African People's Education and Defense Fund, Inc. v. Pinellas County

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

AFRICAN PEOPLE’S EDUCATION AND

DEFENSE FUND, INC.,

Plaintiff,

v. Case No. 8:23-cv-2395-TPB-AAS

PINELLAS COUNTY,

Defendant.

______________________________________/

ORDER GRANTING DEFENDANT’S

“MOTION TO DISMISS AMENDED COMPLAINT”

This matter is before the Court on Defendant Pinellas County’s “Motion to

Dismiss Amended Complaint,” filed by counsel on March 26, 2024. (Doc. 36). On May

9, 2024, Plaintiff African People’s Education and Defense Fund, Inc. filed a response in

opposition. (Doc. 39). After reviewing the motion, response, court file, and the record,

the Court finds as follows:

Background

This action stems from Defendant Pinellas County’s decisions not to award

Plaintiff federal grant money available under the Coronavirus State and Local Fiscal

Recovery Funds (“SLFRF”) authorized by the American Rescue Plan Act (“ARPA”), 15

U.S.C. § 9058c. The program was created by Congress to alleviate the economic

impact of Covid-19 by awarding funds to states, territories, and tribal and local

governments. Local governments were granted broad flexibility to use the funding,

and Pinellas County decided to use a portion of the SLFRF award to provide

assistance to nonprofits through grants for capital expenditures. Defendant

contracted with the Pinellas Community Foundation, as a subrecipient of the funds, to

administer the program and to review, rank, and award ARPA grant funds to various

nonprofit entities, subject to approval by Defendant.

Plaintiff African People’s Education and Defense Fund, Inc., a nonprofit

organization that has served the black community of south St. Petersburg, Florida, for

over 28 years, applied for two separate grants under the program – the first for radio

equipment, and the second for a generator. The grants were ultimately not approved.

As to the radio equipment grant, the Pinellas Community Foundation ranked

Plaintiff’s application fourth out of 55 applications, and the grant was initially

approved by the Pinellas County Board of County Commissioners. On January 9,

2023, the Pinellas Community Foundation sent a draft contract, which Plaintiff signed

and returned on February 9, 2023. On February 14, 2023, the Pinellas County Board

of Commissioners voted to rescind or terminate the radio equipment contract. As to

the generator grant, the Pinellas Community Foundation ranked Plaintiff’s

application fourth out of 19 approved applications. However, the Pinellas County

Board of County Commissioners denied the application on June 13, 2023.

In the instant lawsuit, Plaintiff claims Defendant’s decisions not to award the

ARPA grant funds to Plaintiff were the result of a discriminatory belief that Plaintiff

is associated with the Uhuru Movement, a black nationalist and allegedly antisemitic

political organization under investigation by the Federal Bureau of Investigation.1

1 The Court notes that on September 12, 2024, following a weeklong criminal trial in the

Middle District of Florida, several members of the African People’s Socialist Party and the

Uhuru Movement – Omali Yeshitela, Penny Hess, and Jesse Neval, a/k/a Jesse Nevelesky –

Plaintiff asserts three causes of action: violation of the First Amendment (freedom of

association) (Count I), violation of the Due Process Clause of the Fourteenth

Amendment (Count II), and violation of the Equal Protection Clause (racial

discrimination) (Count III).

Legal Standard

Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short

and plain statement of the claim showing the [plaintiff] is entitled to relief.” Fed. R.

Civ. P. 8(a). While Rule 8(a) does not demand “detailed factual allegations,” it does

require “more than labels and conclusions, and a formulaic recitation of the elements

of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

In order to survive a motion to dismiss, factual allegations must be sufficient “to state

a claim to relief that is plausible on its face.” Id. at 570.

When deciding a Rule 12(b)(6) motion, review is generally limited to the four

corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233 (M.D.

Fla. 1995). Furthermore, when reviewing a complaint for facial sufficiency, a court

“must accept [a] [p]laintiff’s well pleaded facts as true, and construe the [c]omplaint in

the light most favorable to the [p]laintiff.” Id. (citing Scheuer v. Rhodes, 41 U.S. 232,

236 (1974)). “[A] motion to dismiss should concern only the complaint’s legal

sufficiency, and is not a procedure for resolving factual questions or addressing the

were convicted of conspiracy to defraud the United States of America. See United States v.

Aleksandr Viktorovich Ionov, et al., 8:22-cr-259-WFJ-AEP (M.D. Fla). According to the

indictment, Russia had sought out a sympathetic group in the United States to push Russian

propaganda in an effort to sow political division and promote Russia’s geopolitical agenda. See

id. at (Doc. 12). The African People’s Socialist Party and Uhuru Movement promoted Russia’s

views using multiple media outlets, including a radio station.

merits of the case.” Am. Int’l Specialty Lines Ins. Co. v. Mosaic Fertilizer, LLC, 8:09-

cv-1264-T-26TGW, 2009 WL 10671157, at *2 (M.D. Fla. Oct. 9, 2009) (Lazzara, J.).

Analysis

Count I – Freedom of Association

Defendant argues that Plaintiff’s freedom of association claim should be

dismissed with prejudice because Plaintiff cannot state a plausible claim for relief.

The United States Supreme Court has recognized two different forms of

constitutionally protected association – intimate association and expressive

association. McCabe v. Sharrett, 12 F.3d 1558, 1562-63 (11th Cir. 1994) (citing Roberts

v. United States Jaycees, 468 U.S. 609, 617-18 (1984)); City of Dallas v. Stanglin, 490

U.S. 19, 23-25 (1989). Plaintiff asserts an expressive association claim based on an

association with the Uhuru Movement.2 In its prior complaint, Plaintiff alleged that it

was not part of or directly associated with the Uhuru Movement, and that Defendant

was mistaken in its belief that Plaintiff was associated with the group. In the

amended complaint, Plaintiff now claims that it “is indeed part of this pro-Black

tendency and claims its right to association” with the Uhuru Movement.

2 The Supreme Court has described expressive association as the “right to associate for the

purpose of engaging in those activities protected by the First Amendment – speech, assembly,

petition for the redress of grievances, and the exercise of religion.” Roberts, 468 U.S. at 618.

To that end, the right of expressive association exists so that people may associate with others

“in pursuit of a wide variety of political, social, economic, educational, religious, and cultural”

goals. Id. at 622. For a group to be protected by the First Amendment’s expressive

associational right, the group must engage in expressive association, whether public or

private. Boy Scouts of America v. Dale, 530 U.S. 640, 648 (2000). Plaintiff is a non-profit

organization that has served the local community of south St. Petersburg for twenty-eight

years, with programs related to fitness, health, public forums, and education. It appears,

therefore, that Plaintiff engages in expressive activity.

Plaintiff does not allege that Defendant has instituted any ordinance or law

restricting or prohibiting the right of any person or group, including Plaintiff, to

associate with the Uhuru Movement. Rather, Plaintiff alleges that Defendant

rescinded one government contract pertaining to grant money and denied an

application for another due to Plaintiff’s association with the Uhuru Movement.

Plaintiff essentially alleges a First Amendment retaliation claim based on a perceived

or actual expressive association where the resulting injury is the revocation or non-

award of a discretionary government grant or contract.

When it comes to government funding and contracts, the government has

discretion in awarding contracts and can base its decisions on any number of reasons.

O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 724-25 (1996). However,

the government cannot deny a governmental benefit or contract based on

unconstitutional grounds, such as racial discrimination. See id. at 725-26.

The Court notes that “[t]he government can, without violating the Constitution,

selectively fund a program to encourage certain activities it believes to be in the public

interest, without at the same time funding an alternative program which seeks to deal

with the problem in another way. In doing so, ‘the [g]overnment has not

discriminated. . . it has merely chosen to fund one activity to the exclusion of the

other.’” Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 587-88 (1998) (quoting

Rust v. Sullivan, 500 U.S. 173, 193 (1991)). Even though the First Amendment may

apply in the government funding context, “the [g]overment may allocate competitive

funding according to criteria that would be impermissible were direct regulation of

speech or a criminal penalty at stake.” Id. at 587-88. Government funding provisions

may become unconstitutional, however, if the provisions effectively prohibit a recipient

from engaging in otherwise protected conduct outside the scope of a government-

funded program, or if the subsidy is manipulated to have a coercive effect. Id. at 587

(citations omitted).

Importantly, the United States Supreme Court has not explicitly extended First

Amendment protections to bidders or applicants of government contracts. Board of

County Comm’rs v. Umbehr, 518 U.S. 668, 685 (1996); McClintock v. Eichelberger, 169

F.3d 812, 817 (3d Cir. 1999) (refusing to extend First Amendment protection to a

bidder or applicant for a government contract). Since Umbehr, appellate courts “have

differed over the First Amendment protection that should be granted to those who

allege retaliation in the form of a rejected application for a public benefit, such as

government contracts.” A.A.A. Always Open Bail Bonds Inc. v. DeKalb Cty., Georgia,

No. 1:02-CV-2905-ODE, 2006 WL 5440395, at *8 (N.D. Ga. Aug. 4, 2006). It does not

appear that the Eleventh Circuit has directly weighed in on this issue, although it has

followed Umbehr and has cited with approval the Third Circuit’s McClintock decision,

which denied protections to contractors who did not establish a continuing

relationship with the government. Id.

In this case, Plaintiff did not enjoy a preexisting and continuing contractual

relationship with Defendant – it is best described as a first-time bidder or applicant

for a government contract. It therefore appears that Plaintiff may very well not be

entitled to any First Amendment protections in these circumstances. See McClintock,

169 F.3d at 817; A.A.A. Always Open Bail Bonds Inc., 2006 WL 5440395, at *8.

Assuming, arguendo, that Plaintiff could assert some sort of First Amendment

retaliation claim based on the revocation of the discretionary government contract

without an ongoing relationship with the government, it still fails to state a plausible

claim for relief. Generally, a plaintiff bringing a retaliation claim predicated on the

First Amendment must establish that: (1) the plaintiff engaged in constitutionally

protected activity; (2) the defendant took an adverse action that would chill a person or

ordinary firmness from exercising his or her rights; and (3) a causal connection

between the retaliatory action and the adverse effect on First Amendment activity.

See Bennett v. Hendrix, 423 F.3d 1247, 1250, 1254 (11th Cir. 2005). “A majority of

circuit courts of appeals further require a plaintiff alleging retaliation to additionally

show that his expression was in fact curtailed in someway by the adverse action

taken.” 2025 Emery Highway, L.L.C. v. Bibb Cty., Georgia, 377 F. Supp. 2d 1310,

1352-53 (M.D. Ga. 2005) (citations omitted).

Here, Plaintiff appears to allege that Defendant violated its First Amendment

rights by revoking or denying federal grant money because of its perception of

Plaintiff’s association with the Uhuru Movement based on “the apparent content of

[Plaintiff’s] website” and location. However, Plaintiff fails to adequately allege that it

engaged in constitutionally protected activity (and the nature of that activity), that

Defendant’s actions were motivated or caused by exercise of that right, and,

significantly, that Defendant’s conduct in revoking or denying discretionary federal

grant money was sufficient to deter a person of ordinary firmness from exercising his

or her constitutional rights. In addition, Plaintiff has not sufficiently pled or shown

that the denial or revocation of the grant money effectively precluded or punished

Plaintiff from engaging in protected First Amendment activity – Plaintiff is free to

engage in protected expressive association (including association with the Uhuru

Movement) without the benefit of the grant funding, and it in fact does so. See

Machete Products, L.L.C. v. Page, 809 F.3d 281, 290 (5th Cir. 2015) (finding no

violation of clearly established First Amendment rights based on denial of government

grant funding).

Plaintiff does not state a plausible First Amendment claim based on the

revocation or denial of discretionary grant funding due to Plaintiff’s perceived or

actual association with the Uhuru Movement. The Court has already granted one

opportunity to amend; it declines to grant another. Consequently, this claim is

dismissed, without leave to amend.

Count II – Due Process

Defendant argues that Plaintiff fails to state a procedural due process claim.

“The requirements of procedural due process apply only to the deprivation of interests

encompassed by the Fourteenth Amendment’s protection of liberty and property. […]

[T]he range of interests protected by procedural due process is not infinite.” See Bd. of

Regents v. Roth, 408 U.S. 564, 569-70 (1972). A prior hearing is only required when

protected interests are implicated. Id. To state a Fourteenth Amendment procedural

due process claim, a plaintiff must allege “(1) a constitutionally protected interest in

life, liberty or property; (2) governmental deprivation of that interest; and (3) the

constitutional inadequacy of procedures accompanying the deprivation.” Bank of

Jackson Cty. v. Cherry, 980 F.2d 1362, 1366 (11th Cir. 1993); see Worthy v. City of

Phenix City, Alabama, 930 F.3d 1206, 1223 (11th Cir. 2019).

Upon review, the Court finds that Plaintiff has failed to allege a constitutionally

protected property interest. In the amended complaint, Plaintiff attempts to claim a

constitutionally protected interest in the first ARPA grant for radio equipment.

Plaintiff asserts that the grant was approved by the Pinellas County Board of County

Commissioners on November 15, 2022, and that Plaintiff signed and returned a draft

contract for the radio equipment grant on February 9, 2023, creating a constitutionally

protected property interest.3 However, courts have held with regularity that “a simple

breach of contract does not amount to an unconstitutional deprivation of property.”

Redondo-Borges v. U.S. Dept. of Hous. & Urban Dev., 421 F.3d 1, 10 (1st Cir. 2005)

(concluding no legitimate property interest in awarded bid even when bid was

awarded and then revoked); see also Medical Laundry Servs., a Div. of OPLCO, Inc. v.

Bd. of Trustees of Univ. of Alabama, 906 F.2d 571, 573 (11th Cir. 1990) (“[A] simple

breach of contract does not rise to the level of a constitutional deprivation.”); Osman v.

Hialeah Hous. Auth., 785 F.2d 1550, 1551 (11th Cir. 1986) (noting in the context of

procedural due process claim concerning deprivation of property without a hearing,

“that [the plaintiff] may have a state cause of action for breach of contract does not

mean that he has a property interest of constitutional dimensions.”).

Furthermore, even if there were somehow a constitutionally protected interest

in the unsigned discretionary contract, Plaintiff’s claim still fails because Plaintiff does

not and cannot establish constitutionally inadequate process. A federal due process

claim does not exist if the state provides a means by which to remedy the alleged

3 Defendant contends that there was no contract because although the draft contract was

signed by Plaintiff, the contract was never signed by Defendant.

deprivation. McKinney v. Pate, 20 F.3d 1550, 1564 (11th Cir. 1994). To the extent

Defendant would have been contractually required to provide the grant funding for the

radio equipment, Plaintiff would have an adequate state law remedy – a breach of

contract claim. See Kaminski v. Coulter, 865 F.3d 339, 348 (6th Cir. 2017) (“Because a

due-process claim is predicated on the deprivation of a constitutionally protected

interest without due process of law, the availability of a state breach-of-contract

remedy defeats the due-process claim.”); Indiana Land Co. v. City of Greenwood, 378

F.3d 705, 710 (7th Cir. 2004) (“All states provide judicial remedies for breach of

contract and these remedies will almost always provide all the process that is

constitutionally due.”). In this case, the Florida courts have the power to remedy

Plaintiff’s loss, considering both damages and equitable relief, so the Florida

procedures satisfy procedural due process and alleviate any alleged deprivation

Plaintiff may have suffered due to Defendant’s conduct. See McKinney, 20 F.3d at

1564. Because Plaintiff does not and cannot allege that Florida law provides an

inadequate post-deprivation remedy, Count II is dismissed, without leave to amend.

Count III – Equal Protection Violation (Race Discrimination)

Defendant argues that Plaintiff fails to state an equal protection claim based on

race because (1) the complaint lacks factual allegations supporting race-based

discrimination and (2) Plaintiff has failed to assert that similarly situated groups

outside of its protected class received more favorable treatment. The Court agrees.

The Eleventh Circuit has summarized the protection afforded by the Equal

Protection Clause as follows:

[T]he Equal Protection Clause requires government entities

to treat similarly situated people alike. Equal protection

claims are not limited to individuals discriminated against

based on their membership in a vulnerable class. Rather,

we have recognized any individual's right to be free from

intentional discrimination at the hands of government

officials.

Romine v. City of Anniston, Ala., No. 1:12-3787-VEH, 2014 WL 4957123, at *16 (N.D.

Ala. Oct. 2, 2014) (citing Campbell v. Rainbow City, 434 F.3d 1306, 1313 (11th Cir.

2006)). As such, to state an equal protection claim based on race in this case, Plaintiff

must allege that it was treated differently from similarly situated individuals or

entities because of its “race.”4 Some courts have recognized that when the law vests a

decisionmaker with discretionary authority to award or withhold a state benefit, a

plaintiff asserting an equal protection claim based on the denial of that benefit “faces a

steel uphill climb.” Pagan v. Calderon, 448 F.3d 16, 34 (1st Cir. 2006). Although a

high hurdle, it makes good sense. “Otherwise, a disappointed applicant for a state or

local benefit could manufacture a constitutional claim by the simple expedient of

alleging differential treatment. Were that the rule, the correctness of every state or

local benefit denial would become a federal case.” Id. at 35.

As an initial matter, it is still not clear whether a corporate entity can have a

“race” at all. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,

263 (1977) (“[A] corporation . . . has no racial identity and cannot be the direct target

of the [County’s] alleged discrimination.”); Sheba Ethiopian Rest., Inc. v. DeKalb Cty.,

Georgia, No. 21-13077, 2023 WL 3750710, at *1 (11th Cir. June 1, 2023) (“[T]here’s no

4 As pleaded, Plaintiff’s equal protection claim appears to be based solely on discrimination

against a protected class and does not appear to pursue a “class of one” theory.

binding law in this circuit clearly establishing that a corporation can have a race or

that officials can discriminate against a corporation because of the corporation’s

race.”). If a corporation cannot have a race, Plaintiff cannot assert a racial

discrimination claim under the Equal Protection Clause.

However, the Court need not make this determination. Even if Plaintiff has the

ability as a corporate entity to pursue a racial discrimination claim, it has failed to

adequately allege its claim. Notably, Plaintiff still does not allege sufficient facts to

discern the racial identities of Plaintiff itself or the “similarly situated” entities that

applied for and received grant money.5 In its prior Order, the Court explained what

Plaintiff must plead to plausibly allege the racial identities of itself and similarly-

situated entities. In the amended complaint, Plaintiff generally alleges that its board

president is black, and that “most of the nonprofit’s staff and volunteers” are black, in

addition to the radio station manager. It further alleges that those who are not black

are still committed to Plaintiff as a “black-led and black-community directed

organization.” However, Plaintiff’s allegations of the racial identities of only two

specific people, and use of “most” in reference to other employees, does not provide

sufficient information for the Court to determine the racial identity of Plaintiff.6 This

5 “[D]iscerning the racial identity of a corporation could be quite daunting in many

circumstances.” Ultimax Transp., Inc. v. British Airways, Inc., 231 F. Supp. 2d 1329, 1339

(N.D. Ga. 2002). To sufficiently allege the racial identities of itself and similarly-situated

entities, Plaintiff must provide sufficient factual information, such as the racial identities of

those operating the entity, the racial identities of the employees of the entity, and the racial

identities of those served by the entity. See id.

6 A review of Plaintiff’s public website reflects five board members, with two of the board

members – Secretary Kitty Reilly and Treasurer Maureen Wagener – appearing to be white.

See “About Us - APEDF Board of Directors,” https://apedf.org/about-us/ (last visited Sept. 19,

2024). Moreover, two members of the African People’s Socialist Party and the Uhuru

Movement – Penny Hess and Jesse Neval, a/k/a Jesse Nevelesky – who were recently

is important because discrimination against a non-black person, even one who is

committed to black communities and causes, would not constitute racial

discrimination under the Equal Protection Clause. Despite the Court’s specific

direction to identify the racial identities of those operating the entity, the racial

identities of the employees, and the racial identities of those served by the entity,

Plaintiff has failed to do so.

Moreover, Plaintiff has failed to sufficiently allege the racial identities of

comparators. Of thirty-four groups, it has identified only four as “not black-led and

black-community directed organization[s],” and it has not identified the racial

identities of those operating those entities, the employees, or those served by the

entity. Merely alleging that a particular group provides services in a “predominately

white” area is not sufficient to allege or establish a racial identity.

Despite the Court’s clear instructions, Plaintiff has failed to sufficiently allege

that Plaintiff itself is black, or that the corporate comparators who received grant

funding are not black. In addition, the Court notes that the identified comparators

appear, on the face of the complaint, to maintain striking dissimilarities from Plaintiff.

Most notably, it does not appear that any other organization sought the type of

funding requested by Plaintiff. Consequently, Count III is dismissed, without leave to

convicted of conspiracy to defraud the United States of America, appear to be white. See

United States v. Aleksandr Viktorovich Ionov, et al., 8:22-cr-259-WFJ-AEP (M.D. Fla). The

Court does not rely on this information when making its determination – it only highlights

this issue to show the difficulty in ascertaining the racial identities of corporations,

particularly since Plaintiff has failed to provide sufficient factual allegations in its amended

complaint to support its racial discrimination claim.

amend. Because the Court has dismissed Count III for the reasons indicated, it

declines to consider and rule upon Defendant’s other arguments.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

1. Defendant’s “Motion to Dismiss Amended Complaint” (Doc. 36) is hereby

GRANTED to the extent that the amended complaint is dismissed with

prejudice, without leave to amend.

2. The Clerk is directed to terminate any pending motions and deadlines, and

thereafter close this case.

DONE and ORDERED in Chambers, in Tampa, Florida, this 30th day of

September, 2024.

VAP. GAL.

TOMBARBER i si ss—SsC

UNITED STATES DISTRICT JUDGE

Page 14 of 14