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CITY OF PHILADELPHIA v. KLUTZNICK

November 4, 1980

CITY OF PHILADELPHIA, a municipal corporation; William J. Green, individually and as Mayor of the City of Philadelphia; Marilyn McGinty, Curtis Owens, Rudy J. Arzon, Cecilia M. Yep and John and Mary Doe, individually and as class representatives; William H. Gray, III, individually and as a member of the United States House of Representatives; Max Pievsky, individually and as a member of the House of Representatives of the Commonwealth of Pennsylvania; Joseph F. Smith, individually and as a member of the Senate of the Commonwealth of Pennsylvania
v.
Philip M. KLUTZNICK, Secretary of the United States Department of Commerce; Vincent P. Barabba, Director of the United States Bureau of the Census; United States Department of Commerce; Bureau of the Census, an agency within the United States Department of Commerce; Porter S. Rickley, Regional Director of the Philadelphia Region of the Bureau of the Census of the United States Department of Commerce; Thomas Heuring, District Manager for the 1980 Philadelphia Census



The opinion of the court was delivered by: BECHTLE

MEMORANDUM OPINION

Presently before the Court is defendants' motion to dismiss the within case which challenges the accuracy and conduct of the 1980 census in the City of Philadelphia. Defendants' motion offers several grounds for dismissal: (1) lack of ripeness; (2) plaintiffs' lack of standing; (3) presence of a nonjusticiable political question; (4) challenges to agency action which are excluded from judicial review; and, (5) failure of plaintiffs to state a claim upon which relief can be granted. For the reasons stated below, the motion was granted in part and denied in part by the Court's Order of October 17, 1980.

 I. BACKGROUND

 A proper understanding of the Court's disposition of this motion requires a brief description of the enumeration process, as well as of the relationship between the City of Philadelphia ("City") and the Bureau of the Census ("Bureau"). For the purpose of determining a motion to dismiss for lack of a justiciable controversy and failure to state a claim upon which relief can be granted, the well-pleaded material allegations of the complaint must be taken as admitted. Miree v. DeKalb, 433 U.S. 25, 27 n.2, 97 S. Ct. 2490, 2492 n.2, 53 L. Ed. 2d 557 (1977); Warth v. Seldin, 422 U.S. 490, 501, 95 S. Ct. 2197, 2206, 45 L. Ed. 2d 343 (1975); 2A Moore's Federal Practice, P 12.08 (2d ed. 1980).

 (A) The Census Process

 The principal plaintiff in this action is the City of Philadelphia, a municipal corporation. The City is joined by a number of individuals, some of whom are also suing as class representatives, and others who are also suing in their capacities as elected officials. Those suing in their official capacities are: the Mayor of Philadelphia; a member of the United States House of Representatives; a member of the Pennsylvania State Senate; and, a member of the Pennsylvania State House of Representatives. All three legislators represent districts located within the City. The defendants named are: the Bureau; the Department of Commerce, which is the executive department with jurisdiction over the Bureau; and, various Government officials who are responsible, directly or indirectly, for the execution of the 1980 decennial census in Philadelphia.

  The United States Constitution requires that a decennial census be taken. *fn1" By statute, Congress has directed that the census be conducted by the Secretary of Commerce, 13 U.S.C. §§ 141, 142, and has established the Bureau of the Census as the agency within the Department of Commerce to carry out this responsibility. 13 U.S.C. § 2. The census of the population and housing must be taken as of April 1. 13 U.S.C. § 145(a). The determination of the population by states, required for the apportionment of the House of Representatives, must be completed within nine months and reported to the President. 13 U.S.C. § 143(b). *fn2"

 The Bureau also prepares a statistical breakdown of the population by city and local government, which is used in Pennsylvania as the basis for congressional and state legislative reapportionment. See Pa.Const. art. 2, §§ 16, 17. *fn3" As a result of reapportionment based on the 1970 decennial census, the City comprised four complete congressional districts and part of a fifth. At the state level, the City comprised nine state senatorial and thirty-four state representative districts.

 Census results are also used in a number of federal and state funding programs which distribute aid to the City and other local governments according to a formula based in part on population counts prepared by the Bureau in connection with the decennial census. The amount of money involved is substantial, being approximately $ 43 million a year in federal aid for the City and approximately $ 30 million in state aid.

 The census, as conducted by the Bureau in the past, has been basically an unadjusted headcount. In Philadelphia and other locales, this is now achieved by mailing questionnaires to individual households, where a member of the household is requested to complete the questionnaire and return it to the Bureau.

 (B) The Local Review Program

 As part of the 1980 census, the Bureau introduced the Local Review Program, in which local governments could review preliminary population and housing counts for their areas before final figures were released by the Bureau. Where local officials "suspected discrepancies," it was contemplated that the Bureau would "review the discrepancies and initiate the necessary steps to ensure that the postcensus counts are accurate." U. S. Bureau of the Census, Local Review Program Information Booklet: 20th Decennial Census 1980 (Dec. 15, 1978). Through this program, the Bureau hoped to improve the accuracy of the 1980 census. As described in the Bureau's official booklet, received by the City in February of 1979, the program was to consist of two phases of review: (1) Precensus Local Review, and (2) Postcensus Local Review. In precensus review, local governments were to review the Bureau's master address list in areas like Philadelphia where the census was to be conducted through the use of mailed questionnaires. A large discrepancy was to be reported to the Bureau, along with a description of the source of the estimate used to determine the discrepancy's existence. Postcensus review, on the other hand, was to take place after the April 1 enumeration had been completed. Here, the Bureau would provide local governments with preliminary population and housing counts, and the local governments would then have 10 working days from the date of receipt of this information in which to review the preliminary figures. Any discrepancies were to be reported in writing, again stating the alternative local estimate and describing its source. See generally U. S. Bureau of the Census, Local Review Program Information Booklet: 20th Decennial Census 1980 (Dec. 15, 1978).

 At some time in early 1980, the Bureau revised the Local Review Program. As set forth in the Bureau's booklet received by the City on May 23, 1980, the program was to consist of only one post-census review beginning in June of 1980. Precensus review of the master address list was eliminated. In addition, the geographic level of review was changed from block-level to enumeration district-level. *fn4" See generally U. S. Bureau of the Census, Census "80: Revised Local Review Program Information Booklet (April 1980). The City alleges that these changes rendered the City's preparations "useless."

 The enumeration by the Bureau took place as planned on April 1 and, during the post-census period, the City received the preliminary census figures furnished by the Bureau on June 26 and July 8, 1980. The Bureau's count declared the City's population to be 1,607,070. Aside from being far below the City's 1970 census figure of 1,948,609, the count was also 155,000 less than the City's 1979 population estimate of 1,762,257. In addition, the preliminary post-census results listed more than twice the number of vacant housing units shown by the City's own 1979 estimates. Although the City challenged the preliminary results in several letters to the Bureau, the City claims that it has failed to receive "timely and adequate responses." The City's letters, attached to the complaint as exhibits, suggested the existence of gross discrepancies, particularly in the count of vacant housing units. The Bureau's responses are not attached to the complaint and, therefore, are not before the Court. The City also claims that the Bureau hired "unskilled" enumerators to conduct the census in the first place.

 (C) The Statistical Adjustment Factor

 After the 1960 and 1970 decennial censuses, the Bureau stated that there had been an undercount of the population. The undercount was reported to be more pronounced among minority groups (primarily blacks and Hispanics) and non-English-speaking persons residing in the inner city. See Complaint P 53, at 20, citing U. S. Bureau of the Census, Census of Population and Housing: 1970, Evaluation and Research Program, PHC(E)-4, "Estimates of Coverage of Population by Sex, Race, and Age: Demographic Analysis" (1973). Nevertheless, the Bureau did not adjust those census figures to compensate for the undercount in the results reported to the President for reapportionment. Moreover, the Bureau recognizes that an undercount is likely to be a problem again in 1980, yet the Bureau does not intend to adjust the results obtained from their headcount. If the undercount is more marked in urban areas as plaintiffs allege, the failure to adjust the results of the headcount will skew reapportionment and revenue-sharing formulas.

 (D) The Procedural History of This Action

 Possessed with this information and with the five Philadelphia district offices scheduled to close on August 15, the City, along with the other named plaintiffs, filed this action on August 12, 1980. The complaint prays for a preliminary injunction as well as final declaratory and injunctive relief. *fn5" The City also sought a temporary restraining order, concerning which the Court issued an Order on August 14, 1980, *fn6" directing the Bureau to keep two of the five district offices open until September 2, 1980. That Order also provided for expedited discovery.

 Following a discovery conference, this Court issued an Order dated August 20, 1980, which stayed discovery but directed the Bureau to furnish affidavits assuring the Court that the materials sought by the City would be preserved so as to be readily available if production was ordered. The Court also ordered the parties to prepare legal memoranda on the preliminary issues of justiciability raised in the instant motion. After the defendants produced sufficient affidavits, this Court, by Order of September 18, 1980, modified the Order keeping the two district offices open to require only that one office be maintained. Meanwhile, the Court commenced a preliminary injunction hearing on September 3. That hearing was then suspended until September 12, 1980, when the motion discussed herein was argued before the Court. In view of the disposition of this motion, the Court has set November 18, 1980, for resumption of the preliminary injunction hearing.

 II. LEGAL DISCUSSION

 (A) Standing

 The defendants first contend that all of the plaintiffs lack standing to maintain this action. The concept of standing is intended to ensure that the proper parties are before the Court, Flast v. Cohen, 392 U.S. 83, 99-100, 88 S. Ct. 1942, 1952-1953, 20 L. Ed. 2d 947 (1968), by determining whether the plaintiffs have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7 L. Ed. 2d 663 (1962).

 Standing to challenge administrative action is governed by § 702 of the Administrative Procedure Act, 5 U.S.C. § 702, which provides that "(a) person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." In Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970), the Supreme Court held that § 702 is satisfied where "the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise," and "the interest sought to be protected is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Id. at 152-153, 90 S. Ct. at 829-830. The test of standing involves both constitutional and prudential limitations on the exercise of federal court jurisdiction. Warth v. Seldin, supra, 422 U.S. at 498-500, 95 S. Ct. at 2204-2206. The constitutional limitations stem from Article III's requirement that the federal courts entertain only "cases and controversies." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 37-38, 96 S. Ct. 1917, 1923-1924, 48 L. Ed. 2d 450 (1976); Warth v. Seldin, supra, 422 U.S. at 498, 95 S. Ct. at 2204. These constitutional considerations are embodied in the "injury-in-fact" requirement articulated in Data Processing, which has since been elaborated upon to require the plaintiff to show "a "distinct and palpable injury,' " and also that there is "a "fairly traceable' causal connection between the claimed injury and the challenged conduct" such that "the exercise of the Court's remedial powers would redress the claimed injuries." Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 74, 98 S. Ct. 2620, 2630, 2631, 57 L. Ed. 2d 595 (1978), quoting Warth v. Seldin, supra, 422 U.S. at 501, 95 S. Ct. at 2206, and Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 261, 97 S. Ct. 555, 561, 50 L. Ed. 2d 450 (1977). See also Simon v. Eastern Kentucky Welfare Rights Organization, supra, 426 U.S. at 41-42, 96 S. Ct. at 1925-1926.

 The other half of the Data Processing test embodies concerns "apart from the "case' or "controversy' test." Association of Data Processing Service Organizations v. Camp, supra, 397 U.S. at 153, 90 S. Ct. at 829-830. Such "prudential rules ... serve to limit the role of the courts in resolving public disputes." Warth v. Seldin, supra, 422 U.S. at 500, 95 S. Ct. at 2206.

 Defendants contend that plaintiffs' injuries are too speculative to constitute the kind of concrete harm required for standing. See O'Shea v. Littleton, 414 U.S. 488, 494, 497-499, 94 S. Ct. 669, 675, 676-677, 38 L. Ed. 2d 674 (1974). They argue that, before the Bureau determines the final census results and reports them to the President, it is impossible to determine whether they will be biased against the plaintiffs. Furthermore, they argue, since the named defendants do not control how state and federal aid is apportioned, the plaintiffs have failed to show that any adjustment of the census figures will necessarily result in preventing the loss of revenue-sharing funds.

 Defendants also rely heavily on Federation for American Immigration Reform (FAIR) v. Klutznick, 486 F. Supp. 564 (D.D.C.1980) (three-judge court). Like the courts in Young v. Klutznick, 497 F. Supp. 1318 (E.D.Mich.1980), and Carey v. Klutznick, -- - F.2d -- , No. 80-4550 (S.D.N.Y. filed Oct. 1, 1980), the Court finds that case inapposite. In FAIR, the plaintiffs brought an action prior to the taking of the 1980 census to compel the Bureau to note those who were illegal aliens, so that those persons would not be included in the figures used to determine reapportionment. The FAIR court held that the plaintiffs lacked standing. The plaintiffs apparently were unable to do more than speculate about the size and distribution of the alien population and, thus, about the effect of judicial relief. The instant case is distinguishable.

 First, FAIR is clearly inapposite to the issue of the present plaintiffs' standing to challenge the Bureau's conduct of local review. The facts which will establish or fail to establish that the Bureau acted improperly in its conduct of local review exist now and need no time to mature. In FAIR, however, the facts needed to show the wrongfulness of the agency's action were statistics which were not then available and which might never have materialized. Second, the plaintiffs here will be able to do better than speculate about the extent and location of the alleged undercount. The Bureau in the past has compiled its own undercount statistics. These might go far toward showing the need for an adjustment. Furthermore, this action was brought after the census was taken and, indeed, after the preliminary results were made available to the plaintiffs. Therefore, the undercount, if there is one, is already a part of the 1980 census, giving rise to the kind of concrete injury which gives the plaintiffs standing to pursue this action.

 As stated earlier, however, the question of standing goes to the propriety of any person seeking adjudication of an issue. Therefore, where an action is brought by multiple plaintiffs and their standing has been challenged, the Court must inquire into the standing of each plaintiff or class of plaintiffs. See Warth v. Seldin, supra, 422 U.S. at 502, 508, 510, 95 S. Ct. at 2207, 2210, 2211. Moreover, where a person brings a suit in more than one ...


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