13 U.S. Code § 141 - Population and other census information

(a) The Secretary shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as of the first day of April of such year, which date shall be known as the “decennial census date”, in such form and content as he may determine, including the use of sampling procedures and special surveys. In connection with any such census, the Secretary is authorized to obtain such other census information as necessary.

(b) The tabulation of total population by States under subsection (a) of this section as required for the apportionment of Representatives in Congress among the several States shall be completed within 9 months after the census date and reported by the Secretary to the President of the United States.

(c) The officers or public bodies having initial responsibility for the legislative apportionment or districting of each State may, not later than 3 years before the decennial census date, submit to the Secretary a plan identifying the geographic areas for which specific tabulations of population are desired. Each such plan shall be developed in accordance with criteria established by the Secretary, which he shall furnish to such officers or public bodies not later than April 1 of the fourth year preceding the decennial census date. Such criteria shall include requirements which assure that such plan shall be developed in a nonpartisan manner. Should the Secretary find that a plan submitted by such officers or public bodies does not meet the criteria established by him, he shall consult to the extent necessary with such officers or public bodies in order to achieve the alterations in such plan that he deems necessary to bring it into accord with such criteria. Any issues with respect to such plan remaining unresolved after such consultation shall be resolved by the Secretary, and in all cases he shall have final authority for determining the geographic format of such plan. Tabulations of population for the areas identified in any plan approved by the Secretary shall be completed by him as expeditiously as possible after the decennial census date and reported to the Governor of the State involved and to the officers or public bodies having responsibility for legislative apportionment or districting of such State, except that such tabulations of population of each State requesting a tabulation plan, and basic tabulations of population of each other State, shall, in any event, be completed, reported, and transmitted to each respective State within one year after the decennial census date.

(d) Without regard to subsections (a), (b), and (c) of this section, the Secretary, in the year 1985 and every 10 years thereafter, shall conduct a mid-decade census of population in such form and content as he may determine, including the use of sampling procedures and special surveys, taking into account the extent to which information to be obtained from such census will serve in lieu of information collected annually or less frequently in surveys or other statistical studies. The census shall be taken as of the first day of April of each such year, which date shall be known as the “mid-decade census date”.

(e)

(1) If—

(A) in the administration of any program established by or under Federal law which provides benefits to State or local governments or to other recipients, eligibility for or the amount of such benefits would (without regard to this paragraph) be determined by taking into account data obtained in the most recent decennial census, and

(B) comparable data is obtained in a mid-decade census conducted after such decennial census,

then in the determination of such eligibility or amount of benefits the most recent data available from either the mid-decade or decennial census shall be used.

(2) Information obtained in any mid-decade census shall not be used for apportionment of Representatives in Congress among the several States, nor shall such information be used in prescribing congressional districts.

(f) With respect to each decennial and mid-decade census conducted under subsection (a) or (d) of this section, the Secretary shall submit to the committees of Congress having legislative jurisdiction over the census—

(1) not later than 3 years before the appropriate census date, a report containing the Secretary’s determination of the subjects proposed to be included, and the types of information to be compiled, in such census;

(2) not later than 2 years before the appropriate census date, a report containing the Secretary’s determination of the questions proposed to be included in such census; and

(3) after submission of a report under paragraph (1) or (2) of this subsection and before the appropriate census date, if the Secretary finds new circumstances exist which necessitate that the subjects, types of information, or questions contained in reports so submitted be modified, a report containing the Secretary’s determination of the subjects, types of information, or questions as proposed to be modified.

(g) As used in this section, “census of population” means a census of population, housing, and matters relating to population and housing.

13 U.S. Code § 9 - Information as confidential; exception

(a) Neither the Secretary, nor any other officer or employee of the Department of Commerce or bureau or agency thereof, or local government census liaison, may, except as provided in section 8 or 16 or chapter 10 of this title or section 210 of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998 or section 2(f) of the Census of Agriculture Act of 1997—

(1) use the information furnished under the provisions of this title for any purpose other than the statistical purposes for which it is supplied; or

(2) make any publication whereby the data furnished by any particular establishment or individual under this title can be identified; or

(3) permit anyone other than the sworn officers and employees of the Department or bureau or agency thereof to examine the individual reports.

No department, bureau, agency, officer, or employee of the Government, except the Secretary in carrying out the purposes of this title, shall require, for any reason, copies of census reports which have been retained by any such establishment or individual. Copies of census reports which have been so retained shall be immune from legal process, and shall not, without the consent of the individual or establishment concerned, be admitted as evidence or used for any purpose in any action, suit, or other judicial or administrative proceeding.

(b) The provisions of subsection (a) of this section relating to the confidential treatment of data for particular individuals and establishments, shall not apply to the censuses of governments provided for by subchapter III of chapter 5 of this title, nor to interim current data provided for by subchapter IV of chapter 5 of this title as to the subjects covered by censuses of governments, with respect to any information obtained therefor that is compiled from, or customarily provided in, public rec­ords.

(a) Congress finds that—

(1) it is the constitutional duty of the Congress to ensure that the decennial enumeration of the population is conducted in a manner consistent with the Constitution and laws of the United States;

(2) the sole constitutional purpose of the decennial enumeration of the population is the apportionment of Representatives in Congress among the several States;

(3) section 2 of the 14th article of amendment to the Constitution clearly states that Representatives are to be “apportioned among the several States according to their respective numbers, counting the whole number of persons in each State”;

(4) article I, section 2, clause 3 of the Constitution clearly requires an “actual Enumeration” of the population, and section 195 of title 13, United States Code, clearly provides “Except for the determination of population for purposes of apportionment of Representatives in Congress among the several States, the Secretary shall, if he considers it feasible, authorize the use of the statistical method known as ‘sampling’ in carrying out the provisions of this title.”;

(5) the decennial enumeration of the population is one of the most critical constitutional functions our Federal Government performs;

(6) it is essential that the decennial enumeration of the population be as accurate as possible, consistent with the Constitution and laws of the United States;

(7) the use of statistical sampling or statistical adjustment in conjunction with an actual enumeration to carry out the census with respect to any segment of the population poses the risk of an inaccurate, invalid, and unconstituional census;

(8) the decennial enumeration of the population is a complex and vast undertaking, and if such enumeration is conducted in a manner that does not comply with the requirements of the Constitution or laws of the United States, it would be impracticable for the States to obtain, and the courts of the United States to provide, meaningful relief after such enumeration has been conducted; and

(9) Congress is committed to providing the level of funding that is required to perform the entire range of constitutional census activities, with a particular emphasis on accurately enumerating all individuals who have historically been undercounted, and toward this end, Congress expects—

(A) aggressive and innovative promotion and outreach campaigns in hard-to-count communities;

(B) the hiring of enumerators from within those communities;

(C) continued cooperation with local government on address list development; and

(D) maximized census employment opportunities for individuals seeking to make the transition from welfare to work.

(b) Any person aggrieved by the use of any statistical method in violation of the Constitution or any provision of law (other than this Act), in connection with the 2000 or any later decennial census, to determine the population for purposes of the apportionment or redistricting of Members in Congress, may in a civil action obtain declaratory, injunctive, and any other appropriate relief against the use of such method.

(c) For purposes of this section—

(1) the use of any statistical method as part of a dress rehearsal or other simulation of a census in preparation for the use of such method, in a decennial census, to determine the population for purposes of the apportionment or redistricting of Members in Congress shall be considered the use of such method in connection with that census; and

(2) the report ordered by title VIII of Public Law 105–18 and the Census 2000 Operational 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.

(d) For purposes of this section, an aggrieved person (described in subsection (b)) includes—

(1) any resident of a State whose congressional representation or district could be changed as a result of the use of a statistical method challenged in the civil action;

(2) any Representative or Senator in Congress; and

(3) either House of Congress.

(e)

(1) Any action brought under this section shall be heard and determined by a district court of three judges in accordance with section 2284 of title 28, United States Code. The chief judge of the United States court of appeals for each circuit shall, to the extent practicable and consistent with the avoidance of unnecessary delay, consolidate, for all purposes, in one district court within that circuit, all actions pending in that circuit under this section. Any party to an action under this section shall be precluded from seeking any consolidation of that action other than is provided in this paragraph. In selecting the district court in which to consolidate such actions, the chief judge shall consider the convenience of the parties and witnesses and efficient conduct of such actions. Any final order or injunction of a United States district court that is issued pursuant to an action brought under this section shall be reviewable by appeal directly to the Supreme Court of the United States. Any such appeal shall be taken by a notice of appeal filed within 10 days after such order is entered; and the jurisdictional statement shall be filed within 30 days after such order is entered. No stay of an order issued pursuant to an action brought under this section may be issued by a single Justice of the Supreme Court.

(2) It shall be the duty of a United States district court hearing an action brought under this section and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any such matter.

(f) Any agency or entity within the executive branch having authority with respect to the carrying out of a decennial census may in a civil action obtain a declaratory judgment respecting whether or not the use of a statistical method, in connection with such census, to determine the population for the purposes of the apportionment or redistricting of Members in Congress is forbidden by the Constitution and laws of the United States.

(g) The Speaker of the House of Representatives or the Speaker's designee or designees may commence or join in a civil action, for and on behalf of the House of Representatives, under any applicable law, to prevent the use of any statistical method, in connection with the decennial census, to determine the population for purposes of the apportionment or redistricting of Members in Congress. It shall be the duty of the Office of the General Counsel of the House of Representatives to represent the House in such civil action, according to the directions of the Speaker. The Office of the General Counsel of the House of Representatives may employ the services of outside counsel and other experts for this purpose.

(h) For purposes of this section and section 210—

(1) the term “statistical method” means an activity related to the design, planning, testing, or implementation of the use of representative sampling, or any other statistical procedure, including statistical adjustment, to add or subtract counts to or from the enumeration of the population as a result of statistical inference; and

(2) the term “census” or “decennial census” means a decennial enumeration of the population.

(i) Nothing in this Act shall be construed to authorize the use of any statistical method, in connection with a decennial census, for the apportionment or redistricting of Members in Congress.

(j) Sufficient funds appropriated under this Act or under any other Act for puroses of the 2000 decennial census shall be used by the Bureau of the Census to plan, test, and become prepared to implement a 2000 decennial census, without using statistical methods, which shall result in the percentage of the total population actually enumerated being as close to 100 percent as possible. In both the 2000 decennial census, and any dress rehearsal or other simulation made in preparation for the 2000 decennial census, the number of persons enumerated without using statistical methods must be publicly available for all levels of census geography which are being released by the Bureau of the Census for: (1) all data releases before January 1, 2001; (2) the data contained in the 2000 decennial census Public Law 94–171 data file released for use in redistricting; (3) the Summary Tabulation File One (STF–1) for the 2000 decennial census; and (4) the official populations of the States transmitted from the Secretary of Commerce through the President to the Clerk of the House used to reapportion the districts of the House among the States as a result of the 2000 decennial census. Simultaneously with any other release or reporting of any of the information described in the preceding sentence through other means, such information shall be made available to the public on the Internet. These files of the Bureau of the Census shall be available concurrently to the release of the original files to the same recipients, on identical media, and at a comparable price. They shall contain the number of persons enumerated without using statistical methods and any additions or subtractions thereto. These files shall be based on data gathered and generated by the Bureau of the Census in its official capacity.

(k) This section shall apply in fiscal year 1998 and succeeding fiscal years.

The State of ALABAMA, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.

Case No. 3:21-cv-211-RAH-ECM-KCN

Signed 06/29/2021

Attorneys and Law Firms

Alexander Barrett Bowdre, Brenton Merrill Smith, Edmund Gerard LaCour, Jr., Winfield James Sinclair, James William Davis, Office of the Alabama Attorney General, Montgomery, AL, Jason Brett Torchinsky, Pro Hac Vice, Jonathan Philip Lienhard, Pro Hac Vice, Phillip Michael Gordon, Pro Hac Vice, Shawn Toomey Sheehy, Pro Hac Vice, HoltzmanVogel Josefiak Torchinsky PLLC, Haymarket, VA, for Plaintiff The State of Alabama.

Jason Brett Torchinsky, Pro Hac Vice, Jonathan Philip Lienhard, Pro Hac Vice, Phillip Michael Gordon, Pro Hac Vice, Shawn Toomey Sheehy, Pro Hac Vice, HoltzmanVogel Josefiak Torchinsky PLLC, Haymarket, VA, for Plaintiffs Robert Aderholt, William Green, Camaran Williams.

Elliott M. Davis, Zachary Anthony Avallone, John Robinson, US Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

KEVIN C. NEWSOM, UNITED STATES CIRCUIT JUDGE, EMILY C. MARKS, CHIEF UNITED STATES DISTRICT JUDGE, R. AUSTIN HUFFAKER, JR., UNITED STATES DISTRICT JUDGE

I. Introduction

On March 10, 2021, the State of Alabama (“the State”), Congressman Robert Aderholt, and two Alabama voters (collectively, “Plaintiffs”) brought this suit against the U.S. Department of Commerce (“the Department”), the U.S. Bureau of the Census (“the Bureau”), and certain federal officials (collectively, “Defendants”). Plaintiffs requested a preliminary injunction against the Bureau's plan to use “differential privacy,” a method of disclosure avoidance, in the processing of 2020 Census data, on the grounds that it violates the Census Act, see 13 U.S.C. § 1 et seq., the Administrative Procedure Act (“APA”), see 5 U.S.C. § 706, and the Individual Plaintiffs’ due process and equal protection rights under the Fifth Amendment. Plaintiffs also sought a writ of mandamus from this court directing Defendants to provide census data to the State of Alabama by March 31, 2021 or as soon as equitably possible thereafter.

After the benefit of oral argument, the court concludes that Plaintiffs’ motion for a preliminary injunction and petition for writ of mandamus are due to be DENIED.

II. Legal Standard

“A preliminary injunction may be issued to protect the plaintiff from irreparable injury and to preserve the district court's power to render a meaningful decision after a trial on the merits.” Canal Auth. of the State of Fla. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974);1 Ne. Fla. Chapter of Ass'n of Gen. Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir. 1990) (“The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies.” (quoting Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974))).

A party seeking preliminary injunctive relief must establish four elements: “(1) a substantial likelihood of success on the merits; (2) that the preliminary injunction is necessary to prevent irreparable injury; (3) that the threatened injury outweighs the harm the preliminary injunction would cause the other litigant; and (4) that the preliminary injunction would not be averse to the public interest.” Chavez v. Fla. SP Warden, 742 F.3d 1267, 1271 (11th Cir. 2014) (citing Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034–35 (11th Cir. 2001)). Additionally, a preliminary injunction requires a showing of “imminent irreparable harm,” and “a delay in seeking a preliminary injunction of even only a few months—though not necessarily fatal—militates against a finding of irreparable harm.” Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244, 1248 (11th Cir. 2016).

When ruling on a preliminary injunction, “all of the well-pleaded allegations [in a movant's] complaint and uncontroverted affidavits filed in support of the motion for a preliminary injunction are taken as true.” Elrod v. Burns, 427 U.S. 347, 350 n.1, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). The court may also consider supplemental evidence, even hearsay evidence, submitted by the parties. See Levi Strauss & Co. v. Sunrise Intern. Trading, Inc., 51 F.3d 982, 985 (11th Cir. 1995).

III. Background

A. The Decennial Census

The Constitution requires an “actual Enumeration” of the population every ten years and vests Congress with the authority to conduct that census “in such Manner as they shall by Law direct.” Wisconsin v. City of New York, 517 U.S. 1, 5, 116 S.Ct. 1091, 134 L.Ed.2d 167 (1996) (quoting 1 Art. I, § 2, cl. 3). The Enumeration Clause of the Constitution “vests Congress with virtually unlimited discretion in conducting the decennial ‘actual Enumeration,’ ” and Congress “has delegated its broad authority over the census to the Secretary” with its passage of the Census Act, 13 U.S.C. § 1 et seq. Dep't of Com. v. New York, ––– U.S. ––––, 139 S. Ct. 2551, 2566, 204 L.Ed.2d 978 (2019) (citing Wisconsin, 517 U.S. at 19, 116 S.Ct. 1091). Accordingly, the Secretary has substantial discretion to take “a decennial census of [the] population ... in such form and content as [she] may determine....” 13 U.S.C. § 141(a). The Secretary is assisted in the performance of that responsibility by the Bureau of the Census and its head, the Director of the Census. See id. at § 2; § 21.

“The Constitution provides that the results of the census shall be used to apportion the Members of the House of Representatives among the States.” Wisconsin, 517 U.S. at 5, 116 S.Ct. 1091 (citing Art. I, § 2, cl. 3 (“Representatives ... shall be apportioned among the several States ... according to their respective Numbers ....”); Amdt. 14, § 2 (“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State ....”)). And relevant here, the Census Act also requires the Secretary to work with each State to develop and approve plans “identifying the geographic areas for which specific tabulations of population are desired” for use in redistricting and other non-apportionment-related matters. 13 U.S.C. § 141(c). After completing the decennial census, the Secretary must report “[t]abulations of population for the areas identified” “to the Governor of the State involved and to the officers or public bodies having responsibility for legislative apportionment or districting of such State.” Id.

B. Implementation of Differential Privacy for the 2020 Decennial Census

To encourage public cooperation with each decennial census, “Congress has provided assurances that information furnished to the Secretary by individuals is to be treated as confidential.” Baldrige v. Shapiro, 455 U.S. 345, 354, 102 S.Ct. 1103, 71 L.Ed.2d 199 (1982) (citing 13 U.S.C. §§ 8(b), 9(a)). This mandate was incorporated into the Census Act, which provides in Sections 8 and 9, respectively, that first, “the Secretary may furnish copies of tabulations and other statistical materials which do not disclose the information reported by, or on behalf of, any particular respondent,” 13 U.S.C. § 8(b), and second, there should be no “publication whereby data furnished by any particular establishment or individual under this title can be identified,” id. at § 9(a), (a)(2). These provisions have been read in tandem to “embody explicit congressional intent to preclude all disclosure of raw census data reported by or on behalf of individuals.” Baldrige, 455 U.S. at 361, 102 S.Ct. 1103.

Given these guardrails, the Bureau has implemented various disclosure avoidance methods over the years with the goal of protecting the privacy of census respondents. For example, prior to 1990, the Bureau relied on the “suppression” of data to protect respondents. (Doc. 41-1 at 10.) Under this method of disclosure avoidance, the Bureau withheld publication of tables “that did not meet certain household, population, or demographic characteristic thresholds.” (Id.) And in the 2000 and 2010 censuses, the Bureau primarily used “data swapping,” meaning it swapped certain characteristic data between households that were most vulnerable to re-identification. (Id. at 12.) The data swapping methodology thus infused some “noise” into the redistricting data but kept each state's total population and total voting-age population constant at the census block level—the smallest geographic area for which the Bureau collects and tabulates census data. (Id.)

Citing the need to counter advancements in computational power and the threat of sophisticated re-identification and reconstruction attacks, the Bureau announced in September 2017 that it would employ a new and more proactive method of disclosure avoidance for the 2020 Census—“differential privacy.” (Doc. 3 at 23; Doc. 41 at 73.) Differential privacy, the Bureau concluded, is the most efficient method by which it can accomplish both of its goals: adequately protecting respondent information while also preserving the utility of census data. (Doc. 41-1 at 26.) Therefore, the Bureau formally adopted differential privacy in the latest version of its 2020 Census Operational Plan, published in December 2018. (See Doc. 3-4.)

Although the parties voice contrasting views of exactly what differential privacy does, they seem to agree that differential privacy injects a calibrated amount of noise into the raw census data to control the privacy risk of any calculation or statistic. The amount of noise—or as Plaintiffs would say, error—actually injected depends on a pre-determined “privacy-loss budget,” also referred to as the “epsilon,” which allows the Bureau to “dial up and down” the degree of privacy in a given dataset. (Doc. 3-5 at 11–12.) “Setting epsilon to zero would result in perfect privacy but useless data, and setting the epsilon to infinity would result in perfect accuracy, but would result in releasing data in fully identifiable form.” (Doc. 3-5 at 10–11; see also Doc. 41 at 14.)

Broadly speaking, the application of differential privacy is a process that occurs in two steps: “First, parameters are chosen to calibrate the variance of the chosen distribution, and then random draws from these distributions are taken and applied to the observations to ‘perturb’ or ‘alter’ values in the database up or down by adding the value of the random draw ....” (Doc. 3-5 at 12.) To put it more simply, among the computationally intense tasks folded into each of these steps, the Bureau's principal responsibilities are to determine the “invariants”—or unaltered numbers—and then to set the global privacy-loss budget. The goal, as the Census Bureau would argue, is highly accurate census data that can also withstand database reconstruction attacks more effectively than, say, the data that suppression or enhanced data swapping methods could produce. (Doc. 41-1 at 20–30.)

Moving ahead with its differential privacy plan, the Census Bureau announced on November 24, 2020, that the states will receive three invariants for the purposes of redistricting: (1) the total population of each state, (2) the total housing units at the census block level, and (3) the number of group quarters facilities by type at the census block level. (See Doc. 3-6 at 13.) Implicit in its announcement identifying these invariants, the Bureau indicated that the other redistricting data it plans to release to the states, including counts of population by race, ethnicity, voting age, housing occupancy status, and group quarters population, will be subject to the application of differential privacy at the census block level. (Doc. 3 at 13; Doc. 3-7 at 2.)

Throughout the development of the Bureau's differential privacy plan, the Bureau has released a series of “demonstration data” to its stakeholders to assist in the fine tuning of the disclosure avoidance system using differential privacy. (Doc. 3 at 29.) The Bureau released the first set of demonstration data products in October 2019, and, over the subsequent year, additional sets of demonstration data were released in May 2020, September 2020, November 2020, and April 2021. (Id.) The State of Alabama was among the recipients of these demonstration data products, which the Bureau has explained had “more noise (error) than should be expected in the final 2020 Census data products.” (Id.) And on June 9, 2021, the Bureau finalized the epsilon for the 2020 Census data and filed notice with this court to confirm that the privacy-loss budget will be much higher than what was allocated for the demonstration data products. (Doc. 137.) In practice, this means that the redistricting data ultimately delivered to the states will be more accurate, at least when compared to the demonstration data, and, according to the Bureau, will be adequate for states to comply with the Voting Rights Act. See Voting Rights Act of 1965, Pub.L. 89–110, 79 Stat. 437, 52 U.S.C.A. § 10301 et seq. (Doc. 137.)

C. Delayed Delivery of Redistricting Data

As is true for most every government entity and private business or organization over the past year, the COVID-19 pandemic placed onerous and novel burdens on government agencies to carry out their work in a timely and efficient manner. The Bureau, and its thousands of field representatives, had the bad luck of having to carry out the decennial census during this pandemic, which significantly delayed its field operations and processing of the census data. See generally Nat'l Urb. League v. Ross, 508 F.Supp.3d 663, 669-680 (N.D. Cal. 2020).

By statutory directive, the Bureau was required to report the census results to the President by December 31, 2020, so that he could officially submit the results to Congress for reapportionment of the House. See 13 U.S.C. § 141(b); 2 U.S.C. § 2a. Despite the Bureau's efforts to obtain an extension, Congress did not extend the deadline. And following litigation in California, the Census Bureau ended its field operations in mid-October 2020. See Ross v. Nat'l Urban League, ––– U.S. ––––, 141 S. Ct. 18, 208 L.Ed.2d 169 (2020). All told, this resulted in the Bureau reporting results of the 2020 Census on April 26, 2021, almost four months after it was statutorily required to do so.

Similarly, the Bureau missed the March 31, 2021, statutory deadline to submit census-based redistricting data to the states. The Bureau issued a press release on February 12, 2021, stating its intent to release redistricting data to all fifty states on September 30, 2021. (See Doc. 1 at 37.) As a result, Ohio raised a challenge to the Bureau's delay, as Plaintiffs do here. See Complaint, Counts V–VIII (Doc. 1 at 48–51); see also Ohio v. Raimondo, 848 F. App'x 187 (6th Cir. 2021) (reversing the district court's holding that the State of Ohio lacked standing to oppose the Census Bureau's delayed release of redistricting data).

But, as the oft-repeated adage goes, time brings all things to pass, see Aeschylus, Libation Bearers 81 (Evan Hayes et al. eds., Ian Johnston trans., Faenum Publishing 2017), and in a more recent April 26, 2021, press release, the Bureau advanced the release date to August 16, 2021. See Press Release, U.S. Census Bureau, 2020 Census Apportionment Results Delivered to the President (April 26, 2021), https://www.census.gov/newsroom/press-releases/2021/2020-census-apportionment-results.html (the “April 26 Press Release”). As to this newly announced August 16, 2021, deadline, Plaintiffs have expressed dissatisfied resignation. In oral argument, Plaintiffs’ counsel admitted that “if we could get [the redistricting data] in mid-August, I think we could still work with that, but pushing it beyond that is going to cause serious harm to us.” (Doc. 128 at 28.) Regardless, the Census Bureau maintains that it would be impossible to deliver redistricting data to the states any earlier than August 16, 2021. (Id. at 88–89.)

IV. Plaintiffs' Differential Privacy Challenge

The Bureau's adoption of differential privacy as the disclosure avoidance method of choice for the 2020 Census has prompted Plaintiffs’ first set of challenges (Counts I through IV), which are brought pursuant to both 13 U.S.C. § 141(c) and the APA. The crux of Plaintiffs’ differential privacy claims is that the Bureau's method will generate intentionally skewed and untrustworthy census data. As to each Plaintiff, the court first will discuss several jurisdictional and prudential prerequisites, the results of which merit a denial of Plaintiffs’ motion for a preliminary injunction and dismissal of several of these claims. Indeed, “the Court must determine whether it has jurisdiction before it can proceed to the merits of the case.” Smith v. Ivey, 501 F. Supp. 3d 1248, 1260 (M.D. Ala. 2020) (citing Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 996 (11th Cir. 2020)). The court must do so sua sponte, Sierra v. Hallandale Beach, 996 F.3d 1110, 1138 (11th Cir. 2021) (Newsom, J., concurring), and where it concludes that jurisdiction is lacking, a court must dismiss the case or cause of action. See Barnett v. Bailey, 956 F.2d 1036, 1039–41 (11th Cir. 1992) (holding that a federal court may inquire into its jurisdiction at any time and may dismiss an action sua sponte for lack of subject matter jurisdiction).

A. The § 141 Claim (Count I)

1. The State of Alabama has no cause of action under Section 209.

In Count I, Plaintiffs challenge Defendants’ use of differential privacy as an impermissible method of tabulation of the state's population under 13 U.S.C. § 141(c) of the Census Act (“Section 141”), via Pub. L. No. 105-119 § 209(b), codified as 13 U.S.C. § 141 Note. (“Section 209”). Plaintiffs contend that Section 141, which unquestionably entitles them to “tabulations of population” for redistricting purposes, see 13 U.S.C. § 141(c), also entitles them to “tabulations free from manipulation by unlawful statistical methods that affect districting decisions.” (Doc. 3 at 38.)

In raising this challenge, Plaintiffs do not argue that Section 141 itself provides a cause of action. Compare (Doc. 1 at 5) (“Plaintiffs bring claims under Section 141 of the Census Act, 13 U.S.C. § 141; Section 209 of Public Law No. 105-119, which is codified in a note to 13 U.S.C. § 141; and 28 U.S.C. § 2284(a), as this case involves a challenge to a statistical method used to provide ‘[t]abulations of population’ for states to use in drawing congressional districts. See 13 U.S.C. § 141(c).”) with Ohio v. Raimondo, No. 3:21-CV-064, 2021 WL 1118049, at *4 (S.D. Ohio Mar. 24, 2021), rev'd and remanded, 848 F. App'x 187 (6th Cir. 2021) (bringing claims solely under Section 141). On the contrary, they have chosen to travel under Section 209.2 That route, though—for the State, anyway—hits a roadblock in Section 209's definitions section, which identifies all sorts of other persons and entities as “person[s] aggrieved,” but notably excludes states themselves. As Defendants contend, of the four plaintiffs, the State of Alabama is not “a person aggrieved” within the meaning of Section 209 and therefore has no cause of action for a violation of the Bureau's mandates.

On this issue, we begin “where courts should always begin the process of legislative interpretation ... which is with the words of the statutory provision.” United States v. Hastie, 854 F.3d 1298, 1303 (11th Cir. 2017) (citing Harris v. Garner, 216 F.3d 970, 972 (11th Cir. 2000) (en banc)).

Section 209 provides that “[a]ny person aggrieved by the use of any statistical method in violation of the Constitution or any provision of law ..., to determine the population for purposes of the apportionment or redistricting of Members of Congress,” may bring a civil action. Pub. L. No. 105-119 § 209(b) (emphasis added). Section 209(d) in turn defines an “aggrieved person” as including: “(1) any resident of a State whose congressional representation or district could be changed as a result of the use of a statistical method challenged in the civil action; (2) any Representative or Senator in Congress; and (3) either House of Congress.” Id. at § 209(d)(1)–(3). Conspicuously missing from this section is any express mention of states, such as the State of Alabama or, for that matter, any other sovereign. “Definition sections ... are to be carefully followed.” Hastie, 854 F.3d at 1303 (citing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 225 (2012); Fox v. Standard Oil Co., 294 U.S. 87, 96, 55 S.Ct. 333, 79 L.Ed. 780 (1935) (quotation marks omitted)).

The background presumption, of course, is that the word “person” does not include the sovereign. See Return Mail, Inc. v. United States Postal Serv., ––– U.S. ––––, 139 S. Ct. 1853, 1861–62, 204 L.Ed.2d 179 (2019) (“In the absence of an express statutory definition, the court applies a longstanding interpretive presumption that ‘person’ does not include the sovereign.”); Vermont Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 782, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (the presumption is that states are not covered by the term “person.”); United States v. United Mine Workers of Am., 330 U.S. 258, 275, 67 S.Ct. 677, 91 L.Ed. 884 (1947) (exclusion of comparable provision extending the term “person” to include sovereign governments indicates Congress's intent not to include states). And here, the court can find nothing to rebut that presumption.

The State attempts to explain that, despite the omission of any sovereign from the text of the statute, its cause of action is safeguarded by the principle that the word “includes” should be understood to be nonexclusive. (See Doc. 94 at 50.) E.g., Scalia & Garner, at 132 (“the word include does not ordinarily introduce an exhaustive list”) (emphasis in original). True, the definitions section in Section 209(d) reads, “[f]or purposes of this section, an aggrieved person (described in subsection (b)) includes,” before listing the various entities previously described. But in applying the interpretive canon of expressio unius est exclusio alterius, which stands for the proposition that “expressing one item of [an] associated group or series excludes another left unmentioned,” N.L.R.B. v. SW Gen., Inc., ––– U.S. ––––, 137 S. Ct. 929, 940, 197 L.Ed.2d 263 (2017) (citation omitted), it becomes clear that there is no path around the textual barrier here; that is, the court has no basis for construing the word “person” in Section 209 as including any sovereign. Notably, of the three potential aggrieved persons,” the statute does confer a cause of action on one inanimate entity–either House of Congress. Had Congress intended to include other inanimate bodies in its definition of “aggrieved person[s],” such as states, it would have done so expressly.

That, at the outset of this case, Plaintiffs deliberately utilized Section 209 as the mechanism for their challenge to the Census Bureau's use of differential privacy cannot be sidestepped. And while true that Section 209 does create an express cause of action to challenge violations of Section 141, see Common Cause v. Trump, 506 F.Supp.3d 39, 54-55 (D.D.C. 2020), its precise language makes clear that the power to enforce the duties and obligations imposed by Section 141 does not extend to the State. See § 209(d)(1)–(3); Nat'l R. R. Passenger Corp. v. Nat'l Ass'n of R. R. Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974) (“Since the Act creates a public cause of action for the enforcement of its provisions and a private cause of action only under very limited circumstances, this maxim would clearly compel the conclusion that the remedies created in § 307(a) are the exclusive means to enforce the duties and obligations imposed by the Act.”).

Accordingly, the State is not entitled to relief—injunctive or otherwise—because it has no cause of action under Section 209 under which its differential privacy challenge would have a likelihood of success.3 See Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir. 2004) (“[A]ny motion or suit for a traditional injunction must be predicated upon a cause of action ... regarding which a plaintiff must show a likelihood or actuality of success on the merits.”). As such, the State of Alabama's motion for a preliminary injunction as to Count I must be denied, and with no cognizable basis for relief, Count I as asserted by the State warrants dismissal with prejudice.4

2. The Individual Plaintiffs’ claims are not justiciable and therefore improperly before this court.

Unlike the State, Representative Aderholt, Mr. Green, and Mr. Williams (collectively, “Individual Plaintiffs”) are clearly “aggrieved persons” and have properly invoked Section 209 to bring their differential privacy challenge (Count I). As we will explain, though, their challenge to the Bureau's adoption of differential privacy likewise encounters a number of foundational roadblocks that bar this court from providing injunctive relief or otherwise hearing their challenge advanced in Count I on the merits. Here, those roadblocks are jurisdictional in nature.

i. The Individual Plaintiffs lack Article III standing.

Defendants contend that the Individual Plaintiffs lack Article III standing. In particular, Defendants argue that the census data provided will be reliable enough for redistricting and, in any event, that the Individual Plaintiffs’ claimed injuries are based on future events—most notably, the disclosure of the actual census data—and speculation about the effect of those events.

To satisfy Article III's well-established “case or controversy” requirement, Plaintiffs must demonstrate that they have “standing” to sue; that is, they must show that they (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of Defendants, and (3) that is likely to be redressed by a favorable judicial decision. Spokeo, Inc. v. Robins, 578 U.S. 330, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016); Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Flat Creek Transp., LLC v. Fed. Motor Carrier Safety Admin., 923 F.3d 1295, 1300 (11th Cir. 2019).

Each of the Plaintiffs “assert[ ] a number of injuries—diminishment of political representation, loss of federal funds, degradation of census data, and diversion of resources—all of which turn on [their] expectation that [differential privacy] will ... lead to an inaccurate population count.” Dep't of Com. v. New York, ––– U.S. ––––, 139 S. Ct. 2551, 2565, 204 L.Ed.2d 978 (2019). And the Individual Plaintiffs, specifically, assert that the use of differential privacy will degrade the redistricting data provided to the State, which will subsequently affect the State's ability to draw accurate federal, state, and local legislative districts. As their presumptive theory goes, the skewed data risks a misallocation of federal funding among Alabama's communities and citizens and dilution of their individual voting power.

An “injury in fact” is “an invasion of a judicially cognizable interest, which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical....” Corbett v. Transportation Sec. Admin., 930 F.3d 1225, 1232 (11th Cir. 2019). And where, as here, a voter rests his or her legal challenge on the one-person one-vote principle, “injury results only to those persons domiciled in under-represented voting districts,” Wright v. Dougherty Cty., Ga., 358 F.3d 1352, 1355 (11th Cir. 2004) (citations omitted), meaning that individuals who “have not suffered any harm or injury by the malapportioned voting districts” lack standing, id.

In this regard, the Bureau has not yet delivered its redistricting data with differential privacy “in a concrete manner that will predictably change the count.” 141 S. Ct. at 536 (citing Dep't of Com. v. New York, ––– U.S. ––––, 139 S. Ct. 2551, 2565–66, 204 L.Ed.2d 978 (2019); Dep't of Com. v. U.S. House of Representatives, 525 U.S. 316, 331, 331–32, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999)). “The Government's eventual action will reflect both legal and practical constraints, making any prediction about future injury just that—a prediction.” Id. (emphasis added). More, the Bureau insists that the final epsilon, as set on June 9, 2021, will preserve the value and accuracy of census data once compiled in its final form. (Doc. 41-1 at 27–28; Doc. 137.)

As to the Individual Plaintiffs’ speculative fears of under-representation in their voting districts, their claims amount to “primarily future injuries,” which at this point, have not materialized. Dep't of Com. v. New York, 139 S. Ct. at 2565 (citing Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014)). Indeed, it is not presently known whether the Individual Plaintiffs’ votes will be diluted (or enhanced, or affected at all) by differential privacy,5 and the Bureau has committed to conducting quality checks of the data throughout the application of differential privacy before it is released to the states. (Doc. 137 at 2.)

And to the federal funding argument, the Individual Plaintiffs’ assertion that federal funding variables “will be affected by differential privacy,” which will, in turn, “directly affect the amount of federal funding Alabama and its citizens receive,” likewise rests on speculation. (Doc. 1 at 34–35.) For starters, the State has not yet received any redistricting data from the Bureau, meaning that the Individual Plaintiffs have no basis for believing they were, or will be, under-counted. Moreover, there is no indication that differential privacy will, in practice, skew redistricting data to the extent that federal funds will be misallocated. All told, any finding of a “substantial risk of reduced representation and federal resources” “involves a significant degree of guesswork.” Trump v. New York, ––– U.S. ––––, 141 S. Ct. 530, 535–36, 208 L.Ed.2d 365 (2020).

Because the Individual Plaintiffs’ fears are “riddled with contingencies and speculation that impede judicial review,” id. at 535, the court can discern no injury-in-fact sufficient to confer Article III standing on them at this point. See also Clapper v. Amnesty Int'l USA, 568 U.S. 398, 133 S. Ct. 1138, 1141, 185 L.Ed.2d 264 (2013) (“ ‘[A]llegations of possible future injury’ are not sufficient.”). Accordingly, this court lacks jurisdiction to hear Count I in its entirety, and Count I is due to be dismissed without prejudice as to the Individual Plaintiffs.6

ii. The Individual Plaintiffs’ claims are unripe.

In addition to the Individual Plaintiffs’ failure to demonstrate that they have standing, their claims falter upon another jurisdictional hurdle: ripeness.

Consistent with the judiciary's obligation to exercise power only in last resort, suits must be ripe for court review in order to be justiciable. See, e.g., Common Cause, 506 F.Supp.3d 39, 44-45 (D.D.C. 2020). “A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998). “If an action for prospective relief” does “not contain a concrete injury requisite for standing” because the injury alleged has not fully materialized, it generally will not be ripe for review. Elend v. Basham, 471 F.3d 1199, 1205 (11th Cir. 2006). Thus, for the same reasons that the Individual Plaintiffs here are unable to demonstrate any cognizable injury-in-fact, they are likewise unable to demonstrate the requisite ripeness for further consideration of their differential privacy claims. New York C.L. Union v. Grandeau, 528 F.3d 122, 130 (2d Cir. 2008) (“Standing and ripeness are closely related doctrines that overlap ‘most notably in the shared requirement that [Plaintiffs’] injury be imminent rather than conjectural or hypothetical.’ ”).

***

It may very well be that the Individual Plaintiffs will return here once the final redistricting data are actually delivered to the states. But we cannot know whether differential privacy will inflict the harm alleged by the Individual Plaintiffs until the Bureau releases a final set of redistricting data. “Letting the Executive Branch's decision-making process run its course not only brings more manageable proportions to the scope of the parties’ dispute, but also ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.” Trump, 141 S. Ct. at 536 (citations omitted); see also Utah v. Evans, 536 U.S. 452, 463, 122 S.Ct. 2191, 153 L.Ed.2d 453 (2002) (“Nor ... if a lawsuit is brought soon enough after completion of the census and heard quickly enough is relief necessarily impracticable.”) (internal quotation marks omitted).

For each of these reasons, the Individual Plaintiffs’ (and, if one were to assume it could maintain a cause of action, the State's) challenge under Count I is non-justiciable at present and is therefore due to be dismissed without prejudice.

B. The APA Claims (Counts III and IV)

Plaintiffs bring two further challenges to the implementation of differential privacy, these under the APA. The first (Count III) seeks to have the court hold unlawful and set aside the use of differential privacy as an agency action that is “not in accordance with law,” “contrary to constitutional right,” “in excess of statutory jurisdiction [or] authority,” or which was implemented “without observance of procedure required by law.” (Doc. 1 at 46–47 (citing 5 U.S.C. §§ 706(2)(A)–(D)).) The second (Count IV) challenges the decision as arbitrary, capricious, or an abuse of discretion, and is based entirely on the Bureau's alleged failure to follow proper administrative procedures. (Id. at 47 (citing 5 U.S.C. § 706(2)(A)).)

Pertinent to Count III, which challenges the Bureau's adoption of differential privacy as being “not in accordance with [Section 141],” Plaintiffs do not differentiate the injury they have suffered from the injury alleged under Section 209—that consequences may flow from the Bureau's decision to deliver “skewed” redistricting data to the State. As already discussed, this alleged injury is simply too speculative to pass muster as an “injury-in-fact.” On these grounds, Plaintiffs, including the State, lack standing to challenge Section 141 by and through the APA, just as they lacked standing to challenge Section 141 by and through Section 209. Injunctive relief thus cannot exist as to Count III, and Count III will accordingly be dismissed without prejudice.

In contrast, where Count IV is concerned, the injury alleged is not speculative—the Plaintiffs allege a concrete and particularized injury caused by the Bureau's failure to follow the APA's procedural requirements in 2017 and 2018. See Spokeo, 136 S.Ct. at 1549–50. As such, the court must scrutinize the actions taken by the Bureau in its adoption of differential privacy, which began in September 2017 with the Census Bureau's initial announcement of its intent to use differential privacy for its 2020 Census data. (Doc. 3 at 12.) The second challenged action was the Bureau's December 2018 publication of its 2020 Census Operational Plan. (Doc. 1 at 18.)

“The APA, by its terms, provides a right to judicial review of all ‘final agency action for which there is no other adequate remedy in a court,’ § 704, and applies universally ‘except to the extent that—(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law,’ § 701(a).” Bennett v. Spear, 520 U.S. 154, 175, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). The APA “embodies a ‘basic presumption of judicial review,’ ” and instructs reviewing courts to set aside agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  Dep't of Com. v. New York, 139 S. Ct. at 2567 (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1987); 5 U.S.C. § 706(2)(A)).

For an agency action to be considered final, “[f]irst, the action must mark the consummation of the agency's decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” U.S. Army Corps of Engineers v. Hawkes Co., 578 U.S. 590, 136 S. Ct. 1807, 1813, 195 L.Ed.2d 77 (2016) (quotation marks and citation omitted).

With this framework in mind, the larger question here remains: are Plaintiffs in the instant case entitled to injunctive relief under Count IV? Operating under the assumption that the Bureau's September 2017 and December 2018 announcements constituted final agency actions,7 cf. Glavin v. Clinton, 19 F. Supp. 2d 543, 547 (E.D. Va. 1998) (“As read in the Appropriations Act of 1998 § 209(c)(2), the Census 2000 Operational 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 use ripe for adjudication.”), aff'd sub nom. Dep't of Com. v. U.S. House of Representatives, 525 U.S. 316, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999), Plaintiffs’ delay in bringing their differential privacy challenge has undercut their request for an injunction by impeding any showing of imminent irreparable harm.8

“A preliminary injunction requires showing ‘imminent’ irreparable harm.” Wreal, LLC, 840 F.3d at 1248; Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (affirming the district court's denial of injunctive relief based solely on plaintiff's inability to demonstrate substantial likelihood of irreparable injury). “Indeed, the very idea of a preliminary injunction is premised on the need for speedy and urgent action to protect a plaintiff's rights before a case can be resolved on its merits.” Wreal, 840 F.3d at 1248 (five-month delay in bringing claim doomed any finding of imminent irreparable harm) (emphasis in original). The preliminary injunction standard's focus on imminent harm also places an onus on a plaintiff to demonstrate some sense of “urgency or necessity,” and by sitting on his or her rights for even a few months, a plaintiff has squandered any corresponding entitlement to injunctive relief. Menudo Int'l, LLC v. In Miami Prod., LLC, No. 17-21559-CIV, 2017 WL 4919222, at *3 (S.D. Fla. Oct. 31, 2017). See Benisek v. Lamone, ––– U.S. ––––, 138 S. Ct. 1942, 1944, 201 L.Ed.2d 398 (2018) (“[A] party requesting a preliminary injunction must generally show reasonable diligence.”); Pals Grp., Inc. v. Quiskeya Trading Corp., No. 16-23905-CIV, 2017 WL 532299, at *6 (S.D. Fla. Feb. 9, 2017) (“[C]ourts typically decline to grant preliminary injunctions in the face of unexplained delays of more than two months.”) (internal quotation and citation omitted).

Here, Plaintiffs waited approximately forty-two months as to the September 2017 announcement, and twenty-seven months as to the December 2018 publication, respectively, to bring their claims before this court. And despite their outright assertion that “the privacy loss budget—the epsilon—is immaterial” and “that the application of differential privacy itself—no matter the epsilon—is unlawful,” (Doc. 3 at 40), Plaintiffs explain that they were not aware of the extent to which differential privacy would abridge their rights until November 2020.9 But that does not change the underlying fact that they knew about the implementation of differential privacy, which they have challenged as a per se matter, as early as September 2017, at which point they proceeded to sit on their hands. Such a delay surely indicates “an absence of the kind of irreparable harm required to support a preliminary injunction.” Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir. 1985).

While the challenge to the procedure followed in adopting differential privacy under the APA (Count IV) is within the court's jurisdictional reach, the request for preliminary injunctive relief will be denied. Count III will be dismissed for lack of standing.

C. Fifth Amendment Claim (Count II)

The Individual Plaintiffs bring a separate Equal Protection claim under the Due Process Clause of the Fifth Amendment, alleging that differential privacy is a violation of the one-person, one-vote principle and will result in the dilution of their votes. (Doc. 1 at 45–45) (Count II). For the same reasons these specific plaintiffs lack standing and ripeness to challenge differential privacy under Section 141(c), see section IV.A.2, supra, their purely constitutional claim regarding alleged vote dilution is likewise not justiciable at this point in time. As the court discussed as to Count I, their claims are far too speculative at present to meet either the injury-in-fact or ripeness conditions. The Individual Plaintiffs therefore are not entitled to injunctive relief, and Count II will likewise be dismissed without prejudice.

V. Plaintiffs' Delay Challenge

Plaintiffs’ next set of challenges, which are similarly brought pursuant to both § 141(c) and the APA, concern the Bureau's delayed delivery of redistricting data to the states, which the Bureau announced on February 12, 2021. The statutory release date should have been March 31, 2021, but that deadline has now come and gone, with announced deadlines extending to September 30, 2021, and, most recently, August 16, 2021. Defendants submit that Plaintiffs lack standing, their claims are largely moot since the March 31, 2021, deadline has passed without an amended complaint, and the requested relief is impossible to provide.

Here, as with its differential privacy challenge, the State of Alabama brings its first challenge to the Bureau's delay (Count V) pursuant to Section 141, by and through Section 209. For the same reasons already set forth, these claims are not properly before this Court. That is, Section 209 affords the State no cause of action to bring its delay claim under Section 141, see section IV.A.1, supra. Injunctive relief as to Count V, as asserted by the State, will thus be denied and the claim dismissed with prejudice.

The Individual Plaintiffs’ claims asserted under Section 141 (Count V) and all of Plaintiffs’ claims asserted under the APA (Counts VI and VII), however, do not face any similar preliminary barriers to consideration and thus warrant a more thorough discussion.

A. § 141 Claim (Count V) and APA Claims (Counts VI and VII)

In what remains for discussion under Count V, the Individual Plaintiffs contend that the Bureau's delay does not comport with Section 141(c), which requires that redistricting data be sent to the states no later than March 31, 2021. (Doc. 1 at 48.) And in Counts VI and VII, each of the Plaintiffs seeks relief under the APA for the February 12, 2021, decision, in which the Bureau announced its intent to release redistricting data to all fifty states on September 30, 2021. (See id. at 37.) In Plaintiffs’ view, the announcement was “not in accordance with law” “because it contradicts ... the congressionally imposed deadline of March 31” (Count VI). (Id. at 48.) They further argue that the delay announcement was “arbitrary and capricious” (Count VII). (Id. at 49.)

To no one's surprise, following Plaintiffs’ filing of the Complaint in the case, the Bureau missed its March 31, 2021, statutory deadline to deliver redistricting data to the states. But on April 26, 2021, the Bureau announced that it will instead deliver redistricting data to the states by August 16, 2021, an earlier date than originally announced. This date was initially unsatisfactory for Plaintiffs who, for the first time in their reply brief, requested a July 31, 2021, deadline for the release of the data. (See Doc. 94 at 14.) But at oral argument, counsel for Plaintiffs and Defendants stated that the new August 16 date was satisfactory to both parties: “[I]f we could get [the redistricting data] in mid-August, I think we could still work with that, but pushing it beyond that is going to cause serious harm to us.” (Doc. 128 at 28.) Naturally, this statement brings into question whether Plaintiffs’ stated injuries necessitate preliminary injunctive relief at the present moment.

“A showing of irreparable harm is ‘the sine qua non of injunctive relief,’ ” or in other words, the indispensable requirement. Ne. Fla. Chapter of Ass'n of Gen. Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir. 1990) (quoting Frejlach v. Butler, 573 F.2d 1026, 1027 (8th Cir. 1978)). “The injury must be neither remote nor speculative, but actual and imminent,” City of Jacksonville, Fla., 896 F.2d at 1285 (quotation omitted), and “[m]ere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of [an injunction]” do not reach the actual and imminent standard, Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974). “Although [Plaintiffs’] desire to have [their] case decided in an expedited fashion is understandable, that desire, without more, is insufficient to constitute the irreparable harm necessary to justify the extraordinary relief requested here.” Jud. Watch, Inc. v. U.S. Dep't of Homeland Sec., 514 F. Supp. 2d 7, 10 (D.D.C. 2007).

Here, an issue arises as to the imminent irreparability of Plaintiffs’ alleged injury. While the Bureau announced a delay of the redistricting data release date, the Bureau has since advanced that timeline. Furthermore, at oral argument, counsel for the Bureau described the precise next steps that the Bureau will take to complete the delivery of the data by August 16, a date which, barring unforeseen “undiscovered, unexpected anomalies,” the State “can have confidence in.” (Doc. 128 at 89.) Given the State's admission that a mid-August release date would be workable, (id. at 28), there is very little record evidence from which the court can glean that Plaintiffs will “suffer irreparable injury absent an injunction.” Swain v. Junior, 961 F.3d 1276, 1292 (11th Cir. 2020) (emphasis in original).

The problem at this point for Plaintiffs “is that the federal courts exist to resolve real disputes, not to rule on a plaintiff's entitlement to relief already there for the taking.” Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 175, 136 S.Ct. 663, 193 L.Ed.2d 571 (2016), as revised (Feb. 9, 2016) (Roberts, C.J., dissenting) (emphasis added). For Plaintiffs to quibble with the already expedited timeline by asking for an order from this court directing the Bureau to speed things up even more, but only by two weeks or so, demonstrates that there is just not a whole lot to their argument; or, at least, not enough to demonstrate the continued necessity of preliminary injunctive relief. See Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182 n.10 (11th Cir. 2007) (“Even though a case is not moot, that does not mean that injunctive relief follows automatically; undoubtedly, injunctive relief requires something more than the mere possibility which serves to keep the case alive.” (quotation marks omitted)).

And although no one disagrees that the Bureau failed to act by the March 31, 2021, deadline contained in the Census Act, Plaintiffs did not subsequently make a request to amend their complaint seeking a new deadline of July 31, 2021, for the Bureau to release the redistricting data; instead, they first suggested the July 31 deadline in their reply brief. But arguments raised for the first time in a reply brief are not properly before the reviewing court. United States v. Oakley, 744 F.2d 1553, 1556 (11th Cir. 1984) (citing United States v. Benz, 740 F.2d 903 (11th Cir. 1984)).

The Bureau has made clear the data will be available for use on August 16, 2021, a date that Plaintiffs have acknowledged will allow them to complete redistricting without causing them cognizable injury. Of course, should the Bureau not abide by its assurances that Plaintiffs can have confidence in the August 16 date, Plaintiffs may continue to litigate the claims that remain for trial, not to mention their right to avail themselves of other legal pathways available to them. See, e.g., 5 U.S.C. § 706(1) (“The reviewing court shall ... compel agency action unlawfully withheld or unreasonably delayed.”). But as far as this court can discern at this juncture, Plaintiffs are not entitled to a preliminary injunction as it pertains to the Individual Plaintiffs’ Section 141 claims or each Plaintiff's APA delay claims, and the request for preliminary injunctive relief as to Counts V, VI, and VII will be denied.

B. Mandamus Request (Count VIII)

In Count VIII, Plaintiffs ask for “a writ of mandamus requiring the Secretary to comply with the March 31 deadline imposed by § 141(c).” (Doc. 1 at 51; see also Doc. 3 at 69.)

The Mandamus Act, codified at 28 U.S.C. § 1361, grants district courts original jurisdiction over mandamus actions brought “to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. Even so, “mandamus is an extraordinary remedy which should be utilized only in the clearest and most compelling of cases.” Cash v. Barnhart, 327 F.3d 1252, 1257–58 (11th Cir. 2003) (citing Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969)).

“Mandamus relief is only appropriate when: (1) the plaintiff has a clear right to the relief requested; (2) the defendant has a clear duty to act; and (3) ‘no other adequate remedy [is] available.’ ” Id. But “the writ of mandamus will not issue to compel the performance of that which cannot be legally accomplished,” or, in other words, that which is “impossible.” Am. Hosp. Ass'n v. Price, 867 F.3d 160, 167 (D.C. Cir. 2017) (emphasis added).

Here, the Bureau has made it quite clear that a delay was unavoidable due in no small part to the COVID-19 pandemic. True, the COVID-19 pandemic is not carte blanche for the Bureau to ignore the law, and “judicial deference in an emergency or a crisis does not mean wholesale judicial abdication” of the federal judiciary's role to say what the law is. Roman Cath. Diocese of Brooklyn v. Cuomo, ––– U.S. ––––, 141 S. Ct. 63, 74, 208 L.Ed.2d 206 (2020) (Kavanaugh, J., concurring). But “[t]here is nothing mystical or punctilious about the judiciary giving due consideration to an executive agency's central argument—made repeatedly and emphatically ..., not solely with allegations but with proffers of evidence—before issuing extraordinary relief.” Am. Hosp. Ass'n, 867 F.3d at 169. “[I]t is not appropriate for a court—contemplating the equities—to order a party to jump higher, run faster, or lift more than [he or she] is physically capable.” Id., at 167–168.

Yet, even as the March 31, 2021, deadline approached and then passed, Plaintiffs chose not to amend their complaint to request alternative relief from this court. The court cannot force the Bureau to do the impossible—that is, comply with an already-lapsed deadline. As a result of this impossibility, Plaintiffs’ request for mandamus relief is due to be denied. Id. at 169; cf. United States v. Sanchez-Gomez, ––– U.S. ––––, 138 S. Ct. 1532, 1540, 200 L.Ed.2d 792 (2018) (“[S]upervisory mandamus cases require live controversies.”).

Furthermore, the Bureau has made quite clear that it will be able to deliver the redistricting data to the State by August 16, 2021. Again, Plaintiffs have acknowledged that date suffices for them to be able to complete redistricting without injury. We see no prejudice to Plaintiffs in denying a writ of mandamus requiring the Bureau to issue the data any earlier. See Telecommunications Rsch. & Action Ctr. v. F.C.C., 750 F.2d 70, 80 (D.C. Cir. 1984).

Therefore, Plaintiffs’ request for a writ of mandamus is due to be denied, and Count VIII is dismissed with prejudice.

VI. CONCLUSION

Based upon the foregoing, it is ORDERED10 as follows:

1) Plaintiffs’ Motion for a Preliminary Injunction (Doc. 3) is DENIED;

2) Plaintiffs’ Petition for a Writ of Mandamus (Doc. 3) is DENIED;

3) Count I of the Complaint (Doc. 1) as asserted by the State of Alabama is DISMISSED with prejudice;

4) Count I of the Complaint (Doc. 1) as asserted by Robert Aderholt, William Green, and Camaran Williams is DISMISSED without prejudice;

5) Counts II and III of the Complaint (Doc. 1) are DISMISSED without prejudice;

6) Count V of the Complaint (Doc. 1) as asserted by the State of Alabama is DISMISSED with prejudice;

7) Count VIII of the Complaint (Doc. 1) is DISMISSED with prejudice;

8) Counts IV, VI, and VII of the Complaint (Doc. 1) will proceed; and

9) Count V of the Complaint (Doc. 1) as asserted by Robert Aderholt, William Green, and Camaran Williams will proceed.

DONE, on this the 29th day of June, 2021.

UNITED STATES OF AMERICA
BEFORE THE FEDERAL TRADE COMMISSION

COMMISSIONERS: Edith Ramirez, Chairwoman; Maureen K. Ohlhausen; Terrell McSweeny

In the Matter of
Henry Schein Practice Solutions, Inc.,
a Corporation

DOCKET NO. C-4575

COMPLAINT

The Federal Trade Commission, having reason to believe that Henry Schein Practice Solutions, Inc., a corporation, has violated the provisions of the Federal Trade Commission Act, and it appearing to the Commission that this proceeding is in the public interest, alleges:

1. Respondent Henry Schein Practice Solutions, Inc. (“Henry Schein”) is a Utah corporation with its principal office or place of business at 1220 South 630 East, American Fork, Utah 84003.
2. Respondent manufactures, advertises, offers for sale, sells, and distributes office management software for dental practices, including but not limited to the Dentrix software described below.
3. The acts or practices of Respondent alleged in this complaint have been in or affecting commerce, as “commerce” is defined in Section 4 of the Federal Trade Commission Act.

Respondent’s Business Practices

4. Dentrix software enables dentists to perform common office tasks such as entering patient data, sending appointment reminders, processing patient payments, submitting patient insurance claims, documenting treatment planning, entering progress notes, and recording diagnostic information.
5. In the spring of 2012, Respondent introduced the Dentrix G5 software (“Dentrix G5”). Dentrix G5 incorporated a new “database engine” provided by a third-party vendor, which included new capabilities, including a form of data protection that Respondent advertised as “encryption.”
6. Dentists use Dentrix G5 to collect and store patients’ personal information. The personal information can consist of sensitive information about patients, including, in some instances:

name, address, telephone number, Social Security number, date of birth, driver’s license number, email address, web user ID and password, picture, name of insurance providers, clinical notes, prescriptions, and diagnoses.

7. As early as November 2010, the database engine vendor informed Respondent that the form of data protection used in Dentrix G5 was a proprietary algorithm that had not been tested publicly, and was less secure and more vulnerable than widely-used, industry-standard encryption algorithms, such as Advanced Encryption Standard (“AES”) encryption.
8. Prior to releasing Dentrix G5, Respondent was aware that the Department of Health and Human Services (“HHS”) directs healthcare providers, including most dentists, to guidance promulgated by the National Institute of Standards and Technology (“NIST”) to help them meet their regulatory obligations to protect patient data. The NIST guidance recommends AES encryption. Respondent was also aware that HHS’ Breach Notification Rule, 45 C.F.R. §§ 164.400-414, requires dentists to notify patients of certain breaches, but includes a “safe harbor” so that dentists would not have to notify patients about breached data that was encrypted consistent with NIST Special Publication 800-111.
9. Nevertheless, for a period of two years Respondent has disseminated or caused to be disseminated promotional materials and statements for the Dentrix G5 software that emphasize the product’s ability to encrypt patient data and help dentists meet regulatory obligations related to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), including but not limited to the following statements:

A. “The database also provides new encryption capabilities that can help keep patient records safe and secure. And of course, encryption plays a key role in your efforts to stay compliant with HIPAA security standards” (Dentrix G5 brochure).

B. “Henry Schein is pleased to announce the release of Dentrix G5. G5 stores information in an SQL database, which . . . offers improved protection by storing your patient data in an encrypted format" (eNewsletter Article).

C. “The SQL database also offers improved protection by storing customer data in an encrypted format. With ever-increasing data protection regulations, Dentrix G5 provides an important line of defense for both patient and practitioner.” (eNewsletter Article).

D. “With the release of Dentrix G5, Dentrix now stores information in an SQL database, which delivers several distinct benefits for your practice, including improved data access speed and improved data protection by storing customer data in an encrypted format. With medical professionals under strict regulatory obligations to protect their patients’ personal health information, the new Dentrix G5 database provides an important line of defense for both patient and practitioner.” (Dentrix Magazine).

E. “Dentrix versions prior to G5 relied on the underlying Microsoft operating system and file system safeguard to protect user data. Unfortunately, these were rarely activated by default, and if practices failed to turn them on, their data were at risk to hackers. With Dentrix G5’s embedded SQL database, users have the advanced protection they need without burdening them with another system to manage.” (Interview in DentalTown Magazine).

10. On June 10, 2013, the United States Computer Emergency Readiness Team (“US- CERT”) issued Vulnerability Note VU#900031, describing the form of data protection used in Dentrix G5 software as a “weak obfuscation algorithm.” On June 16, 2013, NIST published a corresponding vulnerability alert.
11. The US-CERT Vulnerability Note stated that the database engine vendor had agreed to re-brand the data protection as “Data Camouflage” so it would not be confused with standard encryption algorithms, such as AES encryption.
12. Despite receiving notice of the US-CERT Vulnerability Note and the database vendor’s decision to re-brand in June 2013, for an additional seven months, Respondent continued to disseminate marketing materials stating that Dentrix G5 “encrypts” patient data and offers “encryption.”
13. The facts set forth in Paragraphs 7 and 10 would be material to dentists’ purchase of Dentrix G5. An attacker who unmasks patients’ sensitive personal information could subject patients to the unanticipated disclosure of personal information or use that information to commit identity theft, medical identity theft, or other harms. If dentists were aware that Dentrix G5 used a form of data protection that was more vulnerable than widely-used, industry standard encryption algorithms, they may have chosen to purchase another product.
14. The facts set forth in Paragraphs 7, 8, and 10 would also be material to dentists’ use of Dentrix G5. For instance, without knowing that Dentrix G5 provided only minimal protection for their patients’ sensitive personal information, dentists may not take other reasonable and commercially available steps to protect patients’ sensitive personal informaiton.
15. Moreover, the facts set forth in Paragraphs 7, 8, and 10 would be material to dentists responding to a data breach. For example, in the event of a breach, dentists may mistakenly believe they qualify for the encryption safe harbor under the Breach Notification Rule, and are not required to notify patients in the event of a breach. Even if a dentist does notify patients, the dentist may misinform patients about their risk of identity theft by telling them that the lost data was “encrypted.”
16. Finally, in January 2014, following a series of online media reports criticizing the company’s failure to amend its encryption claims, Respondent published the following statement in the Spring 2014 issue of Dentrix Magazine:

“Available only in Dentrix G5, we previously referred to this data protection as encryption. Based on further review, we believe that referring to it as a data masking technique using cryptographic technology would be more appropriate.”

17. Respondent concurrently revised an array of its marketing materials replacing references to “encryption” or “encryption capabilities” with references to “a data masking technique using cryptographic technologies.” Respondent also added language to many of its marketing materials warning users that this data masking technique “helps to supplement, not replace” a dentist’s own security measures.
18. Aside from revising its marketing materials as described, Respondent did not take any additional steps to alert dentists who purchased Dentrix G5 prior to January 2014, that the software used a less complex algorithm to protect patient data than a standard encryption algorithm such as AES encryption.

Violations of Section 5

Count I

Deceptive Claims of Encryption – Industry-Standard

19. Through the means described in Paragraphs 5, 9, and 12 Respondent has represented, directly or indirectly, expressly or by implication, that Dentrix G5 provides industry-standard encryption.
20. In truth and in fact, as described in Paragraphs 7, 10, and 11, Dentrix G5 used technology that was less secure than industry-standard encryption. Therefore, the representation set forth in Paragraph 19 was false or misleading.

Count II

Deceptive Claims of Encryption – Regulatory Obligations

21. Through the means described in Paragraphs 5, 9, and 12 Respondent has represented, directly or indirectly, expressly or by implication, that Dentrix G5 helps dentists protect patient data, as required by
22. In truth and in fact, as described in Paragraphs 7, 8, 10, and 11, Dentrix G5 used technology that was not capable of helping dentists protect patient data, as required by Therefore, the representation set forth in Paragraph 21 was false or misleading.
23. The acts and practices of Respondent as alleged in this complaint constitute unfair or deceptive acts or practices, in or affecting commerce in violation of Section 5(a) of the Federal Trade Commission

THEREFORE, the Federal Trade Commission this twentieth day of May, 2016, has issued this complaint against Respondent.