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

> District Court, M.D. Florida · September 30, 2024

URL: https://www.frixlaw.com/law-library/cases/10643138

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 30, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10643138

## How later opinions describe it (automated extraction)

- 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.”
- concluding no legitimate property interest in awarded bid even when bid was awarded and then revoked

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10643138. Public record. Not legal advice.