Class Action: Consumers Take Issue with American Community Survey and Fines If They Refuse to Participate [UPDATE]
Last Updated on January 20, 2023
Murphy et al. v. Raimondo et al.
Filed: May 24, 2022 ◆§ 3:22-cv-05377
Washington and California residents have filed a class action in which they object to being asked to participate in the American Community Survey.
Washington
January 20, 2023 – American Community Survey Class Action Decided in Favor of Census Bureau
The proposed class action detailed on this page was dismissed without prejudice on January 3, 2023 after the court handed down a summary judgment in favor of the United States Census Bureau, ending the litigation.
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In a 13-page order, United States District Judge David G. Estudillo found that the federal government never subjected the plaintiffs, who refused to take the American Community Survey (ACS), to “a genuine threat of prosecution.” As a result, the judge wrote, the plaintiffs’ claims “are not ripe for review.”
A key contention between the parties was whether the government communicated to the plaintiffs a “specific” warning or threat of prosecution over their refusal to fill out the ACS. The court agreed with the defendants’ contention that courts have consistently considered “unripe” for review cases wherein “there was no specific threat of enforcement or history of prosecution under the relevant statutes.”
In support of this argument, the defendants submitted an assertion from ACS chief Donna Dailey, who assured that “the Census Bureau does not threaten non-responding addresses with the enforcement of fines or with referral to [the Department of Justice] for prosecution.” Dailey added that ”[i]n the history of the ACS, no one has ever been prosecuted for failing to respond” to the survey, and that no one has ever been referred to the DOJ for prosecution, nor has the DOJ ever prosecuted someone, for failing to respond, the order shares.
“Plaintiffs do not allege Census Bureau representatives directly threatened them with prosecution, nor do they submit affidavits to that effect,” Judge Estudillo wrote. “Plaintiffs’ declarations also do not support a finding they were subject to a genuine threat of imminent prosecution.”
The judge summarized that “general statements” made by the Census Bureau with regard to, say, “the support of federal law” or that taking the ACS was “required by U.S. law” fall short of the benchmark necessary to constitute a “specific” threat of prosecution.
The issuance of summary judgment—a judgment entered by the court in favor of one party over another—marks the end of the road for the proposed class action lawsuit detailed here. This means that there is no “class” that can be “joined” or signed up for by any consumers who feel they may have been covered by the litigation.
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Washington and California residents have filed a proposed class action in which they object to being asked to participate in the American Community Survey, which enquires about certain demographic details more specific than those central to the decennial Census.
The 22-page lawsuit against U.S. Secretary of Commerce Gina Raimondo and Bureau of the Census Director Robert Santos says that unlike the normal ten-year Census, the yearly American Community Survey asks “detailed and personal” questions regarding a person’s sexual orientation, gender identity, fertility history, marital status and divorce history. Moreover, the survey of about 100 questions asks about private health information and how much in taxes and utility bills a household pays, and even about “how many beds, cars, and washing machines the household has,” the complaint relays.
The two plaintiffs contest that unlike the 10-year Census, the American Community Survey is posed to a sample of a few million households each year, and those who refuse to answer the questionnaire are “subject to fines of up to $5,000 per question.” The case contends that the federal Census Bureau lacks the statutory and constitutional authority to force the plaintiffs and proposed class members to answer the American Community Survey’s “detailed, intrusive questions.”
“[The plaintiffs] have in the past and will continue in the future to answer the ten-year Census,” the suit states. “But they oppose the highly detailed and personal information demanded in the American Community Survey and have refused to answer it. As a result, they are subject to monetary fines for doing nothing more than keeping the private details of their lives private.”
Each plaintiff claims to have been visited by Census Bureau agents and informed that their response to the American Community Survey is required by law. The consumers argue in the complaint that although the defendants claim to have statutory authority to compel citizens to answer the survey, the authorization to “collect” information does not equate to the power to compel the production of information, especially when such information is not required for the ten-year Census.
“The two statutes … at most give the Defendants the authority to conduct a post-census statistical adjustment to ensure the accuracy of the decennial Census,” the suit argues. “They do not give the Defendants the limitless power to compel Plaintiffs to produce personal information or opinions to Defendants.”
Similarly, the plaintiffs contest that nothing in the federal code allows for a fine for refusal to answer the American Community Survey to be considered a criminal offense.
Overall, the lawsuit says that “[n]othing in these statutes gives Defendants the authority to compel Plaintiffs to speak when Plaintiffs invoke their First Amendment right to refrain from speaking by refusing to answer the American Community Survey.”
The lawsuit looks to include all persons whom the United States Department of Commerce and Bureau of the Census requires to answer the American Community Survey but who have refused or will refuse to answer it.
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