Van Cleve v. Ross

United States District Court

for the

Southern District of Florida

Michael Van Cleve, Plaintiff, )

)

v. )

Civil Action No. 20-23611-Civ-Scola

)

Wilbur L. Ross, U.S. Secretary of )

Commerce, and others, Defendants. )

Order Granting in Part and Denying in Part Motion to Dismiss

This action arises from Plaintiff Michael Van Cleve’s claim that “race is a

myth based on pseudoscience” such that the Census, which requires

respondents to report their race, perpetuates arbitrary data that results in

discrimination against groups of people who are not accurately represented by

the different race options from which the Census requires them to pick. (Third

Am. Compl., ECF No. 32 at ¶¶ 178, 219, 303.) Defendants Wilber L. Ross, in

his official capacity as United States Secretary of Commerce, Steven

Dillingham, in his official capacity as Direct of United States Census Bureau,

Russel Thurlow Vought, in his capacity as Director of the Office of Management

and Budget, and three respective agencies, jointly move to dismiss with

prejudice the amended complaint for lack of subject matter jurisdiction. (Mot.

to Dismiss, ECF No. 76.) The Plaintiff opposes the motion (Resp. in Opp’n, ECF

No. 77) and the Defendants filed a reply. (Reply, ECF No. 78.) After careful

review of the parties’ submissions, the record, and applicable law, the Court

grants in part the motion to dismiss and directs the Clerk of the Court to

close this case.

1. Background

In this action, Van Cleve challenges the Defendants’ adherence to and

failure to update their standards for collecting racial data. Van Cleve is a

Florida-licensed attorney who owns a law firm located in Miami-Dade County.

(Third Am. Compl., ECF No. 72 at ¶ 21.) Van Cleve has litigated cases where

race data or race information is necessary. (Id. at ¶ 228.) For example, Van

Cleve has represented individuals alleging violations of the Fair Housing Act.

(Id. at ¶ 229.) Van Cleve claims that his ability to adequately represent clients

is diminished if he cannot access accurate race data. (Id. at ¶ 230.) Van Cleve

alleges that inaccurate racial data “creates ethical concerns for Florida lawyers,

since a Florida lawyer should not offer evidence the lawyer knows to be false.”

(Id. at ¶ 231.)

The Census Bureau is part of the U.S. Department of Commerce. The

Office of Management and Budget (the “OBM”) is part of the Executive Office of

the President of the United States. https://www.whitehouse.gov/omb/ (last

visited Oct. 12, 2021). The OMB creates the minimum standards for

maintaining, collecting, and presenting federal data on race and ethnicity. See

Revisions to the Standards for the Classification of Federal Data on Race and

Ethnicity, 62 Fed. Reg. 58,782 (Oct. 30, 1997) (the “Standards”). The

Census Bureau and the remaining defendants are required to adhere to the

standards on race and ethnicity set by OMB. (Third Am. Compl., ECF No. 72 at

¶¶ 22–61.)

The Standards provide for six “minimum” race and ethnicity categories:

(i) American Indian or Alaska Native, (ii) Asian, (iii) Black or African American,

(iv) Hispanic or Latino, (v) Native Hawaiian or Other Pacific Islander, and

(vi) White. (Id. at ¶ 160.) The Standards also allow agencies to collect

information on race and ethnicity using a “two-question format” whereby the

“Hispanic or Latino” category is included in a separate question about the

respondent’s ethnicity. (Id. at ¶ 203 n.133.)

In 2016, to help make its decision on whether it include a Middle Eastern

and North African (“MENA”) category, the OMB requested commentary on its

minimum race categories, which yielded support for inclusion of a distinct

MENA race category. (Id. at ¶ 254.) Similarly, the Census Bureau conducted its

own analysis regarding inclusion of a distinct MENA category in the 2020

Census. “The Census Bureau found through experimentation, [t]he inclusion of

a MENA category significantly decreased the overall percentage of respondents

reporting as White or SOR and significantly increased the percentage of

respondents reporting as Black or Hispanic . . . When no MENA category was

available, people who identified as MENA predominantly reported in the White

category, but when a MENA category was included, people who identified as

MENA predominantly reported in the MENA category.” (Id. at ¶ 256.)

Ultimately, OMB did not revise its standards, and on January 26, 2018,

the Census Bureau announced that the MENA category would not be added to

the 2020 Census. (Id. at ¶ 80.)

Van Cleve initiated this action on August 30, 2020 and amended his

complaint as a matter of course. (Compl., ECF No. 1.) Since then, the Court

has granted Van Cleve’s two requests to file amended complaints. In the

operative third amended complaint, Van Cleve challenges the Standards as

unlawful. (See generally Third Am. Compl., ECF No. 72.) Van Cleve claims that

use of the Standards results in inaccurate racial data that affect his ability to

represent clients and impede the judiciary from relying on accurate census

data in various cases. (Id. at ¶¶ 230, 232, 234.) The inaccurate data also

impacts the federal funding of certain federal programs such as Medicare,

Medicaid, Head Start, Title VI, and the National School Lunch Program. (Id. at

¶ 196.) Lastly, Van Cleve “objects to being miseducated about race based on a

clearly arbitrary and facially inconsistent agency decision which is fairly

traceable to Defendants’ agency rules.” (Id. at ¶ 240.)

In count one, Van Cleve claims that the Defendants violated the

Administrative Procedure Act (“APA”) because in following the Standards, they

have excluded Middle Eastern and North African populations from the 2020

Census. (Third Am. Compl., ECF No. 72 at ¶ 7.) Van Cleve seeks: “[a]n order

directing revision of the race data prior to its dissemination to the public,

where all persons that identified as MENA are tabulated as their own race,

instead of being aggregated under White,” “[a]n order directing Defendants to

revise the race data from the 2020 U.S. Census through other administrative

records at their disposal or supplement the data with other surveys . . . prior to

its release,” and “[a] declaration that the Defendants[’] refusal to use a form . . .

[with] a separate race box for the MENA group[] was a violation of the APA, the

PRA, the Evidence Act, or Policy Directive #1.” (Id. ¶ 260.)

In count two, Van Cleve also alleges that the Standards unlawfully allow

a “two-part race and ethnicity question” as opposed to requiring a “combin[ed]

race and ethnicity question” that would “treat Hispanics as a race.” (Id. at ¶ 8.)

These deficiencies, Van Cleve alleges, constitute violation of the APA. (Id. at

¶ 275.) Van Cleve seeks a declaratory judgment and orders directing the

Defendants to revise race data collected using the Standards so that “all

persons that identified as Hispanic are tabulated as their own race, instead of

being aggregated under the five main races.” (Id. ¶ 279.)

Lastly, in count three, Van Cleve alleges that the Defendants have

violated the Paperwork Reduction Act by “failing to promulgate a new rule

revising or updating the race categories from the [Standards.]” (Id. ¶ 290.) Van

Cleve seeks an order directing the Defendants to update the Standards and

enjoining them from using the Standards for any future statistical surveys.

The Defendants have filed a motion to dismiss the third amended

complaint with prejudice for lack of Article III standing, as time-barred and

unreviewable because the Standards do not constitute a final agency action.

2. Legal Standard

Because the question of Article III standing implicates subject matter

jurisdiction, it must be addressed as a threshold matter prior to the merits of

any underlying claims. Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S.,

P.A., 781 F.3d 1245, 1250 (11th Cir. 2015).

Indeed, standing generally must be present at the inception of the

lawsuit. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.5 (1992).

Article III of the U.S. Constitution grants federal courts judicial power to decide

only actual “Cases” and “Controversies.” U.S. Const. art. III § 2. The doctrine

of standing is a “core component” of this fundamental limitation that

“determin[es] the power of the court to entertain the suit.” Hollywood Mobile

Estates Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259, 1264–65 (11th Cir. 2011)

(quoting Lujan, 504 U.S. at 560; Warth v. Seldin, 422 U.S. 490, 498 (1975)).

“[A] dismissal for lack of standing has the same effect as a dismissal for

lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).” Stalley ex rel.

U.S. v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir.

2008) (citing Cone Corp. v. Fla. Dep't of Transp., 921 F.2d 1190, 1203 n.42

(11th Cir. 1991)). Motions to dismiss a complaint for lack of subject matter

jurisdiction can consist of either a facial or factual attack on the complaint. Id.

A facial attack requires the court to “merely look and see if the plaintiff has

sufficiently alleged a basis of subject matter jurisdiction,” whereas a factual

attack “challenges the existence of subject matter jurisdiction using material

extrinsic from the pleadings, such as affidavits or testimony.” Id. at 1233–34.

“A dismissal for lack of subject matter jurisdiction is not a judgment on the

merits and is entered without prejudice.” Id. at 1232.

3. Analysis

The Defendants move to dismiss the operative complaint in its entirety.

They offer four bases of dismissal: First, the Defendants argue that Van Cleve

lacks Article III standing to bring this action. The Defendants contend that Van

Cleve’s injury is not particularized or concrete. Second, the Defendants argue

that Van Cleve’s challenges are barred by the APA’s six-year statute of

limitations. Third, the Defendants contend that Van Cleve’s challenge is

unreviewable because the Standards are discretionary. Fourth, the Defendants

argue that dismissal is warranted because Van Cleve’s challenge does not

constitute a “final agency action” within the meaning of the APA.

Van Cleve opposes the motion on all grounds. Van Cleve offers four

different theories of standing or harms he has suffered. Van Cleve also disputes

that his claims are time-barred or unreviewable.

Because the Court finds that Van Cleve has failed to allege sufficient

facts to establish Article III standing, the Court grants in part the Defendants’

motion to dismiss (ECF No. 76), dismisses the complaint, and directs the Clerk

of the Court to close this case. The Court denies the Defendants’ request to

dismiss this case with prejudice. See Stalley ex rel. U.S., 524 F.3d at 1232.

A. Standing

The Court must first begin with the threshold question of whether

plaintiffs have constitutional standing to assert their claims at all. Article III of

the United States Constitution grants the Judiciary authority to adjudicate

only “Cases” and “Controversies.” U.S. Const. art. III. 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, 504 U.S. at 560; Flat Creek Transp., LLC v. Fed.

Motor Carrier Safety Admin., 923 F.3d 1295, 1300 (11th Cir. 2019).

Here, the parties hotly dispute whether Van Cleve has alleged sufficient

facts to show he has suffered an injury in fact. The complaint alleges four

different theories of standing: (1) informational injury, (2) injury as an attorney

relying on racial data and economic harm to his practice, (3) miseducation in

his military training; and (4) census degradation. The Court turns to each

theory below.

1) Informational Injury

Van Cleve’s first argument for Article III standing is that he has suffered

an informational injury. (Resp. in Opp’n, ECF No. 81 at 12.) To show an

informational injury, Van Cleve must show: (1) he “has been deprived of

information that, on its interpretation, a statute requires the government or a

third party to disclose” to him, and (2) he “suffers, by being denied access to

that information, the type of harm Congress sought to prevent by requiring

disclosure.” Elec. Priv. Info. Ctr. v. United States Dep’t of Com., 928 F.3d 95, 103

(D.C. Cir. 2019), cert. denied sub nom. Elec. Priv. Info. Ctr. v. Dep't of Com., 140

S. Ct. 2718, 206 L. Ed. 2d 854 (2020).

Van Cleve alleges that the Defendants have deprived him of accurate

census data by using the 1977 Standards that exclude MENA and Hispanics as

distinct race options (as opposed to not offering MENA and having a two-part

race and identity question for persons who identify as Hispanics). Van Cleve

further claims that the Defendants are required to produce accurate census

information under the PRA, 44 U.S.C. § 3506(e).1 Section 3506(e) provides:

1 The Court notes that the PRA does not provide a private cause of action. United to Protect

Democracy v. Presidential Advisory Comm'n on Election Integrity, 288 F. Supp. 3d 99, 103

(D.D.C. 2017). Thus, to the extent count three constitutes a private claim under the PRA, the

claim is dismissed.

“With respect to statistical policy and coordination, each agency shall— . . .

(6) make data available to statistical agencies and readily accessible to the

public.” The agencies do not dispute that they are subject to the requirements;

however, they challenge Van Cleve’s reliance on this particular section because

on its face it does not entitled him to the information he seeks. The Court

agrees. On its face, Section 3506(e) does not require dissemination of census

data that includes MENA as a distinct race option. Nor does Van Cleve cite to

any case law supporting his standing argument under Section 3506(e).

Van Cleve cites to United to Protect Democracy v. Presidential Advisory

Comm'n on Election Integrity, 288 F. Supp. 3d 99 (D.D.C. 2017), in support of

his argument. However, that case is inapposite. There the court found that the

plaintiff had organizational standing pursuant to the PRA, under 44 U.S.C.

§ 3507(a)(1)(D). Section 3507(a)(1)(D) requires that federal agencies abide by

certain procedures, including providing specific disclosures before collecting

information. The complaint alleged that the defendant agencies had failed to

follow those specific procedures, and it was undisputed that the necessary

disclosures were not made. Such is not the case here. Unlike Section

3507(a)(1)(D), Section 3506(e) does not require the dissemination of any specific

data or disclosures, and Van Cleve makes no allegations that the Defendants

failed to follow the procedures set forth in Section 2506(e). Rather, Van Cleve

only argues that the Defendants failed to include his preferred information,

which is not a cognizable harm under the PRA.

2) Harm of Interests as Attorney

Van Cleve attempts to show Article III injuries by arguing that the

Defendants’ statutory violations resulted in a harm to his interests as an

attorney who relies on racial data, including Census information. (Resp. in

Opp’n, ECF No. 81 at 13–15.)

Courts consider two things when evaluating whether concrete harm flows

from an alleged statutory violation: The Court asks “if the violation itself

caused harm, whether tangible or intangible, to the plaintiff. If so, that’s

enough. If not, we ask whether the violation posed a material risk of harm to

the plaintiff. If the answer to both questions is no, the plaintiff has failed to

meet his burden of establishing standing.” Muransky v. Godiva Chocolatier,

Inc., 979 F.3d 917, 928 (11th Cir. 2020) (“The point is that for standing

purposes, no matter what label you hang on a statutory violation, it must be

accompanied by a concrete injury.”). The Court finds Van Cleve has failed to

satisfy his standing burden.

Van Cleve alleges that he is an attorney who “has the desire to help

underprivileged communities through legal assistance.” (Third Am. Compl, ECF

No. 72 at ¶ 215.) In his capacity as an attorney, Van Cleve has represented

individuals that would be included within the MENA race or the Hispanic race

in cases “where their cultural identities were an issue.” (Id. at ¶ 216.) These

cases include Fair Housing cases. (Id. at ¶ 230.) Van Cleve claims that

inaccurate racial data affects his role as an attorney because he cannot

reasonably rely on inaccurate data. (Id.) Van Cleve alleges that inaccurate

racial data “creates ethical concerns for Florida lawyers, since a Florida lawyer

should not offer evidence the lawyer knows to be false.” (Id. at ¶ 231.) Lastly,

Van Cleve alleges that as a busines owner he has “diverted a considerable

amount of his resources, incurred financial costs, exhausted time, manpower,

and declined other cases . . . to get Defendants to engage in corrective action or

counteract action for their outdated race questions and outdated race

systems.” (Id. at ¶ 218.) In his own declaration, Van Cleve claims that more

accurate racial data would allow him to better identify who needs pro bono

assistance or allow him to more readily identify civil rights violations. (Van

Cleve Decl., ECF No. 22–1.)

To begin with, Van Cleve’s injuries related to his diminished ability to

represent individuals in civil cases like Fair Housing cases or readily identify

civil rights violations are conclusory and vague. It is unclear from the

complaint and Van Cleve’s response in opposition how census data or racial

information is necessary in those types of cases or how the current

information, which Van Cleve asserts is inaccurate, hinders him from

representing underprivileged communities. Relatedly, Van Cleve’s alleged harm

as an attorney (that he cannot submit false information to the courts) is

insufficient because the complaint fails to connect what information he would

be submitting to the court in those cases and why.

Van Cleve relies on the declaration of Mark Sobocienski, an attorney who

knows Van Cleve personally, in support of his standing argument. Sobocienski

declares that he is an attorney who practices commercial litigation, criminal

defense, foreclosure defense, collections, and real estate transactions.

(Sobocienski Decl., ECF No. 22–1.) Sobocienski affirms that it is his subjective

belief that “it is important for lawyers like me or Michael Van Cleve to have

accurate statistical information from the government. Statistical data is heavily

utilized in the legal profession, and often necessary to prove facts in litigation.”

(Id. at 2.) This declaration is perhaps vaguer than Van Cleve’s complaint as it

fails to state whether Sobocienski relies on the specific data at issue in this

case, how it is utilized in any of his practice fields, how the current inaccurate

data has affected his practice, or how it has affected Van Cleve’s practice. Van

Cleve also relies on the declaration of another lawyer Jianyin Liu, who stated

that “our current categorization of races is not only confusing, but also causes

loss of trust in the government,” and “as civil attorneys, we are facilitating the

implementation of administrative and legal actions.” (Liu Decl., ECF No. 28–1).

This declaration similarly fails to connect Van Cleve’s practice in civil cases to

accurate racial information. By Liu’s definition of standing, any attorney who

challenged a law or procedure as unconstitutional would have standing simply

because he or she is in the business of “facilitating” the implementation and/or

enforcement of laws. Nor is Van Cleve’s reliance on his former clients’

declarations persuasive as they do not clarify how Van Cleve used the racial

data at issue in those cases. (Bargul Decl., ECF No. 23–1; Suleiman Decl., ECF

No. 23–2.)2

Van Cleve cites to Nat’l Women’s L. Ctr. v. Off. of Mgmt. & Budget, 358 F.

Supp. 3d 66, 71 (D.D.C. 2019), in support of his argument that “[a] party can

also satisfy Article III injuries through a harm to their interests, even if the

information is not statutorily required to be disclosed.” (Resp. in Opp’n, ECF

No. 81 at 13.) In Nat’l Women’s, the court explained that in deciding whether

the organization had suffered a concrete injury, the court looks first to whether

the defendant agency’s actions injured the organization’s interest. Id. at 79.

Ultimately, the court held the organization had shown its own concrete injury

through evidence of its specific mission, its purported use of the sought-after

gender pay gap data that was not provided, how the data would have been

used to represent individuals, and how the data would reduce the

organization’s cost in representing its clients. As discussed above, Van Cleve

has failed to allege or submit any facts showing his specific injury in

representing his clients in cases that touch upon the issue of race or cultural

identity.

Van Cleve’s purported injury of wasted time, diversion of monies into this

action, and rejection of other cases to pursue this action also fails to establish

standing. Although the Eleventh Circuit has previously held that allegations of

wasted time may state a concrete injury for standing purposes, the court has

also declined to find standing when the complaint lacked specific allegations of

same or where the wasted time constituted a hypothetical future harm.

Muransky, 379 F.3d at 930–31. It is unclear what Van Cleve considers to be

wasted time. However, the Court assumes he means the time spent working on

this matter. This choice was Van Cleve’s alone and unrelated to the

Defendants’ alleged misconduct. See Colceriu v. Barbary, No. 8:20-CV-1425-

MSS-AAS, 2021 WL 2471211, at *2 (M.D. Fla. June 14, 2021) (Scriven, J.)

(“Moreover, it is not clear that a mere waste of time, voluntarily expended,

2 It appears from the declarations that whatever racial data used, if any, was sufficient or

unnecessary to succeed in those cases.

could suffice to establish injury-in-fact.”) (citing Muransky, 979 F.3d at 926

(recognizing that a claim of wasted time is not always an injury-in-fact)).

Further, Van Cleve does not cite any authority supporting his argument that

wasted time pursuing the underlying action confers standing. The Court notes

that Van Cleve’s position would therefore confer standing on every plaintiff that

spent time researching issues before filing a complaint or spent time litigating

the action for which the plaintiff claims he has standing. Relatedly, Van Cleve’s

choice to turn down work to focus on this case and ensure he has better data

to rely on in future cases is also a voluntary decision that the Court finds

insufficient to confer standing. See Crowder v. Andreu, Palma, Lavin & Solis,

PLLC, No. 2:19-CV-820-SPC-NPM, 2021 WL 1338767, at *6 (M.D. Fla. Apr. 9,

2021) (“So any time [the plaintiff] spent researching APLS about a hypothetical

future harm does not confer standing.”) (citing Muransky, 979 F.3d at 931

(“Where a ‘hypothetical future harm’ is not ‘certainly impending,’ plaintiffs

cannot manufacture standing merely by inflicting harm on themselves.”)).

3) Forced Miseducation Upon Van Cleve as a Service Member

Van Cleve also alleges that as an Army Reserve service member he has

been forced to complete annual diversity training, which is inaccurate because

it excludes MENA and traches inaccurate racial categories. (Third Am. Compl,

ECF No. 72 at ¶¶ 236–240.) He argues that his objection to being miseducated

confers standing in this case. (Resp. in Opp’n, ECF No. 81 at 18–19.)

The Eleventh Circuit has reviewed military judgments and decisions

under the lens of the political question doctrine. Carmichael v. Kellogg, Brown

& Root Servs., Inc., 572 F.3d 1271, 1280 (11th Cir. 2009). “The political

question doctrine excludes from judicial review those controversies which

revolve around policy choices and value determinations constitutionally

committed for resolution to the halls of Congress or the confines of the

Executive Branch.” Id. (quoting Japan Whaling Ass’n v. American Cetacean

Soc., 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986)). Political

questions “have been held to be nonjusticiable and therefore not a ‘case or

controversy’ as defined by Article III.” Id. (quoting Occidental of Umm al

Qaywayn, Inc. v. A Certain Cargo of Petroleum Laden Aboard Tanker Dauntless

Colocotronis, 577 F.2d 1196, 1203 (5th Cir.1978)). The political question

doctrine has been deemed applicable to military training policies. Id. at 1287

(citing Gilligan v. Morgan, 413 U.S. 1, 5–6, 93 S. Ct. 2440, 37 L. Ed. 2d 407

(1973) (suit was barred by political question doctrine because it entailed

judicial review of “training, weaponry and orders” of the Ohio National Guard)).

Because Van Cleve is challenging military diversity training, the Court finds

that his challenge is nonjusticiable.

Van Cleve does not distinguish Carmichael, but rather argues “not

everything involving the military is a nonjusticiable political question

unreviewable by the courts.” (Resp. in Opp’n, ECF No. 81 at 18.) He cites to

Albino v. US, 78 F. Supp. 3d 148 (D.D.C. 2015), where the court reviewed a

challenge to the Army Board for Correction of Military Records’s denial of the

plaintiff’s request to remove a negative officer evaluation report. The Court

declines to apply Albino to this case in light of controlling Eleventh Circuit case

law. Moreover, Van Cleve has not cited to any authority supporting his

argument that miseducation alone constitutes a concrete injury for standing

purposes.

4) Census Degradation

Van Cleve’s last theory for Article III standing is that he has suffered

harm from degradation of census data. (Resp. in Opp’n, ECF No. 81 at 16.)

The United States Supreme Court has recognized that census

degradation may constitute a concrete injury for purposes of Article III

standing. See Dep’t of Com. v. New York, 139 S. Ct. 2551, 2565, 204 L. Ed. 2d

978 (2019). Even so, plaintiffs must do more than just allege census

degradation has occurred. They must allege sufficient facts showing “present

an injury that is concrete, particularized, and actual or imminent; fairly

traceable to the defendant’s challenged behavior; and likely to be redressed by

a favorable ruling.” Id. Because the Court has already found that Van Cleve

has failed to show that he has suffered a concrete injury, Van Cleve’s argument

is unavailing.

Van Cleve relies on Kravitz v. United States Dep’t of Com., 336 F. Supp.

3d 545, 557 (D. Md. 2018), to show that he has satisfied his burden. There, the

court found that the plaintiffs, individual residents from various states, had

shown that they had suffered concrete injuries stemming from a Census

citizenship question. Id. at 557. The plaintiffs showed that they lived in states

that have a higher percentage of undercounted groups that would be injured by

a citizenship question because it would decrease the undercounted group’s

participation in the 2020 Census in their respective states. Id. (“Specifically,

they argue that the undercount will result in a loss of representation in the

House of Representatives, as well as a loss of federal funding for their

[respective states’] communities’ schools and roads.”)

Kraviz is inapposite from the allegations and data in this case because

Van Cleve has not alleged in what manner Van Cleve or any protected group is

particularly affected by the current version of the Standards or that the current

Standards would reduce or impact Van Cleve’s or any protected group’s

representation in the House of Representatives. On the contrary, Van Cleve

alleges in a conclusory manner that the current version of the Standards,

without more precise categories, “would reduce or negatively affect the

enumeration count for the 2020 U.S. Census/2020 ACS by leading to

nonresponse, whereas more precise race categories act as a motivator for

Americans to answer the 2020 U.S. Census/2020 ACS questions.” (Third Am.

Compl, ECF No. 72 at § 12.) Further, although the Supreme Court has

recognized that a reduction of federal funding could constitute a concrete

injury, New York, 139 S. Ct. 2565, Van Cleve has not plausibly alleged that the

exclusion of MENA and Hispanic as distinct racial groups will likely cause the

injuries he claims. See Parks v. United States Dep’t of Com., 456 F. Supp. 3d

691, 697 (D. Md. 2020) (distinguishing Kravitz and finding that the plaintiff

failed to allege a concrete injury). Indeed, the complaint later alleges that the

Census Bureau found that individuals in the MENA population will continue

participating in the Census regardless of the existence of a distinct MENA race

and that if given the option to identify as MENA, White, or Black, they will

select MENA. (Third Am. Compl., ECF No. 72 at § 256.) Thus, it appears from

the complaint that for purposes of being counted in a state’s population, the

Standards do not serve to exclude MENA or Hispanic persons from the Census.

See Parks, 456 F. Supp. 3d at 697.

Because the Court finds that Van Cleve has failed to allege sufficient

facts to establish Article HI standing, the Court need not address the

Defendants’ remaining arguments.

4. Conclusion

For the foregoing reasons, the Court grants in part the Defendants’

motion to dismiss the complaint. (ECF No. 76.) The Court denies the

Defendants’ request that this action be dismissed with prejudice. The Clerk of

the Court is directed to close this case and deny all pending motions as moot.

Done and Ordered in chambers, at Miami, Florida, on October 13, 2021.

N. Scola, Jr.

United States District Judge