United States District Court, District of Columbia
L. FRIEDRICH UNITED STATES DISTRICT JUDGE.
Electronic Privacy Information Center (EPIC), a non-profit
organization dedicated to privacy and civil liberties issues,
brings this action against the U.S. Department of Commerce
and the U.S. Census Bureau under the Administrative Procedure
Act (APA) and the Declaratory Judgment Act. The plaintiff
claims that the E-Government Act requires the defendants to
conduct and release “privacy impact assessments”
addressing Secretary of Commerce Wilbur Ross's March 26,
2018 decision to include a citizenship question in the 2020
Census. The defendants agree, but insist they still have
plenty of time to do so “before” actually
“initiating a new collection of information”
within the meaning of the E-Government Act.Before the Court
is the plaintiff's Motion for a Preliminary Injunction,
Dkt. 8, seeking to enjoin Commerce and the Bureau from
implementing Secretary Ross's decision to add a
citizenship question to the Census, see Dkt. 8-2.
For the following reasons, the Court will deny the motion.
E-Government Act requires federal agencies to “conduct
a privacy impact assessment, ” “ensure the review
of the privacy impact assessment, ” and, “if
practicable, . . . make the privacy impact assessment
publicly available” “before”
“initiating a new collection of information” that
“will be collected, maintained or disseminated using
information technology” and that “includes any
information in an identifiable form permitting the physical
or online contacting of a specific individual, if identical
questions have been posed to . . . 10 or more
persons.” E-Government Act § 208(b)(1)(A)-(B).
term “collection of information” is defined by
statute as “the obtaining, causing to be obtained,
soliciting, or requiring the disclosure to third parties or
the public, of facts or opinions . . . regardless of form or
format, calling for” “answers to identical
questions posed to . . . ten or more persons[.]” 44
U.S.C. § 3502(3)(A); see also E-Government Act
§ 201 (incorporating § 3502 definitions by
reference). The same term is also used in OMB regulations to
“refer to the act of collecting or disclosing
information, to the information to be collected or disclosed,
to a plan and/or an instrument calling for the collection or
disclosure of information, or any of these, as
appropriate.” 5 C.F.R. § 1320.3(c). The term
“initiating” has no statutory or regulatory
privacy impact assessment-or “PIA”-must
“address” “what information is to be
collected;” “why the information is being
collected;” “the intended use of the agency of
the information;” “with whom the information will
be shared;” “what notice or opportunities for
consent would be provided to individuals regarding what
information is collected and how that information is
shared;” “how the information will be
secured;” and “whether a system of records is
being created under [the Privacy Act].” E-Government
Act § 208(b)(2)(B)(ii).
March 26, 2018, Secretary of Commerce Wilbur Ross announced
his decision to include a citizenship question on the 2020
Decennial Census questionnaire. See Bachman Decl.
¶ 12, Dkt. 12-1. That decision has been challenged
elsewhere on a number of grounds. For present purposes, all
that matters is whether-and, more importantly,
when-the decision to collect citizenship information
had to be addressed in one or more PIAs.
Bureau is no stranger to PIAs. When Secretary Ross announced
the inclusion of the citizenship question in March 2018, the
Bureau was already planning to conduct an annual PIA for the
primary information technology system used for the decennial
census. Bachman Decl. ¶¶ 3, 9. That system-called
“CEN08”-shares Census-related information with
four other systems: “CEN21, ” “CEN05,
” “CEN11, ” and “CEN13.”
Id. ¶ 14. And a sixth information technology
system-called “CEN18”-enables the flow of
information between CEN08 and the other four systems.
Bureau maintains and regularly updates PIAs for each of these
systems. See Id. ¶¶ 9, 15. The PIA for
CEN08 was updated in June and September of 2018, and another
update is in progress and scheduled for release in February
or March of 2019. Id. ¶ 9. The PIAs for the
remaining systems were all updated in June 2018 and will be
reviewed and updated again “within the next two
months” as part of the Bureau's annual PIA process.
Id. ¶ 15. In the meantime, the current PIAs for
these systems are available to the public
existing PIAs say little about the collection of citizenship
information in particular. The PIAs for CEN05,  CEN13,
CEN18 do not mention citizenship at all. And the
PIAs for CEN08 and CEN11 mention citizenship only once, in
a field labeled “Other general personal data (specify),
” without any analysis or further
with this level of treatment, EPIC filed this action on
November 20, 2018. The complaint asserts two counts under the
APA and one count under the Declaratory Judgment Act. Count I
alleges that the defendants acted unlawfully by adding the
citizenship question to the Census without first conducting,
reviewing, and releasing PIAs to address that decision.
Compl. ¶¶ 64-70 (citing 5 U.S.C. § 706(2)(a),
(c)). Count II alleges that the defendants unlawfully
withheld agency action by failing to conduct, review, or
release PIAs as required. Id. ¶¶ 71-76
(citing 5 U.S.C. § 706(1)). And Count III seeks a
declaration of rights and relations consistent with counts I
and II. Id. ¶¶ 77-78 (citing 28 U.S.C.
January 15, 2019, a federal district court in New York
permanently enjoined Commerce and the Bureau from including
the citizenship question on the Census. See New York v.
U.S. Dep't of Commerce, 2019 WL 190285, at *125.
Three days later, EPIC filed this motion for a preliminary
injunction, which the Court now resolves.
preliminary injunction is “an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff
is entitled to such relief.” Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 22 (2008). To warrant a
preliminary injunction, a plaintiff “must make a clear
showing” that (1) he “is likely to succeed on the
merits”; (2) he “is likely to suffer irreparable
harm in the absence of preliminary relief”; (3) the
“balance of equities” tips in his favor; and (4)
“an injunction is in the public interest.”
Id. at 20; League of Women Voters of United
States v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016). The
last two factors “merge when the Government is the
opposing party.” Nken v. Holder, 556 U.S. 418,
435 (2009). The plaintiff “bear[s] the burdens of
production and persuasion” when moving for a
preliminary injunction. Qualls v. Rumsfeld, 357
F.Supp.2d 274, 281 (D.D.C. 2005) (citing Cobell v.
Norton, 391 F.3d 251, 258 (D.C. Cir. 2004)).
the Supreme Court's decision in Winter, courts
weighed the preliminary injunction factors on a sliding
scale, allowing a weak showing on one factor to be overcome
by a strong showing on another factor.” Standing
Rock Sioux Tribe v. U.S. Army Corps of Eng'rs, 205
F.Supp.3d 4, 26 (D.D.C. 2016). The D.C. Circuit, however, has
“suggested, without deciding, that Winter
should be read to abandon the sliding-scale analysis in favor
of a ‘more demanding burden' requiring a plaintiff
to independently demonstrate both a likelihood of success on
the merits and irreparable harm.” Id. (quoting
Sherley v. Sebelius, 644 F.3d 388, 392-93 (D.C. Cir.
2011)); see also Davis v. Pension Benefit Guar.
Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009).
before and after Winter, however, one thing is
clear: a failure to show a likelihood of success on the
merits alone is sufficient to defeat the motion.”
Hudson v. Am. Fed'n of Gov't Employees, 308
F.Supp.3d 121, 127 (D.D.C. 2018) (citing Ark. Dairy Co-op
Ass'n, Inc. v. USDA, 573 F.3d 815, 832 (D.C. Cir.
2009)). “[A]bsent a substantial indication of likely
success on the merits, there would be no justification for
the Court's intrusion into the ordinary processes of
administration and judicial review.'”
Archdiocese of Washington v. Washing Metro. Area Transit
Auth., 281 F.Supp.3d 88, 99 (D.D.C. 2017) (internal
quotation marks omitted), aff'd, 897 F.3d 314
(D.C. Cir. 2018). Accordingly, “[u]pon finding that a
plaintiff has failed to show a likelihood of success on the
merits, the Court may deny a motion for preliminary
injunction without analyzing the remaining factors.”
In re Akers, 487 B. R. 326, 331 (D.D.C. 2012);
see also Hudson, 308 F.Supp.3d at 131-32 (same).
“it is clear” before and after Winter
“that failure to show a likelihood of irreparable harm
remains, standing alone, sufficient to defeat the
motion.” Nav ...