Michael Earl Van Cleve v. U.S. Secretary of Commerce

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13699

Non-Argument Calendar

____________________

MICHAEL EARL VAN CLEVE,

an individual,

Plaintiff-Appellant,

versus

U.S. SECRETARY OF COMMERCE,

DIRECTOR OF THE U.S. CENSUS BUREAU,

DIRECTOR OF THE OFFICE OF MANAGEMENT AND

BUDGET,

U.S. DEPARTMENT OF COMMERCE,

U.S. CENSUS BUREAU, et al.,

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2 Opinion of the Court 21-13699

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:20-cv-23611-RNS

____________________

Before LUCK, LAGOA, and BLACK, Circuit Judges.

PER CURIAM:

Michael Van Cleve, an attorney proceeding pro se, filed an

action against the U.S. Secretary of Commerce, Director of the U.S.

Census Bureau, Director of the Office of Management and Budget

(OMB), U.S. Department of Commerce, U.S. Census Bureau, and

OMB (collectively, the agencies), alleging they violated, and will

continue to violate, the Administrative Procedure Act by collecting

and disseminating inaccurate race data. Van Cleve asserts the dis-

trict court erred by concluding he lacks standing and dismissing his

third amended complaint. 1 His three theories of standing are based

1 In addition to the dismissal of the third amended complaint for lack of stand-

ing, Van Cleve also challenges the denial of his motion for a three-judge panel,

pursuant to the 1998 Departments of Commerce, Justice, and State, the Judi-

ciary, and Related Agencies Appropriations Act, § 209, Pub. L. No. 105-119,

111 Stat. 2440, 2481–82 (1997) (codified at 13 U.S.C. § 141 note), and the district

court’s conclusion his third count failed on the merits. However, because we

hold Van Cleve lacks standing, we need not address these issues.

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21-13699 Opinion of the Court 3

on harm to his interests as an attorney, informational injury, and

“census degradation.” After review, 2 we affirm the district court.

I. DISCUSSION

A. Harm to Van Cleve’s Interests as an Attorney

A plaintiff who invokes the jurisdiction of a federal court

bears the burden to show the Constitutional limitations on stand-

ing: (1) an injury in fact, (2) a causal connection between the injury

and the causal conduct, and (3) a likelihood the injury will be re-

dressed by a favorable decision. Tanner Adver. Grp., LLC v.

Fayette Cnty., 451 F.3d 777, 791 (11th Cir. 2006) (en banc). At the

pleading stage of a case, general factual allegations of injury can

suffice, but these general factual allegations must plausibly and

clearly allege an injury in fact. Muransky v. Godiva Chocolatier,

Inc., 979 F.3d 917, 924 (11th Cir. 2020) (en banc). “Mere conclusory

statements do not suffice.” Id. (quotation marks and alteration

omitted).

“An injury in fact consists of an invasion of a legally pro-

tected interest that is both concrete and particularized and actual

or imminent, not conjectural or hypothetical.” Trichell v. Midland

Credit Mgmt., Inc., 964 F.3d 990, 996 (11th Cir. 2020) (quotation

marks omitted). “A concrete injury must be de facto; that is, it

must actually exist.” Salcedo v. Hanna, 936 F.3d 1162, 1167 (11th

2 “We review standing determinations de novo.” Tanner Adver. Grp., L.L.C.

v. Fayette Cnty., 451 F.3d 777, 784 (11th Cir. 2006) (en banc).

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4 Opinion of the Court 21-13699

Cir. 2019) (quotation marks omitted). A particularized injury af-

fects a plaintiff “in a personal and individual way,” although “that

an injury may be suffered by a large number of people does not of

itself make that injury a nonjusticiable generalized grievance.”

Spokeo, Inc. v. Robins, 578 U.S. 330, 339 n.7 (2016); Trichell, 964

F.3d at 996. “Each element of injury—a legally protected interest,

concreteness, particularization, and imminence—must be satis-

fied.” Trichell, 964 F.3d at 996-97.

Tangible injuries qualify as concrete. Trichell, 964 F.3d at

997. Intangible injuries sometimes qualify as concrete, but alleging

a bare procedural violation, divorced from any concrete harm, is

not enough to support standing. Id.; Muransky, 979 F.3d at 924.

Generally, courts look to history and the judgment of Congress to

determine whether an intangible harm is sufficiently concrete.

Spokeo, 578 U.S. at 340. For example, in Trichell, we concluded

the plaintiffs’ claims were not comparable to their closest historical

analog, the common-law tort of negligent misrepresentation, be-

cause the plaintiffs did not establish reliance or damages, which cut

against standing. Trichell, 964 F.3d at 998. Nonetheless, “if a stat-

ute protects against a lack of information, the denial of access to

information is a concrete injury.” Muransky, 979 F.3d at 930.

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21-13699 Opinion of the Court 5

The harms Van Cleve alleged to his interests as an attorney

were not particularized or concrete. 3 He alleged inaccurate census

data (1) will make it more difficult to understand which communi-

ties most need legal assistance; (2) that he will not be able to rely

on this data in cases he litigates; and (3) he has lost time and money

pursuing this action that he could have devoted to other cases.

As to his first assertion, Van Cleve failed to explain why

greater difficulty in identifying underprivileged communities that

need legal assistance will harm him personally. 4 Muransky. 979

F.3d at 925 (stating we “will not imagine or piece together an injury

sufficient to give a plaintiff standing when [he] has demonstrated

none, and we are powerless to create jurisdiction by embellishing

a deficient allegation of injury” (quotation marks omitted)).

As to his second assertion, Van Cleve likewise failed to ex-

plain how not being able to rely on census data harms him specifi-

cally. It is unclear from his allegations how census data would be

useful in discrimination or civil rights cases. Van Cleve simply

3 To the extent Van Cleve’s claimed informational injury or injury based on

“census degradation” relied on harm to his interests as an attorney to establish

particularization, such reliance is misplaced for the reasons discussed.

4 Even if Van Cleve were implying he could lose revenue, the third amended

complaint noted the “Florida Bar encourages its members to service individu-

als who are indigent, in need [of] pro bono services, or otherwise encourages

its members to assist communities that are subject to discrimination, segrega-

tion, or economic deprivation,” implying he desires to help such communities

pro bono.

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6 Opinion of the Court 21-13699

states he “litigates cases where race data or race information may

be necessary,” such as Fair Housing Act cases. But this statement

does not explain how the race data collected by the agencies, which

would seem to only indicate where individuals of different races

live, would show any discriminatory act has occurred. Moreover,

if the census did not include “Middle Eastern and North African”

or “Hispanic” as races in the past, and not including such races as

options results in inaccurate or unreliable data, the implication is

that civil rights practitioners like Van Cleve use some other data or

evidence to show civil rights violations or instances of discrimina-

tion. It follows that his practice has not been, and will not be,

harmed by a lack of reliable census race data. To the extent this

theory relied on injury to the interests of Van Cleve’s potential cli-

ents, whose cases cannot benefit from more accurate race data, this

assertion of third-party standing is foreclosed. Kowalski v. Tesmer,

543 U.S. 125, 129, 134 (2004) (stating a party generally must assert

his own legal rights and interests and cannot rest his claim to relief

on the legal rights or interests of third parties, such that lawyers

cannot assert “the claims of future unascertained clients”).

As to the third assertion, Van Cleve failed to allege he was

required to inflict this form of harm on himself because the harm

to his interests as an attorney was “certainly impending.” See Mu-

ransky, 979 F.3d at 931 (explaining plaintiffs cannot manufacture a

concrete harm by inflicting harm on themselves). His allegations

stated that, in general, he cannot rely on census race data, but Van

Cleve did not assert he has initiated or plans to initiate imminently

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21-13699 Opinion of the Court 7

any civil rights or discrimination actions that rely on race data col-

lected and disseminated by the agencies. Thus, this injury is not

concrete.

B. Informational Injury

Van Cleve asserts he suffered, and will continue to suffer, an

informational injury under both 44 U.S.C. § 3506(e) and 44 U.S.C.

§ 3563(a). Section 3506 is titled “Federal agency responsibilities.”

It is contained within subchapter I, “Federal Information Policy.”

This subchapter outlines its purposes, including improving govern-

ment efficiency, organization, and decision-making. 44 U.S.C.

§ 3501. Sections 3506(e)(1) and 3506(e)(6) state that, “[w]ith respect

to statistical policy and coordination, each agency shall--(1) ensure

the relevance, accuracy, timeliness, integrity, and objectivity of in-

formation collected or created for statistical purposes . . . and

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

to the public.” Id. §§ 3506(e)(1), (6).

Section 3563(a)(1) states that, “[i]n general[,] [e]ach statistical

agency or unit shall--(A) produce and disseminate relevant and

timely statistical information; (B) conduct credible and accurate

statistical activities; (C) conduct objective statistical activities; and

(D) protect the trust of information providers by ensuring the con-

fidentiality and exclusive statistical use of their responses.” Id.

§ 3563(a)(1).

The two primary cases in which the Supreme Court has

squarely addressed “informational injury” are Public Citizen v. U.S.

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Department of Justice, 491 U.S. 440 (1989) and Federal Election

Commission v. Akins, 524 U.S. 11 (1998). See TransUnion LLC v.

Ramirez, 141 S. Ct. 2190, 2214 (2021) (noting these cases do not

control in the absence of a “public-disclosure or sunshine laws that

entitle all members of the public to certain information”). In Public

Citizen, the Court held the plaintiffs alleged a sufficiently concrete

injury based on violation of a statute that required advisory com-

mittees to make their minutes, records, and reports available to the

public. 491 U.S. at 446-47. There, the plaintiffs asserted the Amer-

ican Bar Association (ABA), which had advised the Department of

Justice regarding potential judicial nominees, had denied their re-

quest for the names of such nominees and for the ABA’s reports

and minutes of its meetings regarding these nominees in order to

monitor its workings and participate more effectively in the judicial

selection process. Id. at 447, 449. Similarly, in Akins, the Court

held the plaintiffs’ asserted injury was concrete because they al-

leged a political committee violated a statute’s requirement that it

make public information about members, contributions, and ex-

penditures, which the plaintiffs needed to evaluate candidates for

public office. 524 U.S. at 21.

In Trichell, we concluded the plaintiff could not show a con-

crete injury from a statute giving them a right to receive truthful

communications from debt collectors. Trichell, 964 F.3d at 1003-

04. We reasoned that, in contrast to the statutes at issue in Public

Citizen and Akins, which made certain information subject to pub-

lic disclosure, this statute, which only stated debt-collection letters

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21-13699 Opinion of the Court 9

may not be misleading or unfair, created no substantive entitle-

ment to receive information from debt collectors. Id. at 1004. Sim-

ilarly, in Electronic Privacy Information Center v. U.S. Department

of Commerce (EPIC), the D.C. Circuit held a violation of a statute

that required federal agencies to, if practicable, publish a privacy

impact assessment before initiating a new collection of personally

identifiable information did not support an informational injury.

928 F.3d 95, 103 (D.C. Cir. 2019). It reasoned this statute was not

meant to “vest a general right to information in the public” and,

rather, “was designed to protect individual privacy by focusing

agency analysis and improving internal agency decision-making.”

Id. In contrast, on remand from the Supreme Court, the Ninth Cir-

cuit concluded that, in enacting the Fair Credit Reporting Act

(FCRA), Congress intended to protect consumers’ interests in pre-

venting the transmission of inaccurate information about them in

consumer reports such that violations of the FCRA could consti-

tute a concrete injury, noting the FCRA imposes a host of proce-

dural requirements on consumer-reporting agencies and allows in-

dividuals to sue those who are non-compliant. Robins v. Spokeo,

Inc. (Spokeo II), 867 F.3d 1108, 1113-14, 1117 (9th Cir. 2017).

Van Cleve’s alleged informational injury was not concrete

because neither § 3506(e) nor § 3563(a) is a public-disclosure law

that entitles all members of the public to certain information. The

statutes focus on the intragovernmental sharing of information ra-

ther than the sharing of information between the government and

the public. In the same way the statute in EPIC was not meant to

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10 Opinion of the Court 21-13699

“vest a general right to information in the public” and “was [in-

stead] designed to protect individual privacy by focusing agency

analysis and improving internal agency decision-making,” § 3506(e)

was primarily intended to improve government efficiency, organi-

zation and decision-making by “ensur[ing] the relevance, accuracy,

timeliness, integrity, and objectivity of information collected or

created for statistical purposes” and by “mak[ing] data available to

statistical agencies and readily accessible to the public.” 44 U.S.C.

§§ 3506(e)(1), (6), EPIC, 928 F.3d at 103. Unlike the statutes in Pub-

lic Citizen and Akins, which expressly required the disclosure of

minutes, records, and reports of advisory committees and infor-

mation about the members, contributions, and expenditures of po-

litical committees, respectively, neither statute here identifies any

specific information, such as race data, to which all members of the

public are entitled. Public Citizen, 491 U.S. at 446-47; Akins, 524

U.S. at 21. Instead, they refer to “data” and “information” in gen-

eral. 44 U.S.C. §§ 3506(e)(1), (6); 44 U.S.C. § 3563(a). Both § 3506(e)

and § 3563(a) only refer to the responsibilities of statistical agencies,

and unlike the statute in Spokeo II, neither statute provides a mech-

anism for members of the public to seek disclosure of certain infor-

mation or imposes a specific procedural requirements on agencies.

Spokeo II, 867 F.3d at 1113-14.

C. Census Degradation

In Department of Commerce v. New York, the Supreme

Court held that several states had standing when they sued to pre-

vent the reinstatement of a question about citizenship on the 2020

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21-13699 Opinion of the Court 11

census questionnaire, which they claimed would depress the cen-

sus response rate, lead to an inaccurate population count, and, con-

sequently, result in a loss of federal funds that are distributed based

on state population. 139 S. Ct. 2551, 2565 (2019). The Court rea-

soned that the loss of federal funds was a sufficiently concrete and

imminent injury to satisfy Article III. Id.

Contrary to Van Cleve’s argument the mere occurrence of

“census degradation” creates standing, Department of Commerce

v. New York held the state’s loss of federal funds resulting from

census degradation established a concrete injury. See id. Van

Cleve’s assertion that census race data is inaccurate or will be inac-

curate in the future, without more, does not establish a concrete

injury, nor does it show that any inaccuracies have affected Van

Cleve personally.

II. CONCLUSION

The district court did not err by concluding Van Cleve lacks

standing. None of his theories of standing, based on harm to his

interests as an attorney, informational injury, and “census degrada-

tion,” satisfied both the concreteness and particularization ele-

ments required of a valid injury in fact. Accordingly, we affirm.5

AFFIRMED.

5 Van Cleve’s Motion to Expedite Appeal is DENIED as moot.