Center for Bio-Ethical Reform, Inc. v. Napolitano

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0203p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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CENTER FOR BIO-ETHICAL REFORM, INC.,

Plaintiffs-Appellants, --

GREGG CUNNINGHAM, and KEVIN MURRAY,

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No. 10-1439

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v.

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JANET NAPOLITANO, in her capacity as

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Secretary of the Department of Homeland

Security, and ERIC H. HOLDER, JR., in his -

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capacity as Attorney General of the United

Defendants-Appellees. -

States,

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Appeal from the United States District Court

for the Eastern District of Michigan at Ann Arbor.

No. 09-11441—John Corbett O’Meara, District Judge.

Argued: June 7, 2011

Decided and Filed: August 4, 2011

Before: COLE, CLAY, and GILMAN, Circuit Judges.

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COUNSEL

ARGUED: Robert Joseph Muise, THOMAS MOORE LAW CENTER, Ann Arbor,

Michigan, for Appellants. Chantale Fiebig, ASSISTANT UNITED STATES

ATTORNEY, Detroit, Michigan, for Appellees. ON BRIEF: Robert Joseph Muise,

THOMAS MOORE LAW CENTER, Ann Arbor, Michigan, for Appellants. Steven P.

Croley, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for

Appellees.

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OPINION

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CLAY, Circuit Judge. In this action arising under the First and Fifth

Amendments to the U.S. Constitution, Plaintiffs Center for Bio-Ethical Reform, Inc.,

Gregg Cunningham, and Kevin Murray appeal the district court’s dismissal of their

claims against Defendant Janet Napolitano, in her capacity as Secretary of the

Department of Homeland Security, and Defendant Eric H. Holder, Jr., in his capacity as

Attorney General of the United States, for failure to state a claim upon which relief can

be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the

reasons set forth below, we AFFIRM.

BACKGROUND

Plaintiff Center for Bio-Ethical Reform, Inc. (“CBR”) is a “pro-life, non-profit

corporation” that “was established . . . to promote prenatal justice and the right to life for

the unborn[.]” (R. 16; Amended Complaint (“Am. Compl.”) ¶¶ 9, 71.) CBR’s “anti-

abortion activities” are numerous. (Id. ¶¶ 9, 71-75.) The CBR Reproductive Choice

Campaign “consists of [displaying] large, colorful [and] graphic images of first-term

aborted fetuses” on trucks that are driven throughout the nation. (Id. ¶ 72.) The CBR

Airborne Reproductive Choice Campaign consists of the same images but “displayed on

banners towed behind aircraft” that are flown throughout the nation. (Id. ¶ 73.) The

CBR Genocide Awareness Project consists of a “traveling photo-mural exhibit” that

compares abortion to the Holocaust. (Id. ¶ 74.) Finally, the CBR Obama Awareness

Campaign utilizes trucks and aerial banners to “juxtapose[] images and quotations of

President [Barack] Obama alongside aborted fetuses and aborted preborn children.” (Id.

¶ 75.)

Plaintiff Gregg Cunningham is CBR’s executive director, and Plaintiff Kevin

Murray is a private individual and former U.S. Marine. (Id. ¶¶ 10-11.) Defendants are

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Janet Napolitano, Secretary of the U.S. Department of Homeland Security (“DHS”), and

Eric H. Holder, Jr., Attorney General of the United States. (Id. ¶¶ 12-13.)

According to the Amended Complaint, this is an action “challenging the policy,

practice, procedure, and/or custom of Defendants that targets for disfavored treatment

those individuals and groups that Defendants deem to be ‘rightwing extremists’

(hereinafter RWE Policy).” (Id. ¶ 1.) Plaintiffs characterize this “policy, practice,

procedure, and/or custom” as constituting a “Rightwing Extremist Policy” or “RWE

Policy.” (Id.) Plaintiffs do not define the RWE Policy with any precision or specificity,

but allege that the “RWE Policy was created, adopted, implemented, and enforced

through a partnership with private organizations that are political adversaries of

Plaintiffs,” including the Anti-Defamation League, Southern Poverty Law Center, and

the National Abortion Federation. (Id. ¶¶ 2, 55-56.)

Plaintiffs allege that the “RWE Policy was recently and publicly confirmed by

the Department of Homeland Security in an assessment entitled, ‘Rightwing Extremism:

Current Economic and Political Climate Fueling Resurgence in Radicalization and

Recruitment,’” or “DHS Assessment.” (Id. ¶ 3.) The DHS Assessment, which is not

attached to the Complaint or Amended Complaint, or otherwise contained in the record,

is alleged to be “part of the RWE Policy.” (Id. ¶ 15.)

Plaintiffs allege that they have been harmed by Defendants’ “policy of targeting

certain individuals and groups, including Plaintiffs, for disfavored treatment based on

their viewpoint on controversial political issues[.]” (Id. ¶ 4.) Plaintiffs claim further

harm on account of the “partnership that was forged between Defendants and certain

private organizations to create, adopt, implement, and enforce the RWE Policy.” (Id.)

On April 16, 2009, Plaintiffs commenced this action in the district court, and on

June 9, 2009, filed an Amended Complaint against Defendants, asserting claims under

the First and Fifth Amendments of the U.S. Constitution. Specifically, the Amended

Complaint contains three claims: (1) “First Amendment – Freedom of Speech;”

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(2) “First Amendment – Expressive Association;” and (3) “Fifth Amendment – Equal

Protection.” (Id. ¶¶ 113-21.)

Based on these alleged constitutional violations, the Amended Complaint seeks

a declaration:

that [(1)] through the creation, adoption, implementation, and

enforcement of the RWE Policy, Defendants have violated Plaintiffs’

[] constitutional rights[; (2)] the RWE Policy infringes upon the right to

engage in controversial political speech[ and] upon [] freedom of

expressive association in violation of the First Amendment . . . ; [and (3)]

the RWE Policy violates . . . the Fifth Amendment by targeting certain

individuals and groups for disfavored treatment based on the viewpoint

of their speech.

(Id. ¶ 5.) The Amended Complaint also seeks, in addition to attorneys’ fees, an order:

[(1)] enjoining the RWE Policy and its application to Plaintiffs’ speech

and activities; [(2)] directing the disclosure of any files or databases

containing information about Plaintiffs or Plaintiffs’ activities[; (3)]

enjoining the creation or maintenance of files or databases containing

information about Plaintiffs or Plaintiffs’ activities[; and (4)] enjoining

the disclosure of information or data about Plaintiffs or Plaintiffs’

activities to private organizations.

(Id.)

On September 11, 2009, Defendants moved to dismiss the Amended Complaint

for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of

the Federal Rules of Civil Procedure. After the motion was fully briefed, the district

court, on March 30, 2010, granted the motion and accordingly entered judgment for

Defendants. The district court explained that

Plaintiffs fail to address affirmative conduct undertaken by the

defendants. They fail to allege any time, place, or manner restrictions

that Defendants have imposed on their speech. They fail to allege that

Defendants taxed or punished their First Amendment activities. They fail

to allege that Defendants imposed any prior restraint on their protected

speech. They fail to allege any form of retaliation by Defendants for

their exercise of protected speech on identified occasions.

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Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, No. 09-11441, 2010 WL 1257361, at *3

(E.D. Mich. Mar. 30, 2010). Plaintiffs then filed this timely appeal. We have

jurisdiction pursuant to 28 U.S.C. § 1291.

DISCUSSION

Based on our review of the allegations contained in the Amended Complaint, we

conclude that Plaintiffs have failed to state a claim against Defendants under either the

First or Fifth Amendments to the U.S. Constitution. As explained in detail below, the

Amended Complaint contains numerous irrelevant allegations, and those that are

relevant fail to plausibly allege that Defendants have violated Plaintiffs’ constitutional

rights. For this reason, we AFFIRM the dismissal of this action.

I. Standard of Review

The sufficiency of a complaint is a question of law, and we therefore review de

novo the district court’s dismissal of the Amended Complaint for failure to state a claim.

See, e.g., City of Monroe Emps. Ret. Sys. v. Bridgestone Corp., 399 F.3d 651, 664 (6th

Cir. 2005). Our task is to “consider the factual allegations in [the] complaint to

determine if they plausibly suggest an entitlement to relief.” Ashcroft v. Iqbal, 129 S.

Ct. 1937, 1951 (2009).

A complaint must contain a “short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although the complaint need

not contain “detailed factual allegations,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555 (2007), Rule 8(a)(2) of the Federal Rules of Civil Procedure “demands more than

an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S. Ct. at

1949. As the Supreme Court explained in Iqbal: “A pleading that offers labels and

conclusions or a formulaic recitation of the elements of a cause of action will not do.

Nor does a complaint suffice if it tenders naked assertions devoid of further factual

enhancement.” Id. (internal quotation marks, citations, and alterations omitted).

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Following Twombly and Iqbal, it is well settled that “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). A claim is plausible on its face if the

“plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S.

at 556). Plausibility is not the same as probability, but rather “asks for more than a sheer

possibility that a defendant has acted unlawfully.” Id. (stating that factual allegations

“merely consistent with liability stop[] short of the line between possibility and

plausibility”).

In reviewing the dismissal of the Amended Complaint, we are guided by the

following “working principles.” Id. First, the general rule that the court must accept as

true all allegations in the complaint “is inapplicable to legal conclusions.” Id. This

means that conclusory recitals of the elements of a claim, including legal conclusions

couched as factual allegations, “do not suffice.” Id. at 1949-50 (“[Rule 8] does not

unlock the doors of discovery for a plaintiff armed with nothing more than

conclusions.”). Second, “only a complaint that states a plausible claim for relief survives

a motion to dismiss.” Id. at 1950. Plausibility is a context-specific inquiry, and the

allegations in the complaint must “permit the court to infer more than the mere

possibility of misconduct,” namely, that the pleader has “show[n]” entitlement to relief.

Id. (quoting Fed. R. Civ. P. 8(a)(2)) (alteration in original).

II. Nature of the Claims in the Amended Complaint

At the outset, we note that our review is complicated by Plaintiffs’ failure to

properly define the issues to be decided, or the nature of their claims. Plaintiffs’

appellate brief contains more rhetoric than structured legal analysis; indeed, Plaintiffs

rely primarily on a recitation of the policies underling the First and Fifth Amendments,

and an amalgamation of case citations, without reference to the standard underlying

constitutional liability. Plaintiffs’ brief discusses various alleged violations of

“fundamental rights” in a confused manner, without any reference to the elements of

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their claims, or a meaningful recognition of the analytical interplay between the First and

Fifth Amendments. And while Plaintiffs characterize their claims as being asserted

against Defendants in their “official capacities,” many of the allegations in the Amended

Complaint appear to raise Bivens-type claims that may be asserted against federal

officials only in their individual capacities. See Bivens v. Six Unknown Named Agents,

403 U.S. 388 (1971) (holding that a plaintiff may bring an action against a federal

official for a violation of constitutional rights).

Based on our review of the Amended Complaint, it appears that Plaintiffs, in

substance, seek to assert a First Amendment retaliation claim, and a Fifth Amendment

equal protection claim, against Defendants in both their individual and official

capacities. Recognizing that this action was dismissed in its infancy, we will construe

the Amended Complaint broadly as alleging such claims. We will construe the official

capacity claims as an as-applied challenge to the existence and enforcement of the

claimed RWE Policy, and the individual capacity claims as seeking equitable relief

under Bivens. Our analysis applies equally to both types of claims.

III. Application

As explained below, Plaintiffs have failed to plausibly allege the existence of the

RWE Policy—dooming their official capacity claims—and have failed to plausibly

allege any constitutional violation by Defendants—dooming their individual capacity

claims. Our analysis proceeds in three parts. First, we identify and disregard those

allegations in the Amended Complaint that are wholly irrelevant to Plaintiffs’

constitutional claims. Second, we consider whether Plaintiffs have stated a claim under

the First Amendment. Finally, we consider whether Plaintiffs have stated a claim under

the Fifth Amendment.

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A. Irrelevant Allegations

The 25-page Amended Complaint contains numerous allegations, and an exhibit,

that are wholly irrelevant to Plaintiffs’ constitutional claims. Prior to considering

questions of plausibility, we briefly note, and disregard, these irrelevant portions of the

Amended Complaint, so that we may focus our judicial inquiry on the precise issues to

be decided. See Kermanj v. Goldstein, 401 F. App’x 458, 460 (11th Cir. 2010) (stating

that the “irrelevant statements” in the complaint “made it impossible to separate out the

factual allegations supporting” the claims). Cf. Mazera v. Varsity Ford Mgmt. Servs.,

LLC, 565 F.3d 997, 1002 (6th Cir. 2009) (disregarding irrelevant assertions by the

parties in considering the validity of an arbitration clause).

The irrelevant allegations in the Amended Complaint that we disregard include

statements seeking to vindicate the rights of non-party interest groups (Am. Compl.

¶¶ 33, 47, 77-80), and non-party individuals, including an unidentified “Christian man”

in Oklahoma who was stopped at an unidentified time by an unidentified “local law

enforcement officer for having a sign displayed in his vehicle that read, ‘Abort Obama

Not the Unborn,’” and who was subsequently “investigated” by unnamed individuals

and/or agencies of the “federal government.” (Id. ¶ 34.) Other irrelevant allegations in

the Amended Complaint that we disregard include statements relating to the U.S.

Congress (id. ¶¶ 54 (committee report), 64 (proposed legislation)); harassment by the

Internal Revenue Service and the Federal Aviation Administration (id. ¶¶ 83-84), neither

of which are parties to this litigation; Defendants’ views on the Second Amendment (id.

¶ 45 (“Defendants do not consider a private citizen’s right to bear arms to be an

individual right”)); the allocation of resources within the “federal government” (id.

¶¶ 27, 30 (referencing anonymous statement of a “current FBI agent” that the

intelligence community has shifted resources to target “those who used to be patriots”);

the actions of non-federal law enforcement agencies (id. ¶ 50 (referencing “state, local,

tribal, and private organizations”)); and the nature of Plaintiff Murray’s unrelated lawsuit

against the Secretary of the Treasury that sought to “enjoin the unconstitutional

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distribution to, and use of federal taxpayer funds by, American International Group, Inc.

(AIG).” (Id. ¶ 98.)

Additionally, we disregard the exhibit to the Amended Complaint that is neither

referenced in the Amended Complaint, nor in any way relevant to the sufficiency of the

Amended Complaint. (Id., Ex. A.) Exhibit A of the Amended Complaint consists of

four pages of graphic images of aborted fetuses apparently used by CBR as part of the

Obama Awareness Campaign. These images of aborted fetuses, which are placed atop

U.S. currency,1 have no bearing on the issues to be decided. Plaintiffs do not argue to

the contrary on appeal.

We now turn to Plaintiffs’ constitutional claims, and consider whether, based

upon the remaining allegations in the Amended Complaint, Plaintiffs can show their

entitlement to relief.

B. First Amendment Claim

We begin with Plaintiffs’ First Amendment claim, which we evaluate under the

framework set forth by the Supreme Court in Mount Healthy City School District Board

of Education v. Doyle, 429 U.S. 274 (1977). See Ctr. for Bio-Ethical Reform, Inc. v. City

of Springboro, 477 F.3d 807, 821 (6th Cir. 2007). Under Mount Healthy and its

progeny, a plaintiff must show that (1) the plaintiff was participating in a constitutionally

protected activity; (2) the defendant’s action injured the plaintiff in a way likely to deter

a person of ordinary firmness from further participation in that activity; and (3) the

adverse action was motivated at least in part by the plaintiff’s protected conduct. See,

e.g., Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 723 (6th Cir. 2010); Thaddeus-X

v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc); Bloch v. Ribar, 156 F.3d 673,

678 (6th Cir. 1998) (internal citations omitted).

1

We do not address whether these depictions may give rise to criminal liability for the defacement

of U.S. currency, in violation of 18 U.S.C. §§ 331 and 333.

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Once a plaintiff raises an inference that the defendant’s conduct was motivated

in part by the plaintiff’s protected activity, the burden shifts to the defendant to

“demonstrate that it would have taken the same action in the absence of the protected

activity.” Arnett v. Myers, 281 F.3d 552, 560-61 (6th Cir. 2002) (citing Thaddeus-X, 175

F.3d at 399). The inquiry of “whether activity is ‘protected’ or an action is ‘adverse’”

is context-specific. Thaddeus-X, 175 F.3d at 388. We now consider each element in

detail.

1. Whether Plaintiffs were participating in constitutionally

protected activity

The First Amendment generally protects controversial speech. “The fact that the

messages conveyed by those communications may be offensive to their recipients does

not deprive them of constitutional protection.” Hill v. Colorado, 530 U.S. 703, 714-15

(2000); see also Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949) (“Speech is often

provocative and challenging. It may strike at prejudices and preconceptions and have

profound unsettling effects. . . . That is why freedom of speech, though not absolute, . . .

is nevertheless protected against censorship or punishment.”).

In this case, Defendants do not challenge Plaintiffs’ participation in

constitutionally protected activity, and we will assume, for purposes of this appeal, that

this element is satisfied and accordingly focus on the remaining two elements. See Fritz,

592 F.3d at 723 (conduct was protected by the First Amendment, for purposes of a

motion for judgment on the pleadings, where the defendants did not argue otherwise).

2. Whether Defendants’ action injured Plaintiffs in a way likely

to deter a person of ordinary firmness from further

participation in constitutionally protected activity

The second element of a First Amendment retaliation claim requires an “adverse

action” by the defendant that “would deter a person of ordinary firmness from continuing

to engage in the kinds of protected conduct in which [the plaintiff] was engaging.” Id.

(internal quotation marks and citations omitted). Adverse actions that may deter a

person of ordinary firmness from exercising protected conduct may include “harassment

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or publicizing facts damaging to a person’s reputation.” Id. at 724 (citing Thaddeus-X,

175 F.3d at 396). Although much of our First Amendment retaliation jurisprudence

addresses claims by public employees and prisoners, the same legal framework applies

where, as here, private parties challenge governmental action. Id. at 725.

As applied to this case, the operative question is whether Plaintiffs have

adequately pleaded that Defendants’ actions would be sufficient to deter a citizen of

ordinary firmness from participating in meetings or otherwise criticizing federal officials

about matters relevant to Plaintiffs’ political views. Id. On appeal, Plaintiffs group their

allegations of Defendants’ alleged unconstitutional actions, taken pursuant to the RWE

Policy, into three categories: first, “officially designating political opponents as

dangerous ‘rightwing extremists,’” (Pls.’ Br. at 32); second, “conducting intrusive and

coercive investigations and surveillance to dissuade political opposition,” (id.); and third,

“sharing official files and records with political opponents.” (Id. at 36.)

Consistent with Iqbal, “[w]e begin our analysis by identifying the [relevant]

allegations in the complaint that are not entitled to the assumption of truth.” Iqbal, 129

S. Ct. at 1951. In this case, those allegations are numerous.

Most significantly, Plaintiffs have failed to plausibly allege the existence of the

claimed RWE policy pursuant to which they allege constitutional violations. Indeed, it

is altogether unclear what constitutes the RWE Policy in light of Plaintiffs’ vague and

conclusory allegations and arguments on appeal. As best we can tell, the policy is

alleged to be an Orwellian monster that consists of some amorphous combination of a

“policy, practice, procedure, and/or custom of Defendants.” (Am. Compl. ¶ 1; see also

Pls.’ Br. at 38 (arguing that the RWE Policy “takes us a step closer to 1984”).) The

Amended Complaint identifies no document, policy directive, or anything else that

would constitute the RWE Policy.2 As explored below, even if we assume arguendo the

2

We note Plaintiffs’ allegation that the DHS Assessment is “part of the RWE Policy.” But the

DHS Assessment is not contained in the record, nor do Plaintiffs explain how the DHS Assessment

supports their claim. The DHS Assessment is publicly available on the internet (see, e.g.,

http://www.fas.org/irp/eprint/rightwing.pdf), and we could perhaps take judicial notice of this document,

but there is no need for us to do so. Instead we note, as an observation unrelated to our disposition of this

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existence of the RWE Policy, Plaintiffs have failed to show that any actions taken

pursuant to the RWE Policy would entitle them to relief.

The Amended Complaint alleges that “[a]ccording to the RWE Policy, Plaintiffs

are ‘rightwing extremists.’” (Am. Compl. ¶ 20.) Without any plausible statements as to

when, where, in what, or by whom such a designation was made, this allegation amounts

to a “naked assertion[] devoid of further factual enhancement” that is not entitled to a

presumption of truth.3 Iqbal, 129 S. Ct. at 1949 (internal quotation marks, citations, and

alterations omitted). Cf. Meese v. Keene, 481 U.S. 465 (1987) (considering a First

Amendment challenge to the federal government’s official labeling of a movie as

“political propaganda” pursuant to a statute authorizing such a designation).

Next, the Amended Complaint makes numerous conclusory and bare allegations

about law enforcement activities, including surveillance, that have been directed towards

Plaintiffs. (See, e.g., Am. Compl. ¶ 31 (“covert surveillance”); id. (“collect data”); id.

¶ 32 (“targeting anti-abortion organizations as potential domestic terrorists”); id. ¶ 33

(“emerging patter [sic] of abuse”); id. ¶ 35 (“conducting surveillance”); id. (“taking law

enforcement actions”); id. ¶ 36 (“conducting surveillance on public events, such as the

national TEA parties[4] and anti-abortion protests and demonstrations”); id. ¶ 37 (“target

of federal and local law enforcement actions”); id. ¶¶ 46-48 (“increasing government

surveillance and scrutiny”); id. ¶ 51 (“encourag[ing] the reporting of information

matter, that the document makes no reference to any of the named plaintiffs in this case, and simply states,

in a footnote, that rightwing extremism “may” be found within certain “groups and individuals that are

dedicated to a single issue, such as opposition to abortion or immigration.”

3

Further casting doubt on the plausibility of this allegation, elsewhere in the Amended Complaint

Plaintiffs seem to suggest that Defendants never labeled Plaintiffs as “rightwing extremists,” but rather the

label has been “broadly applied and construed” by unspecified parties “to include Plaintiffs and those that

associate with them.” (Am. Compl. ¶ 19.) Indeed, many of the allegations about the labeling of Plaintiffs

are pleaded in the passive voice. (See id. ¶¶ 17-18 (“those deemed to be ‘rightwing extremists”); id.

¶ 18 (same); id. ¶ 31 (“individuals and groups declared to be ‘rightwing extremists’”); id. ¶ 35 (“deemed

to be ‘rightwing extremists’”); id. ¶¶ 46-47, 50, 57 (same)); see also Strategic Income Fund, L.L.C. v.

Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1296 (11th Cir. 2002) (noting that excessive use of the

passive voice in pleadings leads to “unnecessary confusion and obfuscation”).

4

The Amended Complaint describes “TEA parties” as “peaceful public protests to the expansion

of the federal government and federal spending programs under the current administration and the increase

in taxes that will be required to fund them.” (Am. Compl. ¶ 22.)

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concerning ‘suspicious’ or ‘criminal’ activity of ‘rightwing extremists’”); id. ¶ 69

(collecting “personal information”); id. ¶ 76 (“greater target for law enforcement action”

as a result of the “Obama Awareness Campaign”); id. ¶ 81 (“target of surveillance and

enforcement actions”); id. ¶ 85 (“increased government scrutiny, investigation,

surveillance, and intimidation”); id. ¶ 95 (law enforcement “slow to investigate threats

to CBR”); id. ¶¶ 99, 106 (“government scrutiny, investigation, surveillance, and

intimidation”); id. ¶ 105 (“DHS-sanctioned . . . harass[ment]”).)

None of these bare allegations provide the factual context that would render them

plausible and thus entitle them to a presumption of truth at this stage in the litigation.

See Iqbal, 129 S. Ct. at 1950; Nagim v. Napolitano, No. 10-CV-00329, 2011 WL

841285, at *1-2 (D. Colo. Mar. 8, 2011) (dismissing similar challenge to claimed

“rightwing extremist policy”). Unlike Fritz v. Charter Township of Comstock, where

the plaintiff alleged three specific retaliatory phone calls to her employer, Plaintiffs in

this case rely on vague and undated assertions of law enforcement activities directed at

them. See Fritz, 592 F.3d at 723. The Amended Complaint is silent about the location,

manner, duration, extent or timing of the alleged government harassment, surveillance,

and scrutiny. Cf. Gee v. Pacheco, 627 F.3d 1178, 1188 (10th Cir. 2010) (finding

allegations sufficient, where complaint stated prison officials confiscated and destroyed

prisoner’s outgoing mail on two specific dates); Ctr. for Bio-Ethical Reform, Inc., 477

F.3d at 821 (prior litigation by CBR, alleging specific unlawful actions on a specific date

and time).

With regard to information sharing, the Amended Complaint similarly offers

conclusory and bare allegations, which are consequently not well-pleaded, and

“disentitle[d] . . . to the presumption of truth.” Iqbal, 129 S. Ct. at 1951. (See, e.g., Am.

Compl. ¶ 50 (“share information”); id. ¶ 52 (information is gathered, and then “it is

shared with certain private organizations that are political adversaries of Plaintiffs”); id.

¶ 57 (“no safeguards for the use or distribution of the information collected pursuant to

the policy”); id. ¶ 69 (information “is shared with private organizations . . . such as

SPLC, NAF, and ADL”); id. ¶ 70 (“sharing of information”); id. ¶ 109 (“improper

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sharing of private information and data”).) Plaintiffs do not describe the type of

information that “is shared,” who shared this information, or why any claimed “sharing”

would operate to chill their First Amendment rights. The allegations in the Amended

Complaint amount to nothing more than the type of “unadorned, the

defendant-unlawfully-harmed-me” accusations that Iqbal deemed insufficient. See

Iqbal, 129 S. Ct. at 1949. Plaintiffs do not even explain how the alleged information

sharing has resulted in any concrete harm. See Gordon v. Warren Consol. Bd. of Educ.,

706 F.2d 778, 781 (6th Cir. 1983) (holding that the plaintiffs’ “subjective fear” about

misuse of information collected pursuant to a law enforcement operation “is insufficient

to establish a First Amendment claim”).

Finally, the Amended Complaint makes numerous conclusory and bare

allegations that Defendants’ actions have had the effect of chilling Plaintiffs’ speech.

(See, e.g., Am. Compl. ¶¶ 88-89, 108 (“negatively affected CBR’s reputation, thereby

making it difficult to recruit volunteers, to raise money, and to obtain permission to

engage in speech activity at public locations, such as college and university campuses”);

id. ¶¶ 91, 108 (“negatively affected CBR’s ability to raise money through donations to

support its anti-abortion speech activities”); id. ¶ 92 (“negatively affected CBR’s present

effort to forge working relationships with mega-churches, which do not want to be

associated with ‘extremist’ groups of any sort”); id. ¶¶ 100-04 (“Plaintiff Murray is

deterred from attending, participating in, or associating with those who participate in

TEA parties . . . [and] those who engage in anti-abortion protests and activities . . . for

fear that he would be denied employment” in the federal government on account of his

expressive activities); id. ¶ 105 (“deterrent effect on political speech and expressive

association”); id. ¶ 106 (“deterrent effect on . . . activities and . . . rights to freedom of

speech and expressive association”).) These allegations are not well-pleaded, and their

conclusory nature “disentitles them to the presumption of truth.” Iqbal, 129 S. Ct. at

1951.

Having set aside the conclusory and unadorned allegations that are not entitled

to a presumption of truth as well-pleaded allegations, we “consider the [remaining]

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factual allegations . . . to determine if they plausibly suggest an entitlement to relief.”

Id. To be sure, the Amended Complaint does contain certain allegations that are

relatively more specific, but none of them give the Amended Complaint the ring of

plausibility as to the second element of a First Amendment retaliation claim. We

consider the remaining allegations in turn.

First, in Paragraphs 28 and 29, the Amended Complaint alleges:

¶ 28. Pursuant to the RWE Policy, on or about March 23, 2009, a

confidential directive was issued by FBI headquarters in Washington,

D.C. to each of its 56 field offices, instructing the Special Agent in

Charge (SAC) to verify the date, time, and location of each TEA party

within his or her region and to supply that information to FBI

headquarters. The directive instructed the field office to obtain and

confirm the identity of the individual(s) involved in the actual planning

and coordination of the event in its region. The directive was tightly

controlled.

¶ 29. Pursuant to the RWE Policy, a second directive was issued by FBI

headquarters on or about April 6, 2009. This directive instructed each

SAC to coordinate and conduct, either at the field office level and/or with

the appropriate resident agency, covert video surveillance and data

collection of the participants of the TEA parties. This information was to

be submitted to Washington, D.C.

These allegations describe Defendants’ actions on certain dates—March 23, 2009

and April 6, 2009—but fail to adequately plead that the actions of Defendants were

likely to deter a person of ordinary firmness from further participation in expressive

activities. The allegations refer to “confidential” directives that were “tightly

controlled,” making it implausible that Plaintiffs, or others, were aware of these

directives, in the absence of any allegation that the directives were publicly disclosed.

The “mere presence of an intelligence data-gathering activity” does not give rise to

constitutional liability. Gordon, 706 F.2d at 781. Without additional allegations with

regard to these “directives,” their mere existence is insufficient to state a claim.

Second, perhaps related to the above-allegations, the Amended Complaint alleges

in Paragraphs 22 and 24:

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¶¶ 22, 24. The DHS Assessment was “leaked” to the public

approximately one week prior to the TEA (Taxed Enough Already)

parties that were scheduled to be held across the country on April 15,

2009. . . . The public release of the DHS Assessment had the intended

and calculated effect of deterring people, such as Plaintiffs and those who

associate with them, from participating in events such as the national

TEA parties and anti-abortion protests and demonstrations.

Although perhaps more than a bare conclusion, this allegation is insufficient to plead that

Defendants’ action injured Plaintiffs in a way likely to deter a person of ordinary

firmness from further participation in constitutionally protected activity. Plaintiffs allege

only that the DHS Assessment “was leaked,” but make no allegation as to who or what

leaked the document, or whether that person or entity was affiliated with Defendants, or

how and to what degree the information was disseminated. Moreover, Plaintiffs fail to

explain why the release of the DHS Assessment would deter them from attending “TEA

parties,” or any specific TEA party event that they, or anyone else, would have otherwise

attended.

Third, regarding President Obama’s commencement speech at the University of

Notre Dame in 2009, the Amended Complaint alleges in Paragraphs 77, 79, and 80:

¶ 77. According to sources within FEMA . . . a number of violent

“right-wing,” anti-abortion individuals and groups arrived in South Bend,

Indiana in May 2009 to protest President Obama’s participation in the

commencement ceremony at the University of Notre Dame.

¶¶ 79-80. CBR was one of the “right-wing” groups that arrived in South

Bend, and it deployed its “Obama Awareness Campaign” to protest the

[P]resident and his policies on abortion. Although there were no reported

acts of violence committed during the ceremony, the anti-abortion groups

that participated in the protest, such as CBR, were publicly described by

federal officials as “right-wing” and “violent.”

But the Amended Complaint does not allege any action by Defendants—it merely refers

to “federal officials,” who might work for myriad federal agencies unconnected to

Defendants. Moreover, the Amended Complaint refers only to one action of these

“federal officials,” namely “publicly describ[ing]” anti-abortion groups protesting at the

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commencement as “right-wing” and “violent.” The Amended Complaint does not state

when, or by what means, such a “public” pronouncement was made, nor does the

Amended Complaint allege the identity or activities of the other “anti-abortion groups

that participated in the protest,” rendering it impossible to evaluate the plausibility of the

allegation that any public pronouncement had or was likely to have had an adverse effect

on protected speech. See Brown v. Matauszak, No. 09-2259, 2011 WL 285251, at *5-6

(6th Cir. Jan. 31, 2011) (dismissing complaint for failure to state a claim, where prisoner

alleged that prisoner officials improperly withheld court documents sent to him, but

failed to plead facts about the nature of the withheld documents).

Fourth, the Amended Complaint alleges in Paragraph 81:

¶ 81. CBR and its employees and volunteers have been detained by

agents from the FBI, who described CBR as a domestic terrorist

organization on account of CBR’s opposition to abortion. The

Department of Justice defended the actions of the FBI, claiming that the

FBI agents reasonably believed that CBR was involved in domestic

terrorism.

This allegation is likewise deficient. The Amended Complaint does not identity, for

example, who the FBI has detained, when or for how long the FBI did so, whether any

charges were filed, and what the circumstances were surrounding the detentions,

including whether a proper law enforcement purpose was served. The Amended

Complaint also does not allege that any of the individual detentions were connected to

CBR or the individual Plaintiffs in this case. In fact, the Amended Complaint appears

to allege that CBR, a corporate entity, was somehow itself detained by the FBI, but

provides no further elaboration. The Amended Complaint makes no allegation, aside

from conclusory statements made throughout, that these arrests had the effect of chilling

their speech, or would reasonably be expected to do so.

Fifth, with regard to Plaintiff Murray, the Amended Complaint alleges in

Paragraph 103:

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¶ 103 . . . . To date, Plaintiff has been denied employment with the U.S.

Border Patrol and with the U.S. Immigration and Customs Enforcement.

But the Amended Complaint makes no allegation that these agencies denied federal

employment to Plaintiff Murray on account of his expressive associations or activities,

or pursuant to any alleged unconstitutional policy, or that Plaintiff Murray was otherwise

qualified for these positions that he claims to have sought. In fact, the Amended

Complaint contains no allegation that Plaintiff Murray is in any way connected to CBR.

Accordingly, based on a review of the allegations in the Amended Complaint, we

conclude that Plaintiffs have failed to adequately plead that any of Defendants’ actions

injured Plaintiffs in any way that would deter a person of ordinary firmness from further

participation in constitutionally protected activity.

3. Whether any adverse action by Defendants was motivated at

least in part by Plaintiffs’ constitutionally protected activity

Alternatively, even if Plaintiffs could satisfy the second element of a First

Amendment retaliation claim, we conclude that Plaintiffs have failed to adequately plead

the third element, namely that any adverse action by Defendants was motivated at least

in part by Plaintiffs’ constitutionally protected activity.

Plaintiffs present nothing more than unadorned allegations concerning

Defendants’ intent and motivation. (See, e.g., Am. Compl. ¶ 40 (“Defendants seek to

officially censor, correct, and/or condemn certain political views and ideas and thereby

prescribe what shall be orthodox in politics, nationalism, religion, and other matters of

opinion”); id. ¶ 41 (“The RWE Policy is designed to deter, prevent, and preempt

activities that government officials deem to be in opposition to . . . the current

administration”); id. (“Defendants seek to influence domestic public opinion in support

of . . . the current administration”); id. ¶ 42 (“tool of intimidation” to “stifle political

opinion and opposition”); id. ¶ 44 (“deter ‘rightwing extremist’ speech activities”); id.

¶¶ 51-52 (“in order to deter”); id. ¶ 105 (“silence political opposition” “marginalize

political opponents”; “deter and diminish political opponents”); id. ¶ 107 (“designed to

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marginalize them and their opposition to the policies and practices of the federal

government”).)

These vague and conclusory allegations of nefarious intent and motivation by

officials at the highest levels of the federal government are not well-pleaded, and are

therefore insufficient to “plausibly suggest an entitlement to relief.” Iqbal, 129 S. Ct.

at 1951; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 970 (9th Cir. 2009) (“The bald

allegation of impermissible motive . . . , standing alone, is conclusory and is therefore

not entitled to an assumption of truth.”).

In Iqbal, the plaintiff alleged that high ranking federal officials had adopted a

policy of unconstitutional detention based on race, religion and/or national origin. In

declining to credit as true the plaintiff’s allegations of intent, the Supreme Court held

that “conclusory” allegations of intent “without reference to [] factual context” are

deficient. See Iqbal, 129 S. Ct. at 1954. In this case, similar to Iqbal, nothing in the

Amended Complaint states a plausible claim that Defendants personally, or through their

respective departments, took any actions on account of Plaintiffs’ constitutionally

protected activities, or that any policy was adopted or enforced on an improper basis.

Nothing in the alleged conduct of relevant federal law enforcement officers plausibly

suggests that they were motivated by anything other than a proper law enforcement

motive.

Indeed, the Amended Complaint makes no plausible allegation that the relevant

actions of law enforcement were not supported by probable cause, or otherwise taken

pursuant to a valid law enforcement purpose. See Gordon, 706 F.2d at 781 n.3 (“Courts

have recognized that [government activity] in connection with a good faith law

enforcement investigation does not violate First Amendment rights, even though it may

be directed at communicative or associative activities.”); see also Leonard v. Robinson,

477 F.3d 347, 355-36 (6th Cir. 2007) (“Probable cause is clearly relevant to [] First

Amendment retaliation claims.”). Cf. Ctr. for Bio-Ethical Reform, Inc., 477 F.3d at 822-

24 (holding that a three-hour detention without probable cause would suggest improper

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motive where, during the detention, the officers knew of and discussed the political

activity of plaintiffs).

The Ninth Circuit confronted a similar claim in Moss v. U.S. Secret Service,

where protestors who were removed by the U.S. Secret Service claimed that the agency

had a policy of removing protestors who were critical of President George W. Bush in

violation of the First Amendment. 572 F.3d at 962. The Ninth Circuit rejected the claim

on a motion to dismiss, reasoning:

The allegation of systematic viewpoint discrimination at the highest

levels of the Secret Service, without any factual content to bolster it, is

just the sort of conclusory allegation that the Iqbal Court deemed

inadequate, and thus does nothing to enhance the plausibility of

Plaintiffs’ viewpoint discrimination claim against the Agents.

Id. at 970. Likewise in this case, and for the reasons discussed herein, the Amended

Complaint fails to adequately plead that any adverse actions by Defendants were

motivated by a desire to discriminate or retaliate against Plaintiffs on account of their

constitutionally protected expressive activities. See Iqbal, 129 S. Ct. at 1950-51 (stating

that the plaintiff has not “nudged his claims of invidious discrimination across the line

from conceivable to plausible”) (internal quotation marks, citations, and alterations

omitted).

Accordingly, Plaintiffs have failed to adequately plead that any adverse action

by Defendants was motivated at least in part by Plaintiffs’ constitutionally protected

activity.

4. Summary

Plaintiffs have failed to state a claim against Defendants, in either their official

or individual capacities, under the First Amendment. To the extent Plaintiffs seek to

challenge the constitutionality of the alleged RWE Policy, Plaintiffs have failed to

plausibly allege the existence of such a policy. And to the extent Plaintiffs seek to

challenge the alleged retaliation by Defendants on account of Plaintiffs’ protected

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activities, Plaintiffs’ allegations are likewise deficient. Plaintiffs have failed to plausibly

allege that any actions by Defendants injured Plaintiffs in a way that would deter a

person of ordinary firmness from further participation in constitutionally protected

activity. Nor have Plaintiffs plausibly alleged that any adverse action by Defendants was

motivated at least in part by Plaintiffs’ constitutionally protected activity.

C. Equal Protection Claim

We now turn to Plaintiffs’ Fifth Amendment claim, alleging that Defendants

violated Plaintiffs’ right to equal protection “by targeting Plaintiffs for disfavored

treatment on account of Plaintiffs’ viewpoint on certain political issues.” (Am. Compl.

¶ 120.) The Fifth Amendment, of course, does not itself contain a guarantee of equal

protection, but instead incorporates, as against the federal government, the Equal

Protection Clause of the Fourteenth Amendment. See Bolling v. Sharpe, 347 U.S. 497,

500 (1954). We evaluate equal protection claims against the federal government under

the Fifth Amendment just as we would evaluate equal protection claims against state and

local governments under the Fourteenth Amendment. See United States v. Angel,

355 F.3d 462, 471 (6th Cir. 2004) (citing Buckley v. Valeo, 424 U.S. 1, 93 (1976)).

The Equal Protection Clause of the Fourteenth Amendment commands that “no

state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

U.S. Const. amend. XIV, § 1. To state an equal protection claim, a plaintiff must

adequately plead that the government treated the plaintiff “disparately as compared to

similarly situated persons and that such disparate treatment either burdens a fundamental

right, targets a suspect class, or has no rational basis.” Club Italia Soccer & Sports Org.,

Inc. v. Charter Twp. of Shelby, Mich., 470 F.3d 286, 299 (6th Cir. 2006). As we have

held, the “threshold element of an equal protection claim is disparate treatment; once

disparate treatment is shown, the equal protection analysis to be applied is determined

by the classification used by government decision-makers.” Scarbrough v. Morgan

Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006).

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In this case, the Amended Complaint fails to make a plausible allegation that

similarly situated organizations and individuals, of a different political viewpoint, have

not been subject to the same alleged treatment by Defendants. See Nali v. Ekman, 355

F. App’x 909, 913 (6th Cir. 2009) (allegation of discriminatory intent based on race must

be “accompanied by some evidence that the people not disciplined were similarly

situated and of a different race”). The allegations contained in the Amended Complaint

as to disparate treatment amount to conclusory and unadorned assertions that,

consequently, are not well-pleaded, and not entitled to a presumption of truth at this

stage in the litigation. (See, e.g., Am. Compl. ¶¶ 1-5, 120 (conclusory averment of

“disfavored treatment”).)

Plaintiffs fail to make any comparison to similarly situated groups, and, read

broadly, the Amended Complaint alleges injury to nearly all Americans. (Id. ¶ 27

(referencing statement of an anonymous FBI agent that “true patriotic citizens of this

country are on the Titanic”); id. ¶ 33 (“[T]here is an emerging pattern of systematic

abuse of state and federal law enforcement and intelligence assets to target law-abiding

Americans engaged in the peaceful expression of political views.”).)

Accordingly, in the absence of any plausible allegation of disparate treatment,

the Amended Complaint fails to state an equal protection claim under the Fifth

Amendment.

CONCLUSION

For the reasons set forth above, we conclude that the Amended Complaint fails

to state a claim under either the First or Fifth Amendments to the U.S. Constitution. In

so concluding, we express no view on the “propriety or desirability, from a policy

standpoint,” of the alleged activities of Defendants. See Laird v. Tatum, 408 U.S. 1, 15

(1972). Our decision is more narrow: we simply hold that, based on the allegations in

the Amended Complaint, Plaintiffs have not pleaded a claim that plausibly suggests their

entitlement to relief, and therefore the district court’s dismissal of this action pursuant

to Rule 12(b)(6) of the Federal Rules of Civil Procedure was not in error.

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The judgment of the district court is AFFIRMED.