National Law Center on Homelessness and Poverty v. Michael Kantor

91 F.3d 178, 319 U.S. App. D.C. 374, 1996 U.S. App. LEXIS 20024, 1996 WL 446791
CourtCourt of Appeals for the D.C. Circuit
DecidedAugust 9, 1996
Docket94-5312
StatusPublished
Cited by8 cases

This text of 91 F.3d 178 (National Law Center on Homelessness and Poverty v. Michael Kantor) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Law Center on Homelessness and Poverty v. Michael Kantor, 91 F.3d 178, 319 U.S. App. D.C. 374, 1996 U.S. App. LEXIS 20024, 1996 WL 446791 (D.C. Cir. 1996).

Opinion

Opinion for the court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Appellants appeal the district court’s grant of summary judgment on their challenge to the Census Bureau’s count of homeless persons during the 1990 census. Appellants lack standing, and therefore we affirm.

I.

The Census Bureau has, since its creation, undertaken the difficult task of counting homeless persons, originally called “outdoor paupers,” as part of the decennial census. Its most recent and most involved effort, Shelter and Street Night (S-Night) in connection with the 1990 census, took place between 6:00 p.m. on March 20 and 8:00 a.m. on March 21,1990. During S-Night, more than 22,600 enumerators in 5,050 jurisdictions counted homeless persons at 10,600 emergency shelters and 24,300 street locations, thereby adding some 229,000 persons to the rolls. In assembling its list of shelters and street sites, the Bureau contacted roughly 89,000 jurisdictions, 14,200 of which responded, some providing locations frequented by homeless persons, some stating that they had no homeless persons within their borders. Twenty-five jurisdictions with more than 50,-000 residents did not respond at all. The Census Bureau consulted with “knowledgeable local persons” in those jurisdictions to add shelter and street locations to its list. S-Night operations took place in every jurisdiction with more than 50,000 residents and in all shelters identified by the Bureau in less populous jurisdictions.

Despite these efforts, the S-Night procedures missed many of the homeless. If they were located in the roughly 34,000 jurisdictions where the Bureau did not send enumerators, they were, of course, not counted. 1 Homeless people who spent S-Night outside shelters or the identified street locations were not counted. These “hidden homeless,” who slept in “boxes, under tarps, in bushes or trees, shanty structures, automobiles, subways, roofs, dumpsters, or eaves,” places too dangerous for unaccompanied enumerators to visit, were not counted. National Law Center on Homelessness & Poverty v. Brown, Civ. Act. No. 92-2257, Mem. Op. at 4, 1994 WL 521334 (D.D.C. Sept. 15, 1994). Homeless persons who spent S-Night in other locations, including “halfway houses to treat substance abuse, maternity homes for unwed mothers, [and] group homes for the mentally ill,” also were not counted on S-Night (though they might have been counted during other census operations). Id. at 5 n. 4. The Census Bureau commissioned independent observers to monitor S-Night in Chicago, Los Angeles, New Orleans, New York, and Phoenix. The observers concluded that, even at the street sites where enumerators were sent, between 29 and 72% of the homeless were missed. A review of the S-Night’s shelter portion concluded that as many as 48% of the shelters identified by the observers were not on the Bureau’s list. The Bureau, when it released the S-Night figures, noted many but not all of these limitations on the S-Night data both in its press release and in information included with the data.

Appellants — the cities of Baltimore and San Francisco, the United States Conference of Mayors, one national and five regional homeless advocacy groups, twelve providers of services to homeless persons, eight homeless persons, and three registered voters— sued, inter alia, the Secretary of Commerce and the Census Bureau. The plaintiffs disputed the count of homeless in the census as too low and contended that the government’s procedures violated the Census Clause, its implementing statutes, and the Equal Protection Clause. The Bureau’s unwillingness to publish a more comprehensive disclaimer setting forth the data’s inadequacies was alleged to violate the APA. Pretermitting the plaintiffs’ standing, the district court granted the government summary judgment on the *180 merits. The court determined that review of S-Night under the APA was foreclosed by Franklin v. Massachusetts, 505 U.S. 788, 796-99, 112 S.Ct. 2767, 2773-74, 120 L.Ed.2d 636 (1992), and rejected appellants’ constitutional and statutory claims.

II.

Appellants reiterate their challenges to the census before us. But we are obliged to consider first their standing to raise them. The district court thought the “standing issues this case presents involve several different types of plaintiffs, and their resolution would involve contemplation of sensitive constitutional issues,” and avoided them because “[c]ourts should confront such issues only where ‘absolutely necessary to a decision of the ease.’ ” National Law Center on Homelessness & Poverty, Mem. Op. at 8 (quoting Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346-47, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring)).

This approach is fundamentally at odds with the constitutional case and controversy limitation on the jurisdiction of federal courts. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607-08, 107 L.Ed.2d 603 (1990) (“The federal courts are under an independent obligation to examine their own jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional] doctrines.’ ”) (quoting Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984)); Humane Soc’y of the United States v. Babbitt, 46 F.3d 93, 96 (D.C.Cir.1995). If plaintiffs lack standing, there is not a ease or controversy and therefore a federal court should take no action beyond dismissal for lack of jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). To be sure, we have fashioned an extremely narrow exception (rather controversial at that, see Cross-Sound Ferry Servs., Inc. v. ICC, 934 F.2d 327, 339-346 (D.C.Cir.1991) (Thomas, J., concurring)), to our obligation to determine our jurisdiction: ‘“when the merits of a case are clearly against the party seeking to invoke the court’s jurisdiction, the jurisdictional question is especially difficult and far-reaching, and the inadequacies in the record or briefing make the case a poor vehicle for deciding the jurisdictional question, we may rule on the merits without reaching’ the jurisdictional contention.” Cross-Sound Ferry Servs., Inc., 934 F.2d at 333 (quoting Adams v. Vance, 570 F.2d 950, 954 n. 7 (D.C.Cir.1978)); see also Burlington Northern R.R. Co. v. ICC, 985 F.2d 589

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91 F.3d 178, 319 U.S. App. D.C. 374, 1996 U.S. App. LEXIS 20024, 1996 WL 446791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-law-center-on-homelessness-and-poverty-v-michael-kantor-cadc-1996.