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DISTRICT OF COLUMBIA v. UNITED STATES DEPT. OF COM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


April 3, 1992

DISTRICT OF COLUMBIA, Plaintiff,
v.
UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.

The opinion of the court was delivered by: JOHN H. PRATT

MEMORANDUM OPINION

 Before the Court are Defendants' Motion to Dismiss or, in the Alternative for Summary Judgment, and the Plaintiff's Motion for Summary Judgment. Plaintiff District of Columbia seeks a determination that the Bureau of the Census' inclusion of Lorton Correctional Facility inmates in the 1990 Census as residents of Virginia rather than of the District of Columbia violates the Constitution and the Census Act, 13 U.S.C. §§ 4, 5.

 Plaintiff claims violations of Article 1, Section 2, Clause 3 of the Constitution; Article 1, Section 9, Clause 4 of the Constitution; the 5th Amendment; and the Census Act, 13 U.S.C. §§ 4, 5.

 Defendants *fn1" claim that the case must be dismissed because it constitutes a non-justiciable political question, the resolution of which is best left to other branches of government. Further, defendants argue that the Bureau's application of the usual residence rule to Lorton inmates is a rational decision that is not arbitrary and capricious.

 We hold that this case is justiciable in this Court and that it does not constitute a political question. We also find that the Bureau's continued application of the usual residence rule to Lorton does not rise to the level of arbitrary and capricious conduct. Therefore, we deny plaintiff's motion for summary judgment and grant defendants' motion for summary judgment.

 I. Background

 The Constitution from the beginning has mandated a decennial census for the purpose of apportioning Representatives to Congress, "in such manner as they [the Congress] shall by law direct." U.S. Const. Art. 1, § 2, cl. 3. Congress has delegated its authority to the Secretary of Commerce, pursuant to 13 U.S.C. §§ 5, 141. The Secretary of Commerce is permitted to delegate his authority to conduct the Census to the Bureau of the Census, 13 U.S.C. § 4.

 During the 1990 Census, the Census Bureau applied its "usual residence rule" on April 1, 1990, to enumerate Lorton prisoners as residents of Virginia. Under the "usual residence rule", the Census Bureau counts persons at the place in which they generally eat, sleep, and work. People who are temporarily absent from that place are still counted as residing there. For example, people on a short vacation or trip on Census Day will still be enumerated at their usual place of residence. The usual residence principle derives from the requirements set forth in the First Census Act, 1 Stat. 101 (passed in 1790). That statute required that persons be enumerated according to their "usual place of abode" and that persons without a permanent residence be counted where found. See Declaration of Paula J. Schneider ("Schneider Dec."), Chief of the Population Division of the Census Bureau, PP6 - 17, filed in Defendants' Memorandum of Points and Authorities in Support of Motion to Dismiss, or In the Alternative for Summary Judgment ("Defendants' Memorandum") Attach. 1. The usual residence for census purposes is not necessarily the same as legal residence or voting residence. Defendants' Memorandum at 6.

 In addition, the Census Bureau has developed a set of special enumeration and residence rules for specific population groups in order to adhere to the usual residence principle. Schneider Dec. at P19. These categories include persons in the armed forces; college students; persons on maritime ships; migrant workers; and persons living in group quarters, including prisons. Schneider Dec. at P20. Residents of group quarters are enumerated as residents of the locality where the quarters are located, instead of where they would have been living if not resident in the group quarters. Schneider Dec. at P25. The inmates at Lorton prison have been enumerated for Census purposes as Virginia residents since 1916, when the prison was established. Defendants' Memorandum at 8.

 Plaintiff without elaboration alleges that the practice of counting Lorton residents as Virginia residents instead of District of Columbia residents will cause the District of Columbia to lose $ 60 million in federal funds over the next ten years.

 II. Political Question and Justiciability

 Defendants posit that whether Lorton inmates are counted as District of Columbia residents or Virginia residents is a nonjusticiable political question.

 The Supreme Court delineated the parameters of the political question doctrine in the landmark case of Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663 , 82 S. Ct. 691 (1962). In Baker, the Court held justiciable a claim that a 1901 state apportionment statute violated equal protection by diluting the votes of some citizens. The Court noted that a political question is distinguished by the relationship between the judiciary and the coordinate branches of government and that it is essentially an issue of separation of powers. 369 U.S. at 210. *fn2"

 The Court in Baker outlined six factors that contribute to a determination of whether a case is justiciable or not:

 Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

 369 U.S. at 217 (brackets and numerals supplied).

 We now turn to whether any of these factors are "inextricable from the case at bar" such that this case must be dismissed as nonjusticiable. 369 U.S. at 217.

 Upon brief examination, this case seems to involve several of the factors cited in Baker. The first factor to consider is whether there is a textually demonstrable constitutional commitment to another political department. We cannot ignore that Article I, Section 2, Clause 3 of the Constitution entrusts the taking of the Census to the Congress, a "coordinate political department." The history of this section of the Constitution *fn3" suggests that the Framers among other things sought to protect the national census from local bias by entrusting it to the national government. See City of Willacoochee v. Baldrige, 556 F. Supp. 551, 557 (S.D. Ga. 1983); City of Philadelphia v. Klutznick, 503 F. Supp. 663, 674 (E.D. Pa. 1980); Young v. Klutznick, 497 F. Supp. 1318, 1326 (E.D. Mich. 1980), rev'd on other grounds, 652 F.2d 617 (6th Cir. 1981), cert. denied, 455 U.S. 939, 102 S. Ct. 1430. 71 L. Ed. 2d 650 (1982).

 But, 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. *fn4"

 Other Baker factors are ostensibly present as well. For example, if we were to require the Census Bureau to include Lorton residents as District of Columbia residents, Virginia would necessarily lose a corresponding number of residents. This case has ramifications beyond those stated by plaintiffs. The application of the usual residence rule could well be called into question by states which bear some of the cost for prisoners located in out-of-state penitentiaries. *fn5" The level of support a locality needs to provide in order to "claim" residents for census purposes is clearly a decision for which there are no judicially manageable standards available. Similarly, there are a myriad of possible methods of conducting a census but no direction as to which is superior. See, e.g., Tucker v. United States Department of Commerce, No. 91-2051, 958 F.2d 1411, 1992 U.S. App. LEXIS 4412, at *22 -23 (7th Cir. Mar. 16, 1992) ("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 -- so 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."). Multifarious pronouncements from various courts are possible *fn6" as other localities may be encouraged to challenge provisions in residence rules that they believe might lower their population counts, undermining the application of usual residence rules and the integrity of the overall census. *fn7"

 Although a brief examination indicates that plaintiffs may make out a colorable claim that the application of the usual residence rule to Lorton inmates constitutes a political question, we will not decline to hear this case on political question grounds. We make this decision because we are unable to distinguish this case from cases challenging the census in apportionment cases where the Supreme Court has held that the issues are justiciable. Further, to hold that this case is nonjusticiable would be to rely on a somewhat shaky doctrine and depart from the practice of many other courts. Whether or not to hear this case is a close question, clearly raising many of the concerns enunciated by the Baker v. Carr Court, and we believe that prudential reasons alone would be sufficient to decline jurisdiction. However, in light of the questions we have about the applicability of the doctrine, we prefer to reach the merits of this case.

 We find it difficult to distinguish challenges to the Census Bureau's practices on apportionment grounds from challenges for financial reasons. Baker itself involved a state reapportionment that relied upon the federal Census, see Baker v. Carr, 369 U.S. 186, 191, 7 L. Ed. 2d 663 , 82 S. Ct. 691 (1962), and the Court indicated that issues involving congressional elections would also be justiciable. Id. at 233-34; cf. United States Department of Commerce v. Montana, No. 91-860, 118 L. Ed. 2d 87, 1992 U.S. LEXIS 2113, at *30 , 112 S. Ct. 1415 (U.S. Mar. 31, 1992) ("Our previous apportionment cases concerned States' decisions creating legislative districts; today we review the actions of Congress. Respect for a coordinate branch of Government raises special concerns not present in our prior cases, but those concerns relate to the merits of the controversy rather than to our power to resolve it"). In 1986, the Supreme Court found that a claim of gerrymandering was justiciable and not barred by the political question doctrine. See Davis v. Bandemer, 478 U.S. 109, 124, 92 L. Ed. 2d 85 , 106 S. Ct. 2797 (1986). If the Constitution did not provide the textual commitment to another branch that would render the issue concerning the political question doctrine non-justiciable in Baker or Davis v. Bandemer, or the recent United States Department of Commerce v. Montana, it is unclear why it should in this case.

 Lower courts have similarly held that these cases are justiciable. For example, the Eastern District of New York recently decided that a challenge to the 1990 Census seeking a statistical adjustment did not constitute a political question. See City of New York v. United States Department of Commerce, 739 F. Supp. 761 (E.D.N.Y. 1990). The court relied in part on an earlier district court opinion:

 "While Carey v. Klutznick involves a challenge to the census, and not precisely a challenge to congressional redistricting, the former provides the foundation for apportionment and redistricting and, therefore, the precedents sustaining challenges to congressional redistricting should afford a predicate for finding the claims before the court justiciable."

 City of New York, 739 F. Supp. at 765 (quoting Carey v. Klutznick, 508 F. Supp. 404, 411 (S.D.N.Y. 1980) (citation omitted)).

 Although the only case to involve a challenge to the Bureau's residence rules did not consider the political question doctrine, *fn8" other census cases have discussed the concerns raised by that issue. Most recently, the Northern District of Illinois dismissed as a political question a lawsuit seeking to force the Secretary and the Bureau to adjust statistically the 1990 Decennial Census counts in order to correct an alleged differential undercount of certain population groups. See Tucker v. United States Department of Commerce, 135 F.R.D. 175 (N.D. Ill. 1991) ("Mem. Op."), aff'd, No. 91-2051, 958 F.2d 1411, 1992 U.S. App. LEXIS 4412 (7th Cir. Mar. 16, 1992). The district court noted that the only issue before it was whether the Bureau was doing what it should to conduct the most accurate census practicable. The court summarized the focus of its concern by noting that "the question is which of the coordinate branches is best equipped to deal with plaintiffs' concern." Mem. Op. at 13.

 After reviewing the Baker v. Carr decision, the court noted that the case had nearly all the characteristics of a nonjusticiable political question, including the delegation by the Constitution to Congress, the lack of judicially manageable standards, and the fact that Congress was the body with the best ability to decide policy. Mem. Op. at 15-16.

 The Seventh Circuit affirmed the district court's decision, but in so doing, Judge Posner called into question the political question rationale for non-justiciability of the case:

 We have our doubts whether, as the district judge believed, the political questions doctrine is a bar to such a suit. The scope, rationale, provenance, and legitimacy of the doctrine remain profoundly unclear. Perhaps after such cases as Baker v. Carr and Davis v. Bandemer, all that is left is the unexceptionable proposition -- undeserving of the dignity of a special doctrine -- that the federal judiciary is not permitted to adjudicate questions that the Constitution has placed within the exclusive jurisdiction of another branch of government, or to disregard traditional limitations on equitable relief. The accuracy of the decennial census is not, in any sense apparent to us, one of those questions; nor are the plaintiffs asking for a form of relief that would exceed the bounds of traditional equity power. And whatever the current scope of the political questions doctrine may be, we would have difficulty squaring the application of the doctrine to this case with its rejection in the apportionment cases. Not that this is an apportionment case, or governed by those cases; it is not, as we shall see; but the political sensitivities that might have been thought to bring the apportionment cases within the scope of the political questions doctrine, but did not, are no greater here.

 Tucker v. United States Department of Commerce, No. 91-2051, 958 F.2d 1411, 1992 U.S. App. LEXIS 4412, at *12 -14 (7th Cir. Mar. 16, 1992) (citations omitted).

 The political question doctrine has come under consistent attack, with many parties arguing for a reevaluation in the wake of Baker v. Carr, decided slightly over thirty years ago. See 13A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3534.1 at 468 (2d ed. 1984) ("Rather than attempt to foreclose critical examination of future cases by invoking political question doctrine, it is better to rule simply that the present circumstances do not violate any constitutional standards that the Court may one day be able to apply to other circumstances"); Paul M. Bator, Daniel J. Meltzer, Paul J. Mishkin & David L. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 288-94 (3d ed. 1988); Louis Henkin, Is There a "Political Question" Doctrine?, 85 Yale L.J. 597 (1976); Wayne McCormack, The Justiciability Myth and the Concept of Law, 14 Hastings Const. L.Q. 595, 614 (1987); Robert F. Nagel, Political Law, Legalistic Politics: A Recent History of the Political Question Doctrine, 56 U. Chi. L. Rev. 643 (1989); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 9 (1959); but see J. Peter Mulhern, In Defense of the Political Question Doctrine, 137 U. Pa. L. Rev. 97 (1988) (political question doctrine is largely concerned "with distinguishing cases in which courts will exercise their power of judicial review from those in which they will not.")

 However, this Circuit just last year upheld the viability of the political question doctrine. The Court held that the political question doctrine barred hearing a claim for judicial review of impeachment procedures used by the Senate. See Nixon v. United States, 290 App. D.C. 420, 938 F.2d 239, reh. denied, 1991 U.S. App. LEXIS 25391 (D.C. Cir. 1991), cert. granted, 117 L. Ed. 2d 406 (1992). The Court noted that although the Supreme Court has rarely applied the political question doctrine in recent years, "it has also declined the several opportunities available to dispatch it." Id. at 246.

 We note as well that the Supreme Court will hear argument this term on a case in which a three-judge panel found that the Census Bureau acted arbitrarily and capriciously by including in the 1990 census federal personnel stationed abroad as residents of their home state of record. One of the questions presented in the statement of jurisdiction is whether "judicial review of the apportionment of Representatives, based on the census including federal personnel stationed abroad, is barred by virtue of the political question doctrine". *fn9" Jurisdictional Statement at 1, Franklin v. Massachusetts, U.S. No. 91-1502. The Supreme Court may well shed some light on the political question doctrine and its possible application to the numerous cases reported to lurk in the wings as a result of the 1990 Census.

 Further, we find support in the decisions of other courts that have held that claims about census procedures are justiciable. See, e.g., Massachusetts v. Mosbacher, No. 91-11234- WD, 1992 U.S. Dist. LEXIS 1975 (D. Mass. Feb. 20, 1992), petition for cert. filed (Mar. 18, 1992), stay granted, Franklin v. Massachusetts, 118 L. Ed. 2d 201, 1992 U.S. LEXIS 1959 , 112 S. Ct. 1551 (U.S. Mar. 27, 1992) (No. 91-1502); City of New York v. United States Department of Commerce, 739 F. Supp. 761, 765 (E.D.N.Y. 1990); City of Willacoochee v. Baldrige, 556 F. Supp. 551, 557 (S.D. Ga. 1983); Carey v. Klutznick, 508 F. Supp. 404, 411 (S.D.N.Y. 1980); City of Philadelphia v. Klutznick, 503 F. Supp. 663, 674 (E.D. Pa. 1980); Young v. Klutznick, 497 F. Supp. 1318, 1326 (E.D. Mich. 1980), rev'd on other grounds, 652 F.2d 617 (6th Cir. 1981), cert. denied, 455 U.S. 939 (1982); see also Borough of Bethel Park v. Stans, 449 F.2d 575 (3d Cir. 1971) (reviewing Board's decision without discussing justiciability). Although we find that this case does not constitute a political question that would bar our hearing it, we admit that this is a close question, and there are authorities on both sides. We turn now to the merits and consider whether the Census Bureau's decision was arbitrary and capricious.

 III. Standard of Review

 Summary judgment pursuant to Federal Rule of Civil Procedure 56 is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to summary judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265 , 106 S. Ct. 2548 (1986). "Summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202 , 106 S. Ct. 2505 (1986). Further, inferences drawn from the factual material must be viewed in the light most favorable to the party opposing the motion. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142 , 90 S. Ct. 1598 (1970).

 Decisions of administrative agencies are subject to review in federal court under a standard that examines whether the decision was arbitrary and capricious. See Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43, 77 L. Ed. 2d 443 (1983); Administrative Procedure Act, 5 U.S.C. § 706(2). "The scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." 463 U.S. at 43. A de novo review of the facts underlying the decision is not appropriate although the court must "'consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.'" Motor Vehicle, 463 U.S. at 43 (quoting Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 286, 42 L. Ed. 2d 447 , 95 S. Ct. 438 (1974)); Cooperative Services, Inc. v. United States Department of Housing & Urban Development, 183 App. D.C. 344, 562 F.2d 1292, 1295 (D.C. Cir. 1977). With this standard in mind, we now turn to whether the Census Bureau's decision was arbitrary and capricious.

 IV. Arbitrary and Capricious?

 Plaintiff charges that the application of the usual residence rule in counting the inmates at Lorton is arbitrary and capricious "because the Bureau fails to consider the uniqueness of the Lorton property and the District of Columbia." Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Motion, and in Support of Plaintiff's Motion for Summary Judgment ("Plaintiff's Memorandum") at 2. Plaintiff asserts that the Lorton property is distinguished from other prisons located outside the jurisdiction of their management by the "unique ceding of land to the United States by Virginia." Plaintiff's Memorandum at 10.

 Congress for many years has been deeply involved in the establishment of the facility at Lorton. In 1909, the Commissioners of the District of Columbia were authorized to purchase two tracts of land in Virginia or Maryland of at least 1000 acres each to be used for a reformatory and a workhouse. See Act of Mar. 3, 1909, ch. 250, 35 Stat. 688, 717 (Mar. 3, 1909) (District's appropriations act for year ending June 30, 1910). Congress directed that the titles to the land be taken in the name of the United States. See Act of August 5, 1909, ch. 7, 36 Stat. 118, 122. Land was purchased or acquired by condemnation from 1914 through 1953 for the Lorton prison. Congress created and vested the Board of Public Welfare of the District of Columbia with "complete and exclusive control and management" of "the reformatory at Lorton in the State of Virginia." See Act of March 16, 1926, ch. 58, §§ 2,6, 44 Stat. 208, 208-09. Those powers were later transferred to the Department of Corrections for the District of Columbia, Act of June 27, 1946, ch. 507, 60 Stat. 320 (currently codified at D.C. Code § 24-442 (1989)), and in 1952, to the Board of Commissioners. See Reorganization Plan No. 5 of 1952, §§ 1-2, 66 Stat. 824. Reorganization Plan No. 3 of 1967 transferred these powers to the Commissioner of the District of Columbia, see Reorganization Plan No. 3 of 1967, § 401, 81 Stat. 948, 951, and in 1973, the Mayor was vested with all the functions granted to or vested in the Commissioner of the District of Columbia as established by Reorganization Plan No. 3 of 1967. See District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. 93-198, § 422, 87 Stat. 774, 790 (1973) (codified as amended at D.C. Code § 1-422 (1991)). Consequently, plaintiff argues that "the Mayor of the District of Columbia is vested by Congress with complete and exclusive control and management of the Occoquan and Lorton, Virginia properties, even though legal title to these properties is with the United States." See Plaintiff's Memorandum at 12.

 But retention of control and management, despite United States ownership, does not automatically qualify a property as "unique" such that it deserves different rules for the Census enumeration. There are numerous properties owned by the United States for which the population is enumerated as residents of the state in which the property is located. Other federal prisons are enumerated in the state in which the institution is located. See Schneider Dec. at PP24, 35. Nor is the usual residence rule confined to federal prisons. Military establishments, for example, or other residential installations are frequently owned by the United States and yet the residents are rightfully counted as residents of the state within which the installation is located. What may distinguish Lorton from these is that a different political subdivision is given exclusive control over the services offered within the property. At Lorton, for example, the District of Columbia is responsible for maintaining the grounds, completely financing the facility, and providing social services for the residents. See Plaintiff's Memorandum at 14-15. Virginia's only connection to the facility is that it is within the geographic boundaries of the state and Virginia can not collect taxes from businesses or residences that otherwise might have been there.

 Plaintiff also argues that Lorton is unique because the District of Columbia bears all of the costs of its management. Plaintiff's Memorandum at 15. To this end, plaintiff attempts to distinguish from this case Borough of Bethel Park v. Stans, 319 F. Supp. 971 (W.D. Pa. 1970), aff'd, 449 F.2d 575 (3d Cir. 1971), in which the Third Circuit upheld the usual residence rule as applied to college students, members of the armed forces, and institutionalized inmates. Plaintiff points to language in the District Court opinion in which the court noted that the persons in question received services from the communities and would not necessarily return to their "home" states:

 In each of these cases, the persons in question draw upon the services of the communities in which their military installations, colleges and institutions are located. The communities in which these persons are residing must plan and develop their public resources to provide for all residents. No abuse of discretion is found in enumerating these persons as inhabitants of these communities rather than as residents of a presumptive home to which many may not be expected to return. Moreover, there is no reason why different criteria should be applied to these persons than are applied to the population at large, many of which may have a status which may be characterized as equally transient on the date of the census.

 319 F. Supp. at 979. Plaintiff would distinguish Bethel Park by arguing that the District of Columbia pays all of the costs of maintaining Lorton, including water and electricity. Further, the District is liable for Lorton's operation, and the inmates retain District of Columbia residency for health, social and educational benefits. Plaintiff's Memorandum at 14-15. Plaintiff contends that as the District of Columbia completely bears the burden of these residents but yet does not receive any of the benefits from federal assistance based on census enumeration, the usual residence rule should not apply. *fn10" Unlike the case with regard to college students or military personnel, the locality that contains the Lorton facility does not bear the cost of providing police services or street cleaning. *fn11"

 In one light, this would appear to be a convincing argument. If Lorton was, in fact, a part of the District of Columbia as defined by political boundaries then the inmates would be enumerated as District of Columbia residents. It appears that all that separates Lorton residents from being counted as District of Columbia residents is a mere vagary of the District of Columbia's strange position as a city without a state.

 But however rational it may seem to examine the source and nature of fiscal support in such a case, the Census Bureau is not required to do so. Although the Census results are often used to establish levels of federal funding, *fn12" this is not a defined purpose of the Census. The Constitution makes clear that the Census is to be used to determine congressional representation; it says nothing about financial assistance. *fn13" And although some courts have noted that the challenges to the Census are motivated by the threat of lost funding, *fn14" the level of financial support an area receives from a locality has never explicitly defined the census enumeration.

 In addition, defendants contend that plaintiff's premise is faulty; they argue that Virginia does bear some of the cost of Lorton's maintenance. For example, the assessor of Fairfax County estimates that if the prison complex was taxable, instead of being exempt as property of the United States, the county real estate tax in 1991 would have been $ 1.2 million. See Affidavit of Paul E. Smith, Defendants' Opposition to Plaintiff's Motion for Summary Judgment ("Defendants' Opposition") Ex. C. Further, defendants allege that the District of Columbia does not compensate the town for some of the costs associated with fire, rescue, and road maintenance. *fn15" See Affidavit of Richard A. King, Acting County Executive of Fairfax County, Va., PP9-10, Defendants' Opposition Ex. B.

 Judicial review under the Administrative Procedure Act is limited to whether the Census Bureau abused its discretion and acted arbitrarily and capriciously. *fn16" See 5 U.S.C. § 706. Thus, we are not called upon to perform a de novo review. All that is before us is whether there is a rational basis for this determination. See Borough of Bethel Park v. Stans, 449 F.2d 575, 579 (3d Cir. 1971). The procedures used by the Census Bureau do not have to be the best available. See West End Neighborhood Corp. v. Stans, 312 F. Supp. 1066, 1069 (D.D.C. 1970). Under this standard of review, we find it impossible to say that the Census Bureau acted arbitrarily and capriciously. *fn17"

 To require the Bureau to examine the fiscal links between institutions and the state of residence would add an unreasonable and complicated step to the analysis. The Chief of the Population Division of the Census Bureau, Paula Schneider, indicated that the Bureau does not inquire into factors such as which entity owns or operates an institution, because such an approach would "require the Bureau to engage in complex determinations regarding ownership or maintenance, which the Bureau is not equipped to resolve." Schneider Dec. at P27.

 The Bureau of Census has interpreted the constitutional command to enumerate the whole number of people on Census day to require enumeration at the place where the people are usually to be found. They have developed a series of procedures whereby the state of usual residence receives the benefit of the population. *fn18" The Bureau has also developed and consistently applied a set of rules for specialized institutions that ascribe residents of these institutions to the state within whose political boundaries the institution is located. This is a determination based on geography. The determination is designed to be administered easily, without in-depth factual analysis. The use of such a rule is a rational determination by the Census Bureau. *fn19"

 To require that the Bureau perform some sort of interest analysis or financial dependence determination in every case would be prohibitively expensive *fn20" and perhaps not more accurate. To require that the Bureau perform such an analysis only for the Lorton facility would potentially encourage other states to challenge the Census. *fn21" Although including Lorton within the District of Columbia population may be more equitable, we cannot say that the Bureau acted without a rational basis.

 The District of Columbia faces a real problem. The District almost entirely supports a penal population of over 5,000 that is located outside the political boundaries of the District. Because of the way federal funds are distributed, it is likely that the District would receive more money if the Lorton inmates were included as District of Columbia residents. However, the Bureau of the Census did not act without reason. Nor is the District in a unique position here: many states have people whom they support to some degree who are not included as residents for Census purposes, even though those people may vote and consider themselves residents of the state. *fn22" The solution to the District's problems lies not in adjusting the Census count, but in changing the way funds are distributed.

 The Bureau of the Census has decided to use a geographically-based system of enumeration for institutional residents based on usual residence, rather than one based on the financial support of the residents. We cannot say that this is an arbitrary and capricious determination by the Census Bureau, nor does it violate the constitutional command of the census clause. For this reason, we grant defendants' motion for summary judgment on the merits and deny plaintiff's motion for summary judgment.

 An Order consistent with the foregoing is filed this day.

 JOHN H. PRATT

 United States District Judge

 Date: 3 April 92

 ORDER - April 3, 1992, Filed

 In accordance with the Memorandum Opinion filed on this day, it is this 3rd day of April, 1992, hereby

 ORDERED that Defendants' Motion to Dismiss, Or in the Alternative for Summary Judgment is granted; and it is

 ORDERED that Plaintiff's Motion for Summary Judgment is denied; and it is

 FURTHER ORDERED that this case is dismissed with prejudice.

 JOHN H. PRATT

 United States District Judge


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