454, 457 (D. Md. 1995) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941)); see also 28 U.S.C. § 2201(a) (providing that, “[i]n a case of actual controversy within its jurisdiction,” with exceptions not relevant here, this Court, “upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought”). The controversy must be “definite and concrete, touching the legal relations of the parties having adverse legal
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interest.” Icarom, 904 F. Supp. at 457 (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240– 41 (1937)). For example, in insurance litigation, where declaratory judgments are common, an actual controversy exists when there is a “dispute [that] relates to legal rights and obligations arising from the contracts of insurance.” Aetna, 300 U.S. at 242; see also Hanover Ins. Co. v. Engineered Sys. All., LLC, No. TDC-15-0112, 2015 WL 8538481, at *2 (D. Md. Dec. 10, 2015) (“[A]n actual controversy exists between an insurer and an insured when the insurer seeks a declaratory judgment on its contractual duty to defend and indemnify the insured in a tort suit,” even if the tort suit “has yet to be decided.”). Simply put, Plaintiffs will have standing if there is a declaration that the Court can make regarding Defendants’ obligations under the Enumeration Clause that likely will remedy Plaintiffs’ injuries. Notably, the Supreme Court has observed that it is “substantially likely that the President and other executive and congressional officials would abide by an authoritative interpretation of the census statute and constitutional provision by the District Court, even though they would not be directly bound by such a determination.” Franklin v. Massachusetts, 505 U.S. 788, 803 (1992).
Defendants argue that a declaratory judgment will not redress Plaintiffs’ alleged injuries, because the Court cannot appropriate funds, nominate and confirm senior Census Bureau executives, or hire subordinate ones.18 Neither would a declaration that Defendants are legally
18 Previously, in cases in which this Court found that the plaintiffs who brought legal challenges to the 2020 Census had standing, the defendants did not dispute redressability. See LUPE, 2018 WL 5885528, at *5 (“[T]he parties do not dispute that the alleged injury—a disproportionate undercount—will be redressed by a decision enjoining the use of the citizenship question on the 2020 Census.”); Kravitz, 336 F. Supp. 3d at 560 n.10 (“The Government does not dispute that Plaintiffs’ alleged injury can be sufficiently redressed by a favorable decision here. Previous census cases have typically found that this prong of the standing requirement is met in such challenges because a ‘permanent injunction against the proposed [change in the census] will redress the alleged injury.’” (quoting Dep’t of Commerce v. U.S. House of Reps., 525 U.S. 316, 332 (1999))). And, in California and City of San Jose, the defendants argued that the plaintiffs
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obligated to conduct an actual enumeration of the population in 2020 redress the injuries that
Plaintiffs assert, because the Constitution and the Census Act already require Defendants to do so,
and they agree that they must. All true, of course, and the Plaintiffs do not claim otherwise. See
Pls.’ Opp’n 22 n.9 (clarifying that they “have not requested that this Court appoint a Census
Director or appropriate funds”).
But Defendants put too sharp a point on their redressability argument. No, the Court cannot
order Congress to adequately fund the 2020 Census, the President to appoint senior census
officials, or the Secretary to hire sufficient qualified persons to plan and execute it.19 But the Court
“fail[ed] to meet their burden to allege concrete injury-in-fact” and that “plaintiffs’ alleged injuries [could] not be fairly traced to government action,” but defendants did not raise redressability, such that the issue was not before the California federal court either. Slip op. at 9. Likewise, in New York, 315 F. Supp. 3d at 781, the defendants “contend[ed] that Plaintiffs fail[ed] to establish that they have been injured in fact and that any injury is traceable to the challenged conduct,” without raising redressability, so that the issue also was not before the New York federal court when it considered the defendants’ motion to dismiss. Even though “Defendants ma[d]e no argument whatsoever concerning redressability” in New York, the court addressed the issue in its opinion following the bench trial. New York v. U.S. Dep’t of Commerce, Nos. 18-2921 (JMF) & 18-5025 (JMF), --- F. Supp. 3d ----, 2019 WL 190285, at *87 (S.D.N.Y. Jan. 15, 2019) (“[G]iven the Court’s findings of fact and conclusions of law, it follows that Plaintiffs have proved that their injuries are ‘likely’ to ‘be redressed by a favorable decision.’ Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (internal quotation marks omitted). That is, if Secretary Ross’s decision to add a citizenship question to the 2020 census is set aside or enjoined, as Plaintiffs request in these cases and as the Court concludes it must be, it is likely that its effects on the net differential undercount will be mitigated to the point of relieving Plaintiffs’ injuries. . . . [A]lthough the data generated by the 2020 census may still be less than perfect (no census is perfect, after all), and the resulting political apportionment and funding allocations may not be accurate to the seat or dollar, Plaintiffs have proved that their injuries specifically caused by the citizenship question will be mitigated, if not wholly remedied, by its removal.”). 19 See U.S. Const. art. I, § 9, cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”); Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 424 (1990) (“[T]he straightforward and explicit command of the Appropriations Clause[] ‘[is] simply that no money can be paid out of the Treasury unless it has been appropriated by an act of Congress.’” (quoting Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937))); see also 13 U.S.C. § 21(a)(1) (“The Bureau shall be headed by a Director of the Census, appointed by the President, by and with the advice and consent of the Senate . . . .” (emphasis added)); 13 U.S.C. § 23(a) (“The Secretary may establish, at rates of compensation to be fixed by him . . . , as many
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can declare that Congress and the President have failed to agree upon and finalize legislation to provide the funding actually needed to conduct the census in 2020—when the Secretary is constitutionally obligated to do so. Following expedited discovery, Plaintiffs may be able to show by admissible evidence that the currently appropriated funds are insufficient to conduct the 2020 census (after all, the Census Bureau already has gone on record to project the funds that it will need to complete the 2020 Census,20 and it will not require Napoleonic insight to determine whether the current appropriations meet the Secretary’s estimated needs). If they make that showing, then a declaration by the Court that there are insufficient funds to conduct the 2020 Census within the time mandated by the Constitution can meet the redressability requirement needed to show standing to proceed with the claims of inadequate funding raised in this suit. See Franklin, 505 U.S. at 803 (“For purposes of establishing standing, however, we need not decide whether injunctive relief . . . was appropriate, because we conclude that the injury alleged is likely to be redressed by declaratory relief against the Secretary alone. The Secretary certainly has an interest in defending her policy determinations concerning the census; even though she cannot herself change the reapportionment, she has an interest in litigating its accuracy. And, as the Solicitor General has not contended to the contrary, we may assume it is substantially likely that the President and other executive and congressional officials would abide by an authoritative
temporary positions as may be necessary to meet the requirements of the work provided for by law.” (emphasis added)); Rochester Pure Waters Dist. v. E.P.A., 960 F.2d 180, 185 (D.C. Cir. 1992) (“Congress has ‘absolute control of the moneys of the United States.’ The Appropriations Clause of the Constitution vests Congress with exclusive power over the federal purse . . . .” (quoting Harrington v. Bush, 553 F.2d 190, 194 n.7 (D.C. Cir. 1977) (citation and internal quotation marks omitted))). 20 See Pls.’ Opp’n 4–5 (“Although, on March 23, 2018, President Trump signed an omnibus spending bill allocating $2.814 billion to the Census Bureau, the bill funds the government only through September 2018. . . .The Commerce Department has acknowledged the severity of underfunding; in October 2017, Defendant Secretary Ross told Congress that the lifecycle cost of the 2020 Census would be $3.3 billion above the Commerce Department’s original estimate.” (citing Am. Compl.)).
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interpretation of the census statute and constitutional provision by the District Court, even though they would not be directly bound by such a determination.” (internal citations omitted)); accord Utah v. Evans, 536 U.S. 452, 460, 464 (2002) (citing Franklin as authority for rejecting standing challenge; concluding that, under the circumstances of the case before it, “it would seem, as in Franklin, ‘substantially likely that the President and other executive and congressional officials would abide by an authoritative interpretation of the census statute and constitutional provision . . .’”). And, if the Bureau’s finalized plans for the 2020 Census prove to be as deficient as Plaintiffs expect, and Plaintiffs’ challenges to the methods and means selected by the Secretary to conduct the census are reinstated, the Court will be able to offer further declaratory or injunctive relief.
In Defendants’ minds, such a narrow judicial declaration regarding funding still would fall short of meeting the redressability standard (i.e., that it is likely, not speculative, that the injury Plaintiffs allege can be redressed by a favorable court decision, Lujan v. Defs. of the Wildlife, 504 U.S. 555, 560–61 (1992)). While it remains to be seen just how the Secretary, Congress and the President would react to a judicial declaration that the 2020 Census cannot be accomplished within the time required by the Constitution and the Census Act because of a lack of funding, thereby necessitating immediate additional funding (assuming the Plaintiffs can prove this), the Supreme Court has expressed its confidence that they are likely to follow such a declaration, even if they are not bound by it. See Utah, 536 U.S. at 460; Franklin, 505 U.S. at 803. Moreover, given the daily front-page news regarding the recent acrimonious partial government shutdown, which may yet re-emerge, phoenix-like, in the event that the three-week hiatus fails to result in more
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permanent funding,21 it seems that it is at least as speculative, if not more, to believe that sufficient funds will be appropriated in time to allow proper preparations for the 2020 Census than to believe that they will not. Meanwhile, the April 1, 2020 enumeration date keeps drawing closer, and the allegations in the Amended Complaint make it clear that quite a lot remains to be done before the Census Bureau will be ready to conduct the 2020 decennial census within the time the Constitution and Census Act require. Thus, to the extent that Plaintiffs have alleged an Enumeration Clause violation because there are insufficient funds to conduct an “actual enumeration” in 2020, they have shown that Defendants’ motion to dismiss should be denied, and Plaintiffs permitted expedited, focused discovery, to demonstrate at summary judgment or trial that their allegations have evidentiary support.
As for the exact contours of any declaratory relief this court might grant following an evidentiary hearing or trial, it is enough to say that some form of declaratory relief is likely to redress a proven shortfall in funding for the 2020 census, and it is unnecessary to predict exactly what it would be at this preliminary stage of the case. See Texas v. Mosbacher, 783 F. Supp. 308, 317 (S.D. Tex. 1992) (stating that, on a motion to dismiss, the court did not need to “spell out what
21 See Nicholas Fandos, Sheryl Gay Stolberg & Peter Baker, Trump Signs Bill Reopening Government for 3 Weeks in Surprise Retreat From Wall, N.Y. Times (Jan. 25, 2019), https://www.nytimes.com/2019/01/25/us/politics/trump-shutdown-deal.html; David Nath, Furloughed Federal Workers Considering Career Change as Partial Government Shutdown Drags On, Fox News (Jan. 24, 2019), https://www.foxnews.com/ politics/furloughed-federal-workers-consdiering-career-change-as-partial-government-shutdowndrags-on (“The partial government shutdown has now dragged on for over a month, and there’s no end in sight . . . .”); Rachel Martin, Still No End in Sight for the Longest Government Shutdown, Nat’l Pub. Radio (Jan. 21, 2019) (interview with White House correspondent Scott Horsley), https://www.npr.org/2019/01/21/687096061/still-no-end-in-sight-for-the-longest-governmentshutdown (“President Trump has offered what he calls a compromise plan to end the partial government shutdown now the longest in history.”).
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shape any relief will take, if any in fact is needed, . . . because there is no record before it which would allow it to venture such speculations”).
Political Question Doctrine
Defendants also challenge Plaintiffs’ claim as a non-justiciable political question. Pursuant to the political question doctrine, courts cannot “review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Kravitz v. U.S. Dep’t of Commerce, 336 F. Supp. 3d 545, 561 (D. Md. 2018) (quoting Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986)).
This is a “narrow exception” to judicial review. Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195, 132 S.Ct. 1421, 182 L.Ed.2d 423 (2012). Whether a case presents a non-justiciable political question depends on a number of factors, the most important of which are whether there exists a “textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.” Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) Kravitz, 336 F. Supp. 3d at 561.
In the past five months, this Court has ruled twice that “the political question doctrine does not bar courts from considering whether or not the expansive authority granted by [the] Census Clause has been violated.” La Unión del Pueblo Entero v. Ross (“LUPE”), No. GJH-18-1570, --F. Supp. 3d ----, 2018 WL 5885528, at *5 (D. Md. Nov. 9, 2018) (citing Kravitz v. U.S. Dep’t of Commerce, 336 F. Supp. 3d 545, 562–63 (D. Md. 2018)). In Kravitz, as in this case, see Defs.’ Mem. 20, “Defendants contend[ed] that because the Clause allows Congress to conduct the census ‘in such a Manner’ as Congress directs, the method by which the census is conducted . . . is textually committed to Congress and therefore barred from judicial review.” 336 F. Supp. 3d at 561. The Court rejected the defendants’ “attempt to distinguish [prior cases finding census
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challenges justiciable] by arguing that the Census Clause has two distinct prongs—an ‘actual Enumeration’ prong and a ‘Manner’ prong,” ruling that “[w]hether or not Congress or the Census Bureau has violated their expansive breadth of authority is . . . a justiciable question.” Id. at 563.
Similarly, in California v. Ross & City of San Jose v. Ross, the court concluded that the political question doctrine did not preclude it from considering the plaintiffs’ claims challenging the defendants’ plan to include a citizenship question in the 2020 Census. Nos. 18-1865-RS & 182279-RS, slip. op. 19 (N.D. Cal. Aug. 17, 2018), ECF No. 47-1. There, also, the court observed that “Courts have routinely held that the Enumeration Clause does not textually commit exclusive, non-reviewable control over the census to Congress.” Id. at 18. On that basis, it rejected the defendants’ argument that “the command to conduct an ‘actual enumeration’ presents a judicially cognizable question that courts have routinely answered, while the latter command regarding the ‘manner’ of conducting the census presents a nonjusticiable political question reserved for Congress and be delegation, to the Secretary.” Id. at 17. The viability of Defendants’ argument is no different before me. For the same reasons that my colleagues have explained, I conclude that the political question doctrine does not preclude my review of Plaintiffs’ Enumeration Clause claim. See id.; LUPE, 2018 WL 5885528, at *5; Kravitz, 336 F. Supp. 3d at 562–63.22
22 Defendants rely on the decision of the U.S. District Court for the Northern District of Illinois in Tucker v. U.S. Department of Commerce, 135 F.R.D. 175, 181–82 (N.D. Ill. 1991), where the district court said that the census challenges were non-justiciable political questions. Defs.’ Supp. 5. But, on appeal, the Seventh Circuit expressed its doubts about the political question doctrine and its applicability, noting that “[t]he scope, rationale, provenance, and legitimacy of the doctrine remain profoundly unclear,” and concluding that, regardless, “[t]he accuracy of the decennial census is not [a political] question.” Tucker v. U.S. Dep’t of Commerce, 958 F.2d 1411, 1415 (7th Cir. 1992) (Posner, J.).
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Failure to State a Claim “The Constitution requires that the Census be conducted in a manner that bears ‘a reasonable relationship to the accomplishment of an actual enumeration of the population,’ while keeping in mind the enumeration’s other constitutional purposes (i.e. apportionment and equal protection).” LUPE, 2018 WL 5885528, at *7 (quoting Wisconsin v. City of New York, 517 U.S. 1, 20 (1996)). And, “[a]lthough the Census Clause does not require the Census Bureau to achieve perfect accuracy, it does require that a preference be given for ‘distributive accuracy (even at the expense of some numerical accuracy).’” Id. (quoting Wisconsin, 517 U.S. at 20). To state a claim for violation of the Enumeration Clause, Plaintiffs must allege that Defendants’ preparations (or lack thereof) for the 2020 Census “unreasonably compromise[] the distributive accuracy of the census.” Id.; see also Kravitz, 336 F. Supp. 3d at 565. In LUPE and Kravitz, the plaintiffs alleged that “the citizenship question will reduce participation and depress response rates among the Undercount Groups, resulting in a disproportionate undercount that adversely affects Plaintiffs’ congressional apportionment, intra-state representation, and access to federally-funded programs.” LUPE, 2018 WL 5885528, at *7; see Kravitz, 336 F. Supp. 3d at 565. This Court concluded in both cases that the plaintiffs sufficiently “alleged that the citizenship question unreasonably compromises the distributive accuracy of the census.” LUPE, 2018 WL 5885528, at *7; see Kravitz, 336 F. Supp. 3d at 565. Likewise, here, as discussed in detail above with regard to Plaintiffs’ allegations of injury in fact, Plaintiffs allege that Defendants’ lack of funding for the 2020 Census will exacerbate the undercount Prince George’s County historically experiences, resulting in a “loss of federal funding” and “the risk of Maryland losing seats in Congress,” which “would deprive Prince George’s County residents of fair and equal representation.” Am. Compl. ¶¶ 85–104, 108, 110, 113. Thus, they have alleged sufficiently that
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proceeding as Defendants are with the 2020 Census will “unreasonably compromise[] the distributive accuracy of the census,” thereby stating a claim for violation of the Enumeration Clause. See LUPE, 2018 WL 5885528, at *7; Kravitz, 336 F. Supp. 3d at 565.
ORDER Accordingly, it is, this 29th day of January, 2019, hereby ORDERED that 1. Defendants’ Motion to Dismiss, ECF No. 43, IS GRANTED IN PART AND DENIED
IN PART as follows: a. The claims against President Donald J. Trump are DISMISSED by consent; b. Defendants’ Motion IS DENIED as to Plaintiffs’ Enumeration Clause claim for declaratory relief, based on Defendants’ lack of funding for the 2020 Census; c. Defendants’ Motion to Dismiss otherwise IS GRANTED, without prejudice to the reinstatement of the dismissed claims upon a showing that they are ripe; and d. The Court will contact counsel to discuss a schedule to conduct focused, targeted discovery on the funding challenge, as well as for further proceedings consistent with this Memorandum Opinion and Order.
/S/ Paul W. Grimm United States District Judge lyb
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 Case 8:18-cv-00891-PWG Document 76 Filed 02/28/19 Page 1 of 4

CHAMBERS OF PAUL W. GRIMM UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND
6500 CHERRYWOOD LANE GREENBELT, MARYLAND 20770
(301) 344-0670 (301) 344-3910 FAX

February 28, 2019
RE: NAACP v. Bureau of the Census PWG-18-891

Dear Counsel:

LETTER ORDER

Less than a month ago, I dismissed without prejudice as not yet ripe Plaintiffs’ Enumeration Clause1 claim for injunctive relief with respect to Defendants’ planned method and means of conducting the 2020 Census, while denying Defendants’ motion to dismiss as to Plaintiffs’ claim that there are insufficient funds available for the Bureau to conduct the 2020 Census, which, they allege, also will result in an Enumeration Clause violation.2 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.” NAACP v. Bureau of Census, ---F. Supp. 3d ----, 2019 WL 355743, at *3 (D. Md. Jan. 29, 2019). On that basis, I found that Plaintiffs have standing, and I allowed the claim to proceed, with targeted discovery to determine whether an evidentiary basis exists for the declaratory relief they seek.

Just over a week later, on a February 6, 2019 status conference call, Plaintiffs sought leave to amend to add claims under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., and to reinstate their claim for injunctive relief, based on the Bureau’s finalization of its operational plans for the 2020 Census (“Final Operational Plan” or “Plan”). The parties fully briefed the issue through informal letters to the Court. ECF Nos. 68, 72, 74. A hearing is not necessary. See Loc. R. 105.6. Because amending to introduce APA claims would not be futile but Plaintiffs’ Constitutional claims for injunctive relief are not yet ripe, Plaintiffs’ letter motion to amend, ECF No. 68, is granted in part and denied in part. Plaintiffs may file a Second Amended Complaint that includes APA claims and factual developments since Plaintiffs last amended their pleading in June 2018, but they may not reintroduce their Enumeration Clause claims for injunctive relief at this time.

1 U.S. Const. art. I, § 2, cl. 3 (“Enumeration Clause”).
2 Plaintiffs are the National Association for the Advancement of Colored People (“NAACP”); Prince George’s County (the “County”); Prince George’s County Maryland NAACP Branch (the “County NAACP”); Robert E. Ross, President of the County NAACP; and H. Elizabeth Johnson, County NAACP Executive Committee member. Defendants are the Bureau of the Census (the “Bureau”); Steven Dillingham, Director of the Bureau; Wilbur Ross, Secretary of Commerce; and the United States of America.

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Parties’ Arguments Plaintiffs argue that “[t]he Final Operational Plan[ ] constitutes final agency action fit for judicial review pursuant to the APA,” and their proposed APA claims would assert that “discrete, final decisions communicated in the Plan are arbitrary and capricious,” as well as “‘contrary to constitutional right, power, privilege, or immunity.’” Pls.’ Ltr. Req. 2 (quoting 5 U.S.C. § 706(2)(B) and citing 5 U.S.C. § 706(2)(A)).
Defendants counter that the Final Operational Plan is not “‘agency action’ challengeable under the APA” because agency action must be “circumscribed and discrete,” yet “Plaintiffs seem to challenge the entire Operational Plan for conducting the 2020 Census, as well as various ‘discrete, final decisions . . . .’” Defs.’ Ltr. Opp’n 1. Additionally, they argue that agency action must “determine rights and obligations,” and insofar as Plaintiffs challenge discrete final decisions, those decisions do not “determine rights and obligations” because they do not have an “immediate and practical impact.” Id. at 2. And, Defendants again raise the argument that Plaintiffs ask the Court to tread too far into decisions within the Bureau’s discretion. Id.
In reply, Plaintiffs contend that Defendants’ arguments are insufficient to “overcome the lenient standard of review on a motion for leave to amend.” Pls.’ Reply 1. They insist that they challenge “discrete decisions in Defendants’ Final Operational Plan,” rather than challenging the Plan more generally, as Defendants suggest. Id. at 2. And, in their view, Defendants’ challenged actions do determine rights—specifically, “Plaintiffs’ rights to be enumerated.” Id. Additionally, they urge the Court not to allow Defendants to hide behind the shield of “agency discretion.” Id. Plaintiffs argue that the “time has now come” to reinstate their Constitutional claim for injunctive relief, based on the release of Defendants’ Final Operational Plan. Id. at 3.
Discussion
A plaintiff may amend his or her complaint once as a matter of course. See Fed. R. Civ. P. 15(a)(1). After that, though, amendments are permissible “only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). The Federal Rules of Civil Procedure direct courts to “freely give leave when justice so requires,” id., a mandate the Supreme Court has highlighted as one that “is to be heeded,” Foman v. Davis, 371 U.S. 178, 182 (1962). It is not at all uncommon for courts to grant a plaintiff leave to amend the complaint at this stage of the proceedings, where the court has issued a ruling on the defendant’s motion to dismiss and awaits the filing of the defendant’s answer. See Laber v. Harvey, 438 F.3d 404, 427 (4th Cir. 2006); 6 Charles Alan Wright et al., Fed. Prac. & Proc. § 1488 (3d ed. 1998). Indeed, “[t]he Fourth Circuit has stated that leave to amend under Rule 15(a) should be denied only in three situations: when the opposing party would be prejudiced, when the amendment is sought in bad faith, or when the proposed amendment would be futile.” Longue v. Patient First Corp., 246 F. Supp. 3d 1124, 1126 (D. Md. 2017) (citing Laber, 438 F.3d at 426).
Here, the issue is whether, as Defendants assert, there has not been any agency action, such that amendment to add APA claims would be futile.
“The term ‘action’ as used in the APA is a term of art that does not include all conduct” on the part of the government. Instead, the APA defines “agency action” to include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13).
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This definition limits the scope of judicial review in two important respects. First, each of the terms that comprise the definition of “agency action” is limited to those acts that are “circumscribed” and “discrete.” When challenging agency action—whether it be a particular action or a failure to act altogether—the plaintiff must therefore identify specific and discrete governmental conduct, rather than launch a “broad programmatic attack” on the government’s operations. . . .
Second, the definition of “agency action” is limited to those governmental acts that “determin[e] rights and obligations.” . . . To meet this requirement, a party must demonstrate that the challenged act had “an immediate and practical impact,” or “alter[ed] the legal regime” in which it operates.
City of New York v. U.S. Dep’t of Defense, 931 F.3d 423, 430–31 (4th Cir. 2019) (internal case citations omitted). It is not so clear that the actions Plaintiffs challenge do not qualify as “agency action” that amendment would be futile. Accordingly, Plaintiffs may amend to add these APA claims. Plaintiffs also may “revise the factual allegations in their Complaint to reflect developments in the plans for the 2020 Census since they filed their First Amended Complaint in June 2018.” Pls.’ Ltr. Req. 3. They shall comply with this Court’s Local Rules’ requirement that they file a redlined version along with their Second Amended Complaint.
Defendants have, however, raised a significant challenge to the ultimate viability of Plaintiffs’ APA claims. Therefore, Defendants may file a motion to dismiss on the basis that the challenged actions do not qualify as “agency action.” The deadline for amending and the timeframe and page limits for briefing the motion to dismiss are set forth below.
Plaintiffs also contend that the previously-dismissed Enumeration Clause claim for injunctive relief now is ripe, as their “claims no longer ‘rest[] upon ‘contingent future events that may not occur as anticipated . . . .’” Pls.’ Ltr. Req. 3. Defendants insist that Plaintiffs’ request to reintroduce their claim for injunctive relief is a “not-so-subtle attempt at reconsideration.” Defs.’ Ltr. Opp’n 3. Notably, three days before the Defendants filed their letter opposition on February 18, 2019, Congress appropriated to the Bureau more than $3 billion for the 2020 Census, see H.J. Res. 31, 116th Cong. (2019). Defendants urge that, in light of that recent appropriation, “the Court should also reconsider its holding that Plaintiffs’ funding claim is both justiciable and ripe.” Defs.’ Ltr. Opp’n 3; see also Defs.’ Pre-Mot. Ltr., ECF No. 75 (seeking to file motion to dismiss funding claim). Additionally, they argue that it is still true, as I ruled on January 29, 2019, that
[f]irst, . . . “the immediacy of Defendants’ actions is not tantamount to a certainty of injury or hardship to Plaintiffs in the absence of Court intervention at this time,” and Plaintiffs “have not shown that delayed resolution of the issues would foreclose any relief from their alleged injury.” Second, . . . “if the Court were to interject itself into the Bureau’s process during the critical final preparations, requiring—as Plaintiffs request—its monitoring and approval of the plans along the way, it is hard to imagine that this oversight would not hinder the process as opposed to facilitate it.” And third, . . . “the more-than-a-year remaining before the start of the 2020 Census will put to the test the new procedures the Secretary has planned to adopt,” and “the conduct of the Census itself will result in a preliminary population count that will determine whether the differential undercount that the Plaintiffs fear will adversely affect their federal and local representation and future federal funding.”
3

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Defs.’ Ltr. Opp’n 3 (quoting NAACP, 2019 WL 355743, at *14, *15). I agree and will deny Plaintiffs’ request to reintroduce their Enumeration Clause claims for injunctive relief at this time, for the reasons stated in NAACP, 2019 WL 355743, at *14, *15. As for the funding claim, although the appropriations bill has passed, Plaintiffs still sufficiently question the adequacy of the funding for their claim to move forward to targeted discovery. Nonetheless, Defendants may address the justiciability of this claim, also, in their proposed motion to dismiss.
Accordingly, it is hereby ORDERED that 1. Plaintiffs’ letter motion to amend, ECF No. 68, IS GRANTED IN PART AND
DENIED IN PART as follows: a. Plaintiffs may file a Second Amended Complaint that includes APA claims and factual developments since Plaintiffs last amended their pleading in June 2018; b. Plaintiffs may not reintroduce their Enumeration Clause claims for injunctive relief at this time; and c. Plaintiffs’ Second Amended Complaint must be filed, along with a redlined version, by April 1, 2019; and
2. Defendants may file a motion to dismiss the APA claims in the Second Amended Complaint for lack of agency action and to dismiss the funding claim as moot by April 15, 2019; if they do so, Plaintiffs’ opposition will be due April 29, 2019, and Defendants’ reply will be due May 13, 2019; the opening brief and opposition will be limited to 25 pages each, and the reply will be limited to 15 pages.
Although informal, this is an Order of the Court and shall be docketed as such.
Sincerely, /S/
Paul W. Grimm United States District Judge
4

 
 945 F.3d 183 (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.
No. 19-1863.
United States Court of Appeals, Fourth Circuit.
Argued: October 30, 2019. Decided: December 19, 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 186*186 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.
Affirmed in part, reversed in part, and remanded by published opinion. Judge KEENAN wrote the opinion, in which Chief Judge GREGORY and Judge RICHARDSON joined.
185*185 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, 116 S.Ct. 1091, 134 L.Ed.2d 167 (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 187*187 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, ___ U.S. ___, 139 S. Ct. 2551, 2568, 204 L.Ed.2d 978 (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 dismissal of the Enumeration Clause claims, and remand that portion of the case to allow the plaintiffs to file an amended complaint setting forth their Enumeration Clause claims.
I.
This appeal arises from a brief but complicated procedural history, throughout which the factual and the legal bases of the plaintiffs' claims changed significantly. For that reason, we begin by reviewing the proceedings below in some detail.
The plaintiffs filed this suit in March 2018, initially asserting multiple violations of the Enumeration Clause but no claims under the APA. At the time of this initial filing, and at the time of the plaintiffs' first amended complaint in June 2018, the Census Bureau lacked a permanent director and a deputy director, and openly was cancelling pre-Census activities based on the lack of appropriations from Congress. Against this backdrop, the plaintiffs alleged that the Census Bureau's lack of funding and staffing, exacerbated by "design flaws" in the defendants' plans to rely on new technologies for the Census, would lead to a dramatic population undercount. The plaintiffs averred that this undercount disproportionately would impact African Americans and other "hard-to-count" communities, thereby diminishing the political representation and the amount of federal funding that these communities would receive.
The defendants moved to dismiss the plaintiffs' claims for failure to state a claim and for lack of justiciability. The district court addressed the defendants' motion by memorandum opinion in January 2019. The court first held that the plaintiffs' allegations were sufficient to confer standing under the Enumeration Clause, and that judicial review was not barred by the political question doctrine. But, reasoning that judicial review was premature and that the plaintiffs' alleged injuries could be redressed after the 2020 Census was taken, the court held that the Enumeration Clause claims challenging the "methods and means" of conducting the Census were unripe and dismissed those claims without prejudice. However, the court allowed the Enumeration Clause claim based on underfunding to proceed, identifying that one claim as "ripe" for relief.
Just days after the district court's decision, the Census Bureau announced that 188*188 its "Operational Plan" for the 2020 Census was final.[1] The plaintiffs immediately sought leave to amend their complaint (1) to introduce claims under the APA, and (2) to "reinstate" their Enumeration Clause claims based on the methodology set forth in the Operational Plan. The district court granted the plaintiffs leave to introduce claims under the APA but denied leave to replead the other Enumeration Clause claims. Notwithstanding the release of the Operational Plan, the district court determined that Enumeration Clause claims based on the planned "methods and means of conducting the 2020 Census" still were not ripe.

In accordance with the district court's instructions, the plaintiffs filed a second amended complaint (Complaint) identifying six "irrational design choices" in the Operational Plan. The plaintiffs asked the court to "set aside" each "design choice" under Section 706(2) of the APA. 5 U.S.C. § 706(2). As pleaded, those "choices" were: (1) "a plan to hire an unreasonably small number of enumerators;" (2) "a drastic reduction in the number of Census Bureau field offices;" (3) "cancellation of crucial field tests;" (4) "a decision to replace most in-field address canvassing with in-office address canvassing;" (5) "a decision to make only extremely limited efforts to count inhabitants of housing units that appear vacant or nonexistent based on unreliable administrative records;" and (6) "a significant reduction in the staffing of the Bureau's partnership program."
The defendants filed a renewed motion to dismiss, seeking dismissal of the APA claims, as well as the remaining Enumeration Clause claim that was based on underfunding. The district court granted the defendants' motion in its entirety.
The district court dismissed the plaintiffs' underfunding claim, holding that the claim had been rendered moot by recent Congressional appropriations, and that the plaintiffs lacked standing to challenge the adequacy of those appropriations. Next, addressing the APA claims, the court held that the plaintiffs had failed to identify any reviewable "agency action" over which the court could exercise jurisdiction. Finally, the court held that despite the fact that the APA claims were articulated as requests to "set aside agency action" under Section 706(2), those claims were, in substance, requests to "compel agency action" under Section 706(1). Therefore, the court concluded that the APA claims failed on the additional ground that the actions the plaintiffs sought to compel were not "required by law," a precondition for claims brought under Section 706(1). Accordingly, the court granted the defendants' motion and dismissed the Complaint.
II.
On appeal, the plaintiffs argue that the district court erred in dismissing the APA claims on jurisdictional grounds, and in dismissing the Enumeration Clause claims as unripe. We address each argument in turn.
A.
We begin by considering the APA claims, which the district court dismissed after concluding that the face of the Complaint failed to identify any "agency action" reviewable under the Act. We review de novo the district court's assessment of its jurisdiction under the APA. 189*189 Invention Submission Corp. v. Rogan, 357 F.3d 452, 454 (4th Cir. 2004). Because the district court concluded that it lacked jurisdiction based on the face of the Complaint, we accept the truth of the factual allegations contained in the Complaint and draw all reasonable inferences in the plaintiffs' favor. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009).

Judicial review under the APA is limited to review of "final agency action." 5 U.S.C. § 704. To constitute "final agency action" within the meaning of Section 704, the challenged action must have two characteristics. Vill. of Bald Head Island v. U.S. Army Corps of Eng'rs, 714 F.3d 186, 193-94 (4th Cir. 2013). First, the challenged action must be "circumscribed and discrete." Id. at 194 (citation omitted); see also Norton v. S. Utah Wilderness All., 542 U.S. 55, 62-63, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). This requirement derives from the APA's definition of "agency action," which includes "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(13); see also 5 U.S.C. § 701(a)(2) (adopting the definition given in Section 551). All five specific examples given in this definition are "discrete" in character, and only actions that share this "characteristic of discreteness" are reviewable under the APA. Norton, 542 U.S. at 62-63, 124 S.Ct. 2373. Thus, even claims based on an agency's "failure to act" must allege the failure to take "discrete" agency action. Id. at 63, 124 S.Ct. 2373.
Second, the "agency action" must be "final." Vill. of Bald Head Island, 714 F.3d at 194. Agency action is "final" if two preconditions are satisfied: (1) the action must be the "consummation of the agency's decisionmaking process," and (2) the action must be one "by which rights or obligations have been determined or from which legal consequences will flow." Id. (quoting Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)); see also Franklin v. Massachusetts, 505 U.S. 788, 797, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) ("The core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties.").
As the case law makes clear, these two characteristics of "final agency action" are prerequisites to APA review, whether a plaintiff seeks to "compel agency action" under Section 706(1) or to "set aside agency action" under Section 706(2). See Norton, 542 U.S. at 62-63, 124 S.Ct. 2373; Vill. of Bald Head Island, 714 F.3d at 195; see also City of New York v. United States Dep't of Def., 913 F.3d 423, 432 (4th Cir. 2019). However, when a plaintiff asks a court to compel agency action under Section 706(1), one additional requirement applies. In such cases, the plaintiff must show that the action the plaintiff seeks to compel is one that the agency is "legally required" to take. Norton, 542 U.S. at 63-64, 124 S.Ct. 2373.
The plaintiffs argue that their claims meet these jurisdictional requirements, and that the district court erred in holding otherwise. According to the plaintiffs, the "design choices" at issue are discrete, because those choices can be analyzed "without reference" to one another. The plaintiffs also assert that the challenged decisions are final, because each will lead directly to a differential undercount. Finally, the plaintiffs contend that because they have presented each APA claim exclusively as a request to "set aside agency action" under Section 706(2), it is not necessary to show that any action of the Census Bureau is "required by law." After considering these arguments, we 190*190 conclude that the district court did not err in dismissing the APA claims, because they do not meet the jurisdictional requirement of "final agency action" within the meaning of the APA.

Initially, like the district court, we observe that there is tension between the substantive allegations in the Complaint and the plaintiffs' contention that their APA claims do not seek to "compel agency action." See 5 U.S.C. § 706(1). Although styled as claims to "set aside agency action" under Section 706(2), the essence of the plaintiffs' APA claims is that the Census Bureau is not doing enough to ensure an accurate enumeration in the 2020 Census, and must be compelled to do more. See Compl. ¶ 217 ("Defendants have adopted a program for the 2020 Census... that inadequately addresses the challenge of reaching hard-to-count populations."). Under such circumstances, we question whether the plaintiffs can avoid the strict limitations on suits to "compel agency action" under Section 706(1) simply by framing their APA claims as requests to "set aside" the Census Bureau's "decisions" not to act.[2] Nevertheless, we need not decide whether the plaintiffs are required to proceed under Section 706(1), because we hold that the "design choices" at issue lack "discreteness" and "finality," requirements that apply to suits brought under both Section 706(1) and Section 706(2). See Norton, 542 U.S. at 62-63, 124 S.Ct. 2373.
The majority, if not all, of the plaintiffs' APA claims fail because they do not challenge actions that are "circumscribed" and "discrete." See id.; Vill. of Bald Head Island, 714 F.3d at 194. In fact, the plaintiffs disavow any argument that the alleged deficiencies in the Operational Plan are "simply the result of a choice of methodology." Instead, as pleaded, the plaintiffs allege only that the defendants' "design choices" are insufficient in light of various other factors. See, e.g., Compl. at ¶ 69 (alleging "insufficient planned hiring of enumerators"); ¶ 114 (alleging "insufficient network of area census offices"); ¶ 160 (challenging the "sufficiency" of plan to rely on administrative records); ¶ 168 (alleging "insufficient partnership program staffing") (formatting altered). So described, these claims bear little resemblance to the type of "circumscribed" actions specifically identified in the text of the APA as reviewable. See 5 U.S.C. § 551(13) (listing the "whole or a part of an agency rule, order, license, sanction, relief or the equivalent or denial thereof" as reviewable actions); see also Norton, 542 U.S. at 62-63, 124 S.Ct. 2373.
The plaintiffs' description of their claims confirms this assessment. For example, in alleging that the Census Bureau plans to hire an "insufficient" number of Enumerators, the plaintiffs notably do not allege that any specific number of Enumerators is required to conduct the Census. Instead, over the course of forty-five paragraphs, the plaintiffs explain that the number of Enumerators the Census Bureau plans to hire is "insufficient" because of numerous other problems in the broader Non-Response Follow-Up Program (NRFU), as reflected in the Operational Plan. As alleged, these problems include overreliance on the first ever "Internet Self-Response" option for completing the Census, insufficient testing of "new protocols" and "new technologies," and an "irrationally optimistic" 191*191 assumption that increased use of administrative records will reduce NRFU workload. Thus, these challenges under the APA to the number of Enumerators that the Census Bureau proposes to hire are neither "circumscribed" nor "discrete." The sufficiency of the number of Enumerators hired inextricably is dependent on the other programs and decisions that the plaintiff's themselves identify.
This same jurisdictional defect, the failure to identify actions that are "circumscribed" and "discrete," also forecloses the APA claims that challenge the "insufficient network of area

census offices," the overreliance on administrative records within the NRFU program, the increased use of "in-office address canvassing," and "insufficient partnership program staffing." As those allegations make clear, the identified "decisions" are "insufficient" only in relation to one another and to the broader Operational Plan that the plaintiffs deem "inadequate" in its entirety. Thus, while we acknowledge the general principle that the multiplicity of an agency's failings is not a barrier to judicial review, we conclude that this principle does not carry the day given the content of the particular pleadings before us.
Contrary to their position on appeal, the plaintiffs do not actually challenge multiple discrete decisions made by the Census Bureau. Instead, as pleaded, the various "design choices" being challenged expressly are tied to one another. "Setting aside" one or more of these "choices" necessarily would impact the efficacy of the others, and inevitably would lead to court involvement in "hands-on" management of the Census Bureau's operations. See Norton, 542 U.S. at 66-67, 124 S.Ct. 2373. This is precisely the result that the "discreteness" requirement of the APA is designed to avoid. Id. at 67, 124 S.Ct. 2373; see also City of New York, 913 F.3d at 434; Clear Sky Car Wash LLC v. City of Chesapeake, Va., 743 F.3d 438, 445 (4th Cir. 2014); Vill. of Bald Head Island, 714 F.3d at 194. For these reasons, we hold that the plaintiffs have failed to identify any "final agency action" subject to judicial review under the APA.
Our conclusion is not altered by the fact that one of the APA claims pertains to the cancellation of specific field tests, a decision that occurred in 2016. Even if we were to assume that this decision was a "discrete" action, the decision nevertheless falls outside the scope of APA review because the cancellation of those field tests did not "give rise to legal consequences, rights, or obligations." Invention Submission Corp., 357 F.3d at 458 (internal quotations omitted). Instead, as pleaded, the decision to cancel field tests impacts the plaintiffs only insofar as the decision leaves the Census Bureau "less prepared" to handle any "unforeseen" problems that "may" arise from the actual procedures set forth in the Operational Plan, a confluence of circumstances that the plaintiffs assert would create a disproportional impact on undercounted communities. These attenuated allegations amount to little more than a "best guess" regarding the consequences of cancelling the tests at issue. Therefore, because the Complaint fails to include specific facts indicating that the Census Bureau's decision to cancel the field tests gave rise to "legal consequences, rights, or obligations," see id., we hold that the cancellation of field tests does not constitute "final agency action" under the APA. See Franklin, 505 U.S. at 797, 112 S.Ct. 2767.
In concluding that the plaintiffs have failed to identify a "final agency action" subject to judicial review, we emphasize that our holding is based on the broad, sweeping nature of the allegations that the plaintiffs have elected to assert under the APA. Our decision today neither disturbs 192*192 the "basic presumption of judicial review" embodied by the APA, Abbott Labs. v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967),[3] nor conflicts with the Supreme Court's recent guidance that courts can and frequently should "entertain[] both constitutional and statutory challenges to census-related decisionmaking." Dep't of Commerce, 139 S. Ct. at 2568. Instead, we merely reaffirm and apply the longstanding jurisdictional requirements that must be satisfied when proceeding

under the APA. Because we conclude that these requirements have not been met here, we affirm the district court's dismissal of the APA claims for lack of jurisdiction.
B.
We turn now to consider the district court's decision dismissing as unripe the plaintiffs' Enumeration Clause challenge. We review the district court's dismissal of these claims de novo, and the court's decision to deny leave to reintroduce the claims for abuse of discretion. Attkisson v. Holder, 925 F.3d 606, 619 (4th Cir. 2019) (leave to amend); Deal v. Mercer Cty. Bd. of Educ., 911 F.3d 183, 190 (4th Cir. 2018) (ripeness).
The ripeness doctrine derives from Article III limitations on judicial review, and ensures that judicial intervention in a controversy is timed appropriately. Deal, 911 F.3d at 190 (citation omitted); see also Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 732-33, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). When examining ripeness in the context of agency action, our inquiry generally turns on two considerations: (1) the fitness of the issues presented for judicial review; and (2) the hardship that the parties would endure by delayed adjudication. Deal, 911 F.3d at 190-91.
The plaintiffs argue that the Enumeration Clause claims that they seek to present satisfy both these criteria.[4] Thus, the plaintiffs assert that the district court erred in holding that such claims would be unripe until after the 2020 Census is completed, and compounded that error in refusing to allow the plaintiffs to replead their claims after the Operational Plan was announced. In response, the defendants do not defend the district court's ripeness analysis but maintain that the district court ultimately reached the correct result by dismissing the Enumeration Clause claims.
We agree with the plaintiffs that the district court erred in its ripeness analysis. First, we hold that the plaintiffs' claims are "fit" for review. Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006). A controversy becomes "fit" for review when it no longer is "dependent on future uncertainties." Id. We hold that, at the latest, this point occurred when the defendants announced that the Operational Plan was final and the plaintiffs sought leave to file an amended complaint. Once announced as part of the "final design" for the Census, the procedures challenged by the plaintiffs no longer credibly could be described as "uncertain." Id.; see also U.S. House of Representatives v. U.S. Dep't of Commerce, 11 F. Supp. 2d 76, 91 (D.D.C. 1998) (holding that a challenge to Census procedures 193*193 becomes ripe once it is "certain that the Bureau will employ [the procedures] in conducting the apportionment enumeration").
We also hold that delayed adjudication would result in hardship to the plaintiffs. The Supreme Court squarely has held that it is "not necessary" for courts "to wait until the census has been conducted" to consider challenges to the Census Bureau's planned procedures, "because such a pause would result in extreme—possibly irremediable— hardship." Dep't of Commerce v. U.S. House of Representatives, 525 U.S. 316, 332, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999); see also Dep't of Commerce v. New York, 139 S. Ct. at

2561 (reviewing a pre-Census challenge to the decision to add a citizenship question to the Census questionnaire). As in House of Representatives, the injuries that the plaintiffs assert in this case arise from procedures that the defendants intend to use, or not use, in conducting the Census. 525 U.S. at 320-21, 119 S.Ct. 765. Thus, the hardship that the plaintiffs would experience from the delay in adjudicating these claims is well established.
For these reasons, we hold that the plaintiffs' Enumeration Clause challenge to the "methods and means" to be used in the 2020 Census was ripe by the time the plaintiffs sought leave to reintroduce those claims in February 2019, and that the district court's contrary conclusion was legal error. And, because a district court necessarily abuses its discretion when its ruling is "based on an erroneous view of the law," see Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990), we further hold that the district court abused its discretion in denying on ripeness grounds the plaintiffs' request to file an amended complaint setting forth their Enumeration Clause claims.
As reflected by this holding, we decline the defendants' request that we examine their alternative grounds for dismissal of the Enumeration Clause claims, including lack of Article III standing, the political question doctrine, and because the Enumeration Clause claims fail to state facts plausibly establishing a constitutional violation. The district court has not considered these additional arguments in the context of the amended complaint that will be filed when the proceedings resume in the district court. Therefore, we decline to consider the defendants' additional arguments in the first instance on appeal. Like the Supreme Court, we are a "court of review, not first review." Cutter v. Wilkinson, 544 U.S. 709, 718 n.7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005).
III.
In remanding the case to the district court on the Enumeration Clause claims, we do not express any view regarding the ultimate viability of such claims that may be asserted in an amended complaint. Accordingly, for the reasons stated, we affirm the district court's judgment dismissing the APA claims, reverse the court's judgment dismissing the Enumeration Clause claims and denying the plaintiffs leave to file an amended complaint, and remand the case to the district court for proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
GREGORY, Chief Judge, concurring:
The delegates to the Constitutional Convention in Philadelphia toiled all summer to produce a lasting document that would provide stability to the government and the promise of liberty to the governed. At the close of the Convention, Benjamin Franklin was asked what the Framers had 194*194 wrought. He answered, "A Republic if you can keep it." Andrew C. McLaughlin, The Courts, The Constitution and Parties: Studies in Constitutional History and Politics 151 (1912). The life of the "Republic" is tied to the Enumeration Clause of the Constitution.

That Clause mandates that Congress make an "actual Enumeration" of persons in the nation every ten years. U.S. Const. art. I, § 2, cl. 3. The Constitution's command that a census be taken was for the purpose of apportioning the House of Representatives —the only house of the legislature the Framers required to be composed of "Members" chosen "by the People of the several states." Id. cl. 1. In trying to convince Anti-Federalists that apportionment as described in the Enumeration Clause would not be subject to the political whim of the national legislature, Alexander Hamilton said that "an actual census or enumeration of the people must furnish the rule, a circumstance which effectually shuts the door to partiality or oppression." The Federalist No. 36, at 226 (Alexander Hamilton) (J. Cooke ed., 1961) (emphasis added). The foundation of representative democracy, then, rests in large measure upon Congress' faithful and meaningful compliance with the Constitution's mandate to count all persons in the nation.
Justice Holmes wrote, "[A] page of history is worth a volume of logic." New York Tr. Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 65 L.Ed. 963 (1921). From the very beginning, the Enumeration Clause was born in the tainted cauldron of racism, sexism, and classism. As the majority opinion notes, with each Census, there has been an undercount of the people. Maj. Op. at 186. "Since at least 1940, the Census Bureau has thought that the undercount affects some racial and ethnic minority groups to a greater extent than it does whites." Wisconsin v. City of New York, 517 U.S. 1, 7, 116 S.Ct. 1091, 134 L.Ed.2d 167 (1996). To this day, the Census Bureau acknowledges the need to count these "hard-tocount populations." J.A. 274; Appellees' Br. (ECF No. 34) at 9. That there has been a historical undercount does not obviate Congress' constitutional mandate. Indeed, it magnifies that responsibility.
The history and function of the Enumeration Clause evince the importance of the constitutional issue presented here. The question—whether Congress, by agency of the Executive Branch's Bureau of the Census, has violated the Enumeration Clause of the Constitution because it has demonstrated that it will unlikely make a meaningful and faithful enumeration of all persons in the upcoming 2020 Census—is not a political one. If this constitutional question were beyond the reach of judicial review, the People would have no ordered redress of Legislative and Executive Branch actions or inactions that thwart their essential constitutional right. If Congress is in violation of the Enumeration Clause's mandate, it cannot take refuge behind the fig leaf of deference to administrative procedure. Nothing is more existential to the preservation of the "Republic" than requiring an "actual Enumeration" without "partiality or oppression."
[1] The Operational Plan was released on December 31, 2018. From the record, it appears that the parties did not recognize this development until February 1, 2019, when the Census Bureau published documents affirming that the previously released Operational Plan "reflects [the] final design" for the Census.
[2] We also question whether the injuries alleged by the plaintiffs, as pleaded, are redressable by an order "setting aside" the Census Bureau's "decisions," the sole remedy available under Section 706(2). Nevertheless, because we affirm the dismissal of the APA claims for lack of "final agency action," we need not determine whether the plaintiffs' insistence on proceeding under Section 706(2) renders their claims non-redressable.
[3] Abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).

[4] Based on their briefs and oral argument, we understand that the plaintiffs do not seek reinstatement of their Enumeration Clause claim based on underfunding by Congress. Therefore, we do not disturb the district court's dismissal of that claim, nor do we address the reasons given by the district court for doing so.

 
 Case 8:18-cv-00891-PWG Document 189 Filed 04/16/20 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division

*

NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED

*

PEOPLE, et al.,

*

Plaintiffs,

*

v.

*

BUREAU OF THE CENSUS, et al.,

*

Defendants.

*

Case No.: PWG-18-891

* * * * * * * * * * * * ** MEMORANDUM OPINION AND ORDER

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 (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 7.1 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.

1

For example, in 1940, “when the undercount for the entire population was 5.4%, the undercount

for blacks was estimated at 8.4% (and the undercount for whites at 5.0%).” Wisconsin, 517 U.S. at 7. In

1980, “the overall undercount was estimated at 1.2%, and the undercount of blacks was estimated at

4.9%.” Id.

Case 8:18-cv-00891-PWG Document 189 Filed 04/16/20 Page 2 of 16

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 incourt 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

2

Plaintiffs are the National Association for the Advancement of Colored People (“NAACP”);

Prince George’s County (the “County”); Prince George’s County Maryland NAACP Branch (the “County

NAACP”); Robert E. Ross, President of the County NAACP; and H. Elizabeth Johnson, County NAACP

Executive Committee member. Third Am. Compl. ¶¶ 4-8.

3

Defendants are the Bureau of the Census (“Census Bureau”), an agency of the United States

Department of Commerce that oversees and implements the decennial census; Steven Dillingham,

Director of the Census Bureau; and Wilbur Ross, Secretary of the Department of Commerce. Third Am.

Compl. ¶¶ 9-11.

4

Shortly after filing the Third Amended Complaint, Plaintiffs filed a Motion for Preliminary

Injunction, ECF No. 169. Defendants responded in opposition combined with a Motion to Dismiss and

2

Case 8:18-cv-00891-PWG Document 189 Filed 04/16/20 Page 3 of 16
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.

for Summary Judgment, ECF No. 170, and Plaintiffs filed a response in opposition and Reply, ECF No.

175. Defendants filed a Reply, ECF No. 177-1. Plaintiffs also filed a Motion Pursuant to Federal Rule of

Civil Procedure 56(d), ECF No. 176, to which Defendants filed a response, ECF No. 178, and Plaintiffs

filed a Reply, ECF No. 183. Late on March 4, 2020, Defendants filed a Motion in Limine, ECF No. 179,

to exclude two of Plaintiffs’ declarations, which I denied for purposes of the preliminary injunction

motion, without prejudice to be revisited in light of the remaining motions. See Order 1 n.1, ECF No.

182. I held a hearing on the Preliminary Injunction motion on March 5, 2020.

5

The parties are sufficiently aware of the background of this lawsuit, so I shall recite only a brief

history of how we got here. For a more complete background, see the January 29, 2019 Memorandum

Opinion and Order (ECF No. 64) (“Jan. Mem. Op.”); the August 1, 2019 Memorandum Opinion and

Order (ECF No. 154) (“Aug. Mem. Op.”); and the 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).

3

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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
4

Case 8:18-cv-00891-PWG Document 189 Filed 04/16/20 Page 5 of 16

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 (1992) (noting that, on a motion to dismiss, a plaintiff’s pleading of the elements of standing are “presum[ed]

6

When a plaintiff does not have standing or presents a political question, its claim is not

justiciable. Flast v. Cohen, 392 U.S. 83, 95 (1968); Lansdowne on the Potomac Homeowners Ass’n, Inc.

v. OpenBand at Lansdowne, LLC, 713 F.3d 187, 198 (4th Cir. 2013). “Justiciability is an issue of subject-

matter jurisdiction.” Hamilton v. Pallozzi, 848 F.3d 614, 619 (4th Cir.), cert. denied, 138 S. Ct. 500

(2017).

5

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[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 (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 (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. 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); see also Sposato v. First Mariner Bank, No. CCB-12-1569, 2013 WL 1308582, at *2 (D. Md. Mar. 28, 2013) (“The court may consider documents attached to the complaint, as well as documents attached to the motion to dismiss, if they are integral to the complaint and their authenticity is not disputed.”); CACI Int’l v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009); Fed. R. Civ. P. 10(c) (“A copy of a written instrument
6

Case 8:18-cv-00891-PWG Document 189 Filed 04/16/20 Page 7 of 16
that is an exhibit to a pleading is a part of the pleading for all purposes.”). Moreover, where the allegations in the complaint conflict with an attached written instrument, “the exhibit prevails.” Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991); see Azimirad v. HSBC Mortg. Corp., No. DKC-10-2853, 2011 WL 1375970, at *2-3 (D. Md. Apr. 12, 2011).
Here the 2020 Census Operational Plan, which is available on the Census Bureau’s website, and which Plaintiffs cite to and quote from extensively in their Third Amended Complaint (e.g., Third Am. Compl. 2, ¶¶ 33-34, 36, 48, 56, 61-62, 79, 93-95, 101, 126, 132, 139) is integral to the Complaint, and its authenticity has not been challenged. Likewise, Appendix B of the plan—describing the integrated operations specifically designed to reach hard-to-count populations—was attached to Defendants’ dismissal motion, its authenticity has not been challenged, and it is integral to the Complaint. ECF No. 170-2, Ex. A. Therefore, the Court may consider them when deciding the motion to dismiss.
ANALYSIS I. Subject Matter Jurisdiction
In my first decision, I found that Plaintiffs’ allegations relating to the Enumeration Clause claim were sufficient to confer standing and that judicial review was not barred by the political question doctrine. See Jan. Mem. Op. 6, 53; see also 945 F.3d at 187 (noting same); id. at 194 (Gregory, C.J., concurring) (“The question—whether Congress, by agency of the Executive Branch’s Bureau of the Census, has violated the Enumeration Clause of the Constitution because it has demonstrated that it will unlikely make a meaningful and faithful enumeration of all persons in the upcoming 2020 Census—is not a political one.”). Notably, I observed that Plaintiffs’ injuries were not too speculative, were traceable to Defendants, could be redressed,
7

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and that “[c]ourts have routinely held that the Enumeration Clause does not textually commit exclusive, non-reviewable control over the census to Congress.” Jan. Mem. Op. 41, 50, 53 (citation omitted).7 My reasoning has not changed, and the Fourth Circuit has directed that the controversy became ripe once the final design for the census was announced. See 945 F.3d at 192-93 (citing Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006) and U.S. House of Representatives v. U.S. Dep’t of Commerce, 11 F. Supp. 2d 76, 91 (D.D.C. 1998)).
Therefore, I shall turn to whether Plaintiffs’ Enumeration Clause claim states facts plausibly establishing a constitutional violation. II. Failure to State a Claim
“The Constitution requires that the Census be conducted in a manner that bears ‘a reasonable relationship to the accomplishment of an actual enumeration of the population,’ while keeping in mind the enumeration’s other constitutional purposes (i.e. apportionment and equal protection).” La Unión del Pueblo Entero v. Ross, 353 F. Supp. 3d 381, 392 (D. Md. 2018) (quoting Wisconsin, 517 U.S. at 20). And, “[a]lthough the Census Clause does not require the Census Bureau to achieve perfect accuracy, it does require that a preference be given for ‘distributive accuracy (even at the expense of some numerical accuracy).’” Id. (quoting Wisconsin, 517 U.S. at 20).
To state a claim for violation of the Enumeration Clause, Plaintiffs must allege that Defendants’ preparations (or sufficiency thereof) for the 2020 Census “unreasonably compromise[ ] the distributive accuracy of the census.” Id.; see also Kravitz v. U. S. Dep’t of

7

Certainly, Plaintiffs’ concerns are legitimate given that a fully accurate census has never been

accomplished, and even without achieving a perfect count, Plaintiffs desire for improvement beyond past

performance is a reasonable basis for scrutiny. See Wisconsin, 517 U.S. at 6 (“Although each [of the first

twenty censuses] was designed with the goal of accomplishing an ‘actual Enumeration’ of the population,

no census is recognized as having been wholly successful in achieving that goal.”).

8

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Commerce, 336 F. Supp.3 d 545, 565 (D. Md. 2018). Conclusory statements alone will not suffice, and statements of legal conclusions are not afforded the same assumption of truth as factual statements. Iqbal, 556 U.S. at 678-79; Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011).
Plaintiffs assert that in my earlier decision, I held that they had sufficiently alleged that the manner in which Defendants were proceeding with the 2020 Census would unreasonably compromise the distributive accuracy of the census, thereby stating a claim for violation of the Enumeration Clause. Pls.’ Resp. 31 (citing Jan. Mem. Op. at 54-55). My holding, however, referred to the then near total lack of census funding and the lapse of congressional appropriations that led to the government shutdown. A dispute over how the Census Bureau conducts the census once the government is operational and Congress has fully funded the census is substantially different, and therefore my prior holding with respect to the Plaintiffs’ Enumeration Clause claim has little value in resolving the claim currently pending before me. Therefore, I must consider anew whether Plaintiffs’ allegations regarding the conduct of the census are sufficient to state a plausible Enumeration Clause claim.
Plaintiffs allege that Defendants have adopted a program for the 2020 Census that does not bear a reasonable relationship to the accomplishment of an actual enumeration, citing the following design choices that Plaintiffs consider serious design defects: (1) the Census Bureau significantly reduced resources for the partnership and community outreach program; (2) the Census Bureau has hired an unreasonably small number of enumerators; (3) the Census Bureau dramatically reduced the number of census field offices compared with the 2010 census; (4) the Census Bureau’s decision to rely on in-office address canvassing rather than field work to assemble the census master address file; and (5) making more limited efforts to count inhabitants
9

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of units that appear vacant or nonexistent based on administrative records. See Third Am. Compl. ¶¶ 36-37.8 Plaintiffs allege that these design decisions, individually and collectively, demonstrate an abandonment of the goal of reaching hard-to-count communities and will fail to achieve an actual enumeration of the population. Id. at ¶ 38.
The goal, according to the 2020 Census Operational Design, “is to count everyone once, only once, and in the right place.” 2020 Census Operational Design, ECF No. 170-2, Ex. A. The Census Bureau describes the ideal path of a response for the first-ever digital census: an individual receives an invitation letter and uses the provided identifier to complete the response by computer or similar digital device. Id. But the Census Bureau acknowledges that our world is not ideal for everyone, so the plan includes activities and operations that are specifically designed to reach hard-to-count populations. Id. As this is the first census supporting the direct collection of responses electronically, the plan necessarily differs in its very essence from prior census plans and past spending priorities, which relied entirely on paper-based questionnaires and responses. As such, direct comparison of the spending priorities and resource allocations of the 2010 census and the plans for the digital 2020 census are of limited value. Comparing the two is like comparing dogs to cats—superficial similarities, but fundamental differences at the core. Defendants have not refused to spend allocated funds; they have allocated resources differently and reserved a budget contingency to react as needed during the “Nonresponse Followup” phase when the actual electronic response rates are known. Id. That bears a

8

I note that in their response to the dismissal motion, the Plaintiffs appear to have acknowledged

that there has been a recent increase in communications and advertising funding in line with the 2010

expenditures that Plaintiffs had sought, Pls.’ Reply 8-9, have redirected their contention regarding the

lack of in-field offices and funding for mobile questionnaire assistance centers to a more direct contention

about the adequacy of the M-QAC program itself, id. at 9-12, and make no mention of the contention that

the Census Bureau has replaced in-field address canvassing with in-office canvassing.

10

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reasonable relationship to the accomplishment of an actual enumeration of the population. Defendants reduced the number of field offices and replaced them with mobile questionnaire assistance centers that could be deployed where and when needed. Id. That too bears a reasonable relationship to the accomplishment of an actual enumeration of the population. Defendants reduced clerical positions and physical facilities in anticipation that there will be less paper to handle as a result of the new digital collection process. Again, this too bears a reasonable relationship to the accomplishment of an actual enumeration.
Plaintiffs allege in a conclusory fashion that these differences, especially in comparison to the 2010 census, will inevitably result in a higher differential undercount, and thus are inherently unreasonable and unconstitutional. While I accept Plaintiffs’ factual allegations— such as that the Census Bureau has reduced the number of field offices—as true, I do not accept Plaintiffs’ legal characterization that the Defendants’ design choices, individually or in sum, represent an unreasonable relationship to the accomplishment of an actual enumeration. This is particularly so when the standard by which I must determine whether the plans for the 2020 census bear a reasonable relationship to an actual enumeration is as deferential to the decisionmaking of the Secretary of the Department of Commerce as the Supreme Court has made clear that it is.
The standard for evaluating the Census Bureau’s decisions was articulated by the United States Supreme Court in Wisconsin v. New York in 1996, in which the Court noted that “[t]he text of the Constitution vests Congress with virtually unlimited discretion in conducting the decennial ‘actual Enumeration.’” 517 U.S. at 19. This “deference arises not from the highly technical nature of [the] decision, but rather from the wide discretion bestowed by the Constitution upon Congress, and by Congress upon the Secretary.” Id. at 23. Recently, in the
11

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context of reviewing the information to be collected in the census questionnaire, the Supreme Court reiterated the broad authority over the census that has been afforded to Congress. Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2567 (2019). Certainly, that discretion is not unbounded. Id. at 2568. However, I do not see any justification to substitute my judgment for that of the Census Bureau’s, and its plan for conducting the 2020 census—the result of a decade of planning—on its face bears a reasonable relationship to the accomplishment of an actual enumeration.
I have located no case where a court has found a violation of the Wisconsin reasonable relationship standard, and neither party has cited such a case. Indeed, when citing authority for the relief they seek, Plaintiffs rely heavily on Carey v. Klutznick, 637 F. 2d 834 (2d Cir. 1980) (“Carey I”). It is true that in Carey I, the district court granted a preliminary injunction9 requiring the Census Bureau to take certain action after the census field work had been completed and the preliminary reports of its outcome had been reported (but not finally approved by the Secretary of the Department of Commerce, or sent by the President to the House of Representatives), and that the Second Circuit affirmed. But Carey I is not a case to bet the ranch on, because the plaintiffs’ victory was evanescent. The Second Circuit later reversed the trial court’s judgment on the dismissal motion and criticized the district court for not having considered the impact of its judgment in favor of the plaintiffs on the allocation of representatives and federal funds to other (non-party) states, which potentially were adversely impacted by the judgment. Carey v. Klutznick, 653 F.2d 732 (2d Cir. 1981) (“Carey II”). But more importantly, Carey I was decided in 1980—sixteen years before the Supreme Court

9

The district court’s preliminary injunction decision can be found at 508 F. Supp. 416 (S.D.N.Y.

1980). The district court also ruled in plaintiffs’ favor by denying defendants’ motion to dismiss in a

separate decision found at 508 F. Supp. 404 (S.D.N.Y. 1980).

12

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announced Wisconsin, with its highly deferential “reasonable relationship to an actual enumeration of the population” test. 517 U.S. 1. In fact, the only successful pre-census challenge to the Secretary’s design for the conduct of a decennial census rendered after the Wisconsin decision was Department of Commerce v. U.S. House of Representatives, 525 U.S. 316 (1999). That case was based on a challenge to the decision of the Census Bureau to use statistical sampling during the non-response follow-up phase of the 2000 census, which contravened the Census Act’s prohibition against using statistical sampling in the apportionment of representatives, rather than a challenge based on the Enumeration Clause of the Constitution.
My evaluation of the controlling case law since Wisconsin leads me to the following conclusions regarding the proper application of the “reasonable relationship to an actual enumeration of the population” test: (1) it must be applied with the recognition that, despite the command of the Enumeration Clause that there be an “actual enumeration” during a decennial census, there has never in our country’s history been a completely accurate enumeration of the entire population, and absolute perfection is neither possible nor required; (2) the discretion afforded by the Constitution to Congress, and subsequently delegated by Congress to the Secretary, to design and conduct the decennial census is “virtually unlimited;” and (3) when reviewing how the Secretary has elected to exercise the delegated discretion, the Court must afford the Secretary substantial deference. Applying these standards to the pleadings and supporting documents appropriately considered when ruling on a motion to dismiss for failure to state a claim, I cannot but conclude that the Plaintiffs have failed to state a viable violation of the Enumeration Clause.
Further, the Census Bureau’s budget for the 2020 census was a lump sum appropriation, which it can allocate as it sees fit, because “the agency is far better equipped than the courts to
13

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deal with the many variables involved in the proper ordering of its priorities.” Lincoln v. Vigil, 508 U.S. 182, 192-93 (1993). As the Supreme Court stated, “the very point of a lump-sum appropriation is to give an agency the capacity to adapt to changing circumstances and meet its statutory responsibilities in what it sees as the most effective or desirable way.” Id. This is certainly a time when the agency needs the flexibility to adapt to changing circumstances— whether from advances in technology, or the impact of a global pandemic. Neither Plaintiffs nor the court have been delegated the function of carrying out the census. There were myriad detailed decisions taken by the Census Bureau on the basis of fundamental design differences between the 2020 digitally-enabled census and the 2010 paper-based census. Second-guessing these decisions does not result in a plausible allegation that the decisions taken by the Census Bureau are unreasonable.
Therefore, I shall GRANT Defendants’ motion to dismiss, 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.
Lastly, “‘[t]he determination whether to dismiss with or without prejudice under Rule 12(b)(6) is within the discretion of the district court.’” Weigel v. Maryland, 950 F. Supp. 2d 811, 825-26 (D. Md. 2013) (quoting 180S, Inc. v. Gordini U.S.A., Inc., 602 F. Supp. 2d 635, 638-39 (D. Md. 2009)). Generally, the plaintiff should be afforded an opportunity to amend, see id., or dismissal should be without prejudice. See Adams v. Sw. Va. Reg’l Jail Auth., 524 F. App’x 899, 900 (4th Cir. 2013) (“Where no opportunity is given to amend the complaint, the dismissal should generally be without prejudice.”). Here, Plaintiffs were given an opportunity to amend. I
14

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realize, however, that once the results of the census are known,10 Plaintiffs may find their worst fears have been realized and again seek to amend their Enumeration Clause claim to seek a remedy. See, e.g., Franklin v. Massachusetts, 505 U.S. 788, 797 (1992) (“For potential litigants, therefore, the ‘decennial census’ still presents a moving target, even after the Secretary reports to the President.”). Therefore, I shall grant the motion to dismiss without prejudice to Plaintiffs’ ability to seek leave to amend within 60 days of the census results being announced by the Secretary of Commerce. However, I caution the Plaintiffs that no amendment will be permitted without the filing of a motion to amend, which establishes that allowing another amendment would be both appropriate and not futile.

ORDER
For the foregoing reasons, it is, this 16th day of April, 2020, hereby ORDERED that:
1. Defendants’ Motion to Dismiss [the Third Amended Complaint] and Motion for Summary Judgment (ECF No. 170) is GRANTED IN PART and DENIED IN PART AS MOOT;
a. Defendants’ Motion to Dismiss is GRANTED and Plaintiffs’ Third Amended Complaint is DISMISSED WITHOUT PREJUDICE to Plaintiffs’ ability to seek leave to amend within 60 days of the census results being announced by the Secretary of Commerce;
b. Defendants’ Motion for Summary Judgment is DENIED AS MOOT;
2. Plaintiffs’ Motion Pursuant to Federal Rule of Civil Procedure 56(d) (ECF No. 176) is DENIED AS MOOT;
3. Defendants’ Motion in Limine (ECF No. 179) is DENIED AS MOOT; and

10

The census results serve an important constitutional purpose—they are used to apportion the

members of the House of Representatives among the States. Wisconsin, 517 U.S. at 6. Additionally, the

federal government considers census data in dispensing funds through federal programs to states, and

states use census data to draw interstate political districts. Id.

15

Case 8:18-cv-00891-PWG Document 189 Filed 04/16/20 Page 16 of 16 4. The Clerk SHALL CLOSE this case. _____/S/_________________________ Paul W. Grimm United States District Judge
16

 
 Case 8:18-cv-00891-PWG Document 182 Filed 03/05/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division

*

NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED

*

PEOPLE, et al.,

*

Plaintiffs,

*

v.

*

BUREAU OF THE CENSUS, et al.,

*

Defendants.

*

Case No.: PWG-18-891

* * * * * * * * * * * * ** ORDER

On January 21, 2020, Plaintiffs filed a Motion for Preliminary Injunction asking this Court

to compel Defendants to expend appropriated funds for the 2020 Census in specific ways. Mot.,

ECF No. 169.1 It was supplemented with a request for additional relief that did not involve

expenditure of funds. Pls.’ Reply, ECF No. 175. I held a hearing today on Plaintiffs’ Motion for

Preliminary Injunction, and for the reasons stated on the record in open court and incorporated

herein by reference, Plaintiffs’ motion is DENIED.

In sum, the parties—with a common goal of accomplishing a successful 2020 census that

avoids or reduces a differential undercount of hard-to-count populations—dispute the

1

Defendants responded in opposition combined with a Motion to Dismiss and for Summary

Judgment, ECF No. 170, and Plaintiffs filed a Reply, ECF No. 175. Plaintiffs have also filed a Motion

Pursuant to Federal Rule of Civil Procedure 56(d), ECF No. 176, requesting that I deny Defendants’ motion

for summary judgment or defer ruling pending Plaintiffs’ taking of discovery on Defendants’ factual

assertions. Late on March 4, 2020, Defendants also filed a Motion in Limine, ECF No. 179, to exclude two

of Plaintiffs’ declarations, which I denied for purposes of the preliminary injunction motion, without

prejudice to be revisited when we discuss the remaining pending motions at a telephone conference to be

scheduled shortly.

Case 8:18-cv-00891-PWG Document 182 Filed 03/05/20 Page 2 of 4
constitutionally required methods and means to conduct the census and what role, if any, this Court can play in resolving their dispute. Typically, the purpose of a preliminary injunction is to “protect the status quo and to prevent irreparable harm during the pendency of a lawsuit, ultimately to preserve the court’s ability to render a meaningful judgment on the merits.” In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003) abrogated on other grounds by eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)). To obtain a preliminary injunction, the plaintiff must “establish that [1] he is likely to succeed on the merits, [2] he is likely to suffer irreparable harm in the absence of preliminary relief, [3] the balance of equities tips in his favor, and [4] an injunction is in the public interest.” Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 20 (2008); see also Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011). As a preliminary injunction is “an extraordinary remedy,” it “may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. When, as here, a movant seeks to alter the status quo by having a federal court order a particular action, “application of this exacting standard of review is even more searching” because the relief requested “is mandatory rather than prohibitory in nature.” In re Microsoft Corp. Antitrust Litg., 333 F.3d at 525.
On the record before me (and for the reasons stated on the record during today’s hearing, which I incorporate by reference), I cannot conclude that Plaintiffs have met this exacting standard. Upon review of the likelihood of success on the merits, applying the Wisconsin “reasonable relationship” test,2 as the parties’ agreed applies, Plaintiffs have failed to demonstrate that the

2

Wisconsin v. New York, 517 U.S. 1, 20 (1996) (“In light of the constitution’s broad grant of

authority to congress, the secretary’s decision not to adjust need bear only a reasonable relationship to the

accomplishment of an actual enumeration of the population keeping in mind the constitutional purpose of

the census.”).

2

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Defendants have refused to spend the appropriations from Congress in the specific manner that Congress directed. And a lump sum appropriation is best left to the agency to allocate as it sees fit. Lincoln v. Vigil, 508 U.S. 182, 192-93 (1993).
Nor does the record before me support a finding of irreparable injury. Plaintiffs have not demonstrated that if the census proceeds as planned, there will be a differential undercount of the magnitude they fear, or that if I were to order the funds spent as they want, the 2020 census would not produce an equal or worse undercount for hard-to-count communities. More importantly, as the United States Supreme Court explained in Utah v Evans, if the 2020 census does result in a count that violates the enumeration clause (i.e., a differential undercount as the result of improper methodology that would result in a loss of a representative or federal funds), then at that time, when the census results are known and the consequences forecast without speculation, there is sufficient time to file an enumeration clause challenge that asks for the court to order “revision of the census results.” 536 U.S. 452, 464 (2002); see also Franklin v. Massachusetts, 505 U.S. 788, 797, 801 (1992).
The balance of interests and the public interest also favor denying Plaintiffs’ preliminary injunction. The founders were clear in their allocation of where the power and authority to plan and execute the census should lie—with Congress, which in turn has delegated its broad authority to the Secretary. See Wisconsin, 517 U.S. at 20 (citing Art. 1, § 2, cl. 3). While Plaintiffs are right to be concerned about a differential undercount in Prince George’s County, it would not be in the public interest for me to substitute my judgment for that of the Constitution, Congress, the Secretary, and the Census Bureau, which would certainly disrupt the conduct of the census in ways that would have consequences far beyond the reaches of Prince George’s County. Balancing the impact of granting the injunction against the alternative of allowing the census to proceed as
3

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planned, with the Plaintiffs having the opportunity to prosecute their Enumeration Clause challenge after the results are known, as the Supreme Court discussed in Utah v. Evans, seems to me to be far more in the public interest.
Accordingly, the Plaintiffs’ Motion for Preliminary Injunction, ECF No. 169, is DENIED. This case shall proceed with consideration of the remaining pending motions in due course.

Dated: March 5, 2020.

_____/S/_________________________ Paul W. Grimm United States District Judge

4

 
 Case 8:18-cv-00891-PWG Document 168 Filed 01/10/20 Page 1 of 36

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, 4805 Mt. Hope Drive, Baltimore, Maryland 21215, Baltimore County; PRINCE GEORGE’S COUNTY MARYLAND, 14741 Gov. Oden Bowie Drive, Suite 5121, Upper Marlboro, Maryland 20772, Prince George’s County; PRINCE GEORGE’S COUNTY MARYLAND NAACP BRANCH, 9201 Basil Court, Suite 115, Largo, Maryland 20774, Prince George’s County; ROBERT E. ROSS, 10900 Wharton Drive Upper Marlboro, Maryland 20774, Prince George’s County; and H. ELIZABETH JOHNSON, 5406 Stratford Lane, Temple Hills, Maryland 20748, Prince George’s County,
Plaintiffs,

Case No. 8:18-cv-00891-PWG THIRD AMENDED COMPLAINT

v.

BUREAU OF THE CENSUS, service at 4600 Silver Hill Road, Suitland, MD 20746; STEVEN DILLINGHAM, Director, Bureau of the Census, 4600 Silver Hill Road, Suitland, MD 20746, Prince George’s County; WILBUR ROSS, Secretary of Commerce, 1401 Constitution Ave NW, Washington, DC 20230,

Defendants.

Article I, Section 2 of the United States Constitution imposes one of the few affirmative obligations on the federal government: to conduct an “actual Enumeration” of all residents every ten years. Despite this duty, the United States has consistently undercounted people of color since the nation’s founding, starting with the decision to treat African American slaves as only three-fifths of a person. The Three-Fifths Clause appeared

Case 8:18-cv-00891-PWG Document 168 Filed 01/10/20 Page 2 of 36
in the same constitutional provision that mandates a decennial census. The failure to fully count African Americans has persisted to the present. In the
2010 Census, for example, there was a 2.1 percent net undercount of African Americans. Accordingly, in the past, federal officials have made considerable efforts to enumerate what the Census Bureau calls “hard-to-count” individuals, including African Americans, non-English speakers, and young people. These efforts reflect the recognition that an inaccurate census hurts some communities more than others, depriving them of their constitutional right to representation and their fair share of resources.
The government’s plans and preparations for the 2020 Census, however, are so conspicuously deficient as to extend far beyond the failures of past censuses and violate Defendants’ constitutional duty to conduct an “actual Enumeration.” U.S. Const., Art. I, § 2. In contrast with previous censuses, the Census Bureau has chosen to severely scale back field operations and outreach as set forth in the Bureau’s final version of the 2020 Census Operational Plan (“Final Operational Plan”) published on February 1, 2019. The Bureau will hire an unreasonably small number of employees to staff its field operations and support its community partnerships, drastically scale back its network of field offices, and utilize unreliable administrative records to determine which housing units should receive only one visit before giving up on counting the people who live there.
Sufficient staffing, funding, and preparation in advance of the census are essential to such a monumental undertaking. Yet just months from “Census Day”—April 1, 2020— the Census Bureau has failed to undertake necessary investments in hiring, field operations, and community partnerships. And the limited testing the Bureau has conducted in advance of the first-ever digital census demonstrates grave challenges to its operating assumptions,
2

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underscoring the importance of field operations and outreach to address issues as they arise on the ground in 2020. Despite these imminent threats, the Bureau has refused to expend more than $1 billion in appropriated funds, money it already has and that Congress has explicitly directed it to use to address these challenges in the House and Senate Reports accompanying the Bureau’s 2020 appropriation.
These deficiencies will result in a massive and differential undercount of communities of color. The effects of an inaccurate census will be felt across the country, and especially in places like Prince George’s County, Maryland that are home to many “hard-to-count” people. Such a dramatic undercount will especially dilute the votes of racial and ethnic minorities, deprive their communities of critical federal funds, and undervalue their voices and interests in the political arena.
Plaintiffs the National Association for the Advancement of Colored People (NAACP), the Prince George’s County Maryland Branch NAACP, Prince George’s County, Robert Ross, and Elizabeth Johnson, ask this Court to address this grave and imminent threat to the accuracy of the census. In particular, Plaintiffs ask this Court to declare that the Census Bureau’s actions jeopardize Plaintiffs’ constitutional rights; enter an injunction directing the Bureau to expend monies appropriated but unspent for the purposes specified by Congress, including ensuring that communications and outreach activities be conducted at a level of effort no less than that used for the 2010 Census, adjusted for inflation; and compel Defendants to uphold their constitutional obligation to conduct an actual enumeration of all people in the United States.
JURISDICTION AND VENUE 1. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331
3

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and Article III of the U.S. Constitution. 2. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) and (e)
because Plaintiff Prince George’s County Maryland NAACP Branch maintains its principal place of business in, Plaintiffs Robert Ross and Elizabeth Johnson reside in, and Plaintiff Prince George’s County is located in, the District of Maryland, Southern Division; the events or omissions giving rise to the claim occurred in this district and division; and no real property is involved in the action.
3. Venue is also proper pursuant to 28 U.S.C. § 1391(e) because Defendants Bureau of the Census and its Director, Steven Dillingham, are located in Suitland, Maryland, also in the District of Maryland, Southern Division.
PARTIES 4. Plaintiff National Association for the Advancement of Colored People (NAACP), a § 501(c)(3) non-profit, is the nation’s oldest and largest grassroots-based civil rights organization. Its mission is to ensure the political, educational, social, and economic equality of rights for all persons and to eliminate race-based discrimination. The NAACP is headquartered in Baltimore, Maryland, and has over two thousand local units nationwide. These units have helped and will continue to help promote the accuracy of the census by conducting outreach to community members. 5. Plaintiff Prince George’s County Maryland NAACP Branch is the local affiliate of the NAACP in Prince George’s County. It was founded in 1935. Hester V. King served as the first branch President and continued in that role for nearly thirty years, during which time she worked to desegregate the Upper Marlboro courthouse, schools, and other public accommodations in the county. Mrs. King also helped conduct a statewide drive for
4

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passage of an equal accommodations bill by the State Legislature. The branch is headquartered in Upper Marlboro, Maryland, and devotes resources to ensuring the voting rights of its members.
6. Plaintiff Prince George’s County is a majority African American county in southeastern Maryland. Prince George’s County has been repeatedly undercounted in past censuses. In the 2000 Census, the undercount in the county was 1.91 percent; in 2010, the net undercount was 2.3 percent. In 2010, the County suffered the largest net census undercount of any large county in Maryland, and one of the largest undercounts in the entire United States for any county of 100,000 or more residents. The County is allocated federal funds and political representation depending on its population as determined by the census.
7. Plaintiff Robert Ross has resided in Prince George’s County, Maryland since 2001 and has served as the President of the Prince George’s County Maryland NAACP Branch since 2010. Mr. Ross drives on roads in Prince George’s County that depend on federal funding for upkeep and repair and in other ways is affected by the level of federal funding allocated to the County based on the census.
8. Plaintiff Elizabeth Johnson has resided in Prince George’s County, Maryland since 1974. Ms. Johnson serves on the Executive Committee of the Prince George’s County Maryland NAACP Branch and chairs the Branch’s Housing Committee. Ms. Johnson drives on roads in Prince George’s County that depend on federal funding for upkeep and repair and in other ways is affected by the level of federal funding allocated to the County based on the census.
9. Defendant the Bureau of the Census is the agency within the United States
5

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Department of Commerce that oversees and implements the decennial census. The Census Bureau is headquartered and maintains its principal offices in Suitland, Maryland.
10. Defendant Steven Dillingham is the Director of the Bureau of the Census, which is charged with completing the decennial census. He is sued in his official capacity.
11. Defendant Secretary Wilbur Ross, as Secretary of the U.S. Department of Commerce, oversees all operations of the Department of Commerce, including the operations of the Census Bureau. He is sued in his official capacity.
FACTUAL ALLEGATIONS 12. Article I, Section 2 of the Constitution requires the federal government to conduct an “actual Enumeration” of every resident of the United States every ten years. 13. In carrying out that obligation, Congress has traditionally played an active role in supervising the Bureau’s conduct of the census by, among other things, issuing directives pursuant to the Census Act and enacting related appropriations legislation. Most recently, Congress instructed the Bureau to conduct partnership and communications activities at “no less than the level of effort and staffing that was utilized in preparation for the 2010 Decennial Census when accounting for inflation.” S. REP. NO. 116-127, at 19 (2019). 14. The federal government uses census data to allocate hundreds of billions of dollars in public funding. These funds considerably impact state and local governments’ and other public entities’ ability to provide high quality education, health care, housing, transportation, and other vital services. 15. Census data is also used for seat apportionment in the U.S. House of Representatives, drawing boundaries for congressional districts and many state legislative
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districts, and voting rights enforcement. 16. Maryland is among the states that use census data for purposes of state
legislative districting.
History and Background of the Census 17. Since 1790, the government has conducted a decennial census as the Constitution directs. The drafters of the Constitution “knew that the calculation of populations could be and often were skewed for political or financial purposes,” Utah v. Evans, 536 U.S. 452, 500 (2002) (Thomas, J., concurring in part and dissenting in part), and sought to ensure that the process remained removed from politics. 18. The constitutional duty to conduct an actual enumeration was the Founders’ solution to this concern. As Alexander Hamilton explained, “[a]n actual census or enumeration of the people must furnish the rule; a circumstance which effectually shuts the door to partiality or oppression.” The Federalist No. 36, at 226 (J. Cooke ed., 1961). 19. Congress has delegated responsibilities to the Bureau to manage the dayto-day operations of the census, but it has never ceded its oversight authority and has taken steps to limit the Bureau’s discretion. Courts have historically adjudicated lawsuits challenging census operations, including those brought under the Enumeration Clause. 20. Congress has supervised census operations through its appropriations statutes and accompanying committee and conference reports, which often contain directives to the agency. 21. For example, for at least the last three decades, Congress has tasked the Bureau with reducing the differential undercount for “individuals who have historically been undercounted.” Dep’ts of Commerce, Justice, & State, the Judiciary, & Related
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Agencies Appropriations Act, Pub. L. No, 105-119, § 209(a)(9), 111 Stat. 2440, 2481 (1997); S. REP. NO. 116-127, at 19 (2019). The Bureau has thus historically spent congressionally allocated funds to reach hard-to-count communities.
Recent Efforts to Promote an Accurate Census 22. The Bureau has identified what it terms “hard-to-count” populations. These 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.” 23. In 2010, the Bureau’s substantial effort and expenditures led to the most accurate census in decades in terms of the overall population, with a net overcount of 0.01 percent, as compared to an overcount of 0.49 percent in 2000 and undercount of 1.61 percent in 1990, according to an official government post-census survey. 24. However, for hard-to-count communities, the 2010 Census had a net undercount of 2.1 percent of African Americans and 1.5 percent of Hispanic Americans, according to an official government post-census study. 25. The 2010 Census failed to count an estimated 1.5 million black and Hispanic residents, which would be enough people to fill two Congressional districts. 26. The census has also undercounted other populations. In 2010, for example, home renters were undercounted by 1.1 percent and children under the age of five were undercounted by 4.6 percent. 27. By contrast, in 2010, there was a net overcount of 0.6 percent for homeowners and 0.8 percent for non-Hispanic whites. 28. The inequality in net undercounts across different subpopulations of the
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United States, known as the “differential undercount,” inevitably has enormous consequences for the distribution of political power and economic resources.
29. In order to ameliorate differential undercounts, in the 2010 Census and earlier the Bureau spent time and resources on programs designed to reach hard-to-count communities. These programs include advertising, communications, and partnership campaigns directed at traditionally undercounted populations; questionnaire assistance operations; and large staffs of enumerators who knock on doors to conduct Nonresponse Follow-up operations. These efforts have not eliminated differential undercounts entirely, but they have reduced them, preventing even more dramatic losses of political representation and funding to hard-to-count communities.
Imminent Risk of a Constitutionally Deficient 2020 Census 30. Defendants’ preparations for the 2020 Census are so deficient as to raise imminent concerns of an undercount that is both substantially greater than in past years and entirely foreseeable, particularly regarding hard-to-count populations. 31. Throughout the lead-up to 2020, Defendants failed to establish the typical pace of funding, staffing, and preparation at this stage of a census cycle. Moreover, Defendants have decided to make a number of dramatic technological changes for the 2020 Census, including relying on a largely untested online response system. These sweeping changes have not been accompanied by sufficient analysis and in-field assessment. 32. In 2017, Defendants cancelled field tests in Puerto Rico, North Dakota, South Dakota, and Washington State. Defendants also cancelled two of three sites for the 2018 End-to-End Census Test, dress rehearsals that serve as the basis for many final decisions about census methods and operations. Additionally, Defendants truncated the one
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remaining 2018 End-to-End testing site, removing advertising and partnerships, as well as the coverage measurement operation that helps measure how many residents are missed.
33. Earlier this year, the Bureau moved from the planning stage of the 2020 Census to the operational stage. This transition was marked by the Bureau’s publication of the final version of the 2020 Census Operational Plan on February 1, 2019, which by its own description, “documents the design for conducting the 2020 Census” and “describ[es] design concepts and their rationale.”
34. The 2020 Census is at imminent risk of severely and differentially undercounting people of color because of the Bureau’s refusal to expend appropriated funds and constitutionally deficient design choices set forth in the Final Operational Plan.
35. Given the size and scope of the decennial census, immediate relief is necessary to ensure that Defendants have ample opportunity to implement the changes required to ensure a constitutionally sufficient census.
Unreasonable Design Choices in Final Operational Plan 36. The Bureau’s Final Operational Plan includes serious design defects that will produce a more severe differential undercount of hard-to-count populations than in previous censuses. 37. These design choices include decisions to: (a) significantly reduce the Bureau’s communications and partnership program, even though Congress has expressly directed the Bureau to ensure that its communications and outreach activities for the 2020 Census be conducted at a level of effort “no less than” that used for the 2010 Census, adjusted for inflation; (b) hire an unreasonably small number of enumerators; (c) drastically reduce the number of Bureau field offices; (d) replace most In-Field Address Canvassing
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with In-Office Address Canvassing; and (e) make only limited efforts to count inhabitants of units that appear vacant or nonexistent based on unreliable administrative records.
38. Individually and collectively, these five decisions demonstrate an abandonment of the Bureau’s congressionally designated goal of reaching hard-to-count communities in the 2020 Census and bear no reasonable relationship to the Bureau’s constitutional mandate to accurately enumerate the population.
A. Insufficient Communications and Partnership Program Staffing 39. Hiring partnership staff is a crucial component of the modern decennial census. Partnership staff work with local organizations and conduct targeted community outreach to encourage hard-to-count populations to complete the census. 40. Despite the importance of the partnership program for reaching hard-tocount populations, the growth in population since 2010, heightened distrust of government, and other increased challenges for reaching these populations for the 2020 Census, the Bureau has decided to decrease its partnership program from 2010 to 2020. 41. According to Bureau planning documents, the Bureau will hire twice as many partnership specialists for the 2020 Census (1,501) as it did for the 2010 Census (849). But this figure is misleading because it omits other key outreach staff. For the 2010 Census, for example, the Bureau hired 2,000 partnership assistants to assist the specialists; for the 2020 Census, the Bureau will hire none (0). 42. The Bureau has failed to reach even its unreasonably low target figures for hiring and retaining partnership staff. 43. On January 24, 2019, the Bureau published the 2020 Census Barriers, Attitudes and Motivators Study Survey Report (“2020 CBAMS Survey Report”) and the
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2020 Census Barriers, Attitudes and Motivators Study Focus Group Final Report (“2020 CBAMS Focus Group Final Report”). The two documents together record the results of the 2020 Census Barriers, Attitudes and Motivators Study (“2020 CBAMS”).
44. As elaborated below, the 2020 CBAMS Report found dangerously low selfresponse rates. That Report also found that many people were unfamiliar with the census, that there was persistent lack of knowledge about the census’s purpose and process, and that knowledge about the census was spread unevenly across demographic groups.
45. The decreased prioritization of partnership staff is especially unreasonable given the alarming findings of the 2020 CBAMS Report regarding self-response rates.
46. The communications program will be less effective than in 2010, for three reasons. First, given the significant cut to the partnership program, more spending is required to inform hard-to-count communities about the Census just to match 2010 levels of awareness. Second, given the current climate of distrust of government, hard-to-count communities will be even more skeptical and hesitant to respond than in previous censuses and will require increased communications to assuage their concerns. Third, given that 2020 is a presidential election year, advertising will cost more as campaigns compete with the Bureau and for-profit advertisers for advertising space.
47. In every modern decennial census, one of the most important operations is Non-Response Follow-Up (“NRFU”), the Bureau’s program to count those who do not self-respond to the census.
48. The Bureau’s 2020 Census Detailed Operational Plan for NRFU identifies “Factors that Could Increase the NRFU Workload in the 2020 Census” and explains that “[w]hile concerted efforts are being taken to reduce the cost of NRFU and overall
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workload, several factors cannot be controlled.” 49. The first uncontrollable factor the Bureau lists is “[l]ow self-response
rates.” This is inaccurate. The Bureau can influence and control the likelihood of low selfresponse rates by increasing communications and partnership activities.
50. Given the enormous barriers to census participation among hard-to-count communities this cycle, the Bureau’s decision to reduce its partnership staffing is unreasonable and will contribute to a severe and differential undercount.
51. In deciding to reduce overall staffing of the partnership program, Defendants unreasonably failed to consider the consequences for a differential undercount and to analyze evidence about how this decision would affect the absolute undercount.
52. The decision to reduce overall staffing of the partnership program will worsen both the absolute undercount and the differential undercount of Plaintiffs, their members and residents, and communities geographically close to Plaintiffs.
53. The decision also contravenes explicit direction from Congress for the Bureau to expend sufficient resources on outreach. As the Explanatory Statement accompanying the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2020 stated, communications and outreach activities for the 2020 Census must occur at “no less than the level of effort for outreach and communications that was utilized in preparation for the 2010 Decennial Census, adjusted for inflation.” Explanatory Statement of the Consolidated Appropriations Act, 2020, H.R. 1158, 116th Cong., Division B, at 7 (2019).
B. Insufficient Hiring of Enumerators 54. Non-Response Follow-Up (NRFU) is conducted principally by field
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workers called enumerators, who physically visit housing units from which no selfresponse was received.
55. Because hard-to-count populations historically self-respond at much lower rates than the general population, an adequate number of enumerators is essential for reducing the differential undercount.
56. The Final Operational Plan announced a decision to hire drastically fewer enumerators than the Bureau hired for the 2010 Census.
57. In fact, the Bureau has made a final decision to hire more than two hundred thousand fewer enumerators than it hired for the 2010 Census. This will reduce the number of enumerators by one-third compared to 2010, even though the total U.S. population has grown by nearly 6 percent since 2010.
58. Of this drastically reduced number of enumerators, the Bureau plans to actually deploy in the field an even smaller number, relying only on approximately 250,000 “core enumerators.”
59. In deciding to hire a drastically reduced number of enumerators for the 2020 Census, Defendants failed to consider how this decision would impact the differential undercount and failed to analyze evidence about how this decision would affect the absolute undercount.
60. The decision to hire a drastically reduced number of enumerators will exacerbate both the absolute undercount and the differential undercount of Plaintiffs, their members and residents, and communities geographically close to Plaintiffs.
61. The Bureau states in the Final Operational Plan that it needs fewer enumerators for the 2020 Census than it did for the 2010 Census because each enumerator
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will be, on average, more productive than in 2010, and the NRFU workload will be reduced to a level that the Bureau’s reduced staff of enumerators can handle.
62. Neither of these premises is sufficiently justified in the Final Operational Plan, and both are unreasonable.
63. The Bureau claims that the average productivity per enumerator will be unprecedentedly high in 2020 because the Bureau will use new technology and new protocols. The Bureau’s prediction about enumerator productivity in the 2020 Census cannot be verified because its new technology and protocols have been only partially tested in a single dress rehearsal, conducted at a single and unrepresentative site.
64. Furthermore, the results of the dress rehearsal had a self-response rate of just 52.3 percent, much lower than the 60.5 percent currently assumed by the Bureau.
65. Even if enumerators in the 2020 Census complete as many cases per hour as the Bureau reports that enumerators did in the 2018 End-to-End Test, there will be far too few enumerators to conduct an actual enumeration in the 2020 Census.
66. The Bureau’s assumptions about NRFU workload fail to account for factors that will increase the workload and contradict the results of the Bureau’s own tests, and thus bear no reasonable relationship to the goal of promoting the accuracy of the census.
67. Specifically, the Bureau (a) fails to account for the Bureau’s own recent research findings that show there will be a low self-response rate; (b) unjustifiably assumes that soliciting online census responses will increase, rather than decrease, the self-response rate; and (c) assumes without evidence that the Bureau will be able reduce the NRFU workload significantly by enumerating households based on administrative records.
The Bureau’s Research Contradicts Its Assumptions About NRFU Workload
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68. According to the 2020 CBAMS Survey Report, only 67 percent of householders who participated in the 2020 CBAMS Survey reported that they were “extremely likely” or “very likely” to fill out a census form. This is an exceptionally low percentage; it is twenty percentage points lower than in 2010.
69. The actual self-response rate in the 2020 Census will be lower than 67 percent because, as the 2020 CBAMS Survey Report observed, “past research suggests that even individuals who report a commitment to participate may not follow through on their intention.”
70. In the 2010 Census, 86 percent of 2010 CBAMS participants said they would “definitely” or “probably” respond to the 2010 Census, and the actual self-response rate was 76 percent.
71. The 2020 CBAMS Survey Report also shows that the self-response rate will be significantly lower for households of color than for white households.
72. In making a final decision to hire significantly fewer enumerators for the 2020 Census, the Bureau has unreasonably failed to account for and draw fair conclusions from the results of the 2020 CBAMS.
Reliance on Internet Self-Response Cannot Justify Reduced Enumerator Hiring 73. The 2020 Census will be the first to attempt to collect a large proportion of census responses online. The introduction of Internet Self-Response (ISR) is a radical departure from the paper and in-person methods used in all previous censuses. 74. The 2010 Census delivered approximately 360 million paper questionnaires to 133 million housing units. 75. This cycle, Defendants intend to encourage self-response primarily by
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internet and to reduce the number of in-person visits to households that do not self-respond. 76. In 2020, Defendants will divide the United States population into cohorts. 77. Defendants will mail census questionnaires initially to only 20 percent of
those cohorts. 78. Defendants will mail the remaining 80 percent of cohorts, comprising the
majority of all housing units, a notification inviting them to complete the census questionnaire online. If these cohorts do not complete the questionnaire online or by telephone, Defendants plan to mail a paper version.
79. The Bureau concluded in the Final Operational Plan that the introduction of ISR will cause an increase in the overall self-response rate, including a “[p]otential increase in self-response from traditional hard-to-count populations.”
80. The Bureau aims to achieve this increase in self-response by persuading 45 percent of households to self-respond through ISR in the 2020 Census.
81. The Bureau’s aspirational 45 percent ISR rate is unreasonable and not supported by available evidence.
82. In the End-to-End Census Test in 2018, only 32.6 percent of households self-responded through ISR.
83. The response rate will be even lower among hard-to-count populations, who are by definition the populations least likely to self-respond in the first place and may have reduced access to or trust in internet-based systems.
84. The “digital divide” in the United States is stark. Only half of households earning incomes less than $30,000 per year have access to broadband internet, and many rural residents have significantly reduced access to the internet.
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85. Communities of color, including African Americans and Hispanic Americans, are less likely to have access to internet than their white counterparts.
86. The introduction of ISR will cause a significant number of households not to self-respond to the 2020 Census because of public concern about the Bureau’s ability to protect census responses from data breaches.
87. The Bureau has not explained in detail how it will protect the personal information of hundreds of millions of Americans and respond to the cybersecurity concerns ISR presents.
88. Even if the Bureau is actually able to protect data about responding households, perceived data insecurity will dissuade responses, especially in light of recent high-profile and large-scale data breaches including of the Office of Personnel Management in 2015 and for clients of Equifax, Yahoo!, and Uber, among others.
89. Moreover, the Bureau’s cancellation of planned tests deprives it of comprehensive opportunities to test critical cybersecurity infrastructure. The absence of adequate testing of the Bureau’s cybersecurity infrastructure will contribute to the public’s fear of responding to the census online.
90. Contrary to the Bureau’s conclusion that ISR will cause a net increase in the overall self-response rate, ISR creates an imminent risk of a net decrease in the overall self-response rate, which will likely be more pronounced among communities of color. This will lead to a larger NRFU workload and a corresponding need for more enumerators.
91. In formulating its final decision to hire significantly fewer enumerators for the 2020 Census, the Bureau unreasonably failed to account for and draw fair conclusions from evidence that ISR will deter self-response and fail to elicit responses from hard-to-
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count populations, and data showing that ISR rates in tests have fallen far short of the Bureau’s aspirational ISR rate.
Administrative Record Use Cannot Justify Reduced Enumerator Hiring 92. Another premise underlying the Bureau’s decision to hire far fewer enumerators is the Bureau’s prediction that it will be able to count a significant number of households based on federal administrative records. 93. Under the Final Operational Plan, the Bureau will attempt to use federal administrative records to enumerate any nonresponding household that has not been enumerated after Defendants mail a postcard and make a single NRFU visit. 94. The Final Operational Plan states that a nonresponding household will be enumerated through administrative records if and only if “the Census Bureau has highquality administrative records from trusted sources” on that household. 95. The Final Operational Plan lists three “[e]xamples” of “trusted sources”: Internal Revenue Service (“IRS”) Individual Tax Returns, IRS Information Returns, and the Center for Medicare and Medicaid Statistics Medicare Enrollment Database. 96. The Bureau has not sufficiently tested its current plan to enumerate households based on federal administrative records and therefore lacks evidence that this method will substantially reduce the NRFU workload. 97. Administrative-record-based enumerations will not, in fact, substantially reduce the NRFU workload. 98. Hard-to-count populations, who will make up a disproportionately large part of the NRFU workload in the 2020 Census, are underrepresented in sources of federal administrative data like IRS Individual Tax Returns, IRS Information Returns, and the
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Center for Medicare and Medicaid Statistics Medicare Enrollment Database. 99. In finally determining to hire a significantly reduced staff of enumerators,
the Bureau unreasonably relied on its untested and implausible theory that administrativerecord-based enumerations will substantially reduce the NRFU workload.
C. Insufficient Network of Bureau Field Offices 100. For each decennial census, the Bureau opens temporary field offices. The Bureau opened 494 local census offices and one area office for the 2010 Census. 101. Under the Final Operational Plan, the Bureau plans to replace those 495 offices with just 248 area census offices (“ACOs”) for the 2020 Census. 102. In deciding to halve the number of field offices, Defendants failed to consider how this decision would affect the differential undercount and failed to rationally analyze evidence about how this decision would affect the absolute undercount. 103. The final decision to halve the number of field offices will worsen both the absolute undercount and the differential undercount of Plaintiffs, their members and residents, and communities geographically close to Plaintiffs. 104. Opening a sufficient number of ACOs is essential for an accurate 2020 Census because the ACOs will play critical roles in recruiting, hiring, training, and supervising field staff for address canvassing and NRFU. 105. If the Bureau has too few ACOs, it will not be able to hire and train enough enumerators to conduct an actual enumeration of households that do not self-respond to the 2020 Census. As a result, households—disproportionately from the hard-to-count populations that are overrepresented in the NRFU workload—will go uncounted. 106. Having too few ACOs will also constrain the Bureau’s ability to identify
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and address any problems that arise during NRFU. It is especially important for the Bureau to have this ability during the 2020 Census because the Bureau is implementing many new methods and technologies that have not been adequately tested.
107. The number of ACOs that the Bureau has decided to open for the 2020 Census is insufficient and not reasonably explained by the Bureau’s stated rationale.
108. The Bureau has stated that its final decision on the number of ACOs to open for the 2020 Census is based on the number of enumerators needed for field operations.
109. However, the anticipated number of enumerators cannot be the basis for the number of ACOs the Bureau has decided to open because the Bureau has substantially revised its projected number of enumerators without making a corresponding change to the planned number of ACOs.
110. The Bureau initially planned to open 248 ACOs based on a then-current estimate that the 2020 Census would need 173,021 “core enumerators.” The Bureau assumed that each ACO would have 49 field supervisors, each overseeing 15 enumerators, for a total of 735 enumerators per ACO.
111. In 2017, the Bureau increased the projected number of core enumerators to 256,336. To maintain its enumerator-to-ACO ratio, the Bureau would need 349 ACOs.
112. Instead of adding ACOs, however, the Bureau has made a final decision to open 248 ACOs, resulting in a much higher enumerator-to-ACO ratio than planned.
113. In a report released in April 2018, the U.S. Department of Commerce Office of Inspector General stated that it “found no evidence that the Bureau reconciled the increased NRFU workload and associated increase in the number of enumerators with” the assumptions underlying the original plan to open 248 ACOs.
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114. To the extent that the Bureau now claims to have a reasoned basis for its new enumerator-to-ACO ratio, that rationale has been reverse-engineered and does not represent the Bureau’s real reasons for failing to open more than 248 ACOs.
115. During the 2010 Census, the Bureau addressed the problem of individuals who did not receive or complete a questionnaire in the mail or receive an in-person interview by establishing 29,157 staffed Questionnaire Assistance Centers (“QACs”) and 9,670 unstaffed Be Counted (“BC”) sites.
116. 760,748 people were counted in 2010 through the QACs and BCs. Of those who visited a stateside QAC, over 38 percent said they had not received a questionnaire in the mail, suggesting that their housing units were not included in the Bureau’s Master Address File (MAF).
117. The Bureau has nevertheless eliminated these nearly 40,000 sites and plans to replace them with mobile response units. In 2010, 65 percent of people who used a QAC reported that they learned of the QAC by seeing it in person. It is unreasonable to expect that people left out of the MAF will find and use a mobile-based system with no fixed presence.
118. These decisions will further exacerbate the differential undercount. They will particularly harm residents, such as those in atypical housing units, that are likely to be left out of the MAF. Indeed, the U.S. House of Representatives Committee on Oversight and Reform questioned whether it was reasonable for the Bureau to cut QACs despite having over a billion dollars in unspent funds.
D. Elimination of Most In-Field Address Canvassing 119. Address canvassing operations allow the Bureau to establish the universe of
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housing units to be counted. A comprehensive and correct address list is necessary to ensure the inclusion of all housing units for mailings and enumerator visits.
120. The Bureau keeps a database of housing units in the Master Address File/Topologically Integrated Geographic Encoding and Referencing (“MAF/TIGER”) System.
121. In past censuses, temporary Bureau employees called “listers” walked nearly every block and identified each living quarters’ status before making address changes in the MAF.
122. For the 2020 Census, the Bureau has departed from this past practice to save costs. Instead, it decided to conduct a majority of address canvassing solely in-office. This process began in September 2015 and will be completed in 2020.
123. The In-Office Address Canvassing process includes multiple components. First, the Bureau updates and validates its existing address list using external information sources. Bureau employees also review satellite imagery of blocks to see whether the number of living quarters is likely to deviate from its address lists. Blocks where deviations are likely are marked for In-Field Address Canvassing operations.
124. The Bureau planned to conduct an in-office follow-up process called Active Block Resolution (“ABR”) to review and update blocks previously identified as having a changed number of addresses based on imagery review and comparison with the MAF.
125. The Bureau suspended this program in 2017. The MAF Coverage Study, which was intended to assess In-Office Address Canvassing and provide continuous updates, was also paused in 2017 purportedly due to funding considerations.
126. The Bureau initially claimed that In-Office Address Canvassing would
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reduce the share of In-Field Address Canvassing to 25 percent. However, the Final Operational Plan states that the Bureau will use In-Field Address Canvassing for 38 percent of addresses.
127. In deciding to conduct the majority of canvassing with In-Office Address Canvassing, rather than In-Field Address Canvassing, Defendants failed to consider how this decision would affect the differential undercount, and failed to reasonably analyze evidence about how this decision would affect the absolute undercount.
128. The decision to conduct the majority of canvassing with In-Office Address Canvassing, rather than In-Field Address Canvassing, will worsen both the absolute undercount and the differential undercount of Plaintiffs, their members and residents, and communities geographically close to Plaintiffs.
129. The Bureau knew or should have known that heavy reliance on In-Office Address Canvassing would undermine the accuracy of the address list for the 2020 Census and increase burdens for In-Field Address Canvassers.
130. The Office of Inspector General’s audit of the 2018 End-to-End Test in Providence, Rhode Island found that “[i]n-office address canvassing did not correctly identify blocks for in-field address canvassing.” The audit found that in 61 percent of the 433 passive blocks in the 2018 End-to-End Test, in-field and in-office results differed. Within those blocks, 1,287 housing units were deleted in-field and 1,087 were added.
131. Two previous tests of In-Office Address Canvassing results also demonstrated higher error rates than anticipated.
132. Even the Operational Plan acknowledges “that some higher levels of government” may “believe an In-Field ADC may yield a greater ‘quality’ canvassing than
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In-Office ADC.” 133. The Bureau has not sufficiently analyzed or sought to correct the source of
in-office categorization errors, and no additional analysis is planned. Further, the suspension of ABR and the MAF Coverage Study has limited opportunities to assess and improve the quality of In-Office Address Canvassing.
134. The Bureau’s disregard for the risk that In-Office Address Canvassing will harm address list quality means that households will be improperly excluded from the address universe of the 2020 Census and go uncounted. The Bureau has also not adequately analyzed or addressed the impact of miscategorization at the in-office level on different demographic groups.
E. Use of Unreliable Data to Deprive Households of Full NRFU Efforts 135. To scale back its NRFU workload, the Bureau has decided to supplant inperson contacts to certain housing units with the use of administrative records. 136. Based primarily on United States Postal Service Undeliverable-AsAddressed (“UAA”) information, the Bureau will identify vacant and nonexistent housing units among those which do not initially self-respond to the census questionnaire. Those households will be exempt from the full NRFU protocol in favor of a single field visit to determine whether the address is actually occupied. 137. Addresses deemed unoccupied on the basis of that single NRFU contact will not be contacted subsequently. 138. Addresses will be deemed unoccupied where the contact attempt is unsuccessful and both UAA information and other federal administrative records indicate that the address is vacant or nonexistent.
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139. The Final Operational Plan provides no reasonable rationale as to the sufficiency of this method.
140. Moreover, those addresses believed to be occupied upon the first unsuccessful contact will nonetheless be counted via federal administrative records, if available, and no further contacts will be attempted.
141. The Bureau knew or should have known that the UAA information is a highly inaccurate predictor of vacant and nonexistent housing units.
142. The Bureau’s own field testing indicated that 18 percent of housing units identified as vacant by administrative records and 30 percent of those identified as nonexistent were in fact occupied. The Bureau has failed to consider other, more effective options for addressing the problems identified through testing.
143. The Bureau cannot show a reasonable connection between the introduction of administrative-record-based enumeration and the purported reduced need for enumerators and NRFU contacts.
144. In deciding to use administrative records to reduce the maximum number of NRFU contacts for certain housing units, Defendants failed to consider how this decision would affect the differential undercount and failed to analyze evidence about how this decision would affect the absolute undercount.
145. The final decision to use administrative records to reduce the maximum number of NRFU contacts for certain housing units will worsen both the absolute undercount and the differential undercount of Plaintiffs, their members and residents, and communities geographically close to Plaintiffs.
146. Because removing a housing unit from the NRFU universe is tantamount to
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giving up on counting the people who live there, the Bureau’s insistence on excluding housing units from NRFU based on administrative data that it has discovered are largely inaccurate is unreasonable.
Current Unspent Funds That Would Help Mitigate Undercount 147. The Consolidated Appropriations Act of 2019 appropriated $3.55 billion to the Bureau for Fiscal Year 2019. 148. The Conference Report accompanying the Consolidated Appropriations Act of 2019 states: “The agreement reiterates House and Senate language regarding the Bureau’s partnership and communications efforts aimed at maximizing self-response to the 2020 Decennial Census. Additionally, the Bureau shall devote funding to expand targeted communications activities as well as to open local questionnaire assistance centers in hardto-count communities.” 149. The Conference Report also explains that the cost estimate for the “2020 Decennial Census . . . assumes the need for additional in-person follow-up visits due to fewer households expected to initially respond to the Census.” 150. The House Report accompanying the Commerce, Justice, Science, and Related Agencies Appropriations Bill, 2019 states: “The Census Bureau is directed to ensure that its fiscal year 2019 partnership and communications activities in support of the 2020 Census are conducted at a level of effort no less than that conducted during fiscal year 2009 in preparation for the 2010 Decennial Census.” 151. The Senate Report accompanying the Departments of Commerce and Justice, Science, and Related Agencies Appropriations Bill, 2019 reads, in relevant part: “The Committee is concerned about the proposed levels for partnership staff and
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communications efforts for the 2020 Decennial Census . . . . Additionally, the Committee understands that the 2020 Decennial Census plan includes only about half the number of local field offices and Regional Census Centers compared to the 2010 Decennial Census. Therefore, the Committee expects the Bureau to provide a plan that increases the number of partnership program staff, communication efforts, and field operations; an assessment of increasing external partnerships; and the associated costs, within 45 days of enactment. The plan should include an assessment of doubling the number of partnership staff and increasing the number of area census offices to 300.”
152. Fiscal Year 2019 ended on September 30, 2019. The Bureau currently has over $1 billion unspent from its FY 2018 and FY 2019 appropriations.
153. The Bureau received an additional $7.284 billion in appropriations in November 2019 for the periodic censuses and programs, of which at least $90 million must be spent on improving outreach through questionnaire assistance.
154. The Explanatory Statement accompanying the Commerce, Justice, Science, and Related Agencies Appropriations Act, 2020 specified that the Bureau should expend no less than 2010 levels on outreach and communications. Explanatory Statement of the Consolidated Appropriations Act, 2020, H.R. 1158, 116th Cong., Division B, at 7 (2019).
155. The Bureau’s unspent reserve funds would, if used as directed, ameliorate the effects of its drastic cuts in resources for the 2020 Census, especially for the field operations and communications and partnership programs that Congress has specified must be conducted at “no less than” 2010 levels, adjusted for inflation.
The Impact of Defendants’ Failings on Plaintiffs 156. Plaintiff Prince George’s County is the only majority African American
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county in the state of Maryland. It was the nation’s first majority African American suburban county.
157. Prince George’s County is well-known for its status as an African American middle-class community, described by the Brookings Institution as “a pathway to the middle class for large numbers of lower-income, working minorities.”
158. Prince George’s County has been hailed by residents and civil rights advocates alike as representing a model of racial and economic integration, interracial communal relations, and African American political, academic, and economic leadership.
159. However, census undercounts have threatened this model, causing political and economic harm to Prince George’s County.
160. The Census Bureau has characterized parts of Prince George’s County as “hard-to-count,” and the County has faced consistent census undercounts.
161. In the 1990, 2000, and 2010 Censuses, the County’s net undercounts were 3.0 percent, 1.91 percent, and 2.3 percent respectively.
162. In 2010, Prince George’s County had the highest net undercount of any county in Maryland, and one of the highest net undercounts in the nation among counties with 100,000 residents or more.
163. This undercount data is all the more significant given that the net undercount is the rate of omissions offset by the number of erroneous enumerations (people counted twice or included by mistake).
164. Accordingly, in the 2010 Census, the total rate of omissions amounted to 8.3 percent of Prince George’s County residents—or over 70,000 individuals.
165. After the 1990 Census, the Chairman of the County Planning Board
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concluded that had the census count been accurate, the County would have received $20 million more in federal funds per year, or a total of $200 million in grants and loans over the course of the decade.
166. Based on the 2000 Census undercount, the County lost almost $27 million in federal funding for eight prominent federal programs between 2002 and 2012.
167. Defendants’ current failings threaten to result in a significantly higher undercount for Prince George’s County, leading to an even greater loss of funding.
168. A census undercount carries with it significant political consequences as well. The Maryland legislature uses census data for state and congressional redistricting purposes. An undercount in Prince George’s County therefore deprives county residents of fair and equitable representation in the state legislature and in Congress.
169. Moreover, Defendants’ failure to conduct a constitutionally sufficient census and the resulting dramatic undercount of Prince George’s County residents increases the risk of Maryland losing seats in Congress. This loss would deprive Prince George’s County residents of fair and equitable representation.
170. Members of the NAACP reside across the country, but the residences of its members are not equally distributed geographically.
171. For example, the Census Bureau’s own reports show that over half of the total African American population in the United States lives in the South, with 60 percent of that population residing in just ten states, including Maryland. The loss of a congressional seat in one of those states due to undercounting of “hard-to-count” populations, then, will translate not to the equalizing effect of increased representation of the same populations elsewhere, but to a net underrepresentation nationwide.
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172. The uneven distribution of African Americans is also observable at the county level. 2010 Census data indicated that African American populations tend to be concentrated in counties within metropolitan areas. Over 60 percent of counties nationwide have an African American population of less than 5 percent, while counties outside Southern states with African American populations between 25 percent and 49.9 percent were overwhelmingly located in metropolitan areas.
173. The differential undercount of African American residents will injure NAACP members in states, congressional districts, and state legislative districts across the country by depriving them of federal funding and political power.
174. The injuries to these NAACP members are not remedied by the windfall of federal funding or political power that will accrue to other residents of the United States who unfairly benefit from the differential undercount of African Americans, even if some NAACP members happen to reside in some of the states, congressional districts, or state legislative districts that unfairly benefit from the differential undercount.
175. NAACP members, including Prince George’s County residents Robert Ross and Elizabeth Johnson, and the organization itself face actual and imminent injuries based on Defendants’ constitutional violations.
176. The NAACP has had to divert resources from other pressing concerns in order to address Defendants’ inadequate preparations for the 2020 Census. The NAACP has devoted additional staff time to its efforts to encourage participation in the 2020 Census, has begun providing Census-related trainings to its membership units across the country, and has established new Census-related partnerships with outside organizations. In light of the NAACP’s concerns that Defendants are less prepared today than in previous cycles to
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conduct a fair and accurate Census, the NAACP has instituted a more thorough effort to promote awareness of and participation in the 2020 Census. The NAACP is also developing plans to address unprecedented challenges associated with the 2020 Census, including those stemming from Defendants’ reliance on internet self-response.
177. Similarly, Prince George’s County Maryland Branch NAACP members also face actual and imminent injury.
178. Branch members face impending political underrepresentation. Branch members also face imminent injury due to the loss of federal funding that would result from an undercount of the Prince George’s County population.
179. The Branch faces an impending need to expend substantial resources to educate community members about the importance of the census and to encourage them to respond to the census questionnaire.
180. The harm faced by all Plaintiffs is impending as of the date of the filing of this lawsuit. Defendants’ unconstitutional failures to fund, staff, and plan for the 2020 Census are compounding with each day that the 2020 Census draws nearer.
181. Defendants’ final choices regarding the “methods and means” of conducting the 2020 Census have been made and create an imminent risk of harm to Plaintiffs.
182. If a court does not act promptly to remedy these constitutional failures, the deficiencies currently present in the 2020 Census will become irremediable, and there will be no amount of funding, hiring, or appropriate planning that can fix the serious existing deficiencies in time for the census.
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CAUSE OF ACTION VIOLATION OF ENUMERATION CLAUSE
Against All Defendants 183. The Constitution obligates Defendants to conduct a fair and accurate count of all persons in the United States in 2020. 184. “Nothing is more existential to the preservation of the ‘Republic’ than requiring an ‘actual Enumeration’ without ‘partiality or oppression.’” NAACP v. Bureau of the Census, 945 F.3d 183, 194 (4th Cir. 2019) (Gregory, C.J., concurring). 185. Defendants have adopted a program for the 2020 Census that unreasonably refuses to expend over $1 billion in appropriated funds now sitting in Bureau reserves and that inadequately addresses the challenge of reaching hard-to-count populations through communications and partnership programs, enumerators, and other methods and means. 186. Defendants have violated and are at imminent risk of violating the “actual Enumeration” clause of the United States Constitution, Art. I, § 2, cl. 3. 187. Defendants’ violation will lead to an undercount of racial and ethnic minorities and harm the Plaintiffs. This violation will deprive Plaintiffs of their constitutional right to representation and their fair share of resources. 188. Defendants’ violation has caused and will continue to cause ongoing, irreparable harm to Plaintiffs.
REQUESTED RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: 1. Assume jurisdiction over this matter; 2. Declare that the Defendants are obligated to ensure an accurate actual
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3. Declare that the Defendants are in violation of their constitutional duty to conduct an accurate actual enumeration of the people by reason of the totality of the circumstances;
4. Enjoin Defendants from violating their constitutional duty to conduct an accurate actual enumeration of the people;
5. Enter an injunction directing the Bureau to expend monies appropriated but unspent for purposes specified by Congress, including but not limited to requiring that (a) the Bureau’s efforts to conduct outreach and communications activities in support of the 2020 Census be no less than the level expended in preparation for the 2010 Census, adjusted for inflation; (b) the Bureau deploy “core enumerators” in the field at levels no less than those of 2010; (c) increase the number of field offices to an amount that bears a reasonable relationship to a fair and accurate count; and
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6. Grant any other and further relief the Court deems appropriate.

Respectfully submitted,
/s/ Michael J. Wishnie
Rachel Brown, Law Student Intern Lisa Chen, Law Student Intern Daniel Ki, Law Student Intern Nikita Lalwani, Law Student Intern Wishcha (Geng) Ngarmboonanant, Law Student Intern Laura Pietrantoni, Law Student Intern Joshua Zoffer, Law Student Intern Renee Burbank (Bar No. 20839) Michael J. Wishnie (Bar No. 20350) Peter Gruber Rule of Law Clinic Yale Law School* 127 Wall Street New Haven, CT 06511 Tel: (203) 436-4780 michael.wishnie@ylsclinics.org Counsel for all Plaintiffs

Jeremy M. Creelan, pro hac vice Susan J. Kohlmann, pro hac vice Jacob D. Alderdice, pro hac vice Jenner & Block LLP 919 Third Avenue New York, NY 10022-3908 Tel: (212) 891-1600 jcreelan@jenner.com skohlmann@jenner.com Counsel for all Plaintiffs
Anson Asaka (Bar No. 20456) National Association for the Advancement of Colored People, Inc. 4805 Mt. Hope Drive Baltimore, MD 21215 Tel: (410) 580-5797 Fax: (410) 358-9350 Counsel for Plaintiffs NAACP and Prince George’s County NAACP Branch

* This complaint does not purport to state the views of Yale Law School, if any.
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DRAFT
Case 8:18-cv-00891-PWG Document 168 Filed 01/10/20 Page 36 of 36 CERTIFICATE OF SERVICE
I, Michael J. Wishnie, certify that copies of the foregoing Third Amended Complaint were served this 10th day of January, 2020 upon all counsel of record by ECF. /s/ Michael J. Wishnie Michael J. Wishnie Counsel for all Plaintiffs
DRAFT