The opinion of the court was delivered by: LAMBERTH
Plaintiff, the United States House of Representatives, seeks summary judgment against the Department of Commerce and the Bureau of the Census ("defendants") in this action challenging defendants' plan for the 2000 census. Plaintiff claims that using statistical sampling to supplement the headcount enumeration used to apportion representatives among the states violates the Census Act, 13 U.S.C. § 1 et seq., and Article I, section 2, clause 3 of the Constitution. The House seeks a declaration that statistical sampling is unlawful and/or unconstitutional and an injunction preventing defendants from using statistical sampling in the 2000 census.
Now before the court are defendants' and intervenor-defendants'
motions to dismiss plaintiff's complaint pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure, and plaintiff's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons stated below, the motions to dismiss will be denied and plaintiff's motion for summary judgment will be granted.
The Constitution requires Congress to conduct an "actual Enumeration" of the population every ten years "in such Manner as they shall by Law direct." U.S. Const. art. I, § 2, cl. 3; see Wisconsin v. City of New York, 517 U.S. 1, 5, 134 L. Ed. 2d 167, 116 S. Ct. 1091 (1996). Congress has delegated broad authority over the conduct of the census to the Secretary of Commerce through the Census Act. See 13 U.S.C. § 1 et seq.; see also Wisconsin, 517 U.S. at 19. The Census Act governs the Census Bureau's (the "Bureau") gathering of economic, social and demographic data about the United States, including the decennial apportionment census mandated by the Constitution.
Despite the constitutional mandate to obtain an "actual enumeration" of the population, "no census is recognized as having been wholly successful in achieving that goal." Wisconsin, 517 U.S. at 6 (citing Karcher v. Daggett, 462 U.S. 725, 732, 77 L. Ed. 2d 133, 103 S. Ct. 2653 (1983); Gaffney v. Cummings, 412 U.S. 735, 745, 37 L. Ed. 2d 298, 93 S. Ct. 2321 (1973)). The 1990 census was no exception. According to the Bureau, "though better designed and executed than any previous census, the Census in 1990 took a step backward on the fundamental issue of accuracy. For the first time since the Census Bureau began conducting post-census evaluations in 1940, the decennial census was less accurate than its predecessor. . . . the undercount rate of 1.8 percent in 1990 was 50 percent greater than the rate had been in 1980." United States Department of Commerce, Bureau of the Census, Report to the Congress -- The Plan for Census 2000, at 2 (revised August 1997) "Census 2000 Report". Specifically, the Bureau reports that children, renters (particularly in rural areas), and racial and ethnic minorities were significantly undercounted. Among those the 1990 census missed were 4.4% of African-Americans, 5.0% of Hispanics, and 12.2% of American Indians living on reservations, but only 0.7% of Non-Hispanic Whites. See Census 2000 Report at 3-4.
This and undercounting of certain groups relative to others, known as the "differential undercount," raises the possibility of congressional malapportionment, as jurisdictions with large numbers of undercounted persons may have a greater share of the total population than the census figures suggest.
Concerned about problems with the 1990 census, Congress passed the Decennial Census Improvement Act of 1991, P.L. 102-135, 105 Stat. 635 (1991), which directed the National Academy of Sciences to study "the means by which the Government could achieve the most accurate population count possible," including consideration of "the appropriateness of using sampling methods in combination with basic data-collection techniques." Id. (quoted in Census 2000 Report at 6). The National Academy established three panels to develop a means to achieve greater accuracy for the 2000 census. All three panels concluded that traditional census methods needed to be modified in response to societal changes, and that statistical sampling techniques would both increase the census' accuracy and lower its cost. See Census 2000 Report at 7-8 (quoting the conclusion of the Academy Panel on Methods that "differential undercount cannot be reduced to acceptable levels at acceptable costs without the use of integrated coverage measurement and the statistical methods associated with it").
Based upon the results of these congressionally-authorized National Academy studies, combined with ninety years of census-taking experience, meetings with the public in thirty cities, congressional input, and advice from no fewer than six advisory committees, see Census 2000 Report at 9-10, the Bureau developed its master plan for the 2000 enumeration. At issue is the Bureau's plan to use statistical sampling to supplement data obtained through traditional census methods.
Statistical sampling is best understood as using information derived from a portion of a population to infer information on the population as a whole. The Bureau intends to use sampling in three different phases of the 2000 census. First, the Bureau will use sampling in the Postal Vacancy Check program to verify the United States Postal Service's determination that certain housing units are vacant and to correct for anticipated errors in this designation. Second, the Bureau will use sampling techniques in the Nonresponse Follow-Up ("NRFU") phase of the census. Finally, the Bureau intends to conduct a post-census survey, an operation referred to as Integrated Coverage Measurement ("ICM"). The Postal Vacancy Check sampling plan is not at issue in this litigation. The court will describe the latter two processes briefly.
1. Nonresponse Follow-Up: If all households returned their census forms by mail, NRFU would be unnecessary. However, in 1990 only 65% of households returned their forms, down from 78% in 1970. The Bureau does not expect a substantially higher rate of return in 2000, estimating that even with its innovations, the response rate will be around 67%, or approximately 34 million non-responding households. See Census 2000 Report at 26.
During the 1990 census, Bureau enumerators personally visited all non-responding housing units, with some homes receiving as many as six repeat visits before the Bureau ultimately relied upon proxy data (from neighbors) or imputation data (computer-inferred) to determine the number of persons residing in each non-responding household. The Bureau considers the nonresponse follow-up to be the "most difficult logistical segment" of the census. Census 2000 Report at 27.
Under the planned NRFU program, enumerators will not endeavor to personally contact all non-responsive households. Rather, they will visit a randomly selected sample of nonresponding housing units. The sample is random to ensure that the units chosen "will be statistically representative of all housing units in a non-responding tract." Census 2000 Report at 27-28 (defining a "tract" as having homogeneous population characteristics, such as economic status and living conditions). The percentage of housing units visited will vary with the mail response rate to ensure that enumerators directly contact 90% of the units in each tract. For example, in census tracts in which only 30% of households respond, 6 of 7 addresses will be visited by enumerators, but in tracts with an 80% return rate, only 1 of 2 will be contacted. As to the households in each tract not personally visited, the Bureau will estimate the number of persons residing within those units based upon data collected from the households that received a follow-up visit. The Bureau states that with this sampling technique, enumerators will only have to visit 22.5 million housing units, as opposed to the 34 million they would have to visit without relying upon sampling. See Census 2000 Report at 27.
2. Integrated Coverage Measurement: The second phase of the 2000 census challenged by the House is the ICM, a post-census survey which utilizes "Dual System Estimation" ("DSE") or "capture/recapture" to compensate for any undercount or differential undercount after the initial enumeration is complete. See Census 2000 Report at 29-32; see also Wisconsin, 517 U.S. at 8-9 (explaining how DSE would operate in counting the number of pumpkins in a large pumpkin patch). To conduct the ICM, the Bureau will classify each of the country's 7 million city blocks into categories the Bureau refers to as "strata." These strata will be based on characteristics of the block determined in the 1990 census such as the block's state, racial and ethnic composition, and proportion of renters to homeowners.
The Bureau will then select blocks at random from each stratum for a total of 25,000 blocks. Based on an average of 30 housing units per block, it will obtain information from approximately 750,000 housing units. That number will establish a representative sample large enough, the Bureau claims, to estimate population totals for each state.
ICM interviewers will interview the residents of the 750,000 housing units in the sample blocks, thereby establishing a roster of Census Day residents independent of the initial enumeration roster. If data collected for a household during the ICM interview differs from data obtained during the original headcount phase, a follow-up ICM interviewer will return to the address to rectify the discrepancy and find the "true" situation. Each person then will be assigned to a unique "poststratum," which is a group of persons who have a similar probability of being counted in the initial data collection operation. The poststrata are defined by state geographic subdivision (such as rural or urban), owner or renter, age, sex, race and ethnic origin.
Upon completion of this process, using the statistical methodology of DSE, the Bureau will derive population data by comparing the results of the original headcount for the sample blocks with the ICM results for those same blocks. The Bureau will then determine the error rate in the nationwide headcount for each poststratum. The error rates will be applied to the original headcount results to ascertain the number of housing units and total population in each poststratum. These totals will then be summed to obtain the total population for each state.
Another central feature of the Bureau's plan is that it will conduct a "one-number census." See United States Department of Commerce, Bureau of the Census, Census 2000 Operational Plan at 1-1, 5, IX-18, 20, 23 (April 1998) ("Census 2000 Operational Plan"); see also 33 Weekly Comp. Pres. Doc. 1927 (Nov. 26, 1997). The Bureau does not intend to conduct two parallel enumeration efforts employing different methodologies. The only number that would be ascertained by the Bureau is a number derived through statistical sampling. The "raw data" would be unusable for apportionment. See 33 Weekly Comp. Pres. Doc. 1927 (Nov. 26, 1997).
Upon announcement of the Department of Commerce's plan to utilize statistical sampling in the 2000 enumeration effort, Congress attempted to amend 13 U.S.C. § 141(a) to provide that, "notwithstanding any other provision of law, no sampling or any other statistical procedure, including any statistical adjustment, may be used in any determination of population for purposes of the apportionment of Representatives in Congress among the several States." Supplemental Appropriations and Rescissions Act, H.R. 1469, 105th Cong., 1st Sess. (1997). President Clinton vetoed this bill, in part due to its prohibition on the use of sampling in the 2000 decennial enumeration. See 33 Weekly Comp. Pres. Doc. 846-48 (June 19, 1997).
Following this veto, Congress enacted, and the President signed into law, a statute requiring the Department of Commerce to provide a comprehensive written report explaining the design for the 2000 census and detailing any planned use of statistical sampling techniques. See Pub. L. No. 105-18, 111 Stat. 158, 217 (1997). Pursuant to that legislation, the Commerce Department issued the Census 2000 Report.
After receipt of the Census 2000 Report, Congress passed, and the President signed into law, the 1998 Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, Pub. L. No. 105-119, 111 Stat. 2440, 2480-87 (1997) ("1998 Appropriations Act). Section 209(c)(2) of this Act provides that the Census 2000 Report and the Census 2000 Operation Plan "shall be deemed to constitute final agency action regarding the use of statistical methods in the 2000 decennial census, thus making the question of their use in such census sufficiently concrete and final to now be reviewable in a judicial proceeding." Section 209(b) authorizes "any person aggrieved by the use of any statistical method in violation of the Constitution or any other provision of law (other than this Act), in connection with the 2000 or later decennial census, to determine the population for purposes of the apportionment or redistricting of Members in Congress," to bring a civil action to obtain declaratory, injunctive, and any other appropriate relief. Section 209(d) defines an "aggrieved person") to include, inter alia, "either House of Congress."
The United States House of Representatives filed this suit on February 20, 1998, as a person directly affected and aggrieved by the Bureau's decision to use statistical sampling in the 2000 census. The House seeks a declaration that the use of sampling to determine the population for purposes of apportioning members of the House of Representatives among the several states violates the Census Act and the Constitution. The House also seeks a permanent injunction preventing defendants from using sampling for Nonresponse Follow-Up, for Integrated Coverage Measurement, or in any other way, in the apportionment aspect of the 2000 census.
Defendants' motions to dismiss
offer several grounds for dismissal: (1) that the United States House of Representatives lacks Article III standing because it has not established that it will suffer a legally cognizable injury; (2) that the House's challenge is not ripe for adjudication; (3) that the court should decline to hear this case because it constitutes a dispute between the two political branches of government; and, (4) that permitting the House of Representatives to bring this action violates the doctrine of separation of powers. Each of these arguments will be considered in turn.
A. Article III Standing: Legally Cognizable Injury
On a motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure, "both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Warth v. Seldin, 422 U.S. 490, 501, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). In the context of a challenge to the plaintiff's standing to sue, this means that the plaintiff's arguments on the merits are accepted as valid. See Moore v. United States House of Representatives, 236 U.S. App. D.C. 115, 733 F.2d 946, 950 (D.C. Cir. 1984); American Fed'n of Gov't Employees v. Pierce, 225 U.S. App. D.C. 61, 697 F.2d 303, 305 (D.C. Cir. 1982) ("For purposes of the standing issue, we accept as valid Congressman Sabo's pleaded legal theory"); Goldwater v. Carter, 199 U.S. App. D.C. 115, 617 F.2d 697, 701-02 (D.C. Cir.) (en banc) (same; noting plaintiffs' theory that the Senate has a constitutional right to vote on a proposed treaty termination), vacated on other grounds, 444 U.S. 996 (1979); see also Whitmore v. Arkansas, 495 U.S. 149, 155, 109 L. Ed. 2d 135, 110 S. Ct. 1717 (1990) (noting that the standing inquiry "in no way depends upon the merits"). Here, plaintiff's substantive argument is that either the Census Act or the Constitution forbids the use of statistical sampling to determine population for purposes of apportioning congressional representatives among the states.
Under Article III, section 2 of the Constitution, federal courts only have jurisdiction to hear and decide "cases" or "controversies." Allen v. Wright, 468 U.S. 737, 750, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984). One aspect of this limitation is that a plaintiff must establish that he has standing to sue. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992). "The standing inquiry focuses on whether the plaintiff is the proper party to bring this suit, although that inquiry often turns on the nature and source of the claim asserted." Raines v. Byrd, 521 U.S. 811, 138 L. Ed. 2d 849, 117 S. Ct. 2312, 2317 (1997) (quoting Warth, 422 U.S. at 500) (internal citation omitted). The Supreme Court has always demanded strict compliance with the standing requirement, see Allen, 468 U.S. at 752, and "our standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional." Raines, 117 S. Ct. at 2317-18 (citations omitted).
Article III standing
consists of three elements. First, a plaintiff must "have suffered an injury in fact' -- an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Bennett v. Spear, 520 U.S. 154, 117 S. Ct. 1154, 1163, 137 L. Ed. 2d 281 (1997) (citing Lujan, 504 U.S. at 560-61 (footnotes, citations and internal quotations omitted)). The imminence requirement "ensure[s] that the alleged injury is not too speculative for Article III purposes -- that the injury is certainly impending.'" See Lujan, 504 U.S. at 564 n.2 (quoting Whitmore, 495 U.S. 149 at 158). Second, there must be a causal connection between the injury alleged and the conduct complained of; the injury must be fairly traceable to the defendants' acts and not the result of conduct by a third party not before the court. Finally, it must be likely, as opposed to speculative, that the injury will be redressable through a court's favorable disposition of the matter. See Bennett, 117 S. Ct. at 1163; Lujan, 504 U.S. at 560-61. "The party invoking federal jurisdiction bears the burden of establishing these elements." Lujan, 504 U.S. at 561 (citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 107 L. Ed. 2d 603, 110 S. Ct. 596 (1990); Warth, 422 U.S. at 508). As the parties do not dispute, and the court has no doubt, that the causation and redressability elements are satisfied,
the court limits the standing discussion to whether plaintiff suffers an injury in fact sufficient to satisfy Article 111.
Defendants note that no matter how the 2000 census is conducted, the subsequent House of Representatives will be composed of 435 members. They therefore claim that any "injury" to the House due to the methodology used or results derived therefrom, such as a change in the distribution of seats among the states, would not be an injury separate and distinct from that suffered by the general public. The asserted harm would be "shared in substantially equal measure by all or a large class of citizens." Warth, 422 U.S. at 499. "Whether styled as a constitutional or prudential limit on standing, the Court has sometimes determined that where large numbers of Americans suffer alike, the political process, rather than the judicial process, may provide the more appropriate remedy for a widely shared grievance." Akins, 118 S. Ct. at 1785 (citations omitted); but see id. at 1786 ("where a harm is concrete, though widely shared, the Court has found injury in fact.'") (citation omitted). In other words, even conceding that statistical sampling would cause a legally cognizable injury, defendants posit that such a "generalized grievance" cannot confer standing, citing Allen, 468 U.S. at 755-56, and Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982) (noting that the court should refrain from adjudicating questions of wide public significance that amount to generalized grievances).
The House of Representatives offers four, "concrete and particularized" injuries that it will suffer if the 2000 census employs statistical sampling to supplement the initial headcount enumeration. First, the House asserts a right to timely receive from the President census information that complies with the Census Act and Constitution. See 2 U.S.C. § 2a(a). The House alleges that if the Bureau employs statistical sampling in tabulating the population for apportionment, it will be deprived of its receipt of a statement of "the whole number of persons in each state . . . as ascertained under the . . . decennial census of the population," thereby suffering "informational injury." Id. Second, the House contends that it has a concrete and particularized interest in its composition, and that if statistical sampling is utilized, subsequent Houses elected under that apportionment will necessarily have an unlawful and/or unconstitutional composition. Third, the House states that it has a particularized interest in the use of a census procedure that minimizes the opportunity for political manipulation, thereby preserving the House's institutional integrity. Finally, the House contends that it has a mandatory constitutional duty to ensure that an actual enumeration is taken every ten years, and that the House membership is apportioned in accordance with that enumeration. Because the court finds that plaintiff has properly alleged a judicially cognizable injury through its right to receive information by statute and through the institutional interest in its lawful composition, it need not consider the third and fourth claims.
1. The Informational Injury Is Legally Cognizable
Plaintiff alleges that the Bureau's decision to use statistical sampling will deprive Congress of information which it is entitled to receive under 2 U.S.C. § 2a(a). That provision states, in relevant part, "the President shall transmit to the Congress a statement showing the whole number of persons in each State . . . as ascertained under the . . . decennial census of the population." The essence of the injury claim is that statistical sampling will deprive Congress of information it is entitled to by statute (and the Constitution), and must have in order to perform its mandatory constitutional duty -- the apportionment of Representatives among the states.
The inability to receive information which a person is entitled to by law is sufficiently concrete and particular to satisfy constitutional standing requirements. In Federal Election Comm'n v. Akins, 118 S. Ct. 1777, 141 L. Ed. 2d 10 (1998), plaintiffs claimed as their "injury in fact" their failure to receive donor lists and campaign contribution and expenditure information that various subsections of 2 U.S.C. § 431 required the American Israel Public Affairs Committee to make public. See id. at 1782-83. In holding that this injury satisfied Article III, the Court noted that "a plaintiff suffers an injury in fact' when the plaintiff fails to receive information which must be publicly disclosed pursuant to a statute." Id. at 1784-85 (citing Public Citizen v. Department of Justice, 491 U.S. 440, 449, 105 L. Ed. 2d 377, 109 S. Ct. 2558 (1989); Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-74, 71 L. Ed. 2d 214, 102 S. Ct. 1114 (1982)). The court noted that the information would help respondents evaluate candidates for public office and determine the role that financial assistance might play in a specific election. "Respondents' injury consequently seems concrete and particular." Akins, 118 S. Ct. at 1784.
The "informational injury" supporting Article III standing in Akins will be suffered by the House of Representatives. If statistical sampling in the apportionment census violates the Census Act or the Constitution, Congress will not receive information that it is entitled to by statute. And, while Akins indicated that the information desired by a plaintiff need only "help" him accomplish desired goals, the information sought by the House here is necessary to perform a constitutionally mandated function, making its injury claim far more compelling.
In Akins, the Court addressed a situation in which information to which the complaining party was statutorily entitled was never disclosed. In the instant matter, the House does not claim that it will not receive any census statement from the President, but rather that it will receive an incorrect statement because the decennial census will have been unlawfully or unconstitutionally conducted. However, here, receipt of the wrong information is no less of an injury than failure to receive any information at all. In either instance, Congress would not be provided with information it was entitled to receive by law, and would be equally unable to perform properly the single mandatory constitutional function dependent upon receipt of that information. For example, if the Secretary decided, in the exercise of his broad discretion, to count only persons over the age of 18, there is little question that Congress would receive the "wrong" numbers from the president, and the resulting apportionment would be constitutionally infirm because it would not be based upon an "actual enumeration." The House claims that, no different than excluding minors, using statistical sampling necessarily provides it with the wrong information. In this instance, receipt of the wrong "statement showing the whole number of persons" constitutes an "informational injury" sufficiently concrete so as to satisfy the irreducible constitutional minimum of Article III.
Before the Supreme Court's Akins decision and the cases supporting that holding, it was well established that a legislative body suffers a redressable injury when that body cannot receive information necessary to carry out its constitutional responsibilities. This right to receive information arises primarily in subpoena enforcement cases, where a house of Congress or a congressional committee seeks to compel information in aid of its legislative function. In McGrain v. Daugherty, 273 U.S. 135, 175, 47 S. Ct. 319, 71 L. Ed. 580 (1927), the Supreme Court affirmed the Senate's right to enforce its power of inquiry by subpoenaing witnesses for information pertinent to legislative concerns. In so holding, the Court noted, "a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change." The ability of the Senate to seek redress in court demonstrates that the deprivation of pertinent legislative information constitutes an Article III injury. Similarly, in United States v. AT&T, 179 U.S. App. D.C. 198, 551 F.2d 384 (D.C. Cir. 1976), the House sought information "necessary for the formulation of new legislation," and the Executive Branch asserted its authority to maintain control over the information. 551 F.2d at 385. The court held that "it is clear that the House as a whole has standing to assert its investigatory power," thereby holding that a failure to receive sought-after information constitutes an Article III injury to the legislative body. Id. at 391 (emphasis added). See also In re Application of United States Senate Permanent Subcomm. on Investigations, 211 U.S. App. D.C. 2, 655 F.2d 1232 (D.C. Cir. 1981) (permitting a Senate subcommittee to come to federal court to obtain an order enforcing a subpoena for testimony on mob violence and organized crime); Senate Select Comm. on Presidential Campaign Activities v. Nixon, 162 U.S. App. D.C. 183, 498 F.2d 725, 727 (D.C. Cir. 1974) (seeking a judicial declaration as to whether the President must comply with a subpoena duces tecum).
The existence of a legally cognizable injury arising from a legislature's inability to obtain information is not limited to the legislative function. In Barry v. United States ex rel. Cunningham, 279 U.S. 597, 613, 616, 73 L. Ed. 867, 49 S. Ct. 452 (1929), the Court extended McGrain to a case in which the Senate sought information in conjunction with its power to judge the elections, returns and qualifications of its members under Article I, section 5, clause 1 of the Constitution. "But the principle is equally, if not a fortiori, applicable where the Senate is exercising a judicial function." Id. at 616. Because a legislative body suffers injury when it cannot obtain information necessary to perform its constitutional legislative or judicial functions, this court sees no principled basis on which to conclude that the House is not similarly (if not a fortiori) injured when it cannot obtain information necessary to perform its constitutional apportionment function.
The court concludes that the House has Article III standing because it alleges that the use of statistical sampling will cause it to fail to receive census information to which it is entitled as a matter of law. This injury is indisputably concrete and particularized, as it affects the House "in a personal and individual way." See Akins, 118 S. Ct. at 1791 (Scalia, J., dissenting) (quoting Lujan, 504 U.S. at 560 n.1).
2. The House Has A Concrete and Particularized Interest in its Lawful Composition
The House alleges that the failure to conduct the apportionment census in a manner consistent with the requirements of the Census Act and Constitution would necessarily result in the unlawful composition of any House elected and seated pursuant to the resulting apportionment. It claims that its institutional interest in preventing its unlawful composition is a sufficient injury in fact for Article III. See Powell v. McCormack, 395 U.S. 486, 548, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969), ("Unquestionably, Congress has an interest in preserving its institutional integrity.").
That a legislative body has a personalized and concrete interest in its composition is far from a novel concept. In Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187, 32 L. Ed. 2d 1, 92 S. Ct. 1477 (1972), three qualified voters challenged the constitutionality of Minnesota's 1966 Act apportioning the legislature, and the State Senate intervened as a party defendant under Fed. R. Civ. P. 24(a). The district court declared the 1966 Act unconstitutional and entered orders reapportioning the legislature, reducing the number of senate seats. The State Senate appealed the orders; among the grounds appellees asserted in support of their motion to dismiss was that the Senate lacked standing to prosecute the appeal. See id. at 193. In holding that the Senate had standing, the Court stated, "certainly the Senate is directly affected by the District Court's orders [concerning apportionment]" Id. at 194. This "direct effect," dispositive in Beens, is also present in the instant matter, because whether or not statistical sampling is utilized by the Bureau may potentially affect the composition of the House.
As defendants accurately note, in Beens the district court's orders affected the number of seats in the Minnesota Senate. In the instant matter, the number of seats allocated to the House of Representatives will remain at 435 no matter how the census is conducted. However, the Court's reliance on Silver v. Jordan, 241 F. Supp. 576, 579 (S.D. Cal. 1964), aff'd, 381 U.S. 415, 14 L. Ed. 2d 689, 85 S. Ct. 1572 (1965) in reaching its Beens conclusion demonstrates that a legislature's claim of an institutional interest in its composition is not limited to instances in which the size of the legislature would necessarily change. In Silver, the method of apportionment -- population v. geographic -- was the subject of the litigation. The court concluded that the State Senate had standing to intervene because it would be "directly affected by the decree" of the district court. 241 F. Supp. at 579.
On the basis of Beens, and the Supreme Court's citation to Silver, it is apparent that a legislative body has a judicially cognizable interest in matters affecting its composition so as to satisfy Article III, whether or not the challenged conduct will ultimately have an effect on the size of the body.
3. The Current House of Representatives May Prosecute This Suit
Defendants allege that even if statistical sampling inflicts a concrete and particularized injury sufficient to satisfy Article III standing requirements, the injuries will not be felt by this plaintiff. Defendants contend that it is not the present House of Representatives that will suffer the informational injury. Rather, the effects of sampling will be felt by the 107th House, because it is the 107th House that will be seated at the time that the president transmits the apportionment statement to Congress. See Defendants' Reply Memorandum in Support of Its Motion to Dismiss at 18-19. Similarly, the present House will not suffer any compositional injury, because the 108th House will be the first House elected and seated based upon the 2000 apportionment. Therefore, the 105th House, the House that filed the complaint, does not have Article III standing.
Defendants have marshaled authority for the concept that the House of Representatives is not a continuing body. See Eastland v. United States Servicemen's Fund, 421 U.S. 491, 512, 44 L. Ed. 2d 324, 95 S. Ct. 1813 (1975); Gojack v. United States, 384 U.S. 702, 706 n.4, 16 L. Ed. 2d 870, 86 S. Ct. 1689 (1966) (noting that "neither the House of Representatives nor its committees are continuing bodies."); McGrain, 273 U.S. at 181 (distinguishing the Senate, which is a "continuing body," from the House). Furthermore, at oral argument, defendants noted that when the House used to jail a person for contempt of Congress, the contemnor was released at the end of the session because no continuing authority existed to hold the person. See Anderson v. Dunn, 19 U.S. (6 Wheat) 204, 230, 5 L. Ed. 242 (1821) ("And although the legislative power continues perpetual, the legislative body ceases to exist, on the moment of its adjournment or periodical dissolution. It follows, that imprisonment must terminate with that adjournment.").
Although the House reconstitutes every two years, as an institution it is, in some respects, a continuing entity. Chapter 4 of Title 2 of the United States Code describes extensive procedures governing the House of Representatives (and the Senate). Its provisions indicate that certain functions transcend the seating of a new House, such as the ownership of property. See, e.g., 2 U.S.C. § 112e(b).
However, whether or not the House of Representatives is a continuing body for purposes of prosecuting or defending suits is a matter that need not be definitively resolved here. The court finds that the 105th House of Representatives is a proper plaintiff. Even assuming that only the 107th and later Congresses will suffer the claimed injuries, these Congresses do not presently exist. Nor will they exist until after the 2000 census has been conducted. If judicial review must be deferred until after the 107th House is seated, the possibility of irreparable harm -- both monetary and non-monetary -- is likely, if not certain. Should the courts invalidate the census in 2001 or anytime thereafter, the "one-number census" method would require the entire enumeration to be re-conducted at a cost of $ 4 billion, and, more importantly, the new census would not be completed before the date Congress is supposed to perform its constitutional duty regarding apportionment.
In sum, the injuries are now imminent. Like the impact of a wave that has not yet reached the shore, the injuries, although yet to be felt, are inexorable if they are not prevented now. For this reason we conclude that the 105th House is a proper plaintiff. The 107th House -- the first House that will suffer from the injury -- is not yet in place and cannot bring suit in its own right; but the court does not conclude therefrom that no one has standing to sue. While there are some injuries for which no one may bring suit, see United States v. Richardson, 418 U.S. 166, 179, 41 L. Ed. 2d 678, 94 S. Ct. 2940 (1974) (noting that "the absence of any particular individual or class to litigate these claims gives support to the argument that the subject matter is committed to the surveillance of Congress, and ultimately to the political process"), the court has already held that the injuries claimed by the House are cognizable and that the 107th House could, if it were already in existence, bring this suit. The present incapacity of the 107th Congress should be viewed not as an insurmountable barrier but as a reason to allow the present House to bring suit on behalf of its successor.
There are three prudential requirements for third party standing: the plaintiff must have a "close relationship" with the real party in interest, the litigation must have "an impact [upon] the rights" of that third party, and there must be "a barrier" keeping that party from asserting its rights. Hutchins by Owens v. District of Columbia, 144 F.3d 798, 803 (D.C. Cir. 1998); see Barrows v. Jackson, 346 U.S. 249, 257-59, 97 L. Ed. 1586, 73 S. Ct. 1031 (1953). The current situation meets all three requirements. The 105th House has a close relationship to its successor, the 107th; the litigation will affect the interests of the 107th House; and the 107th House cannot bring suit itself in time to avert the claimed injury.
Ordinarily a plaintiff asserting the rights of another must itself have suffered an Article III injury. See Hutchins, 144 F.3d 798 at 803. Here, as the court has just explained, the 107th House will certainly suffer an injury. In the peculiar circumstances of this case, however, we need not decide whether the current House also suffers a present injury. In the court's view, the 105th House need not itself suffer an injury in order to vindicate the rights of its successor House. In so holding we draw upon cases granting standing both to "next friends" and to fiduciaries without requiring that they have themselves suffered an Article III injury.
A "next friend" must provide "an adequate explanation . . . why the real party in interest cannot appear on his own behalf," and must be "truly dedicated to the best interests of the person on whose behalf he seeks to 1itigate." Whitmore, 495 U.S. at 163 (emphasis added). If the plaintiff meets these high standards, however, he may litigate on behalf of a third party without himself having an Article III injury. Similarly, because a fiduciary must dedicate himself to the best interests of his beneficiary, and has the legal obligation to vindicate the beneficiary's interests, by litigation if necessary, courts have granted standing to fiduciaries who do not themselves suffer an Article III injury. See, e.g., Irving Bank Corp. v. Board of Governors of the Fed. Reserve Sys., 269 U.S. App. D.C. 290, 845 F.2d 1035, 1039 (D.C. Cir. 1988).
Without holding that the 105th House is itself either the "next friend" of or a fiduciary for the 107th House, we hold that because of the special relationship between the present House and its successor once removed, the 105th House has standing to litigate on behalf of the 107th House. This permits the current House to vindicate the later House's interest in fulfilling its constitutional duties ...