Parsons v. United States Department of Justice

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 17a0284p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MARK PARSONS; BRANDON BRADLEY; SCOTT GANDY; ┐

ROBERT HELLIN; JOSEPH F. BRUCE; JOSEPH W. │

UTSLER, │

Plaintiffs-Appellants, │

> No. 16-2440

│

v. │

│

│

UNITED STATES DEPARTMENT OF JUSTICE; FEDERAL │

BUREAU OF INVESTIGATION, │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:14-cv-10071—Robert H. Cleland, District Judge.

Argued: October 11, 2017

Decided and Filed: December 18, 2017

Before: BOGGS, BATCHELDER, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL

ARGUED: Emily C. Palacios, MILLER, CANFIELD, PADDOCK AND STONE, Ann Arbor,

Michigan, for Appellants. Lindsey Powell, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellees. ON BRIEF: Emily C. Palacios, MILLER, CANFIELD,

PADDOCK AND STONE, Ann Arbor, Michigan, Michael J. Steinberg, Daniel S. Korobkin,

ACLU FUND OF MICHIGAN, Detroit, Michigan, Howard Hertz, HERTZ SCHRAM PC,

Bloomfield Hills, Michigan, for Appellants. Lindsey Powell, Michael S. Raab, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

No. 16-2440 Parsons, et al. v. United States Dep’t of Justice, et al. Page 2

_________________

OPINION

_________________

ALICE M. BATCHELDER, Circuit Judge. Juggalos are fans of the musical group

“Insane Clown Posse.” In 2011, the National Gang Intelligence Center labeled Juggalos “a

loosely-organized hybrid gang.” A group of self-identified Juggalos brought Administrative

Procedure Act (“APA”) claims against the Department of Justice (“DOJ”) and Federal Bureau of

Investigation (“FBI”), asserting that the gang designation violated their First and Fifth

Amendment rights. The district court determined that the gang designation was not a final

agency action and dismissed the suit. We agree and affirm.

I.

In 2005, Congress directed the Attorney General to “establish a National Gang

Intelligence Center [(“NGIC”)] and gang information database to be housed at and administered

by the [FBI] to collect, analyze, and disseminate gang activity information from” various federal

agencies and federal, state, and local law enforcement, prosecutors, corrections officers, and

jails. Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L.

109–162, § 1107, 119 Stat. 2960, 3093–94 (codified at 34 U.S.C. § 41507). Congress also

directed NGIC to make the gang-activity information available to federal, state, and local law-

enforcement agencies and to submit an annual gang-activity report to Congress. Id. NGIC

published reports in 2009, 2011, 2013, and 2015.

Insane Clown Posse (“ICP”) is a musical group from Farmington Hills, Michigan. The

group is known for its elaborate live performances and songs that “often use harsh language and

themes.” ICP fans call themselves “Juggalos” and demonstrate their affiliation with the group by

wearing, obtaining, or displaying distinctive tattoos, art, clothing, symbols, or insignia, including

clown face paint and the “hatchetman” logo. Appellants allege that Juggalos associate with each

other “to listen to ICP’s music, to share ideas surrounding the music, to express their support of

or interest in the ideas that ICP expresses through its music, to express their affiliation with ICP

and the artists on its record label, and to express their affiliation with one another.”

No. 16-2440 Parsons, et al. v. United States Dep’t of Justice, et al. Page 3

The current litigation focuses on NGIC’s 2011 gang-activity report, which described

Juggalos as “a loosely-organized hybrid gang.”1 Nat’l Gang Intelligence Ctr., 2011 National

Gang Threat Assessment Emerging Trends 22 (2011) [hereinafter “2011 NGIC Report” or the

“Report”].2 The 2011 NGIC Report compiled information from federal, state, and local law-

enforcement and corrections agencies, “including information and data provided by the National

Drug Intelligence Center (NDIC) and the National Gang Center . . . [and] information retrieved

from open source documents and data collected through April 2011.” Id. at 5. As relevant here,

the 2011 NGIC Report stated that “many Juggalo[] subsets exhibit gang-like behavior and

engage in criminal activity and violence.” Id. at 22. Although “[m]ost crimes committed by

Juggalos are sporadic, disorganized, individualistic,” and relatively minor, the 2011 NGIC

Report explained that “a small number of Juggalos are forming more organized subsets and

engaging in more gang-like criminal activity, such as felony assaults, thefts, robberies, and drug

sales.” Id. at 22–23. The 2011 NGIC Report further noted that only Arizona, California,

Pennsylvania, and Utah recognized Juggalos as a gang, but “law enforcement reporting suggests

that Juggalo criminal activity has increased over the past several years and has expanded to

several other states.” Id.

Appellants characterize themselves as Juggalos.3 They allege that they do not knowingly

affiliate with any criminal gang, but that they have suffered violations of their Fifth Amendment

due-process rights and a chill in the exercise of their First Amendment expression and

association rights due to the Juggalo gang designation. Appellants allege that federal, state, and

local law-enforcement officials rely on the 2011 NGIC Report to target members of gangs

1

The 2011 NGIC Report described hybrid gangs as “non-traditional gangs with multiple affiliations” that

are “difficult to track, identify, and target as they are transient and continuously evolving.” Nat’l Gang Intelligence

Ctr., 2011 National Gang Threat Assessment Emerging Trends 22 (2011) [hereinafter “2011 NGIC Report”]. The

2011 NGIC Report also explained that hybrid gangs present a “unique challenge to law enforcement because they

are adopting national symbols,” “gang members often crossover from gang to gang,” and they “often escalate their

criminal activity in order to gain attention and respect.” Id.

2

The 2011 NGIC Report is available on NGIC’s website at https://www.fbi.gov/stats-

services/publications/2011-national-gang-threat-assessment.

3

DOJ and FBI have not labeled the individual Appellants as Juggalos, and the individual Appellants are not

named in the 2011 NGIC Report.

No. 16-2440 Parsons, et al. v. United States Dep’t of Justice, et al. Page 4

identified by the DOJ, including Juggalos. Appellants also allege that DOJ and FBI,4 encourage

other government agencies to identify Juggalos using their tattoos, clothing, or other Juggalo

insignia. The practical effect of the gang designation, Appellants argue, is that Juggalos are

discouraged from associating with each other or publicly expressing their identity because it

makes them a target for law-enforcement scrutiny.

Appellants also allege specific instances when third-party government officials relied on

the Juggalo gang designation in a manner that violated their First and Fifth Amendment rights.

Appellant Mark Parsons runs a small trucking business in Utah called “Juggalo Express LLC,”

and his semi-truck is decorated with a large hatchetman logo. Parsons alleges that, while he was

traveling in Tennessee, a state trooper detained him because, due to the Juggalo gang

designation, the trooper suspected him of membership in a criminal gang. Appellant Brandon

Bradley alleges that he has been detained and questioned numerous times by California state and

local law-enforcement officers because of his Juggalo tattoos and the Juggalo insignia on his

clothing. Appellant Scott Gandy alleges that he was informed by an Army recruiting Sergeant

that his Juggalo tattoos were considered to be gang related and that he must remove or

permanently cover his Juggalo tattoos or the Army would deny his recruitment application.

Appellant Robert Hellin is an Army Corporal and has visible Juggalo tattoos. He alleges that his

tattoos, as a result of the Juggalo gang designation, place him “in imminent danger of suffering

discipline or an involuntary discharge from the Army.” Finally, Appellants Joseph Bruce and

Joseph Utsler are members of ICP. They allege that, because of the Juggalo gang designation,

local law enforcement caused their musical event at the Royal Oak Music Theater in Michigan to

be cancelled.5

4

Appellants allege that DOJ and FBI are agencies within the meaning of the APA, see 5 U.S.C.

§ 701(b)(1), and that FBI administers NGIC.

5

We discuss here only the factual details pertinent to Appellants’ arguments on appeal. The various factual

allegations regarding individual Appellants are thoroughly detailed in this court’s prior opinion. Parsons v. U.S.

Dep’t of Justice, 801 F.3d 701 (6th Cir. 2015).

No. 16-2440 Parsons, et al. v. United States Dep’t of Justice, et al. Page 5

II.

Appellants filed an action for declaratory judgment and injunctive relief against DOJ and

FBI in 2014, in the United States District Court for the Eastern District of Michigan. They

asserted that the Juggalo gang designation in the 2011 NGIC Report violated the APA, 5 U.S.C.

§ 706(2), because the gang designation was contrary to Appellants’ First Amendment rights of

freedom of expression and association and Fifth Amendment due-process rights, was arbitrary

and capricious, and was made without observance of proper procedure.

The district court initially granted a motion by DOJ and FBI to dismiss the case for lack

of standing. We reversed that decision, finding that Appellants had alleged facts sufficient to

demonstrate standing to pursue their APA claims against DOJ and FBI. Parsons v. U.S. Dep’t of

Justice, 801 F.3d 701 (6th Cir. 2015). On remand, DOJ and FBI filed a second motion to

dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that the Juggalo gang

designation was not reviewable because it was not a final agency action and was committed to

agency discretion by law. The district court granted the motion to dismiss, holding that the

Juggalo gang designation was not a final agency action and, even if it was, it was committed to

agency discretion by law. Appellants timely appealed the judgment of the district court.

III.

“[C]hallenge[s] to the availability of judicial review under the APA [are] properly

analyzed under Federal Rule of Civil Procedure 12(b)(6) and whether plaintiff has stated a valid

claim for relief.” Berry v. U.S. Dep’t of Labor, 832 F.3d 627, 632 (6th Cir. 2016) (citing Jama v.

Dep’t of Homeland Sec., 760 F.3d 490, 494 n.4 & 495 (6th Cir. 2014)). We review de novo

questions of statutory interpretation and a district court’s order dismissing a complaint for failure

to state a claim. Id.

A.

“[A]gency action,” as defined by the APA, “includes the whole or a part of an agency

rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.”

5 U.S.C. § 551(13). Agency action is subject to judicial review when “made reviewable by

No. 16-2440 Parsons, et al. v. United States Dep’t of Justice, et al. Page 6

statute” or when it is “final agency action for which there is no other adequate remedy in a

court.” 5 U.S.C. § 704; see Berry, 832 F.3d at 632. “An agency action must generally meet two

conditions to be considered ‘final’ under the APA.” Berry, 832 F.3d at 633 (citing U.S. Army

Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1813 (2016)). “First, the action must mark the

consummation of the agency’s decisionmaking process—it must not be of a merely tentative or

interlocutory nature. And second, the action must be one by which rights or obligations have

been determined, or from which legal consequences will flow.” Hawkes Co., 136 S. Ct. at 1813

(quoting Bennett v. Spear, 520 U.S. 154, 177–78 (1997)); see Berry, 832 F.3d at 633. To meet

this second condition, the challenged agency action “must have a ‘sufficiently direct and

immediate’ impact on the aggrieved party and a ‘direct effect on [its] day-to-day business.’”

Berry, 832 F.3d at 633 (alterations in original) (quoting Abbott Labs. v. Gardner, 387 U.S. 136,

152 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)).

Legal consequences, in particular, must be “direct and appreciable.” Bennett, 520 U.S. at

178. For example, agency actions that expose an individual to criminal or civil liability cause

legal consequences. See, e.g., Sackett v. Envtl. Prot. Agency, 566 U.S. 120, 126 (2012) (finding

that legal consequences flowed from the issuance of an EPA order because it exposed appellants

to double penalties in future enforcement proceedings and severely limited their ability to obtain

a fill permit); Louisiana v. U.S. Army Corps of Engr’rs, 834 F.3d 574, 583 (5th Cir. 2016)

(“Judicially reviewable agency actions normally affect a regulated party’s possible legal liability;

these consequences tend to expose parties to civil or criminal liability for non-compliance with

the agency’s view of the law or offer a shelter from liability if the regulated party complies.”

(citations omitted)). Similarly, agency actions that definitively determine legal rights or

obligations result in legal consequences. See, e.g., Berry, 832 F.3d at 633–34 (finding that a

decision not to reopen a claim for compensation benefits based on new evidence resulted in legal

consequences because “it determined [appellant’s] ineligibility for compensation despite new

evidence”). Or, agency actions that legally bind an agency or prevent other government actors

from pursuing a particular course of action cause legal consequences. See, e.g., Hawkes Co.,

136 S. Ct. at 1814 (finding that a jurisdictional determination caused legal consequences because

a negative determination “binds the two agencies authorized to bring civil enforcement

proceedings,” creating a safe harbor from such proceedings and “both narrow[ing] the field of

No. 16-2440 Parsons, et al. v. United States Dep’t of Justice, et al. Page 7

potential plaintiffs and limit[ing] the potential liability a landowner faces for discharging

pollutants without a permit”). Other practical results of an agency’s action that lack similar

immediate and significant effects are not legal consequences. See Flue-Cured Tobacco Coop.

Stabilization Corp. v. U.S. Envtl. Prot. Agency, 313 F.3d 852, 859–62 (4th Cir. 2002)

As relevant here, harms caused by agency decisions are not legal consequences if they

“stem from independent actions taken by third parties.” Id. at 860. Even if those third parties

are government actors relying on an agency report, their actions “are not direct consequences of

the [r]eport, but are the product of independent agency decisionmaking.” Id. “An agency action

is not final if it ‘does not of itself adversely affect complainant but only affects his rights

adversely on the contingency of future administrative action.’” Jama, 760 F.3d at 496 (quoting

Rochester Tel. Corp. v. United States, 307 U.S. 125, 130 (1939)). In Flue-Cured Tobacco,

313 F.3d at 860, the Fourth Circuit explained this distinction between legal consequences that

flow from an agency report and harms that result from a third-party’s reliance on that agency

report. In that case, the Fourth Circuit rejected the argument that an EPA report, classifying

environmental tobacco smoke as a human carcinogen, was a final agency action because the

report “ha[d] no direct regulatory effect,” id. at 858, and the report’s “coercive pressures on third

parties” were not legal consequences, id. at 859. “[W]hile the Report’s persuasive value may

lead private groups to impose [report-related] restrictions, these decisions are attributable to

independent responses and choices of third parties. The actions and consequences complained of

by plaintiffs do not legally flow from the Report . . . .”6 Id. at 861 (internal citations omitted).

Harms resulting from a third-party’s independent decision to rely upon an agency report,

therefore, are not legal consequences of the report itself.

6

Appellants argue that Flue-Cured Tobacco is inapposite because the statute authorizing EPA’s conduct

expressly limited the EPA’s authority on this issue to research and reporting. See Superfund Amendments and

Reauthorization Act of 1986, Pub. L. No. 99-499, § 404, 100 Stat. 1613, 1760. This distinction is immaterial. The

relevant statute, similar to NGIC’s authorizing statute, directed the EPA to “establish a research program,” “gather

data and information,” “coordinate Federal, State, local, and private research and development efforts,” and “assess

appropriate Federal Government actions.” Id. § 403, 100 Stat. at 1758–59. Moreover, like Appellants in this case,

the Flue-Cured Tobacco plaintiffs asserted that the third-parties’ discretionary reliance on EPA’s research

constituted legal consequences. Flue-Cured Tobacco, 313 F.3d at 859–60. Therefore, Flue-Cured Tobacco is

sufficiently similar to the present case to be persuasive.

No. 16-2440 Parsons, et al. v. United States Dep’t of Justice, et al. Page 8

Reliance on an agency report, without a legal obligation to consider or abide by that

report, is instead a practical consequence of a Congressional order to provide information.

“[R]epercussions from the dissemination of information designed to provide [an] industry with

up-to-date safety recommendations do not convert [a report] into a reviewable rule or sanction.”

Indus. Safety Equip. Ass’n v. Envtl. Prot. Agency, 837 F.2d 1115, 1121 (D.C. Cir. 1988); see,

e.g., Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety Comm’n, 324 F.3d 726, 732

(D.C. Cir. 2003) (finding that an investigative report recommending voluntary corrective action

did not cause legal consequences because “the request for voluntary compliance clearly ha[d] no

legally binding effect,” and “the agency ha[d] not yet made any determination or issued any

order imposing any obligation . . . , denying any right . . . , or fixing any legal relationship”

(citations omitted)). “[P]ractical consequences,” are “not legal harms that can transform [a]

Report[] into a final agency order and trigger our jurisdiction.” Joshi v. Nat’l Transp. Safety Bd.,

791 F.3d 8, 11–12 (D.C. Cir. 2015).

B.

In this appeal, Appellants also assert that the Juggalo gang designation is a reviewable

“interpretive rule”7 because, they argue, the harms they suffered due to the actions of

government officials were legal consequences of the gang designation.8 Appellants, however,

have failed to demonstrate that the Juggalo gang designation results in legal consequences.

First, the Juggalo gang designation does not result in legal consequences because it does

not impose liability, determine legal rights or obligations, or mandate, bind, or limit other

government actors. As noted above, Congress directed NGIC to “collect, analyze, and

disseminate gang activity information,” and to submit an annual gang-activity report to

Congress. § 1107, 119 Stat. at 3093. That is the extent of NGIC’s legal authority. NGIC does

not control other agencies or law-enforcement officers, nor are any agencies or law-enforcement

7

DOJ and FBI argue that the Juggalo gang designation does not fit within the APA definition of “agency

action” because it was published in an informational report. Because we find that the Juggalo gang designation is

not a final agency action, we need not determine whether an informational report can be an agency action.

8

DOJ and FBI do not dispute that the gang designation represents the consummation of NGIC’s

deliberative process, and Appellants do not claim that the Juggalo gang designation determines any legal rights or

obligations. Therefore, we need only address whether the Juggalo gang designation resulted in legal consequences.

No. 16-2440 Parsons, et al. v. United States Dep’t of Justice, et al. Page 9

officers required to consider the 2011 NGIC Report on gang-related issues. Instead, the 2011

NGIC Report, as the product of NGIC’s task to “collect, analyze, and disseminate,” is merely an

informational agency report. Cf. United States v. L.A. & Salt Lake R.R. Co., 273 U.S. 299, 309–

10 (1927) (finding that a property valuation order was unreviewable because the “so-called order

is merely the formal record of conclusions reached after a study of data collected in the course of

extensive research conducted by the Commission, through its employees,” and “[i]t is the

exercise solely of the function of investigation”).

Appellants assert that an informational agency report—such as the 2011 NGIC Report—

may still cause legal consequences, but they identify no case, and we have found none, to

support that proposition. And while this circuit has not previously addressed the issue, many

courts have rejected the argument that legal consequences flow from an informational report.

For example, in International Brotherhood of Teamsters v. United States Department of

Transportation, 861 F.3d 944, 952 (9th Cir. 2017), the Ninth Circuit rejected the argument that

the Federal Motor Carrier Safety Administration (“FMCSA”) engaged in final agency action

when it issued a report on a new program because “[t]he report had no legal consequences.” The

Ninth Circuit explained that the report “was the final step in completing the pilot program,

clearing the way for the permitting of Mexico-domiciled carriers. But the submission of the

report did not change the legal situation, because the FMCSA maintained discretion over

whether or not to begin issuing permits to Mexico-domiciled carriers.” Id. (citation omitted); see

Louisiana, 834 F.3d at 583 (“The Assistant Secretary’s transmission of the 2008 Deauthorization

Report thus failed to create any legal consequences for Louisiana and differs significantly from

the legal consequences that typify final agency action reviewable under the APA.”); Joshi,

791 F.3d at 11 (finding that the investigation and probable-cause report regarding an airplane

crash did not result in legal consequences because those determinations were “fact-finding

proceedings with no formal issues and no adverse parties” used to prevent future accidents and

could not be admitted for use in civil litigation (citation omitted)). In the few cases in which the

United States Supreme Court has addressed informational reports, it has found that those

informational reports are not final agency actions. In Franklin v. Massachusetts, 505 U.S. 788,

798 (1992), the Supreme Court held that the Secretary of Commerce’s census-data report (which

was submitted to the President for later use in reapportionment) was not a final agency action,

No. 16-2440 Parsons, et al. v. United States Dep’t of Justice, et al. Page 10

because the Secretary’s report “carrie[d] no direct consequences for the reapportionment, [and] it

serve[d] more like a tentative recommendation than a final and binding determination.” Id.; see

also Dalton v. Specter, 511 U.S. 462, 469 (1994) (finding that the Secretary of Defense’s base-

closure recommendation was not a final agency action, because the report “‘carr[ied] no direct

consequences’ for base closings” (citing Franklin, 505 U.S. at 798)). Similarly, legal

consequences do not flow from the Juggalo gang designation in the 2011 NGIC Report.

Second, the Juggalo gang designation does not result in legal consequences because the

harms that Appellants suffered were caused by third parties who discretionarily relied on the

gang designation. As the district court explained, each of the harms suffered by Appellants

“constitutes a decision to act that rests on the shoulders of others . . . and not the Defendants or

the agency action at issue in this case.” The government officials who harmed Appellants were

not bound by the Juggalo gang designation nor were they required to consider the 2011 NGIC

Report. Thus, the government officials’ actions are not direct consequences of the Juggalo gang

designation in the 2011 NGIC Report, but are the product of their own independent

decisionmaking. As noted above, the presumed “coercive pressures [placed] on third parties” by

an informational agency report do not qualify as legal consequences. Flue-Cured Tobacco,

313 F.3d at 859. The various reputational and personal harms suffered by Appellants in the

present case may be the practical consequences of the Juggalo gang designation, but they are not

a direct or appreciable legal consequence of the Juggalo gang designation or the 2011 NGIC

Report.

Appellants’ citations to United States Army Corps of Engineers v. Hawkes Co., 136 S. Ct.

at 1815, and Frozen Food Express v. United States, 351 U.S. 40 (1956), are unavailing because

both cases are factually distinct from the present circumstances. In Hawkes Co., 136 S. Ct. at

1814, the Supreme Court held that the Army Corps of Engineers’ jurisdictional determination

resulted in legal consequences because a negative determination imposed a legal obligation on

two government agencies, preventing those agencies from pursuing enforcement proceedings

that they were otherwise authorized to bring, and an affirmative determination represented the

denial of a legal safe harbor. By contrast, the Juggalo gang designation does not limit (or

compel) action by other government actors and no government officials are required to consider

No. 16-2440 Parsons, et al. v. United States Dep’t of Justice, et al. Page 11

or abide by the gang designation. The Supreme Court’s decision in Frozen Food Express is even

less helpful to Appellants. In that case, the Supreme Court determined that an Interstate

Commerce Commission (“ICC”) order listing what “agricultural commodities” were exempt

from certain permit requirements was a reviewable agency action because “[t]he ‘order’ of the

Commission warn[ed] every carrier, who d[id] not have authority from the Commission to

transport those commodities, that it d[id] so at the risk of incurring criminal penalties.” Frozen

Food Express, 351 U.S. at 43–44. The Juggalo gang designation is not comparable because it

has no legal bearing on the imposition of liability. Therefore, contrary to Appellants’ rhetorical

assertion, the Juggalo gang designation does not similarly “warn” anyone about incurring

liability due to his conduct or associations.

Appellants have failed to demonstrate that the Juggalo gang designation causes legal

consequences. The Juggalo gang designation, therefore, is not a final agency action, and

Appellants’ APA claims are not reviewable.9

IV.

For the foregoing reasons, we AFFIRM the judgment of the district court.

9

Although NGIC’s gang designation is not a final agency action reviewable under the APA, our holding

does not foreclose the possibility that Appellants could raise their constitutional claims against the individual

officers they complain of through a § 1983 suit.