The opinion of the court was delivered by: BROTMAN
Presently before the court is defendants' motion to dismiss for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), and for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6). The motion was argued on May 19, 1978, at which time this court reserved judgment.
In this civil action, plaintiffs seek judicial review of the manner in which the defendants Bureau of the Census and its Director conducted the 1976 "Pretest Census" in Camden, New Jersey. Plaintiffs are the City of Camden, a municipal corporation of the State of New Jersey, and three individual plaintiffs who seek to bring the action on behalf of themselves and those similarly situated. Two of the individual plaintiffs, one black and one Puerto Rican Camden resident, are currently employed in federally-funded CETA
jobs. The third named plaintiff is a black Camden resident who has been certified eligible for the CETA program, but cannot be employed under the federal program due to limited funding allocations to Camden.
Plaintiffs allege that defendants' undercounting of national population in general and of minority groups in particular in and since the 1970 decennial census has caused Camden to be shortchanged in its allocation of federal funds. The individual plaintiffs in the first group allege that they are threatened with loss of their CETA-funded jobs and the individual plaintiff in the second group alleges that his present lack of such a job is due to the asserted undercounting.
The controversy stems from an experimental program or "pretest" census undertaken by defendants in response to a 1973 study by one of its statisticians. This study analyzed the 1970 census and concluded that it underestimated national population, particularly undercounting blacks. Camden was one of three cities which voluntarily participated in the pretest census, undertaken there in September 1976. The 1970 census set Camden's population at 102,550. In January 1977, Camden was advised that the pretest indicated a population of 87,305, later revised upward to 90,292.
Later that month, Camden was further advised that the annual population estimate for 1975 was 89,214 and that this figure would be forwarded to the Office of Revenue Sharing as the basis for the City's funding allocations. Plaintiffs challenge both figures as inaccurate, alleging that the 1975 estimate is based on data from the pretest census. (Plaintiffs' Brief in Opposition, p. 1, n. 2; Amended Complaint PP 9 through 11). Plaintiffs allege that the pretest figures are "replete with error" facially (Amended Complaint P 4), and that both the pretest and estimate figures are extrapolations from the admittedly incorrect 1970 census figures (Amended Complaint P 22). In addition, plaintiffs list seventy-seven "administrative problems" with the conduct of the pretest census. (Exhibit I to Plaintiffs' Brief in Opposition).
In March 1977, the City's attorney submitted a letter request to the defendant Bureau pursuant to the Freedom of Information Act (hereafter "FOIA"), seeking information regarding the conduct of the pretest census. The majority of the specific requests were denied, based on the sections of the Census Act mandating confidentiality for certain categories of census data. See 13 U.S.C. §§ 8, 9. However, defendants granted the request for some of the information requested.
The instant action followed. The individual plaintiffs assert that the denial of access to census documents deprived them of an opportunity to present comment, to which they were entitled by defendant Bureau's "Local Review" procedure for the pretest census. They challenge this as violative of substantive and procedural due process within the fifth amendment. (Count II). All plaintiffs claim that both the pretest census and the population estimates based thereon, particularly the 1975 estimate, represent arbitrary and capricious agency action within § 10 of the Administrative Procedures Act (hereafter "APA"), 5 U.S.C. § 706(2)(A). (Counts III and IV). Finally, plaintiffs assert that defendants' undercounting of minority groups is in violation of the 1968 Civil Rights Act, 42 U.S.C. § 3601 Et seq., entitled "Fair Housing." Plaintiffs claim that § 3608(c) of that subchapter places an affirmative duty on defendant to rectify the undercounting of minorities in order to promote nondiscriminatory housing. (Count VI).
Defendants' motion to dismiss attacks the individual plaintiffs' standing to challenge the census figures on either the constitutional grounds or under the APA. Defendants also assert that the census determinations are not judicially reviewable under the APA, as agency action committed to agency discretion by law, within 5 U.S.C. § 701(a)(2). Finally, defendants argue that the 1968 Civil Rights Act provides no private right of action, and consequently plaintiffs have failed to state a claim upon which relief can be granted.
I. Standing of Individual Plaintiffs
The APA, 5 U.S.C. § 702, authorizes judicial review of agency action by "(a) person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute."
In Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970), the United States Supreme Court formulated a two-step test for standing under § 702. First, a plaintiff must satisfy the "case or controversy" requirement of Article III by alleging an "injury in fact, economic or otherwise." Id. at 152, 90 S. Ct. at 829. Second, plaintiffs must assert an interest to be protected which is "arguably within the zone of interests to be protected or regulated by the statute . . . in question." Id. at 153, 90 S. Ct. at 830. See, e.g., Concerned Residents of Buck Hill Falls v. Grant, 537 F.2d 29 (3rd Cir. 1976); Davis v. Romney, 490 F.2d 1360 (3rd Cir. 1974).
As a preliminary matter, we note that this is a motion to dismiss at which stage we must accept as true all material factual allegations of the complaint and construe it in the light most favorable to plaintiffs. Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). Accordingly, we assume that the population of Camden was undercounted in the 1970 census, that the pretest census figures underestimate Camden's population, and that the annual population estimate was derived from the erroneous pretest results and therefore also undercounts Camden's true population. Further, we assume that the undercounted population figures have been or will be forwarded to federal officials who allocate funds to localities on the basis of population figures, particularly the Secretary of Labor for the CETA program. Finally, we assume that the Secretary has underallocated CETA funds to Camden because of the census pretest undercount.
The individual plaintiffs allege an indirect injury. That is, due to the undercount, they are deprived of CETA-funded jobs which they otherwise would have had because defendants' undercounting caused another agency to shortchange Camden in its federal funding. In support of their claim to standing, plaintiffs rely principally on United States v. SCRAP, 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973).
In that case, the Supreme Court upheld the standing of a student environmental group to challenge an ICC order which allowed an increase in freight rates. The SCRAP plaintiffs alleged that this would discourage use of recyclable materials and would cause greater exploitation of natural resources. They further claimed that this would injure them in their enjoyment of those natural resources and would force them to pay higher prices for finished goods. While the Court conceded that the allegations involved an "attenuated line of causation to the eventual injury," Id. at 688, 93 S. Ct. at 2416, it upheld the plaintiffs' standing when challenged in a motion to dismiss.
The SCRAP Court emphasized the assumption of truth which must be accorded to a plaintiff's allegations on a motion to dismiss. All that is necessary, according to the SCRAP Court, is that plaintiffs have alleged "a specific and perceptible harm that distinguished them from other citizens who had not used the natural resources that were claimed to be affected." Id. at 689, 93 S. Ct. at 2416. If defendants wish to contest the truth of the allegations of injury and the causal connection between the injury and the wrong alleged, they must do so with supporting affidavits and other evidence pursuant to a motion for summary judgment.
In the instant case, we must assume that the undercounting in the census figures will cause Camden to lose federal funds to which it would otherwise be entitled under the CETA program. Defendants argue that there is "no certitude" that an undercount would affect CETA grants since population is only one element considered in making funding allocations. (Supp. Brief, pages 4 to 5). This is the sort of factual issue which requires testing by affidavit or testimony, and is not an appropriate basis on which to deny standing in a motion to dismiss.
However, even assuming that Camden would have more CETA funding available were its population properly counted, the standing of these individuals would not necessarily be established. SCRAP's liberal attitude regarding standing must be considered in conjunction with subsequent Supreme Court holdings denying standing in indirect causation cases. In Warth v. Seldin, supra, the Supreme Court, affirming the dismissal of a complaint, held that individuals challenging allegedly exclusionary zoning practices of a township as class representatives lacked standing. The plaintiffs were not residents of the township and did not point to any particular housing project in which they could live but for the challenged zoning practices. The Court stated that indirectness of injury does not preclude standing, but "may make it substantially more difficult to meet the minimum requirement of Art. III." Id. 422 U.S. at 505, 95 S. Ct. at 2208.
Warth held that individual plaintiffs alleging injury on behalf of a class must themselves be injured or be threatened with injury so that any relief ...