UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN H. PAGE,

Plaintiff,

v. Case No. 20-cv-104 (CRC)

JOSEPH R. BIDEN, in his official capacity as President of the United States,

Defendant.

MEMORANDUM OPINION

Plaintiff John H. Page, a resident of the District of Columbia, sues the President of the

United States to demand representation in the House of Representatives. Alleging that there is

already a state—the State of Columbia—that overlaps geographically with the District, Mr. Page

seeks an injunction requiring the President to include Columbia’s residents in the congressional

apportionment calculation following the decennial census. The President moves to dismiss the

Complaint.

The Court concludes that it lacks jurisdiction over this case because the injunction Page

seeks is beyond the power of the judicial branch to grant. The Complaint therefore must be

dismissed.

I. Background

Every ten years, the federal government must conduct an “actual Enumeration”—i.e., a

census—of the United States population. U.S. Const. art. I, § 2, cl. 3. After the census, seats in

the House of Representatives must “be apportioned among the several states according to their

respective numbers, counting the whole number of persons in each state, excluding Indians not

taxed.” Id. amend. XIV, § 2. As the Supreme Court recently explained, “Congress has given both the Secretary of

Commerce and the President functions to perform in the enumeration and apportionment

process.” Trump v. New York,

(2020).

The Secretary must “take a decennial census of population . . . in such form and content as he may determine,”

(a), and then must report to the President “[t]he tabulation of total population by States” under the census “as required for the apportionment,” § 141(b). The President in turn must transmit to Congress a “statement showing the whole number of persons in each State, excluding Indians not taxed, as ascertained” under the census.

, 2 U.S.C. § 2a(a). In that statement, the President must apply a mathematical formula called the “method of equal proportions” to the population counts in order to calculate the number of House seats for each State. [Id.]

Trump,

. 1

The District of Columbia has never been treated as a “state” for apportionment purposes

and therefore has never received any seats in Congress. See Compl. ¶ 13; Adams v. Clinton,

(D.D.C. 2000) (concluding, based on “[a]n examination of the Constitution’s

language and history, and of the relevant judicial precedents,” that D.C. is not a state for

apportionment purposes).

1 The Bureau of the Census, an agency within the Department of Commerce, recently completed its data-collection operations for the 2020 Census and is in the process of preparing state-by-state population totals for the Secretary of Commerce to report to the President. See Nat’l Urban League v. Ross, No. 20-CV-05799-LHK,

, at *28 (N.D. Cal. Dec. 22, 2020) (“Data collection stopped on October 15, 2020, and accelerated data processing is well underway.”); Hansi Lo Wang, Census Numbers For Dividing Up House Seats Delayed Until April 30, Bureau Says, NPR (Jan. 27, 2021), https://www.npr.org/2021/01/27/961247853/census-numbers-for-dividing-up-house-seats- delayed-until-april-30-bureau-says. The Court takes judicial notice of the status of the 2020 Census but does not rely on it to resolve the instant motion.

2 Proceeding pro se, Page filed this lawsuit in January 2020 against a single defendant: the

President of the United States. Compl. ¶ 13. 2 In the Complaint, he concedes that D.C. as such is

not a state.

. However, he alleges that there is a “State of Columbia,” distinct from the

District, that is constitutionally entitled to representation in Congress commensurate with its

population.

. According to Page, Columbia “joined the Union as part of

Maryland in 1788” and was later partitioned from Maryland, thus becoming a separate state.

. Page points to the 1801 Act Concerning the District of Columbia (“1801 Organic Act”),

which provides that “the laws of the state of Maryland, as they now exist, shall be and continue

in force in that part of [D.C.] which was ceded by that state to the United States.”

,

104-05 (1801). 3 He claims that by enacting this law, Congress recognized a new state “with the

same sovereign State laws of the State of Maryland as they were then.” Compl. ¶ 18. The

Complaint seeks “an order of the court requiring the occupier of the Office of President to

immediately correct all census returns to show the State of Columbia” and requiring “immediate

transmittal of those amended census returns to Congress.”

.

The President moved to dismiss the Complaint for lack of subject matter jurisdiction and

for failure to state a claim on which relief can be granted. Page filed an opposition to that

motion, the President replied, and Page filed a proposed surreply. 4

2 The Complaint was filed against then-President Donald J. Trump in his official capacity. President Joseph R. Biden is automatically substituted as the defendant under Federal Rule of Civil Procedure 25(d). 3 “Since 1847 the District has consisted only of that part ceded by Maryland.” Clawans v. Sheetz,

(D.C. Cir. 1937). 4 Having considered the arguments made in Page’s proposed surreply, the Court will grant leave to file it.

3 II. Legal Standards

The Court must dismiss any claim over which it lacks subject matter jurisdiction. Auster

v. Ghana Airways Ltd.,

(D.C. Cir. 2008). The plaintiff bears the burden of

establishing jurisdiction. Knapp Med. Ctr. v. Hargan,

(D.C. Cir. 2017). On

a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure

12(b)(1), the Court must “accept all well-pleaded factual allegations as true and draw all

reasonable inferences from those allegations in the plaintiff’s favor,” but need not “assume the

truth of legal conclusions” in the complaint. Williams v. Lew,

(D.C. Cir.

2016) (internal quotation marks omitted). The Court also “may consider materials outside the

pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome

Stevens Pharms., Inc. v. FDA,

(D.C. Cir. 2005).

Ordinarily, “when an action is filed challenging the constitutionality of the apportionment

of congressional districts,” the district judge to whom the case is initially assigned should

convene a three-judge district court.

(a). However, “[a] three-judge court is not

required where the district court itself lacks jurisdiction of the complaint or the complaint is not

justiciable in the federal courts.” Shapiro v. McManus,

(2015) (quoting

Gonzalez v. Automatic Emps. Credit Union,

(1974)). Therefore, the three-

judge-court statute presents no barrier to this Court considering the President’s jurisdictional

arguments for dismissal.

Page has also moved for summary judgment. However, the Court stayed briefing on the summary judgment motion pending resolution of the President’s motion to dismiss. See Minute Order (May 22, 2020). Because the Court now grants the motion to dismiss, Page’s motion for summary judgment will be denied.

4 III. Analysis

The President offers numerous arguments for dismissal. One is that the Court lacks

jurisdiction to grant the sole remedy Page seeks—an injunction requiring the President to include

the population of “Columbia” in the census figures used to reapportion Congress. Mem. in

Support of Mot. to Dismiss 6. The Court agrees and will dismiss the case on this ground without

reaching the President’s other arguments.

For the Court to have jurisdiction over an action, the plaintiff must have standing under

Article III of the Constitution. Grocery Mfrs. Ass’n v. EPA,

(D.C. Cir. 2012).

“To establish Article III standing, a party must establish three constitutional minima: (1) that the

party has suffered an injury in fact, (2) that the injury is fairly traceable to the challenged action

of the defendant, and (3) that it is likely, as opposed to merely speculative, that the injury will be

redressed by a favorable decision.”

(internal quotation marks omitted). The

redressability element of standing is not satisfied if the relief the plaintiff seeks is “impossible”

for the court to grant. Newdow v. Roberts,

(D.C. Cir. 2010).

Page’s Complaint seeks just one remedy (an injunction) against one defendant (the

President). See Compl. ¶¶ 39-40. At the outset, this request necessarily “raise[s] judicial

eyebrows” because any “grant of injunctive relief against the President himself is extraordinary.”

Franklin v. Massachusetts,

(1992) (plurality op.). Courts generally “do not

have jurisdiction to enjoin” the President. Newdow,

; see also Swan v. Clinton,

(D.C. Cir. 1996) (explaining that an injunction against the President “at best

creates an unseemly appearance of constitutional tension and at worst risks a violation of the

constitutional separation of powers”).

5 The Supreme Court has “left open the question whether the President might be subject to

a judicial injunction requiring the performance of a purely ‘ministerial’ duty.” Franklin,

(plurality op.) (citing Mississippi v. Johnson,

(1866)).

But that potential opening for injunctive relief against the President is narrow: “A ministerial

duty . . . is one in respect to which nothing is left to discretion. It is a simple, definite duty,

arising under conditions admitted or proved to exist, and imposed by law.” Johnson,

(emphases added). Any presidential duty that “involves judgment, planning, or

policy decisions” is “discretionary” and cannot be directly enforced through an injunction.

Swan,

(quoting Beatty v. Washington Metro. Area Transit Auth.,

(D.C. Cir. 1988)); see also Johnson,

(courts lacked power to enjoin

President’s implementation of an allegedly unconstitutional statute that imposed “executive and

political” duties on the President).

Assuming without deciding that courts do have authority to enjoin the President to

perform purely ministerial acts, it is nevertheless clear that the Court lacks the power to grant the

injunction Page seeks. That is so because Page is asking the Court to order the President to

perform more than a mere ministerial duty.

The President’s role in congressional apportionment has both discretionary and

ministerial aspects. Initially, the President has substantial, though not unlimited, “authority to

direct the Secretary [of Commerce] in making policy judgments that result in ‘the decennial

census.’” Franklin,

. For example, after receiving the Secretary’s report of state

population totals under

(b), the President may take issue with certain technical

procedures the Secretary used to produce those figures, and therefore may (within constitutional

and statutory limits) instruct the Secretary to revise the numbers in the § 141(b) report. See

6 Franklin,

. Such presidential supervision of the census is “not merely ceremonial

or ministerial.”

. Eventually, however, the process of determining each state’s census

population must end, and the President must feed the resulting numbers into the mathematical

formula for apportionment. Unlike the enumeration process that precedes it, “the apportionment

calculation itself” is ministerial in nature.

; see also New York v. Trump, No. 20-CV-

5770 (RCW) (PWH) (JMF),

, at *25 (S.D.N.Y. Sept. 10, 2020) (“[O]nce the

final decennial census data is in hand, the President’s role is purely ‘ministerial.’” (quoting

Franklin,

)), rev’d on other grounds,

(2020).

Page’s request for an injunction ordering the President “to immediately correct all census

returns to show the State of Columbia,” Compl. ¶ 39, implicates the President’s non-ministerial

role as a supervisor of the census. Even indulging the premise that Columbia is a state and the

President therefore has a constitutional duty to ensure that it is included in the apportionment

figures, this duty would not be ministerial because it would not be so “simple” and “definite” as

to leave “nothing . . . to discretion.” Johnson,

.

To comply with a court order to “correct all census returns to show the State of

Columbia,” Compl. ¶ 39, the President would need to obtain a population figure for Columbia

from the Secretary of Commerce. As with other census matters, the President would supervise

the decisions made by the Secretary in the process of determining that population figure. Those

decisions would not be trivial. Although the Census Bureau has already collected responses to

the 2020 Census from households throughout the U.S., including in D.C., the task of turning

individual census responses into state population totals of suitable quality for use in

apportionment is complex. This post-data-collection stage of the census, known as “data

processing,” see Nat’l Urban League,

, at *2, involves discretionary judgment

7 calls about, for example, how to fill gaps in the raw data and how to respond to any anomalies

that suggest inaccuracies in census responses. See Utah v. Evans,

(2002)

(Census Bureau acted within its discretion where it “filled in certain gaps in its information and

resolved certain conflicts in the data” through “hot-deck imputation”). Thus, if the Court were to

issue the injunction Page requests, it would not then be “foreordained” how many Columbia

residents would be reflected in the final census data, nor would the President’s role in

determining the result be “merely ceremonial or ministerial.” Franklin,

.

Accordingly, the Court lacks jurisdiction to grant such an injunction.

As already noted, the Complaint does not explicitly seek any remedy other than

injunctive relief. The Court could perhaps construe the Complaint as implicitly asking for a

declaratory judgment against the President, but even then, Page’s injury would remain

unredressable. For largely the same reasons that it cannot grant Page’s requested injunction, the

Court lacks the power to issue a judgment against the President declaring that the exclusion of

Columbia from apportionment data is illegal. “[S]imilar considerations regarding a court’s

power to issue relief against the President himself apply to [a] request for a declaratory

judgment” as well as a request for an injunction. Swan,

n.1. Therefore, “[a]

court—whether via injunctive or declaratory relief—does not sit in judgment of a President’s

executive decisions.” Newdow,

(emphasis added). To be sure, the D.C.

Circuit has submitted the President to declaratory relief on at least one occasion. See Nat’l

Treasury Emps. Union v. Nixon (“NTEU”),

(D.C. Cir. 1974). But NTEU is

distinguishable because “the NTEU plaintiffs sought to compel the President to perform a

ministerial act.” Ctr. for Democracy & Tech. v. Trump, No. 1:20-cv-01456 (TNM),

, at *9 (D.D.C. Dec. 11, 2020).

8 One additional matter remains to consider: whether the Court should constructively

amend the Complaint to add a defendant, such as the Secretary of Commerce, against whom the

Court does have power to order relief. Such an amendment is within the Court’s discretion and

might fix the redressability problem with the current Complaint. See Adams,

(citing Swan,

). However, no party has requested that the Court amend the

Complaint, and the Court does not believe it would be appropriate to do so on its own motion.

While the Court has a duty to construe pro se pleadings by nonlawyers liberally, Oviedo v.

Washington Metro. Area Transit Auth.,

(D.C. Cir. 2020), it should also strive

to construe them faithfully. That is particularly so where, as here, the pro se party’s filings are

relatively sophisticated and thoughtfully drafted. Page likely made a conscious choice not to sue

any subordinate executive branch officials, and the Court should not lightly override that

decision. Cf. de Csepel v. Republic of Hungary,

(D.C. Cir. 2013) (noting that

“plaintiffs are ‘masters of the complaint’ with the power to bring those claims they see fit”

(quoting Caterpillar, Inc. v. Williams,

(1987))).

More importantly, whatever interests might otherwise weigh in favor of amending the

Complaint are diminished here because it seems all but certain that the claim would ultimately

prove futile. The Court will not discuss the merits of Page’s claim exhaustively, as it is not the

role of a single-judge district court to rule definitively on the merits of a challenge to

congressional apportionment. See

(a). That said, Page’s likelihood of success

on the merits would appear very low, even if the Court had jurisdiction.

As Page concedes, no State of Columbia existed when the Constitution took effect. At

that time, the geographic area that Page calls Columbia was part of Maryland. See Compl. ¶ 3.

9 Accordingly, for Page’s claim to succeed, he must show that Columbia became a state sometime

after the Constitution’s ratification.

The Constitution expressly lays out the requirements for adding a new state to the Union:

New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.

U.S. Const. art. IV, § 3, cl. 1. Page alleges that Columbia satisfies the requirements of this

constitutional provision: “Columbia was partitioned from the State of Maryland with the U.S.

Const. Art. IV consent of Congress and of Maryland with the same sovereign State laws of the

State of Maryland as they were then.” Compl. ¶ 18. To support this proposition, he relies on the

1801 Organic Act, which provides that “the laws of the state of Maryland, as they now exist,

shall be and continue in force in that part of [D.C.] which was ceded by that state to the United

States.” Id. (citing 2 Stat. at 104-05). Through this statute, Page theorizes, the United States

“assented to” the “State Law in Columbia” and recognized the then-existing Maryland

Constitution as the state constitution of Columbia, which allegedly remains “in full force and

effect” to the extent consistent with Congress’s constitutionally delegated power over D.C. Id.

¶¶ 19, 21.

It takes only a glance to see the weaknesses of this argument. The Constitution provides

that any “[n]ew states” must be “admitted by the Congress into this union,” and more specifically

clarifies that the formation of a new state by partitioning an existing state requires the “consent”

of Congress. U.S. Const. art. IV, § 3, cl. 1. But Page fails to cite any act of Congress that

expresses an intent to admit Columbia into the Union as a new state. The 1801 Organic Act does

not fit the bill. While the Act did specify that then-existing Maryland law would “continue in

force” in D.C., 2 Stat. at 104-05, that language merely indicates that Congress decided, as a

10 matter of policy, to adopt Maryland law as a starting point for the new body of law governing

D.C. See Bank of Columbia v. Okely,

(1819) (“The laws of the state of

Maryland derive their force, in this district, under the first section of the” 1801 Organic Act.). It

hardly follows that Congress meant to recognize a new sovereign state with laws inherited from

Maryland.

Perhaps anticipating this problem, Page contends that “Columbia never left the Union”

and thus did not need to be “readmitted under a separate admission act.” Compl. ¶ 18 (citing

O’Donoghue v. United States,

, 540 (1933)); see also Opp’n to Mot. to Dismiss 9

(“Columbia has States rights because it never left the Union, not because of the 1801 Organic

Act[;] it has States rights because its people are sovereign and have their own sovereign State

law. . . . Columbia’s people ratified the U.S. Constitution along with the rest of Maryland on

January 30, 1781[.]”). But this misses the point: Columbia cannot be a state if it was never

admitted as one, even if the territory and population allegedly comprising Columbia have always

been within the Union. And if Columbia is not a state, it cannot be entitled to congressional

seats. See Adams,

.

The Court cannot fault Page for being troubled by his exclusion from the census data

used to apportion Congress. “[M]any courts have found a contradiction between the democratic

ideals upon which this country was founded and the exclusion of District residents from

congressional representation.” Adams,

. Yet, those courts have consistently

found themselves unable to provide a remedy, because “it is the Constitution and judicial

precedent that create the contradiction.”

Fair or unfair, the law is clear that if the people of

D.C. (or Columbia) are to gain the constitutional benefits of state residence, they must do so

through a successful campaign to amend the Constitution or admit D.C. as a new state. Castañon

11 v. United States,

, 149 (D.D.C. 2020). Indeed, Page himself alleges that in a

2016 referendum, 86% of D.C. residents supported “creating a state of ‘New Columbia.’”

Compl. ¶ 28. As this allegation suggests, it is widely understood in the local community that the

path to congressional representation runs through the political process, not the courts.

In sum, Page lacks standing because his injury cannot be redressed through an injunction

or declaratory judgment against the President, the sole defendant named in the Complaint. The

Court will not exercise its discretion to amend the Complaint in order to fix this jurisdictional

problem—both because Page has not asked the Court to do so, and because any amendment

would almost certainly prove futile, given the manifest frailty of Page’s claim on the merits.

Accordingly, the Court will dismiss the Complaint.

IV. Conclusion

For the foregoing reasons, the Court will grant Defendant’s Motion to Dismiss. The

Court will further deny Plaintiff’s Motion for Summary Judgment and grant Plaintiff’s Motion

for Leave to File a Surreply. A separate Order shall accompany this Memorandum Opinion.

CHRISTOPHER R. COOPER United States District Judge

Date: January 29, 2021

12