[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 21

- 13699

Non

- Argument Calendar

____________________

MICHAEL EARL VAN CLEVE, an individual,

Plaintiff

- Appellant,

versus U.S. SECRETARY OF COMMERCE, DIRECTOR OF THE U.S. CENSUS BUREAU, DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET, U.S. DEPARTMENT OF COMMERCE, U.S. CENSUS BUREAU, et al., USCA11 Case: 21-13699 Date Filed: 05/24/2022 Page: 1 of 112 Opinion of the Court 21

- 13699

Defendants

- Appellees.

____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:20

- cv

- 23611

- RNS

____________________
Before L UCK , L AGOA , and B LACK , Circuit Judges.

PER CURIAM: Michael Van Cleve, an attorney proceeding pro se , filed an action against the U.S. Secretary of Commerce, Director of the U.S. Census Bureau, Director of the Office of Management and Budget (OMB), U.S. Department of Commerce, U.S. Census Bureau, and OMB (c ollectively, the agencies), alleging they violated, and will continue to violate, the Administrative Procedure Act by collecting and disseminating inaccurate race data. Van Cleve a sserts the district court erred by concluding he lacks standing and dismiss ing his third amended complaint

. 1 His three theories of standing are based

1 In addition to the dismissal of the third amended complaint for lack of standing, Van Cleve also challenges the denial of his motion for a three

- judge panel,pursuant to the 1998 Departments of Commerce, Justice, and State, the Judiciary, and Related Agenc ies Appropriations Act, § 209, Pub. L. No. 105

- 119, 111 Stat. 2440, 2481

– 82 (1997) (codified at 13 U.S.C. § 141 note), and the district court’s conclusion his third count failed on the merits. However, because we hold Van Cleve lacks standing, we need not address these issues. USCA11 Case: 21-13699 Date Filed: 05/24/2022 Page: 2 of 1121

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on harm to his interests as an attorney, informational injury, and “census degradation .” After review, 2 we affirm the district court.

I. DISCUSSION

A. Harm to Van Cleve’s Inte re sts as an Attorney A plaintiff who invokes the jurisdiction of a federal courtbears the burden to show the Constitutional limitations on standing: (1) an injury in fact, (2) a causal connection between the injury and the causal conduct, and (3) a likelihood the injury will be redressed by a favorable decision. Tanner Adver. Grp., LLC v. Fayette Cnty. , 451 F.3d 777, 791 (11th Cir. 2006 ) ( en banc )

. At the pleading stage of a case, general factual allegations of injury can suffice, but these general factual allegations must p lausibly and clearly allege an injury in fact. Muransky v. Godiva Chocolatier,
Inc. , 979 F.3d 917, 9 24 (11th Cir. 2020) ( en banc )

. “ Mere conclusory statements do not suffice. ” Id. (quotation marks and alteration omitted).

“ An injury in fact consists of an invasion of a legally protected interest that is both concrete and particularized and actual or imminent, not conjectural or hypothetical.” Trichell v. Midland Credit Mgmt., Inc. , 964 F.3d 990, 996 (11th Cir. 2020) (quotation marks omitted)

. “ A concre te injury must be de facto ; that is, it must actually exist. ” Salcedo v. Hanna , 936 F.3d 1162, 1167 (11th

2 “ We review standing determinations de novo

. ” Tanner Adver. Grp., L.L.C. v. Fayette Cnty. , 451 F.3d 777, 784 (11th Cir. 2006) ( en banc ). USCA11 Case: 21-13699 Date Filed: 05/24/2022 Page: 3 of 114 Opinion of the Court 21

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Cir. 2019) (quotation marks omitted) . A particularized injury affects a plaintiff “ in a personal and individual way, ” although “that an injury may b e suffered by a large number of people does not of itself make that injury a nonjusticiable generalized grievance.” Spokeo, Inc. v. Robins , 578 U.S. 330, 339 n.7 (2016 ); Trichell , 964 F.3d at 996. “ Each element of injury

— a legally protected interest, concreteness, particularization, and imminence

— must be satisfied. ” Trichell , 964 F.3d at 996

- 97.

T angible injuries qualify as concrete. Trichell , 964 F.3d at 997. Intangible injuries sometimes qualify as concrete, but alleging

a bare procedu ral violation, divorced from any concrete harm, is not enough to support standing. Id. ; Muransky , 979 F.3d at 924. Generally, courts look to history and the judgment of Congress to determine whether an intangible harm is sufficiently concrete. Spokeo , 5 78 U.S. at 340. For example, in Trichell
, we concluded the plaintiffs’ claims were not comparable to their closest historical analog, the common

- law tort of negligent misrepresentation, because the plaintiffs did not establish reliance or damages, which c ut against standing. Trichell, 964 F.3d at 998. Nonetheless, “if a statute protects against a lack of information, the denial of access to information is a concrete injury.” Muransky , 979 F.3d at 930. USCA11 Case: 21-13699 Date Filed: 05/24/2022 Page: 4 of 1121

- 13699 Opinion of the Court 5
The harms Van Cleve alleged to his interests as an attorney were not particularized o r concrete. 3 He alleged inaccurate census data (1) will make it more difficult to understand which communities most need legal assistance; (2) that he will not be able to rely on this data in cases he litigates; and (3) he has lost time and money pursuing this action that he could have devoted to other cases. As to his first assertion, Van Cleve failed to explain why greater difficulty in identifying underprivileged communities that need legal assistance will harm him personally. 4 Muransky . 979 F.3d at 9 25 (stating w e “ will not imagine or piece together an injury sufficient to give a plaintiff standing when [ he ] has demonstrated

none , and we are powerless to create jurisdiction by embellishing a deficient allegation of injury ” (quotation marks omitted) )

.As to his second assertion, Van Cleve likewise failed to explain how not being able to rely on census data harms him specifically. It is uncl ear from his allegations how census data would be useful in discrimination or civil rights cases. Van Cleve simply

3 To the extent Van Cleve’s claimed informational injury or injury based on “census degrada tion” relied on harm to his interests as an attorney to establish particularization, such reliance is misplaced for the reasons discussed.

4 Even if Van Cleve w ere implying he could lose revenue, the third amended complaint noted the “Florida Bar encourage s its members to service individuals who are indigent, in need [of] pro bono services, or otherwise encouragesits members to assist communities that are subject to discrimination, segregation, or economic deprivation,” implying he desires to help such com munities pro bono. USCA11 Case: 21-13699 Date Filed: 05/24/2022 Page: 5 of 116 Opinion of the Court 21

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states he “litigates cases where race data or race information may be necessary,” such as Fair Housing Act cases. But this statement does n ot explain how the race data collected by the agencies, which would seem to only indicate where individuals of different races live, would show any discriminatory act has occurred. Moreover, if the census did not include “Middle Eastern and North African”

or “ Hispanic ” as races in the past, and not including such races as options results in inaccurate or unreliable dat a , the implication is that civil rights practitioners like Van Cleve use some other data or evidence to show civil rights violations or inst ances of discrimination . It follows that his practice has not been, and will not be, harmed by a lack of reliable census race data. To the extent thistheory relied on injury to the interests of Van Cleve’s potential clients, whose cases cannot benefit f rom more accurate race data, this assertion of third

- party standing is foreclosed

. Kowalski v. Tesmer
, 543 U.S. 125, 129, 134 (2004) (stating a party generally must assert his own legal rights and interests and cannot rest his claim to relief on the legal rights or interests of third parties, such that lawyers cannot assert “the claims of future unascertained clients” ). As to the third assertion, Van Cleve failed to allege he was required to inflict this form of harm on himself because the harm to his int erests as an attorney was “certainly impending.” See Muransky , 979 F.3d at 931 (explaining plaintiffs cannot manufactur e a concrete harm by inflicting harm on themselves )

. His allegations stated that, in general, he cannot rely on census race data, but Van Cleve did not assert he has initiated or plans to initiate immi n ently USCA11 Case: 21-13699 Date Filed: 05/24/2022 Page: 6 of 1121

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any civil rights or discrimination actions that rely on race data collected and disseminated by the agencies. Thus, this injury is not

concrete. B. Informational Injury
Van Cleve asserts he suffered, and will continue to suffer, an informational injury under both 44 U.S.C. § 3506(e) and 44 U.S.C. § 3563(a). Section 3506 is titled “Federal agency responsibilities.” It is contained within subchapter I, “Federal Informatio n Policy.” This subchapter outlines its purposes, including improving government efficiency, organization, and decision

- making. 44 U.S.C. § 3501

. Sections 3506(e)(1) and 3506(e)(6) state that, “[w]ith respect to statistical policy and coordination, each agency shall

-- (1) ensurethe relevance, accuracy, timeliness, integrity, and objectivity of information collected or created for statistical purposes . . . and (6) make data available to statistical agencies and readily accessible to the public.” Id. §§ 3506(e)(1), (6). Section 3563(a)(1) states that, “[i]n general[,] [e]ach statistical agency or unit shall

-- (A) produce and disseminate relevant and timely statistical information; (B) conduct credible and accurate statistical activities; (C) conduct obje ctive statistical activities; and (D) protect the trust of information providers by ensuring the confidentiality and exclusive statistical use of their responses.” Id. § 3563(a)(1). The two primary cases in which the Supreme Court has squarely addressed “informational injury” are Public Citizen v. U.S. USCA11 Case: 21-13699 Date Filed: 05/24/2022 Page: 7 of 118 Opinion of the Court 21

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Department of Justice , 491 U.S. 440 (1989) and Federal Election Commission v. Akins , 524 U.S. 11 (1998). See TransUnion LLC v.
Ramirez , 141 S. Ct. 2190, 2214 (2021) (noting these cases do not control in t he absence of a “public

- disclosure or sunshine law s that entitle all members of the public to certain information”). In Public
Citizen , the Court held the plaintiffs alleged a sufficiently concrete injury based on violation of a statute that required advi sory committees to make their minutes, records, and reports available to the public. 491 U.S. at 446

- 47. There, the plaintiffs asserted the American Bar Association (ABA), which had advised the Department of Justice regarding potential judicial nominees, had denied their request for the names of such nominees and for the ABA’s reports and minutes of its meetings regarding these nominees in order to monitor its workings and participate more effectively in the judicial selection process. Id. at 447, 449. Similarly, in Akins , the Courtheld the plaintiffs’ asserted injury was concrete because they alleged a political committee violated a statute’s requirement that itmake public information about members, contributions, and expenditures, which the plaintiff s needed to evaluate candidates for public office. 524 U.S. at 21.

In Trichell
, we concluded the plaintiff could not show a concrete injury from a statute g iving them a right to receive truthful communications from debt collectors. Trichell , 964 F.3d at 1003

- 04

. We reasoned that, in contrast to the statutes at issue in Public
Citizen and Akins, which made certain information subject to public disclosure, this statute, which only stated debt

- collection letters USCA11 Case: 21-13699 Date Filed: 05/24/2022 Page: 8 of 1121

- 13699 Opinion of the Court 9
may not be misleading or unfair, crea ted no substantive entitlement to receive information from debt collectors. Id. at 1004. Similarly, in Electronic Privacy Information Center v. U.S. Department of Commerce (EPIC) , the D.C. Circuit held a violation of a statute that required federal agenc ies to, if practicable, publish a privacy impact assessment before initia ting a new collection of personally identifiable information did not support an informational injury. 928 F.3d 95, 103 (D.C. Cir. 2019). It reasoned this statute was not meant to “v est a general right to information in the public” and, rather, “was designed to protect individual privacy by focusing agency analysis and improving internal agency decision

- making.” Id. In contrast, on remand from the Supreme Court, the Nin th Circui t c oncluded that, in enacting the Fair Credit Reporting Act(FCRA), Congress intended to protect consumers’ interests in preventing the transmission of inaccurate information about them inconsumer reports such that violations of the FCRA could constitute a c oncrete injury , noting the FCRA imposes a host of procedural requirements on consumer

- reporting agencies and allows individuals to sue those who are non

- compliant. Robins v. Spokeo,
Inc. ( Spokeo II ), 867 F.3d 1108, 1113

- 14, 1117 (9th Cir. 2017)

. Van Cl eve’s alleged informational injury was not concrete because neither § 3506(e) nor § 3563(a) is a public

- disclosure law that entitles all members of the public to certain information. Thestatutes focus on the intragovernmental sharing of information rathe r than the sharing of in for mation between the government and the public. In the sam e wa y the statute in EPIC was not meant to USCA11 Case: 21-13699 Date Filed: 05/24/2022 Page: 9 of 1110 Opinion of the Court 21

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“vest a general right to information in the public” and “was [instead] designed to protect individual privacy by focusing agency analysis and improving internal agency decision

- making,” § 3506 (e)was primarily intended to improve government efficiency, organization and decision

- making by “ensur[ing] the relevance, accuracy, timeliness, integrity, and objectivity of information collected or created for statistical purposes” and by “mak[ing] data available to statistical agencies and readily accessible to the public.” 44 U.S.C. §§ 3506(e)(1), (6), EPIC , 928 F.3d at 103. Unlike the statutes in Public Citizen and Akins , which expressly required the disclosure ofminutes, records, and reports of advisory committees and information about the members, contributions, and expenditures of political committees, respectively, neither statute here identifies any
spec ific informa tion, such as race data, to which all members of the public are entitled. Public Citizen , 491 U.S. at 446

- 47; Akins , 524U.S. at 21. Instead, they refer to “data” and “information” in general. 44 U.S.C. §§ 3506(e)(1), (6); 44 U.S.C. § 3563(a). Both § 3 506(e) and § 3563(a) only refer to the responsibilities of statistical agencies, and unlik e the statute in Spokeo II, neither statute provides a mechanism for members of the public to seek disclosure of certain information or imposes a specific procedural requirements on agencies. Spokeo II , 867 F.3d at 1113

- 14. C. Census Degradation

In Department of Commerce v. New York , the SupremeCourt held that several states had standing when they sued to prevent the reinstatement of a question about citizenship on the 2020 USCA11 Case: 21-13699 Date Filed: 05/24/2022 Page: 10 of 1121

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census questionnaire, which they claimed would depress the census response rate, lead to an inaccurate population count, and, consequently, result in a loss of federal funds that are distributed based on state population. 139 S. Ct. 2551, 2565 (2 019) . The Court reasoned that the loss of federal funds was a sufficiently concrete and imminent injury to satisfy Article III. Id. Contrary to Van Cleve’s argument the mere occurrence of “census degradation” creates standing, Department of Commerce
v. N ew York held the state’s loss of federal funds resulting from census degradation established a concrete injury. See id

. VanCleve’s assertion that census race data is inaccurate or will be inaccurate in the future, without more, does not establish a conc rete injury, nor does it show that any inaccuracies have affected Van Cleve personally.

II. CONCLUSION

T he district court did not err by concluding Van Cleve lacks standing. None of his theories of standing, based on harm to his
interests as an attorney, informational injury, and “census degradation,” satisfied both the concreteness and particularization elements required of a valid injury in fact. Accordingly, we affirm. 5

AFFIRMED.

5 Van Cleve’s Motion to Expedite Appeal is DENIED as moot. USCA11 Case: 21-13699 Date Filed: 05/24/2022 Page: 11 of 11