FILED

NOT FOR PUBLICATION

APR 3 2024

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MAUREEN MURPHY, individually and No. 23-35166 on behalf of a class of similarly situated individuals; JOHN HUDDLESTON, D.C. No. 3:22-cv-05377-DGE individually and on behalf of a class of similarly situated individuals,

MEMORANDUM*

Plaintiffs-Appellants,

v.

GINA RAIMONDO, in her official capacity as Secretary of Commerce; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington David G. Estudillo, District Judge, Presiding

Submitted March 25, 2024** Seattle, Washington

Before: WARDLAW, W. FLETCHER, and MILLER, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Appellants Maureen Murphy and John Huddleston, residents of Washington

and California respectively, received and declined to complete the American

Community Survey, or ACS. The ACS is a long-form survey the Census Bureau

distributes each month to a randomly selected set of households nationwide.

Completing the ACS is required by statute, and the Bureau has been granted

the authority to fine or refer for prosecution people who refuse to complete the

survey. See 13 U.S.C. § 221(a) (fine of $100 for refusal to answer survey

questions). Murphy and Huddleston do not allege that the Bureau fined them or

referred them for prosecution. Instead, Murphy alleges that she received several

follow-up visits from a Census Bureau agent and letters from the Bureau asking

her to fill out the ACS. Huddleston alleges that he also received a follow-up visit

from a Census Bureau agent and a letter from the agency.

Murphy and Huddleston seek to enjoin the Census Bureau from “requiring

Plaintiffs to answer the [ACS],” from “imposing any monetary fine on Plaintiffs

for refusing” to do so, and from “otherwise taking any adverse action against

Plaintiffs for refusing to answer the [ACS].” The district court dismissed Murphy

and Huddleston’s suit as constitutionally unripe. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

2 Because the Bureau has not fined Murphy and Huddleston or otherwise

compelled them to fill out the survey or taken adverse action against them for

failing to do so, the district court properly analyzed Murphy and Huddleston’s

claims as challenges to an enforcement or prosecution action brought before the

challenged action has been taken.

“[F]or a claim to be ripe, the plaintiff must be subject to a ‘genuine threat of

imminent prosecution.’” Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th Cir.

2010) (emphasis in original) (quoting San Diego Cnty. Gun Rts. Comm. v. Reno,

98 F.3d 1121, 1126 (9th Cir. 1996)). To determine “whether a claimed threat of

prosecution is genuine, we consider: (1) whether the plaintiff has articulated a

concrete plan to violate the law in question; (2) whether the prosecuting authorities

have communicated a specific warning or threat to initiate proceedings; and (3) the

history of past prosecution or enforcement under the challenged [law].” Id. The

district court found the second and third factors of this test dispositive because the

Bureau has not communicated any specific threat to fine Murphy or Huddleston or

to refer them for prosecution, and because the Bureau has never referred anyone

for prosecution for failing to complete the ACS.

We agree. The agent visits and letters received by Murphy and Huddleston

did not communicate a specific warning or threat that they would be fined or

3 prosecuted if they refused to complete the ACS. None of the communications

Murphy and Huddleston received from the Bureau mentioned the possibility of

fines or prosecution. Murphy and Huddleston do not contend that the Bureau has

ever referred anyone for prosecution for not completing the ACS, and the Bureau

has noted that no one has been prosecuted for failing to complete the ACS or its

predecessor survey since the 1970s. The district court correctly determined that

Murphy and Huddleston’s claims are constitutionally unripe.

Murphy and Huddleston’s principal argument is that their suit is ripe

because they claim their selection for the ACS and the agent visits and letters they

received constituted final agency action under the Administrative Procedure Act.

See Sackett v. E.P.A., 566 U.S. 120, 126–27 (2012). But Murphy and Huddleston

do not seek protection against being selected for the ACS or receiving agent visits

and letters. They seek protection against criminal prosecution and the assessment

of fines. There has been no final action, or indeed a serious threat of any action

whatsoever, with respect to criminal prosecution and assessment of fines.

Finally, Murphy and Huddleston and amicus curiae cite California Trucking

Ass’n v. Bonta, 996 F.3d 644 (9th Cir. 2021), and Arizona v. Yellen, 34 F.4th 841

(9th Cir. 2022), for the proposition that a preemptive challenge to agency action

becomes ripe whenever the agency “‘sen[ds] letters . . . notifying [plaintiffs]’ of its

4 interpretation of a new requirement.” Yellen, 34 F.4th at 850 (second and third

alterations in brief of amicus curiae) (quoting Cal. Trucking Ass’n, 996 F.3d at

653). Their reliance on these cases is misplaced. In California Trucking Ass’n, the

State’s letters notifying businesses that they were violating a newly enacted law

communicated “a realistic threat to initiate proceedings against them” because the

State had “mov[ed] aggressively to enforce” the law and had “commenced a

number of prosecutions against companies” in the short time since the law’s

enactment. Cal. Trucking Ass’n, 996 F.3d at 653. And in Arizona v. Yellen, the

Treasury Department’s letter “confirm[ed] that the Offset Provision will be

enforced,” and the Department in rulemaking had “outline[d] the detailed and

specific process that will be used to recoup funds from States that violate the Offset

Provision.” Yellen, 34 F.4th at 850 (emphasis added).

AFFIRMED.

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