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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARK PARSONS, BRANDON BRADLEY, SCOTT GANDY, ROBERT HELLIN, JOSEPH BRUCE, and JOSEPH UTSLER,

Case No.

Plaintiffs,

Hon.

vs. UNITED STATES DEPARTMENT OF JUSTICE and FEDERAL BUREAU OF INVESTIGATION,

COMPLAINT

Defendants. /

SAURA J. SAHU (P69627) MILLER, CANFIELD, PADDOCK
AND STONE, P.L.C. Cooperating Counsel, American Civil
Liberties Union Fund of Michigan 150 West Jefferson, Suite 2500 Detroit, Michigan 48226 (313) 963-6420 sahu@millercanfield.com
MICHAEL J. STEINBERG (P43085) DANIEL S. KOROBKIN (P72842) KARY L. MOSS (P49759) American Civil Liberties Union
Fund of Michigan 2966 Woodward Avenue Detroit, Michigan 48201 (313) 578-6814 msteinberg@aclumich.org dkorobkin@aclumich.org

HOWARD HERTZ (P26653) ELIZABETH C. THOMSON (P53579) Hertz Schram, P.C. 1760 South Telegraph Road Bloomfield Hills, Michigan 48302 (248) 335-5000 hhertz@hertzschram.com
FARRIS F. HADDAD (P71538) FARRIS F. HADDAD & ASSOCIATES, P.C. 26100 American Drive, Suite 605 Southfield, Michigan 48034 (888) 818-1646 Farris@CallFarris.com
Attorneys for Plaintiffs Bruce and Utsler

Attorneys for Plaintiffs Parsons, Bradley, Gandy and Hellin
/

COMPLAINT Plaintiffs Mark Parsons, Brandon Bradley, Scott Gandy, Robert Hellin, Joseph Bruce and Joseph Utsler state as follows for their Complaint against Defendants United States Department of Justice and the Federal Bureau of Investigation:

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PRELIMINARY STATEMENT 1. Plaintiffs challenge the federal government’s unwarranted and unlawful decision to designate a musical band’s supporters as a criminal gang, thereby subjecting them to significant harm, including repeated police harassment and denial of employment. 2. Among the supporters of almost any group – whether it be a band, sports team, university, political organization or religion – there will be some people who violate the law. Inevitably, some will do so while sporting the group’s logos or symbols. However, it is wrong to designate the entire group of supporters as a criminal gang based on the acts of a few. Unfortunately, that is exactly what happened here. 3. Plaintiffs self-identify as “Juggalos,” or fans of the musical group Insane Clown Posse (“ICP”) and other bands on ICP’s independent record label, Psychopathic Records. Some of ICP’s songs, such as “Juggalo Homies,” “Juggalo Island,” and “Miracles,” have hopeful, life-affirming themes about the wonders of life and the support that Juggalos give to one another. Other music, called “horrorcore hip hop,” uses very harsh language to tell nightmare-like stories with an underlying message that horrible things happen to people who choose evil over good. 4. Many people view Juggalos as nonconformists because of their musical tastes, their practice of painting their faces to look like clowns, and the distinctive Juggalo symbols – including the “hatchetman” logo – that they often display on their clothing, jewelry, body art and bumper stickers. Yet when Juggalos come together at concerts or their annual week-long gathering every summer, they know that they are in a community where all people are equal and where they will be accepted and respected for who they are. The unifying theme for Juggalos is that no matter what one’s economic status, racial
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background or past problems, Juggalos are a “family” of people who love and help one another, enjoy one another’s company, and bond over the music and a philosophy of life. Organized crime is by no means part of the Juggalo culture.
5. The Defendants, the United States Department of Justice (“DOJ”) and the Federal Bureau of Investigation (“FBI”), estimate that there are over a million Juggalos in the United States. As with any large group, a relative handful engage in criminal activity, sometimes while wearing Juggalo symbols. Yet, in 2011, Defendants seized on reports of independent crimes to brand Juggalos across the country as a “loosely-organized hybrid gang” in the DOJ’s 2011 National Gang Threat Assessment (“2011 Assessment”).
6. This gang designation has caused real harm to ordinary Juggalos from coast to coast. Defendants widely published the designation to state and local police agencies through an online law enforcement database, as well as through reports and other means. As a result, state and local police routinely stop, detain, interrogate, photograph and document people like Plaintiffs, who do not have any connections to gangs, because they have exercised their First Amendment rights to express their identity as Juggalos by displaying Juggalo symbols. Other Juggalos, including plaintiff Scott Gandy, have been denied consideration for employment because of the gang designation. The designation has a chilling effect on Juggalos’ ability to express themselves and to associate with one another.
7. Defendants’ designation of the Juggalos as a “hybrid gang” violates the federal Administrative Procedure Act (APA) for three reasons. First, it infringes on Juggalos’ First Amendment freedoms and is unconstitutionally vague in violation of Due Process. Second, branding the group as a gang is arbitrary and capricious, since the DOJ
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stigmatized an entire fan base of more than a million people even though it knows that only a small fraction of individuals have engaged in isolated criminal acts. Third, Defendants violated criminal intelligence collection procedures by gathering information on Juggalos without reasonable suspicion to believe that the group is involved in a “definable criminal activity or enterprise” and by gathering such information in a way that interferes with their protected activities.
8. As set forth below, Plaintiffs seek a declaration that designating the Juggalos as a gang or “hybrid gang” is unlawful. They also seek an order under the APA removing the Juggalos from the DOJ’s gang list and enjoining Defendants from taking action in the future that would brand Juggalos, as a group, as a criminal gang based on the actions of a relatively few people who may identify as Juggalos.
JURISDICTION 9. The Court has federal question jurisdiction under 28 U.S.C. § 1331 because this case arises under the United States Constitution and the federal Administrative Procedure Act (“APA”), 5 U.S.C. § 702 et seq.
VENUE 10. The Eastern District of Michigan is the proper venue for this case under 28 U.S.C. § 1391(e) because Plaintiffs Joseph Utsler and Joseph Bruce reside in this District, and the DOJ and the FBI are agencies of the United States government.
PARTIES 11. Plaintiff Mark Parsons is a Juggalo. He resides in Las Vegas, Nevada. 12. Plaintiff Brandon Bradley is a Juggalo. He resides in Citrus Heights, California. 13. Plaintiff Scott Gandy is a Juggalo. He resides in Concord, North Carolina.
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14. Plaintiff Robert Hellin is a Juggalo. He resides in Garner, Iowa. 15. Plaintiff Joseph Utsler is a Juggalo and a member of the musical group ICP. He resides in Davisburg, Michigan. 16. Plaintiff Joseph Bruce is a Juggalo and a member of ICP. He resides in Farmington Hills, Michigan. 17. Defendant DOJ is a department of the United States government. 18. Defendant FBI is an agency within the DOJ. 19. The DOJ and the FBI are each “agencies” within the meaning of the APA. 20. The FBI is responsible for administering the National Gang Intelligence Center (“Center” or “NGIC”). The Center is a multi-agency operation of the United States government that is responsible for collecting, analyzing and disseminating information from and to federal, state and local prosecutors, law enforcement authorities and corrections officials about criminal street gangs, prison gangs and outlaw motorcycle gangs.
GENERAL ALLEGATIONS ICP and the Juggalos
21. ICP is a musical group formed in or about 1991 and based in Farmington Hills, Michigan. The group is known for its elaborate live performances. It has two certified platinum albums – that is, selling one million (1,000,000) or more copies in the U.S. – and five gold albums – that is, selling five hundred thousand (500,000) or more copies in the U.S. – to its credit. ICP can be controversial, rebellious and provocative. But the duo is an artistic venture and a musical group like other popular entertainers – whether they be
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club-music artists, gangster rappers, death metal bands, folk singers or more traditional artists.
22. Some ICP songs deal with social, political or religious themes; others are counter-cultural; and others are simply artistic entertainment and expression. The songs often use harsh language and themes.
23. Juggalos are members of ICP’s dedicated musical fan base. These music fans have been known as “Juggalos” since the early 1990s. They appreciate ICP’s music and its other expressive art.
24. As an expression of their identity, Juggalos often obtain and display distinctive tattoos of ICP and Psychopathic Record art and icons. They also wear and otherwise display ICP art, symbols and insignia on their clothing and other personal belongings.
25. Juggalos gather and 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.
26. The expressive activities and purposes described above are primary reasons why Juggalos group together and associate with one another.
27. The primary purposes of the Juggalos – as a group – do not include engaging in criminal activity.
28. Many Juggalos embrace “Juggaloism” as a philosophy, an identity, and a way of life. ICP’s lyrics, through their description of a “Dark Carnival,” address themes of good and evil, heaven and hell, and acceptance and tolerance of others. Juggalos follow these
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ethics and try to live by the moral code of the “Carnival.” Many Juggalos also see themselves as social outcasts and look to one another for acceptance and support. Based on these shared values, Juggalos strongly identify with one another and often refer to themselves as a “family.” Plaintiff Mark Parsons
29. At all relevant times, Parsons was a Juggalo. 30. Parsons has never knowingly affiliated with any criminal gang. 31. Parsons owns and operates a small trucking business entitled “Juggalo Express LLC,” a limited liability corporation incorporated in the State of Utah. 32. Parsons drives a semi truck for Juggalo Express LLC. 33. Parsons decorates the side of his semi truck with a large, visible ICP “hatchetman” logo. Parsons placed this logo on his truck to express his affinity for ICP’s music, his identity as a Juggalo, and his affiliation with the Juggalo community. 34. On or about July 9, 2013, Parsons was riding with a driver-trainee in Parsons’s semi truck on an interstate freeway outside Knoxville, Tennessee. The trainee was properly driving and Parsons was instructing when they entered a weigh station operated by the Tennessee Department of Transportation. 35. In accordance with posted instructions, they drove in the “bypass” lane so that Parsons’s truck could be weighed while continuing to move at a slow speed. 36. As they drove in the bypass lane, a Tennessee State Trooper ordered Parsons and the trainee to stop the truck and park for a safety inspection. They complied. 37. Once they parked, the State Trooper approached Parsons and asked if he was a Juggalo.
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38. The State Trooper indicated that he detained Parsons for an inspection because of the hatchetman logo on the truck.
39. The State Trooper indicated that he considered Juggalos to be a criminal gang because of the DOJ’s designation.
40. The State Trooper asked Parsons if he had any axes, hatchets, or other similar chopping instruments in the truck. Parsons truthfully answered that he did not.
41. The State Trooper continued to search the truck and interrogate Parsons for about an hour, delaying Parsons’ time-sensitive hauling work. During the search, the State Trooper did not find any weapons or contraband. The State Trooper did not issue a ticket or other citation to Parsons.
42. During the detention, the State Trooper never: a. identified a motor vehicle safety offense that might support a safety inspection; b. informed Parsons about any motor vehicle safety offense that might otherwise support the detention; or c. articulated any reasonable suspicion to believe that criminal activity might be afoot, aside from the State Trooper’s perception of the hatchetman logo.
43. Parsons never consented to the detention for the purpose of questioning his Juggalo affiliation.
44. Parsons did not feel free to terminate the detention before the State Trooper released Parsons. Plaintiff Brandon Bradley
45. At all relevant times, Bradley was a Juggalo. 46. Bradley has never knowingly affiliated with any criminal gang.
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47. In or around September 2012, a Citrus Heights, California Police Officer in a patrol car flashed the car’s lights and stopped Bradley when Bradley was biking home.
48. At the time, Bradley had visible Juggalo tattoos and was wearing a Twiztid Batman shirt, which is Juggalo merchandise.
49. At all relevant times, Bradley obtained and displayed his Juggalo tattoos in order to express his affinity for the music of Psychopathic Records artists, his affiliation with the Juggalos as music fans, and his pride in being a member of the Juggalo community.
50. At all relevant times, Bradley possessed and displayed his merchandise from ICP and other Psychopathic Records artists in order to express his affinity for the music, his affiliation with the Juggalos as music fans, and his pride in being a member of the Juggalo community.
51. Upon information and belief, the actual and primary reason that the officer stopped Bradley was because the officer saw Bradley’s Juggalo tattoos and merchandise.
52. The officer detained Bradley for about fifteen minutes while interrogating Bradley about being a Juggalo and about his Juggalo tattoos.
53. The officer took notes about Bradley’s answers. 54. Later, an ex-Citrus Heights Police Officer told Bradley that the ex-officer heard about the above encounter and that Bradley would have to get his Juggalo tattoos removed if he wanted to be a police officer because the tattoos are gang-affiliated. 55. In or around October 2012, Bradley was walking across a street in downtown Sacramento, California. 56. At the time, he was wearing a shirt bearing an ICP-related insignia, and some of his ICP-related tattoos were visible.
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57. As he crossed the street, a uniformed deputy from the Sacramento Sheriff’s Department approached Bradley.
58. The deputy asked if Bradley was a Juggalo. 59. The deputy demanded to see Bradley’s identification, and Bradley complied. 60. The deputy took Bradley’s identification and his ICP-themed wallet and held them throughout the encounter. 61. Bradley did not feel free to demand his wallet and identification back or to leave without them. 62. The deputy ran a background check on Bradley. 63. The deputy detained and questioned Bradley for a substantial amount of time, during which the deputy accused Bradley of being in a gang because he was a Juggalo. The deputy stated that to be a Juggalo is to be a gang member. The deputy also asked Bradley about his ICP-related tattoos. 64. One evening in January 2013, Bradley was walking alone in the bike lane on a stretch of road that did not have a sidewalk. 65. Bradley was wearing an ICP jacket with a large red “hatchetman” insignia on the back. 66. A black, unmarked police cruiser passed Bradley in the opposite direction. 67. The cruiser performed a U-turn, pulled up behind Bradley and stopped him. 68. Two male officers wearing bullet-proof vests – who appeared to be gangsquad officers – exited the cruiser and immediately told Bradley that they noticed his jacket with the “hatchetman” insignia.
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69. The officers ordered Bradley to stand in front of a guardrail with his back to them so that they could take pictures of his jacket.
70. Bradley submitted while the officers also took photographs of his face and his tattoos.
71. For a lengthy time period, the officers interrogated Bradley about his status as a Juggalo and about whether he was a gang member. The officers took notes about the encounter and about Bradley’s responses. Although Bradley denied being in any gang, the officers translated his answers into gang-related terms when they repeated them.
72. Upon information and belief, the officers entered this information into a gang information database that is part of or feeds information into the gang information database that the NGIC administers.
73. Bradley did not feel free to end the encounter until the officers released him. 74. Upon information and belief, each of the law enforcement officials above relied upon the DOJ’s classification of the Juggalos as a gang when deciding whether to stop, question or otherwise detain or investigate Bradley. 75. Due to the incidents above, Bradley has decided on numerous occasions not to wear Juggalo-related clothing or other merchandise, not to publicly express his affinity for ICP music, and not to express his membership in the Juggalo community. He has taken these steps in order to avoid similar negative contacts with law enforcement in the future. Plaintiff Scott Gandy 76. At all relevant times, Gandy was a Juggalo. 77. Gandy has never knowingly affiliated with any criminal gang.
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78. In or around 2012, Gandy visited an Army recruiting office where he had become familiar with the recruiters.
79. Gandy had large ICP-related tattoos on his chest, which he obtained to express his affinity for ICP’s music, his status as a Juggalo and his appreciation of other Psychopathic Records artists’ music.
80. At the recruiting office, the Army’s recruiting Sergeant asked Gandy if he had any tattoos. Gandy showed the Sergeant his Juggalo tattoos.
81. The Sergeant told Gandy that the Juggalos were on the federal government’s gang list. The Sergeant said that he considered Gandy’s Juggalo tattoos to be gang-related. Upon information and belief, the Sergeant’s determination that the Juggalos were a prohibited criminal gang was based on the DOJ’s Juggalo gang designation.
82. The Sergeant questioned Gandy about whether he was a gang member. 83. The Sergeant instructed Gandy that he must remove or permanently cover his Juggalo tattoos or the Army would immediately deny his recruitment application. The Sergeant said that it did not matter how virtuous a life Gandy had lived, the Army could not and would not accept him with the tattoos. The Sergeant said that to be considered by the Army, Gandy must remove or permanently cover the tattoos. 84. Upon information and belief, the Army has a policy prohibiting “gang” tattoos. 85. Although the Army has not publicly released the materials it uses to identify criminal “gangs” and their members, upon information and belief, the Army deems the Juggalos to be a criminal gang and bases that assessment on the DOJ’s Juggalo gang designation.
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86. As a result of the Sergeant’s instructions and comments, Gandy spent hundreds of dollars to undergo a painful procedure in which his Juggalo tattoos were covered with other tattoos. Gandy underwent this procedure in order to receive consideration of his recruitment application. Gandy would not have undergone this procedure or obtained these new tattoos if the Sergeant had not indicated that it was necessary.
87. After undergoing the procedure, Gandy returned to the recruitment office and again showed the same Sergeant his new tattoos.
88. The Sergeant said that he approved and that Gandy’s application would receive consideration. Ultimately, Gandy’s application was denied. Plaintiff Robert Hellin
89. At all relevant times, Hellin was a Juggalo. 90. Hellin has never knowingly affiliated with any criminal gang. 91. Hellin enlisted in the Army in 2008, before the Juggalo gang designation. He is a Corporal in the Army, where he has served honorably in Iraq, Afghanistan and Korea as a member of cavalry and special operations units. 92. Hellin has visible ICP-related tattoos, which he obtained and displays in order to express his identity as a Juggalo. 93. Upon information and belief, because of the Juggalo gang designation, Hellin’s identity as a Juggalo places him in imminent danger of suffering discipline or an involuntary discharge from the Army.
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Plaintiffs Joseph Bruce and Joseph Utsler 94. At all relevant times, Bruce and Utsler were Juggalos and members of the
musical group ICP. 95. Bruce and Utsler do not knowingly affiliate with any criminal gang. 96. On August 20, 2012, ICP entered into a contract with AEG Live to perform at
the Royal Oak Music Theater in Royal Oak, Michigan on October 31, 2012 for ICP’s annual musical and artistic event known as “Hallowicked,” with a possible second performance on October 30, 2012 if tickets to the October 31 performance sold out.
97. On or about October 8, 2012, the Royal Oak Music Theater cancelled the Hallowicked event without notice, initially indicating that it was the landlord’s decision.
98. After discussions with AEG Live and Royal Oak Music Theater, ICP’s record label discovered that the Royal Oak Police Department asked the Royal Oak Music Theater to cancel the event.
99. When asking the Royal Oak Music Theater to cancel the Hallowicked event, the Royal Oak Police Department cited the federal Juggalo gang designation. The DOJ and the National Gang Intelligence Center
100. In Public Law 109-162, 119 Stat. 2960 (2005), Congress directed the Attorney General to “establish a National Gang Intelligence Center and gang information database to be housed at and administered by the [FBI] to collect, analyze, and disseminate gang activity information from” the FBI, the Bureau of Prisons, the Drug Enforcement Administration, other federal agencies, and state and local law enforcement, prosecutors, and correctional officers. In the same federal statute, Congress directed the Center:
a. to make that same information available to “Federal, State, and local law enforcement agencies,” to “Federal, State, and local corrections
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agencies and penal institutions,” and to “Federal, State, and local prosecutorial agencies,” as well as to “any other entity as appropriate”; and b. to “annually submit to Congress a report on gang activity.” 101. The DOJ promptly established the Center in response to Congress’s direction,
and upon information and belief, the FBI has administered the Center since its inception.
102. Upon information and belief, the DOJ and/or the FBI promptly established a
gang information database in response to Congress’s direction.
103. In an April 2008 report to Congress, the Attorney General described the
Center as part of a coordinated set of “intelligence and enforcement mechanisms aimed at
dismantling the most significant violent national and regional gangs.” The Attorney General
said:
NGIC integrates the gang intelligence assets of all Department of Justice agencies and has established partnerships with other federal, state, and local agencies that possess gang-related information--serving as a centralized intelligence resource for gang information and analytical support. This enables gang investigators and analysts . . . to further identify gangs and gang members . . . and to guide the appropriate officials in coordinating their investigations and prosecutions to disrupt and dismantle gangs. The NGIC's mission is to support law enforcement agencies through timely and accurate information sharing and strategic/tactical analysis of federal, state, and local law enforcement intelligence focusing on the growth, migration, criminal activity, and association of gangs that pose a significant threat to communities throughout the United States. U.S. Dep't of Justice, Attorney General's Report to Congress on the Growth of Violent Street
Gangs in Suburban Areas (2008) (emphasis added).
104. Federal statutes do not define the term “gang.”
105. According to the federally-funded “National Gang Center,” law enforcement
authorities fail to agree on what a “gang” is. The National Gang Center has stated, “There is
no widely or universally accepted definition of a ‘gang’ among law enforcement agencies.”
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106. Federal law defines the term “criminal street gang” as a group that has at least five members; “has as one of its primary purposes the commission of 1 or more [specified federal felony-level] criminal offenses” involving drugs, violence, or a conspiracy to commit the same; has a membership that engaged in a continuing series of those crimes within the past five years; and engages in activities that affect interstate commerce. 18 U.S.C. § 521(a) (emphasis added). NGIC Online
107. Through the Center, the DOJ and FBI publish a variety of official reports and other official materials.
108. Many of those reports and materials are made available to the general public on the Internet at http://www.nationalgangcenter.gov, which is funded by the DOJ. The DOJ and FBI, in turn, cite and rely upon the materials, resources and statistics that are published at http://www.nationalgangcenter.gov.
109. The Center created a separate online database, NGIC Online, to publish and otherwise make available its reports, findings and other information to federal, state and local prosecutors, law enforcement officials and corrections officials. The Center continues to administer and use NGIC Online for that purpose.
110. At all relevant times, the DOJ has controlled the content of what is published and/or distributed on NGIC Online.
111. Upon information and belief, NGIC Online includes the reports and materials that are published at http://www.nationalgangcenter.gov.
112. Upon information and belief, the DOJ has incorporated NGIC Online into the Law Enforcement Online database. According to the FBI, the Law Enforcement Online
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database “is a secure, Internet-based information sharing system for agencies around the world that are involved in law enforcement, first response, criminal justice, anti-terrorism, and intelligence. With LEO, members can access or share sensitive but unclassified information anytime and anywhere. * * * By using one name and password, agencies can access LEO and such resources as . . . [the] National Gang Intelligence Center . . . .”
113. The DOJ and FBI intend for federal, state and local prosecutors, law enforcement officials and corrections officials to use the information that is available on NGIC Online when they engage in governmental actions against members or affiliates of any gang that the DOJ and/or the FBI identifies.
114. The number of queries by state and local law enforcement officials to NGIC Online apparently exceeds 200,000 per year.
115. Upon information and belief, since at least 2010, federal, state and local prosecutors, law enforcement officials and corrections officials have been actively using and relying on NGIC Online when engaging in governmental actions against members or affiliates of the groups that the DOJ and/or the FBI have identified as gangs. 2009 National Gang Threat Assessment
116. In 2009, the Center published its 2009 National Gang Threat Assessment, in which the Center summarized and reported about the information it had collected and analyzed to that point in relation to street gangs, prison gangs, and outlaw motorcycle gangs.
117. From in or around 2009 until the filing of this Complaint, the 2009 Assessment was available to the general public at http://www.nationalgangcenter.gov.
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Upon information and belief, the 2009 Assessment has also been available on NGIC Online throughout roughly the same time period.
118. The 2009 Assessment does not mention the Juggalos or identify them as any kind of “gang.” Instead, it focuses on known prison gangs, outlaw motorcycle gangs, and criminal street gangs such as the Mexican Mafia, Bloods, Crips, Hells Angels, Mara Salvatrucha 13, Vice Lords, and Gangster Disciples, each of which is purportedly linked to interstate drug trafficking or distribution, and some of which are purportedly also linked to interstate human and weapons trafficking. 2011 National Gang Threat Assessment
119. In or about October 2011, the Center published the 2011 Assessment, which was its third National Gang Threat Assessment.
120. According to the Center, the 2011 Assessment “enhances and builds on the gang-related trends and criminal threats identified in the 2009 assessment.”
121. According to the Center, the 2011 Assessment “supports US Department of Justice strategic objectives 2.2 (to reduce the threat, incidence, and prevalence of violent crime) and 2.4 (to reduce the threat, trafficking, use, and related violence of illegal drugs).”
122. According to the Center, the 2011 Assessment “is based on federal, state, local, and tribal law enforcement and corrections agency intelligence, including information and data provided by the National Drug Intelligence Center (NDIC) and the National Gang Center. Additionally, this assessment is supplemented by information retrieved from open source documents and data collected through April 2011.”
123. From on or about its 2011 publication through the time of the filing of this Complaint, the 2011 Assessment has been available to the general public at
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http://www.nationalgangcenter.gov. 124. Upon information and belief, the 2011 Assessment has also been accessible
through NGIC Online since its original publication. 125. Upon information and belief, the DOJ intended and still intends for federal,
state and local prosecutors, law enforcement officials and corrections officials to use the 2011 Assessment when they engage in governmental actions targeting and/or against members or affiliates of any “gang” that the DOJ identifies.
126. Upon information and belief, federal, state and local prosecutors, law enforcement officials and corrections officials have been actively using or relying on the 2011 Assessment when engaging in governmental actions targeting and/or against members or affiliates of any “gang” that the DOJ identifies, including Juggalos. Hybrid Gangs
127. The 2011 Assessment contains a section about “hybrid gangs.” 128. Federal statutes do not define the term “hybrid gang.” 129. The 2011 Assessment does not specifically define the term “hybrid gang.” 130. The 2011 Assessment suggests that hybrid gangs are groups composed of people who affiliate with other known criminal street gangs. 131. The 2011 Assessment states:
a. “The expansion of hybrid gangs—non-traditional gangs with multiple affiliations—is a continued phenomenon in many jurisdictions nationwide. Because of their multiple affiliations, ethnicities, migratory nature, and nebulous structure, hybrid gangs are difficult to track, identify, and target as they are transient and continuously evolving.”
b. Hybrid gangs “are adopting national symbols and gang members often crossover from gang to gang.”
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c. “Hybrid Gangs . . . are fluid in size and structure, yet tend to adopt similar characteristics of larger urban gangs, including their own identifiers, rules, and recruiting methods.”
Juggalos as a “Hybrid Gang” 132. In the 2011 Assessment, the Center designated the “Juggalos” as “a loosely-
organized hybrid gang.” 133. The nationwide Juggalo membership, believed to be over one million fans,
vehemently reject the gang label they have received in recent years. 134. The 2011 Assessment does not define what a “Juggalo” is, but it states:
“Juggalos are traditionally fans of the musical group the Insane Clown Posse.” 135. In fact, the vast majority of Juggalos are music fans who are not involved in
any criminal gang or any gang-related activity. They liken themselves to a family. 136. There is little to no structure within the Juggalos as a group, and there is no
formalized leadership. 137. In the 2011 Assessment, the DOJ’s Juggalo gang designation identifies
Juggalos – simply as Juggalos – as being members of a “hybrid gang.” 138. The Juggalo gang designation refers to Juggalos as an entire group or
association. 139. The Juggalo gang designation does not contain any meaningful distinction
between law-abiding Juggalos and individual criminal Juggalos or criminal “subsets” of Juggalos.
140. The 2011 Assessment states: a. “[M]any Juggalo subsets exhibit gang-like behavior and engage in criminal activity and violence.” b. “Most crimes committed by Juggalos are sporadic, disorganized,
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individualistic, and often involve simple assault, personal drug use and possession, petty theft, and vandalism.” c. “[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.” d. “Juggalos’ disorganization and lack of structure within their groups, coupled with their transient nature, makes it difficult to classify them and identify their members and migration patterns.” 141. The DOJ, FBI and the Center use and encourage other governmental agencies to use an individual’s Juggalo tattoos to indicate that the individual is a Juggalo. 142. The DOJ, FBI and the Center use and encourage other governmental agencies to use an individual’s act of wearing, possessing or displaying ICP clothing, symbols or other merchandise to indicate that the individual is a Juggalo. 143. The DOJ, FBI and the Center use and encourage other governmental agencies to use an individual’s act of wearing, possessing or displaying the clothing, symbols or other merchandise of other Psychopathic Records artists to indicate that the individual is a Juggalo. 144. In order to avoid being subject to police scrutiny as a gang member, individual law-abiding Juggalos must: a. forsake their status as Juggalos (whether as music fans or as part of the “family” that shares the same philosophy); b. refrain from identifying themselves as Juggalos; c. refrain from affiliating or associating with other Juggalos; d. refrain from affiliating or associating with ICP and other Psychopathic Records artists; e. refrain from attending concerts and events of Psychopathic Records artists; f. refrain from obtaining or displaying Juggalo tattoos;
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g. remove Juggalo tattoos that they already have; and/or h. refrain from buying, possessing, wearing, donning or displaying the
clothing, symbols or other merchandise of ICP or other Psychopathic Records artists. 145. Insofar as federal officials reasonably believe that individual Juggalos affiliate with other known criminal gangs – such as the Bloods or Crips – the DOJ, FBI and the Center can identify, locate and target those individuals’ criminal-gang-related activity by focusing either on their relationships with known criminal gangs or on their personal conduct. 146. In response to a request under the federal Freedom of Information Act for all information upon which the DOJ relied in making its Juggalo gang designation, the DOJ produced 102 pages of the total 156 pages that were purportedly responsive. 147. The DOJ, FBI and the Center have not provided, and upon information and belief do not have, sufficient evidence to support a reasonable basis for concluding that the Juggalos: a. are a nationally affiliated criminal street gang; b. affiliate on any significant group-wide basis with known criminal gangs; c. have as a primary purpose a shared criminal purpose as a group; d. engage in an ongoing scheme of criminal activity; e. commit crimes as part of any coherent, overarching criminal-gang plan; f. are involved as a group in interstate drug, human or weapons trafficking; or g. present a significant threat, as a group, to communities throughout the United States, or to public safety in those communities.
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148. In the 2011 Assessment and the FOIA Production, the DOJ, FBI and the Center have not provided – and upon information and belief they do not have – sufficient evidence of a causal link between the classification of the Juggalos as a hybrid gang and the governmental interests in:
a. reducing the threat, trafficking, use, and “related violence” of illegal drugs; and/or
b. reducing the threat, incidence, and prevalence of violent crime. 149. As a result of Defendants’ classification of the Juggalos as a gang, Plaintiffs and other Juggalos have suffered a variety of harms at the hands of government officials. These harms not only include harms to Plaintiffs’ good names, reputations, honor and integrity, but also improper stops, detentions, interrogations, searches, denials of consideration for federal employment, and interference with existing federal employment, as well as other distinct harms. Defendants’ classification of the Juggalos as a gang also has a chilling effect on the expressive and associational activity of Plaintiffs and other Juggalos.
COUNT 1: Administrative Procedure Act (Agency Action Contrary to the First Amendment’s Freedom of Association)
150. Plaintiffs reallege and incorporate the allegations set forth in the preceding paragraphs of this Complaint.
151. Plaintiffs assert this claim under the federal Administrative Procedure Act, 5 U.S.C. § 551 et seq. (“APA”) and U.S. Const. amend. I.
152. The DOJ’s Juggalo gang designations are interpretive rules under the APA. 153. The DOJ and FBI engaged in “final agency action” under § 704 of the APA when the Center issued the 2011 Assessment and its Juggalo gang designations.
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154. As Juggalos, Plaintiffs were within the zone of interests regulated by these final agency actions.
155. These final agency actions do not provide any relevant, meaningful way to differentiate between law-abiding Juggalos and individual criminal Juggalos.
156. Under § 702 of the APA, Plaintiffs suffered legal wrongs or were adversely affected or aggrieved because of the Center’s classification of the Juggalos as a gang. These wrongs, adverse effects and/or aggrievements not only include harms to Plaintiffs’ good names, reputations, honor and integrity, but also improper stops, detentions, interrogations, searches, improper denials of consideration for federal employment, compelled expression (in the form of a forced tattoo), and interference with existing federal employment, as well as other distinct harms.
157. Under § 706(2)(B) of the APA, this Court has authority to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . contrary to constitutional right, power, privilege, or immunity.”
158. The First Amendment protects individuals’ right to associate for purposes of engaging in the forms of expression that the Amendment protects.
159. Juggalos associate together for the primary purposes of listening to and appreciating the music of ICP and other Psychopathic Records artists; sharing ideas about that music and expressing their support of or interest in the ideas that ICP expresses through its music; expressing their affiliation with ICP and the artists on its record label; and expressing their affiliation with other Juggalos and their identification with Juggaloism as a philosophy, a set of values, a moral code, and a way of life.
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160. Plaintiffs Parsons, Hellin, Gandy and Bradley associate with other individuals as “Juggalos” in order to engage in protected expression. Plaintiffs’ protected expression includes listening to the music of Psychopathic Records artists, attending “gatherings,” concerts and other musical events by these artists, expressing Plaintiffs’ identity and affiliation as Juggalos, bearing Juggalo tattoos and other Juggalo art, and discussing political and/or moral issues with other Juggalos.
161. The group known as the “Juggalos” does not have a primary purpose of committing criminal offenses. The vast majority of individual Juggalos do not associate together to commit crimes.
162. Plaintiffs do not associate with other Juggalos in order to commit crimes. 163. By classifying the entire group of Juggalos – which is overwhelmingly composed of law-abiding music fans – as some form of criminal gang, the DOJ and FBI have directly burdened Plaintiffs’ and other Juggalos’ First Amendment freedom of association. That classification burdens the Juggalos, including Plaintiffs, because they are Juggalos. 164. Due to the Center’s particular role in serving as a central clearinghouse and authority about criminal street gangs, the DOJ’s use of the Center’s reports to designate the Juggalos as a gang has actually and proximately caused state and local law enforcement and correctional officers to wrongfully treat Plaintiffs and other Juggalos as if they were criminal street gang members. 165. The law enforcement and correctional actions discussed above directly burden Plaintiffs’ freedom of association.
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166. The federal, state and local actions discussed above chill the freedom of association of substantial numbers of Juggalos who are not members of any criminal street gang.
167. The DOJ’s classification of the Juggalos as a hybrid gang reaches a substantial amount of protected associational conduct and is unconstitutionally overbroad.
168. The Center’s classification of the Juggalos as a hybrid gang is not a narrowly tailored means, the least restrictive alternative, a necessary means, or a directly and palpably connected means to further any sufficient, substantial or compelling governmental interest.
WHEREFORE, Plaintiffs request that this Court enter an order under the APA holding unlawful and setting aside the 2011 Assessment and any other classification by the DOJ, FBI or the Center of the Juggalos, as a whole, as any kind of “gang,” because these governmental actions violate the First Amendment right to freedom of association. For the same reason, Plaintiffs further request that the Court enjoin Defendants from taking action in the future that would brand Juggalos, as a group, as a criminal gang based on the actions of a relatively few people who may identify as Juggalos.
COUNT 2: Administrative Procedure Act (Agency Action Contrary to the First Amendment’s Freedom of Expression)
169. Plaintiffs reallege and incorporate the allegations set forth in the preceding paragraphs of this Complaint.
170. Plaintiffs assert this separate, additional claim of a constitutional violation under § 706(2)(B) of the APA.
171. The First Amendment to the United States Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I.
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172. The First Amendment protects the right of individuals to speak, write, make music, make art, and otherwise engage in expressive conduct. This right to freedom of expression also protects individuals’ rights to attend musical events and concerts, to create and bear tattoo art, to express their association or affiliation with other individuals or groups, and to listen to speech about artistic, political and socio-economic matters.
173. Plaintiffs intended their Juggalo tattoos, clothing, symbols and merchandise to express their identities as Juggalos and their affiliations with other Juggalos.
174. Others objectively interpret and understand Juggalo tattoos, clothing, symbols and merchandise as expressions of the bearers’ identification as Juggalos and their affiliations with other Juggalos. For example, the DOJ, FBI and the Center specifically rely on and interpret these Juggalo symbols to identify individual people as Juggalos and/or as people who affiliate with other Juggalos. The DOJ, FBI and the Center actively encourage state and local authorities to do the same, which those state and local authorities do as a result of such encouragement.
175. By bearing Juggalo art, tattoos, clothing, symbols and merchandise, Plaintiffs engaged in protected expression.
176. As part of the federal classification of the Juggalos as a gang, the DOJ, FBI and the Center identify Juggalos on the basis of their Juggalo tattoos, clothing, symbols and other merchandise and other protected expression.
177. By identifying the Juggalos on the basis of their protected expression as targets for law enforcement action, the DOJ, FBI and/or the Center have engaged – and continue to engage – in content-based regulation.
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178. By targeting and/or taking action against the Juggalos due to their protected expression, the DOJ, FBI and the Center directly burden the Juggalos’ (including the Plaintiffs’) freedom of expression under the First Amendment.
179. When identifying, targeting and/or taking action against the Juggalos due to their protected expression – including through the 2011 Assessment – the DOJ, FBI and the Center have actually and proximately caused other state and local law enforcement authorities to take actions that directly burden the Juggalos’, including the Plaintiffs’, freedom of expression under the First Amendment.
180. The federal, state and local actions mentioned in this Count chill the freedom of expression of substantial numbers of Juggalos who are not members of any criminal street gang. Individual Juggalos, including Plaintiffs, have refrained from engaging in constitutionally protected expression for fear that it would result in his or her classification by federal law enforcement as a criminal gang member.
181. By identifying Juggalos as criminal gang members through reference to their protected expression, the DOJ, FBI and the Center have reached a substantial amount of protected conduct. The classification is unconstitutionally overbroad.
WHEREFORE, Plaintiffs request that this Court enter an order under the APA holding unlawful and setting aside the 2011 Assessment and any other classification by the DOJ, FBI or the Center of the Juggalos, as a whole, as any kind of “gang,” because these governmental actions violate the First Amendment right to freedom of expression. For the same reason, Plaintiffs further request that the Court enjoin Defendants from taking action in the future that would use Juggalo group-based symbols and expression to identify
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individuals as members of a criminal gang, based on the actions of a relatively few people who may identify as Juggalos.
COUNT 3: Administrative Procedure Act (Agency Action that Violates Due Process Under the Fifth Amendment) 182. Plaintiffs reallege and incorporate the allegations set forth in the preceding paragraphs of this Complaint. 183. Plaintiffs assert this separate, additional claim of a constitutional violation under § 706(2)(B) of the APA. 184. The Fifth Amendment to the United States Constitution provides that “No person shall . . . be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. 185. Under the Due Process Clause of the Fifth Amendment, federal laws, rules, regulations, and other similar legislative and administrative measures are unconstitutionally vague if they fail to give fair notice of the conduct that is forbidden or required by either (a) failing to inform the regulated parties what is required of them so that they may act accordingly; or (b) failing to provide enough precision and guidance to limit the discretion of those enforcing the law in order to avoid arbitrary or discriminatory law enforcement. 186. Where, as here, a federal criminal law-enforcement measure concerns protected First Amendment rights, the above anti-vagueness requirements of the Due Process Clause apply with particular strictness. 187. As used by the DOJ, the FBI and the Center, the terms “gang”, “hybrid gang”, and “Juggalo” are not fairly or clearly defined.
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188. The terms “gang” and “hybrid gang” do not have any settled or determined
meaning, and they are strongly susceptible to subjective interpretation.
189. The term “Juggalo” is strongly susceptible to subjective interpretation.
190. The DOJ, FBI and Center’s classification of the Juggalos as a gang:
a. has regulated Plaintiffs and other Juggalos on the basis of the Juggalos’ status as Juggalos;
b. has failed to provide an affirmative, reasonably ascertainable standard of conduct; and
c. has failed to identify any particular prohibited actions that an individual Juggalo can avoid in order to avoid being considered a “hybrid gang” member, aside from renouncing or concealing their identity as a Juggalo.
191. When classifying the Juggalos as a hybrid gang, the DOJ, FBI and the Center:
a. have not provided law enforcement officers with adequate guidance about how to distinguish the vast majority of law-abiding Juggalos from the small percentage of criminal individuals or subsets;
b. failed to meaningfully limit the discretion of law enforcement officers in deciding whether and how to take law enforcement action targeting criminal individuals or subsets of Juggalos; and
c. granted government officials so much discretion that individual officials’ decisions to limit protected speech can rest on ambiguous and subjective reasons rather than being constrained by objective criteria.
192. The DOJ, FBI and Center’s classification of the Juggalos as a hybrid gang:
a. is vague and ambiguous; and b. has a substantial chilling effect upon the exercise by Plaintiffs and
other Juggalos of their rights to freedom of expression and association. WHEREFORE, Plaintiffs request that this Court enter an order under the APA
holding unlawful and setting aside the 2011 Assessment and any other classification by the
DOJ, FBI or the Center of the Juggalos, as a whole, as a “gang” or “hybrid gang” because
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these governmental actions violate their right to Due Process. For the same reason, Plaintiffs further request that the Court enjoin Defendants from taking action in the future that would brand Juggalos, as a group, as a “gang” or “hybrid gang.”
COUNT 4: Administrative Procedure Act (Arbitrary and Capricious Agency Action) 193. Plaintiffs reallege and incorporate the allegations set forth in the preceding paragraphs of this Complaint. 194. Plaintiffs assert this claim to challenge arbitrary and capricious agency action under § 706(2)(A) of the APA, which authorizes this Court to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, [or] an abuse of discretion . . . .” 195. The DOJ, FBI and the Center have not provided – and upon information and belief they do not have – a proper basis to explain their decision to depart from, add to, and/or amend the 2009 Assessment (which did not include the Juggalos as any kind of gang) and instead to identify the Juggalos as a “gang” in the 2011 Assessment. 196. The DOJ, FBI and the Center have not provided – and upon information and belief they do not have – a proper basis to believe that the Juggalos, as a group, are a criminal street gang. 197. The DOJ, FBI and the Center are in possession of information that the vast majority of Juggalos do not constitute and are not members of a criminal street gang. 198. Insofar as the DOJ, FBI and Center have classified the Juggalos as a “criminal street gang” under federal law: a. that classification is – as alleged and described above – an interpretive rule and a final agency action, which has adversely affected and aggrieved the Plaintiffs within the meaning of the APA;
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b. that classification lacks a proper factual basis, is implausible, and cannot be ascribed to a difference in view or the product of agency expertise;
c. that classification is based on a failure to adequately develop the administrative record and to gather the evidence necessary to evaluate whether a criminal street gang exists in these circumstances;
d. the DOJ, FBI and Center failed to reasonably consider and address the alternative of identifying criminal street gang members through their affiliations with known, established criminal street gangs rather than through their status as Juggalos.
199. Insofar as the DOJ, FBI and Center have classified the Juggalos as a “criminal street gang” under federal law, that classification is arbitrary and capricious under the APA.
WHEREFORE, Plaintiffs request that this Court enter an order under the APA holding unlawful and setting aside the 2011 Assessment and any other classification by the DOJ, FBI or the Center designating the Juggalos as a criminal street gang because these governmental actions are arbitrary and capricious. For the same reason, Plaintiffs further request that the Court enjoin Defendants from taking action in the future that would brand Juggalos, as a group, as a criminal street gang based on the actions of a relatively few people who may identify as Juggalos.
COUNT 5: Administrative Procedure Act (Agency Action that Fails to Observe Procedures Required by Law) 200. Plaintiffs reallege and incorporate the allegations set forth in the preceding paragraphs of this Complaint. 201. Plaintiffs assert this claim under § 706(2)(D) of the APA, which authorizes this Court to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . without observance of procedure required by law.”
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202. The DOJ, FBI and Center must comply with the provisions in the Code of Federal Regulations that provide “operating principles” for “Criminal Intelligence Systems Operating Policies.” 28 C.F.R. § 23.20.
203. The purpose of the “operating principles” is to “assure that all criminal intelligence systems operating through support under the Omnibus Crime Control and Safe Streets Act of 1968 . . . are utilized in conformance with the privacy and constitutional rights of individuals.” 28 C.F.R. § 23.1. The “operating principles” are intended to confer important procedural benefits upon individuals.
204. Under 28 C.F.R.§ 23.20(b): “A project shall not collect or maintain criminal intelligence information about the political, religious, or social views, associations, or activities of any individual or any group, association, corporation, business, partnership, or other organization unless such information directly relates to criminal conduct or activity and there is reasonable suspicion that the subject of the information is or may be involved in criminal conduct or activity.”
205. Pursuant to 28 C.F.R. § 23.20(c), “Reasonable Suspicion or Criminal Predicate is established when information exists which establishes sufficient facts to give a trained law enforcement or criminal investigative agency officer, investigator, or employee a basis to believe that there is a reasonable possibility that an individual or organization is involved in a definable criminal activity or enterprise. In an interjurisdictional intelligence system, the project is responsible for establishing the existence of reasonable suspicion of criminal activity either through examination of supporting information submitted by a participating agency or by delegation of this responsibility to a properly trained
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participating agency which is subject to routine inspection and audit procedures established by the project.”
206. Under 28 C.F.R. § 23.20(l): “A project shall make assurances that there will be no harassment or interference with any lawful political activities as part of the intelligence operation.”
207. The Juggalos are a “group” or “association” within the meaning of 28 C.F.R. § 23.20(b).
208. The Plaintiffs are “individuals” within the meaning of 28 C.F.R. § 23.20(b). 209. The DOJ, FBI and Center have collected and/or maintained “criminal intelligence information” about the Juggalos’ “political, religious, or social views, associations, or activities,” within the meaning of 28 C.F.R. § 23.20(b). 210. Upon information and belief, the DOJ, FBI and Center have collected and/or maintained “criminal intelligence information” about some or all of the Plaintiffs’ “political, religious, or social views, associations, or activities,” within the meaning of 28 C.F.R. § 23.20(b), because the Plaintiffs are Juggalos. 211. Upon information and belief, the DOJ, FBI and Center have collected purported “criminal intelligence information” about the Juggalos and/or the Plaintiffs that fails to properly relate to definable criminal conduct or activity. 212. The DOJ, FBI and Center have failed to provide – and upon information and belief they do not have – sufficient information to support a “reasonable suspicion” or a “reasonable possibility” that the Juggalos as a group “[are] involved in a definable criminal activity or enterprise,” within the meaning of 28 C.F.R. § 23.20(c).
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213. The DOJ, FBI and Center have failed to provide – and upon information and
belief they do not have – sufficient information to support a “reasonable suspicion” or a
“reasonable possibility” that the Plaintiffs:
a. “[are] involved in a definable criminal activity or enterprise,” within the meaning of 28 C.F.R. § 23.20(c); or
b. “[are] or may be involved in criminal conduct or activity,” within the meaning of 28 C.F.R. § 23.20(b).
214. The DOJ, FBI and Center have failed to provide – and upon information and
belief they do not have – sufficient information to show that they have made “assurances
that there will be no harassment or interference with any lawful political activities as part
of the intelligence operation,” within the meaning of 28 C.F.R. § 23.20(l).
WHEREFORE, Plaintiffs request that this Court enter an order under the APA:
(a) requiring the DOJ to expunge and eliminate purported “criminal intelligence information” concerning the Juggalos from NGIC Online, Law Enforcement Online, and any other gang intelligence database under its control; (b) prohibiting and enjoining the DOJ, FBI or the Center from gathering purported “criminal intelligence information” about the Juggalos, as a whole group, unless and until the DOJ has sufficient facts to give a trained law enforcement or criminal investigative agency officer, investigator, or employee a basis to believe that the Juggalos, as a whole group, are involved in a definable criminal activity or enterprise; and (c) prohibiting and enjoining the DOJ, FBI or the Center from including within its collection of criminal intelligence information any information about an individual’s status as a Juggalo, in general, unless and until the DOJ has sufficient facts to give a trained law enforcement or criminal investigative agency officer, investigator, or employee a basis to believe that the Juggalos, as a whole group, are involved in a definable criminal activity or enterprise.
COUNT 6: Declaratory Judgment Act 215. Plaintiffs reallege and incorporate the allegations set forth in the preceding
paragraphs of this Complaint.
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216. Plaintiffs assert this claim for declaratory relief under the Declaratory Judgment Act, 28 U.S.C. § 2201, which authorizes the Court to “declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.”
217. Upon information and belief, the DOJ and FBI currently have collected the most complete repositories within the United States of information from international, federal, state and local governmental authorities on the subject of whether Juggalos are involved in any activity related to criminal street gangs.
218. For the reasons set forth above, the information referenced in the immediately preceding paragraph is not sufficient
a. to overcome the First Amendment’s prohibition here on classifying the Juggalos as any kind of criminal “gang.”
b. to overcome the Due Process Clause’s prohibition here on the vague and otherwise constitutionally deficient classification of the Juggalos as any kind of criminal “gang.”
WHEREFORE, Plaintiffs request that this Court enter a declaratory judgment holding that federal designations of the Juggalos, as a whole, as any kind of criminal “gang” are unlawful because they violate the First and Fifth Amendments.
PRAYER FOR RELIEF For the reasons set forth above, Plaintiffs respectfully request that this Court: (1) Enter an order under the APA:
(a) holding unlawful and setting aside the 2011 Assessment and any other classification by the DOJ, FBI or the Center of the Juggalos, as a whole, as a
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“gang” or a “hybrid gang” because those governmental actions are unconstitutional;
(b) holding unlawful any classifications by the DOJ, FBI or the Center of the Juggalos, as a whole, as a “criminal street gang” because those governmental actions are arbitrary and capricious;
(c) requiring the DOJ to expunge and eliminate purported “criminal intelligence information” concerning the Juggalos from NGIC Online, Law Enforcement Online, and any other gang intelligence database under its control, because such information was collected and maintained in violation of the legally required procedures;
(d) prohibiting and enjoining the DOJ, FBI and the Center from gathering purported “criminal intelligence information” about the Juggalos, as a whole, unless and until the DOJ has sufficient facts to give a trained law enforcement or criminal investigative agency officer, investigator, or employee a basis to believe that the Juggalos, as a whole, are involved in a definable criminal activity or enterprise; and
(e) prohibiting and enjoining the DOJ, FBI and the Center from including within its collection and/or database of criminal intelligence information any information about an individual’s status as a Juggalo, in general, unless and until the requirements of subparagraph (d) above are met.
(2) Declare, pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, that the governmental designation of “Juggalos,” as a whole, as a “gang” or a “hybrid gang” is unconstitutional under the First and Fifth Amendments to the United States Constitution.
(3) Award costs and reasonable attorneys’ fees.
(4) Grant such other and further relief as the Court deems just and proper.

Respectfully submitted,
/s/ Saura J. Sahu Saura J. Sahu (P69627) Miller, Canfield, Paddock and Stone, P.L.C. Cooperating Counsel, American Civil
Liberties Union Fund of Michigan 150 West Jefferson, Suite 2500 Detroit, Michigan 48226 (313) 963-6420 sahu@millercanfield.com

/s/ Howard Hertz Howard Hertz (P26653) Elizabeth C. Thomson (P53579) Hertz Schram, P.C. 1760 South Telegraph Road Bloomfield Hills, Michigan 48302 (248) 335-5000 hhertz@hertzschram.com

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Michael J. Steinberg (P43085) Daniel S. Korobkin (P72842) Kary L. Moss (P49759) American Civil Liberties Union
Fund of Michigan 2966 Woodward Avenue Detroit, Michigan 48201 (313) 578-6814 msteinberg@aclumich.org dkorobkin@aclumich.org Attorneys for Plaintiffs Parsons, Bradley, Gandy and Hellin
Dated: January 8, 2014
21394489

Farris F. Haddad (P71538) Farris F. Haddad & Associates, P.C. 26100 American Drive, Suite 605 Southfield, Michigan 48034 (888) 818-1646 Farris@CallFarris.com
Attorneys for Plaintiffs Bruce and Utsler

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 2:14-cv-C1a0s0e7:11-R4-H1C84-P8JK DDocoucm#e3n3t: 3F8i-le2d 09F/i1le7d/:1059/1P7g/230o1f523 PaPggeI:D1379

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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0230p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

MARK PARSONS; BRANDON BRADLEY; SCOTT ┐

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

W. UTSLER,

│

v.

Plaintiffs-Appellants,

│
││>

│

UNITED STATES DEPARTMENT OF JUSTICE; FEDERAL │

BUREAU OF INVESTIGATION,

│

Defendants-Appellees. │

┘

No. 14-1848

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: June 18, 2015

Decided and Filed: September 17, 2015

Before: ROGERS and McKEAGUE, Circuit Judges; SARGUS, District Judge*

_________________

COUNSEL
ARGUED: Saura J. Sahu, MILLER, CANFIELD, PADDOCK AND STONE, PLC, Detroit, Michigan, for Appellants. Lindsey Powell, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Saura J. Sahu, Emily C. Palacios, MILLER, CANFIELD, PADDOCK AND STONE, PLC, Detroit, 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.

*The Honorable Edmund A. Sargus, Jr., Chief United States District Judge for the Southern District of Ohio, sitting by designation.
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No. 14-1848

Parsons v. United States Dep’t of Justice

Page 2

_________________
OPINION _________________ SARGUS, District Judge. Plaintiffs appeal the district court’s dismissal of this action for lack of standing. We REVERSE and REMAND.

OVERVIEW
This is a case about fans of the Insane Clown Posse, who call themselves “Juggalos,” and their ability to bring a lawsuit against government law enforcement agencies for alleged violations of their constitutional rights. The Insane Clown Posse is a commercially successful musical art group whose fans self-identify as “Juggalos.” Juggalos are easily spotted because they frequently display, on person or property, insignia representative of the band. In 2011, the National Gang Intelligence Center—an informational center operating under the Federal Bureau of Investigation—released a congressionally-mandated report on gang activity that included a section on Juggalos. The report identified Juggalos as a “hybrid gang” and relayed information about criminal activity committed by Juggalo subsets. Plaintiff-Juggalos allege that they subsequently suffered violations of their First and Fifth Amendment constitutional rights at the hands of state and local law enforcement officers who were motivated to commit the injuries in question due to the identification of Juggalos as a criminal gang. Plaintiffs filed suit against the Department of Justice and Federal Bureau of Investigation under the Administrative Procedure Act and the Declaratory Judgment Act. The district court dismissed for lack of standing. For the reasons that follow we REVERSE the dismissal and REMAND the case for consideration of Defendants’ Fed. R. Civ. P. 12(b)(6) arguments.

I. BACKGROUND
A. Factual Background
Because this case is before us on a motion to dismiss, we “must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Kardules v. City of Columbus, 95 F.3d 1335, 1346 (6th Cir. 1996) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)). When considering whether pleadings make out a justiciable case for

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want of standing, our analysis must be confined to the four corners of the complaint. Id. at 1347 n.4.

1. Musical Group ICP and Juggalos
The Insane Clown Posse (“ICP”) is a musical group formed in 1991 and based in Farmingham Hills, Michigan. The group is well known for elaborate live performances and has enjoyed substantial commercial success. ICP’s songs “often use harsh language and themes” that deal with social, political, religious or counter-cultural issues. (R. 1 ¶ 22). Specifically, ICP’s music ranges from songs with “hopeful, life-affirming themes about the wonders of life and the support that Juggalos give to one another,” to “horrorcore hip hop”—music that “uses very harsh language to tell nightmare-like stories with an underlying message that horrible things happen to people who choose evil over good.” (Id. ¶ 3).
Members of ICP’s dedicated musical fan base—fans of ICP and other bands on ICP’s independent record label, Psychopathic Records—are widely known as “Juggalos.” “As an expression of their identity, Juggalos often obtain and display distinctive tattoos of ICP and Psychopathic Record art and icons. They also wear and otherwise display ICP art, symbols and insignia on their clothing and other personal belongings.” (Id. ¶ 24). These displays of identity include the practice of painting their faces to look like clowns and often incorporate the “hatchetman” logo—a distinctive Juggalo symbol.
Plaintiffs self-identify as Juggalos. “Juggalos gather and 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.” (Id. ¶ 25).
2. Defendants and the National Gang Intelligence Center
Defendant Department of Justice (“DOJ”) is a department of the United States government. Defendant Federal Bureau of Investigation (“FBI”) is an agency housed within the DOJ. In 2005, Congress directed the U.S. Attorney General, through Public Law 109-162, 119 Stat. 2960, 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

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activity information from the FBI, the Bureau of Prisons, the Drug Enforcement Administration, other federal agencies, and state and local law enforcement, prosecutors, and correctional officers.” (Id. ¶ 100). In the same federal statute, Congress directed the NGIC to make the information available to federal, state and local law enforcement agencies, among others. The statute also directed the NGIC to annually submit a report to Congress on gang activity. “The DOJ promptly established the Center in response to Congress’s direction and . . . the FBI has administered the Center since its inception.” (Id. ¶ 101).
In 2011, the NGIC published its 2011 National Gang Threat Assessment (the “2011 NGIC Report,” or “Report”), in which the NGIC summarized and reported information it had collected and analyzed in relation to gangs. “According to the [NGIC], the [2011 NGIC Report] ‘supports [DOJ] strategic objectives 2.2 (to reduce the threat, incidence, and prevalence of violent crime) and 2.4 (to reduce the threat, trafficking, use and related violence of illegal drugs).’” (Id. ¶ 121). The 2011 NGIC Report “is based on federal, state, local, and tribal law enforcement and corrections agency intelligence . . . .” (Id. at ¶ 122). From its publication through at least the time of the filing of the Complaint in this case, the 2011 NGIC Report has been available to the general public on the NGIC website. See https://www.fbi.gov/statsservices/publications/2011-national-gang-threat-assessment.
In the 2011 NGIC Report, Juggalos are classified as a “loosely-organized hybrid gang.” (Id. ¶ 132). The Report defines hybrid-gangs as “non-traditional gangs with multiple affiliations” that “are adopting national symbols and gang members often crossover from gang to gang.” (Id. ¶ 131). The Report further states the following:
 “Many Juggalo subsets exhibit gang-like behavior and engage in criminal activity and violence.”
 “Most crimes committed by Juggalos are sporadic, disorganized, individualistic, and often involve simple assault, personal drug use and possession, petty theft and vandalism.”
 “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.”

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 “Juggalos’ disorganization and lack of structure within their groups, coupled with their transient nature, makes it difficult to classify them and identify their members and migration patterns.”

(Id. ¶ 140). The Report also notes that Arizona, California, Pennsylvania and Utah are the only states officially recognizing Juggalos as a gang, but that Juggalo gang-related criminal activity is reported in other states.
3. Plaintiffs’ Alleged Injuries
a. Plaintiff Mark Parsons (“Parsons”)
On July 9, 2013, Parsons was riding with a driver-trainee in a semi-truck on an interstate freeway outside Knoxville, Tennessee for his small trucking business, entitled “Juggalo Express LLC.” The side of Parsons’ truck was decorated with a large, visible ICP “hatchetman” logo. (Id. ¶¶ 31-34). Parsons and the trainee pulled into the bypass lane of a weigh station, where a Tennessee State Trooper ordered them to stop and park for a safety inspection. Once they parked, the State Trooper approached Parsons and asked if he was a Juggalo. (Id. ¶¶ 34-37). The State Trooper indicated that he detained Parsons for an inspection due to the hatchetman logo on the truck. He then indicated that he considered Juggalos to be a criminal gang because of the DOJ’s designation. (Id. ¶¶ 38-39). He proceeded to detain and question Parsons about whether he had any axes, hatchets or other similar instruments in the vehicle. He searched the vehicle and continued to question Parsons for about an hour, during which time he did not find any weapons or contraband and did not issue a ticket or a citation to Parsons. (Id. ¶¶ 40-41).
b. Plaintiff Brandon Bradley (“Bradley”)
Bradley has been detained numerous times by law enforcement officers in California due to visible Juggalo insignia on his person or clothing. In September 2012, a Citrus Heights, California Police Officer in a patrol car stopped Bradley while he was biking. Bradley’s Juggalo tattoos were visible and he was wearing a Juggalo merchandise T-shirt. (Id. ¶¶ 47-48). The officer detained Bradley for fifteen minutes while questioning him about being a Juggalo. (Id. ¶ 52). “Later, an ex-Citrus Heights Police Officer told Bradley that the ex-officer heard about the above encounter” and also told Bradley “the tattoos are gang-affiliated.” (Id. ¶ 54).

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In October 2012, Bradley was stopped by a deputy from the Sacramento Sheriff’s Department while walking across a street in downtown Sacramento. Bradley was wearing a shirt bearing ICP-related insignia and some of his tattoos were visible. After confirming Bradley selfidentified as a Juggalo, the deputy asked to see Bradley’s identification. (Id. ¶¶ 55-60). The deputy took Bradley’s identification and ICP-themed wallet, ran a background check on Bradley and detained and questioned Bradley for “a substantial amount of time, during which the deputy accused Bradley of being in a gang because he was a Juggalo. The deputy stated that to be a Juggalo is to be a gang member. The deputy also asked Bradley about his ICP-related tattoos.” (Id. ¶¶ 60-63).
In January 2013, Bradley was walking while wearing an ICP jacket with a large red “hatchetman” insignia on the back. Two police officers pulled up in a cruiser and stopped him. They told Bradley they noticed his jacket with the “hatchetman” insignia and ordered him to stand in front of a guardrail with his back to them so they could take pictures of it. They also took photographs of his face and his tattoos. (Id. ¶¶ 64-70). The officers “interrogated Bradley about his status as a Juggalo and about whether he was a gang member.” (Id. ¶ 71).
c. Plaintiff Scott Gandy (“Gandy”)
Gandy has large ICP-related tattoos on his chest. (Id. ¶ 79). In 2012, Gandy visited an Army recruiting office where he was asked if he had any tattoos. (Id. ¶¶ 78, 80). Upon displaying his tattoos, Gandy was told by the Army’s recruiting Sergeant that Juggalos “were on the federal government’s gang list.” The Sergeant said that he “considered Gandy’s Juggalo tattoos to be gang-related” and then “questioned Gandy about whether he was a gang member.” (Id. ¶¶ 81-82). “The Sergeant instructed Gandy that he must remove or permanently cover his Juggalo tattoos or the Army would immediately deny his recruitment application.” (Id. ¶ 83). As a result of this instruction, Gandy went through the painful and costly procedure of covering his Juggalo tattoos with other tattoos. He returned to the recruitment office, showed the Sergeant his new tattoos and received approval for his application to be considered. However, Gandy was ultimately denied a position. (Id. ¶¶ 86-88).

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d. Plaintiff Robert Hellin (“Hellin”)
Hellin has visible ICP-related tattoos. (Id. ¶ 92). He enlisted in the Army in 2008 and is currently a corporal. (Id. ¶ 91). Hellin believes that, because of the Juggalo gang designation, his identity as a Juggalo “places him in imminent danger of suffering discipline or an involuntary discharge from the Army.” (Id. ¶ 93).
e. Plaintiffs Joseph Bruce (“Bruce”) and Joseph Utsler (“Utsler”)
Bruce and Utsler are members of ICP. (Id. ¶ 94). In August 2012, they contracted with AEG Live to perform at the Royal Oak Music Theater in Royal Oak, Michigan for their annual musical event known as “Hallowicked,” to be held in October 2012. On October 8, 2012, the Royal Oak Music Theater cancelled Hallowicked without prior notice. (Id. ¶¶ 96-97). “After discussions with AEG Live and Royal Oak Music Theater, ICP’s record label discovered that the Royal Oak Police Department asked the Royal Oak Music Theater to cancel the event. When asking the Royal Oak Music Theater to cancel the Hallowicked event, the Royal Oak Police Department cited the federal Juggalo gang designation.” (Id. ¶¶ 98-99).
B. Procedural Background
Plaintiff-appellants Parsons, Bradley, Gandy, Hellin, Bruce, and Utsler (the “Juggalos”) filed suit against the DOJ and FBI (the “Agencies”) asserting claims under the Administrative Procedure Act (“APA”) and various constitutional provisions.1 Specifically, the Juggalos allege that the 2011 NGIC Report violated their rights under the First and Fifth Amendments to the U.S. Constitution (Claims 1-3), was arbitrary and capricious (Claim 4), and failed to observe procedures required by law (Claim 5). The Juggalos also seek relief under the Declaratory Judgment Act (“DJA”) (Claim 6).
The Agencies moved to dismiss the complaint on April 9, 2014, arguing, under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), that the Juggalos lacked constitutional standing and also had failed to state a claim.

1The Juggalos bring their first five claims under the Administrative Procedure Act. Their first three claims specifically state First and Fifth Amendment violations.

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In June 2014, the district court granted the motion to dismiss based on the Juggalos’ failure to satisfy the requisite three-part test for standing: (1) injury in fact; (2) causation; and (3) redressability. The district court held that Hellin had not demonstrated an injury in fact because he failed to allege any injury he had suffered. His fears that the Army might take action against him at some point in the future did not demonstrate that injury existed or was fairly impending. As for the remaining five plaintiffs, the district court found that causation and redressability were not satisfied because their alleged injuries were independent actions taken by third-parties who were not before the court. The district court also held that the Juggalos had forfeited an argument that they had standing to assert the DJA claim even in the absence of standing to assert their other claims. Having reached the dispositive standing issue, the court did not consider the Agencies’ failure to state a claim argument.

II. ARTICLE III STANDING
Motions to dismiss for lack of standing are reviewed de novo. Miller v. Cincinnati, 622 F.3d 524, 531 (6th Cir. 2010).
“The threshold question in every federal case is whether the court has the judicial power to entertain the suit.” National Rifle Assoc. of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997) (citing Warth v. Seldin, 422 U.S. 490, 498 (1975)). Article III of the United States Constitution prescribes that federal courts may exercise jurisdiction only where an actual “case or controversy” exists. See U.S. Const. art. III, § 2. Courts have explained the “case or controversy” requirement through a series of “justiciability doctrines,” including, “perhaps the most important,” that a litigant must have “standing” to invoke the jurisdiction of the federal courts. Magaw, 132 F.3d at 279.
The Supreme Court has enumerated the following elements necessary to establishing standing:
First, Plaintiff must have suffered an injury in fact—an invasion of a legallyprotected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be

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likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations and quotations omitted). The standing inquiry is particularly rigorous when reaching the merits of the dispute “would force [the Court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Clapper v. Amnesty Intern. USA, 133 S. Ct. 1138, 1147 (2013) (quoting Raines v. Byrd, 521 U.S. 811, 819-20 (1997)).
A plaintiff must have standing for each claim pursued in federal court. Daimler Chrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). However, only one plaintiff needs to have standing in order for the suit to move forward. See Horne v. Flores, 557 U.S. 433, 446-47 (2009) (“[T]he critical question is whether at least one petitioner has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.”); Massachusetts v. EPA, 549 U.S. 497, 518 (2007).
“For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501 (1975). “The party invoking federal jurisdiction bears the burden of establishing these elements.” Defenders of Wildlife, 504 U.S. at 561; accord Kardules v. City of Columbus, 95 F.3d 1335, 1346 (6th Cir. 1996).

A. Injury in Fact
The injury prong of the standing doctrine requires that the harm be actual or imminent. In other words, the harm must have already occurred or it must be likely to occur “imminently.” Defenders of Wildlife, 504 U.S. at 560. “Imminent” in this context is defined as “certainly impending,” in contradistinction to “allegations of possible future injury.” Clapper, 133 S. Ct. at 1147. “At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim.” Defenders of Wildlife, 504 U.S. at 561 (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990)). Moreover, the injury must be to a legally cognizable right. McConnell v. FEC, 540 U.S. 93 (2003) (overruled

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on other grounds); Citizens United v. FEC, 558 U.S. 310 (2010); Diamond v. Charles, 476 U.S. 54, 64 (1986).
The Juggalos claim the following injuries resulted from the 2011 NGIC Report: chilling effects on their freedoms of speech and association; stigmatic reputational injury; and various harms inflicted by third-party law enforcement agencies, such as improper stops, detentions, interrogations, searches, denial of employment, and interference with contractual relations.

1. First Amendment & Due Process Claims (1-3)
The Agencies assert that the alleged First Amendment and reputational injuries are too speculative and too generalized to establish an injury in fact.
To satisfy the injury in fact requirement on an allegation of chilled speech, the repercussions responsible for the chilling effect must be imminent. “Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Laird v. Tatum, 408 U.S. 1, 13-14 (1972).
Generally, standing is found based on First Amendment violations where the rule, policy or law in question has explicitly prohibited or proscribed conduct on the part of the plaintiff. See, e.g., Nat’l Right to Life PAC v. Connor, 323 F.3d 684 (8th Cir. 2003) (Missouri election provisions required out-of-state committees to have an in-state treasurer and deposit account if annual spending exceeded $1500); Clapper, 133 S. Ct. at 1153 (noting that case law does not “hold[] or even suggest[] that plaintiffs can establish standing simply by claiming that they experienced a ‘chilling effect’ that resulted from a governmental policy that does not regulate, constrain, or compel any action on their part”). Here, the 2011 NGTA Report does not “regulate, constrain, or compel any action” on the part of the plaintiffs. Clapper, 133 S. Ct. at 1153. The chilling effect alone, therefore, does not constitute an injury in fact. See Morrison v. Bd. of Educ., 521 F.3d 602, 609-610 (6th Cir. 2008) (“First Amendment chill typically constitutes the ‘reason why the governmental imposition is invalid rather than the harm which entitles a party to challenge it.’”) (quoting Adult Video Assoc. v. Dep’t of Justice, 71 F.3d 563, 566 (6th Cir. 1995)).

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Reputational injury, on the other hand, is sufficient to establish an injury in fact. Meese v. Keene, 481 U.S. 465, 473-76 (1987) (exhibitor of foreign films had standing to challenge the DOJ’s label of certain films as “political propaganda”); Turkish Coal. Of Am., Inc. v. Bruininks, 678 F.3d 617, 622-23 (8th Cir. 2012) (cognizable injury to reputation pled resulting from defendant labeling plaintiff’s website “unreliable”); NCAA v. Governor of N.J., 730 F.3d 208, 220-22 (3d Cir. 2013) (injury in fact requirement satisfied by evidence that sports leagues’ reputations would be harmed by legalized gambling on games); Foretich v. U.S., 351 F.3d 1198, 1213 (D.C. Cir. 2003) (“Case law is clear that where reputational injury derives directly from an unexpired and unretracted government action, that injury satisfies the requirements of Article III standing to challenge the action.”). Specifically, where claims of a chilling effect are accompanied by concrete allegations of reputational harm, the plaintiff has shown injury in fact. Meese, 481 U.S. at 473-75. In Meese, the Supreme Court noted that the plaintiff would not have had standing had he merely alleged a chilling effect, but by introducing affidavits stating that his reputation would suffer if he showed films designated by the government as “political propaganda,” plaintiff cleared the injury in fact hurdle. Id. at 473-74. Cf. Laird, 408 U.S. at 1011 (rejecting argument that the plaintiffs’ First Amendment rights were being “chilled by the mere existence, without more, of [the Army’s] investigative and data-gathering activity”) (emphasis added).
The Juggalos’ allegations that their First Amendment rights are being chilled are accompanied by allegations of concrete reputational injuries resulting in allegedly improper stops, detentions, interrogations, searches, denial of employment, and interference with contractual relations. Stigmatization also constitutes an injury in fact for standing purposes. Heckler v. Matthews, 465 U.S. 728, 739-40 (1984). As required, these reputational injuries are cognizable claims under First Amendment and due process causes of action. Meese, 481 U.S. at 473-74; see Paul v. Davis, 424 U.S. 693, 710 (1976) (where reputational injury is accompanied by concrete harm, such as termination of employment, cognizable claim under Due Process Clause exists). For the reasons stated above, the injury in fact requirement was satisfied as to the First Amendment and due process claims.

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2. Procedural Claims (4-5)
Claims for violations of procedural rights are treated uniquely under the standing inquiry. “The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy.” Defenders of Wildlife, 504 U.S. at 572, n.7; accord Wright v. O’Day, 706 F.3d 769, 771-72 (6th Cir. 2013); Klein v. U.S. Dep’t of Energy, 753 F.3d 576, 579 (6th Cir. 2014). However, in order to sustain a claim for procedural injury for standing purposes, “the procedures in question [must be] designed to protect some threatened concrete interest of [plaintiff’s] that is the ultimate basis of his standing.” Defenders of Wildlife, 504 U.S. at 573, n.8. Additionally, the plaintiff must suffer a concrete injury as a result of the disregarded procedural requirement. Wright, 706 F.3d at 772. Consequently, the 2011 NGIC Report—the agency “action, finding or conclusion”—at issue here must be designed to protect some threatened concrete interest of plaintiffs, such that the alleged arbitrary, capricious and contrary to law nature of the report is personally injurious to them.
Wright is instructive on this point. We found that freedom from placement on a childabuser registry is a sufficiently concrete interest to establish standing on a procedural due process claim. 706 F.3d at 772. The Juggalos allege that they have suffered reputational injury and have been harassed, detained and otherwise mistreated by law enforcement officers as a result of the compilation of information and analyses on Juggalos contained within the 2011 NGIC Report. These alleged injuries are concrete and particular to the Appellant-Juggalos, rather than the general population of citizens suffering no adverse effects as a result of the inclusion of the Juggalo subsection. Cf. Defenders of Wildlife, 504 U.S. at 572 (no concrete or particular injury to plaintiffs with generalized grievance against statute); Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009) (no standing for environmental groups to challenge U.S. Forest Service regulation in absence of dispute over application of regulations). As in Wright, AppellantJuggalos are the “object of the challenged action”—the placement of Juggalos in the 2011 NGIC Report. Id. Thus, their freedom from placement in the 2011 NGIC Report is a sufficiently concrete interest to establish a procedural injury in fact. We find the Juggalos have established an injury in fact on their procedural APA claims.

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B. Causation
The second prong of the Article-III standing test requires the Juggalos to show that the injury “fairly can be traced to the challenged action.” Whitmore v. Arkansas, 495 U.S. 149, 155 (1990); Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982). The causation need not be proximate. Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1391 n.6 (2014). To that end, the fact that an injury is indirect does not destroy standing as a matter of course. See United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 (1973) (indirect “attenuated line of causation to the eventual injury” was sufficient to satisfy standing requirements at the pleading stage). A defendant’s actions may have directly affected someone other than the plaintiff. Bennett v. Spear, 520 U.S. 154, 169 (1997); Meese, 481 U.S. at 472-77. However, the Supreme Court has cautioned that standing, albeit not precluded, is generally more difficult to establish when the injury is indirect. Summers, 555 U.S. at 493; Allen, 468 U.S. at 751.
The district court found that the Juggalos failed to demonstrate causation because the third-party law enforcement officials exercised independent judgment in committing the alleged injuries. (R. 29, at 9-12). The district court relied on Defenders of Wildlife and Clapper in drawing its conclusion. (Id). Both are distinguishable.
In Defenders of Wildlife, the Supreme Court did not hold that the plaintiffs failed to satisfy the causation element of standing—only that the plaintiffs failed to satisfy injury and redressability. 504 U.S. at 562. (“Respondents had not made the requisite demonstration of (at least) injury and redressability.”). While the Court did enumerate a heightened standard for demonstrating causation in the case of indirect injury caused by a third party, it makes clear that such a standard is satisfied where the plaintiff was able to “adduce facts showing that [the thirdparty’s] choices have been or will be made in such manner as to produce causation and permit redressability of injury.” Id. Here, the Juggalos alleged facts demonstrating that their injuries were caused, at least in part, by the Agencies’ actions in publishing the 2011 NGTA Report:
 Parsons alleged that the Tennessee State Trooper who stopped, detained and searched Parsons indicated that he considered Juggalos to be a criminal gang

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based on the DOJ’s designation and that he had stopped Parsons for an inspection because of the hatchetman logo on Parsons’ truck. (R. 1 ¶ 39).  Gandy alleged that an Army Recruiting Sergeant told Gandy that Juggalos were a prohibited criminal gang based on the DOJ’s Juggalo gang designation and, therefore, the Sergeant considered Gandy’s tattoos to be gang-related. (Id. ¶ 81).  When asking the Royal Oak Music Theater to cancel Bruce and Utsler’s Hallowicked concert, the Royal Oak Police Department cited the federal Juggalo designation. (Id. ¶ 99).
This panel must accept as true these material allegations. The Juggalos’ allegations link the 2011 NGTA Report to their injuries by stating that the law enforcement officials themselves acknowledged that the DOJ gang designation had caused them to take the actions in question. At this initial stage of the case, the Juggalos’ allegations must suffice. See Lambert v. Hartman, 517 F.3d 433, 435-38 (6th Cir. 2008). Should the case proceed to discovery, the Agencies would have the opportunity to factually challenge the allegations.
In support of its finding that causation is broken by the independent law enforcement officers’ voluntary conduct, the district court noted that the Agencies did not direct the thirdparty law enforcement entities to stop, detain and question Plaintiffs, or to cancel the Hallowicked concert. (R. 29, at 10-11). See City of Detroit v. Secretary of Commerce, 4 F.3d 1367, 1373 (6th Cir. 1993) (no causation due to “an independent act breaking the chain of causation between the challenged actions … and the injury to plaintiffs”). But, it is still possible to motivate harmful conduct without giving a direct order to engage in said conduct. The Juggalos allege that the injurious third-party actions were motivated by the DOJ gang designation. In the nebulous land of “fairly traceable,” where causation means more than speculative but less than but-for, the allegation that a defendant’s conduct was a motivating factor in the third party’s injurious actions satisfies the requisite standard.

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The district court also noted that the 2011 NGTA Report relied in part on individual States’ designations of Juggalos as a gang,2 “further complicating Plaintiff Bradley’s theory of causation.” (R. 29, at 10; see also 2011 National Gang Threat Assessment, at 22). However, courts have held that the fact that a defendant was one of multiple contributors to a plaintiff’s injuries does not defeat causation. Connecticut v. American Elec. Power Co., Inc., 582 F.3d 309, 345-47 (2d Cir. 2009), rev’d on other grounds, 131 S. Ct. 2527 (2011); Libertarian Party of Va. v. Judd, 718, F.3d 308, 316 (4th Cir. 2013) (causation is satisfied if witness residency requirement for gathering signatures on petitions was partially responsible for frustrating plaintiff’s First Amendment rights, even where unrelated knee injury would also have hindered assertion of rights); Barnum Timber Co. v. EPA, 633 F.3d 894, 901 (9th Cir. 2011) (causation satisfied where defendant’s listing of plaintiff’s property as “impaired water body” may have only been one contributing factor to decreasing property value). In American Elec. Power Co., the Second Circuit held that injuries were fairly traceable to the defendants’ carbon dioxide emissions, even though third parties not before the court had also emitted carbon dioxide contributing to the plaintiffs’ alleged injuries. 582 F.3d at 345-47. The Supreme Court affirmed the Second Circuit’s exercise of jurisdiction in a divided opinion. Four Justices concluded that at least some plaintiffs had standing and four concluded that none had standing, with Justice Sotomayor taking no part in the decision. Id.
Resolution of this issue is not necessary in this case. The injuries alleged all occurred within law enforcement jurisdictions having ready access to the challenged report. Several occurred in states which had not previously designated the Juggalos as a gang. In these circumstances, we need not definitively address the multiple causation issue.
The Agencies’ arguments on causation are also unavailing. The Agencies claim that the Juggalos fail to satisfy the pleading standards with respect to their allegations that the thirdparties relied on the 2011 NGIC Report in improperly detaining, searching and otherwise mistreating the Juggalos. (Appellees Br. at 20-22). However, the test for standing is not whether the Juggalos met Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly,

2The district court noted that the 2011 NGTA Report relied on the State of California’s designation of the
Juggalos as a gang. (R. 29, at 10). The 2011 NGTA Report states that Arizona, California, Pennsylvania and Utah designate Juggalos as gangs. (Appellees Br., at A5).

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550 U.S. 540 (2007) pleading requirements, but rather whether they have demonstrated their injuries to be fairly traceable to the Agencies’ actions.3 The Agencies seek to distinguish the cases relied upon by the Juggalos—Lambert and Foretich—through the level of detail provided in the plaintiffs’ allegations pertaining to causation. Of course, causation to support standing is not synonymous with causation sufficient to support a claim. Nonetheless, the question of whether the causal nexus has been pled with particularity is not the question we now address. The Juggalos’ allegations, which we must credit at the motion to dismiss stage, satisfy the fairly traceable requirement.
The Agencies also cite Clapper, in which the Supreme Court found that the plaintiffs’ claimed injuries and causation theories were too speculative to establish an injury in fact that was fairly traceable to the defendants. 133 S. Ct. at 1150. We note that Clapper was dismissed for lack of standing at the summary judgment stage. The burden on the plaintiffs was therefore significantly higher—they could not rest on “mere allegations” but had to “set forth by affidavit or other evidence specific facts” demonstrating their injuries and causation. Defenders of Wildlife, 504 U.S. at 561. In this case, the Juggalos need only allege facts adducing that their injuries are fairly traceable to the Agencies’ actions. Parsons, Gandy, Bruce and Utsler have done so with their allegations that law enforcement officers communicated the motivation behind their actions to be the DOJ’s Juggalo gang designation.

C. Redressability
The third prong of the Article III standing test is redressability, i.e. the relief the plaintiff is seeking must provide redress for the injury. An injury is redressable if a court order can provide “substantial and meaningful relief.” Larson v. Valente, 456 U.S. 228, 243 (1982). “[A] plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury.” Id. at 244 n.15; accord. Massachusetts v. EPA, 549 U.S. 497, 525 (2007). The relevant standard is likelihood—whether it is “likely, as opposed to merely speculative, that the

3The Agencies raised 12(b)(6) arguments in their initial Motion to Dismiss before the district court. (R. 20,
at 19-30). Because the lower court dismissed the action for lack of standing, it did not proceed to consider whether the Juggalos failed to state a claim. Neither party raised the 12(b)(6) arguments before this panel, with the exception of the Agencies’ reference to pleading standards in their argument against causation.

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injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC) Inc., 528 U.S. 167, 181 (2000). Redressability is typically more difficult to establish where the prospective benefit to the plaintiff depends on the actions of independent actors. See ASARCO, Inc. v. Kadish, 490 U.S. 605, 615 (1989).
The Juggalos have requested several forms of relief, including, inter alia: (1) an order declaring the 2011 NGIC Report unlawful and setting it aside; (2) an order holding the classification of Juggalos by the DOJ, FBI or NGIC as a “criminal street gang” to be unlawful; (3) an order requiring the Agencies to expunge all criminal intelligence information regarding the Juggalos from NGIC’s databases; (4) injunctive relief prohibiting the Agencies from investigating, collecting information regarding or reporting on the criminal activities of Juggalos; and (5) a declaration that the designation of Juggalos as a “gang” or “hybrid gang” is unconstitutional, pursuant to the First and Fifth Amendments. The Agencies assert that only the first form of relief is available under the APA or the DJA, but even the broader relief sought by the Juggalos would not redress their injuries because reporting by state and local law enforcement and other entities would likely perpetuate the alleged injuries. (Appellees Br., at 14).
The Agencies argue that the alleged reputational harm and chilling effect would not be remedied by an order setting aside the 2011 NGIC Report because information about criminal activity performed by Juggalo subsets is available from a variety of other sources, including state and local law enforcement in the locations where the Juggalos were allegedly injured. (Id. at 21). In Meese, the defendant, the Attorney General, espoused an analogous argument—that enjoinment of the DOJ’s label of certain films as “political propaganda” would not stem negative reaction to the plaintiff’s exhibition of the films. 481 U.S. at 476-77. The Supreme Court disagreed, articulating that the harm to plaintiff occurred because “the Department of Justice has placed the legitimate force of its criminal enforcement powers behind the label of ‘political propaganda.’” Id. at 477. The Juggalos in this case also suffer alleged harm due to the force of a DOJ informational label. While the 2011 NGIC Report is not the designation itself, it reflects the designation and includes an analytical component of the criminal activity performed by Juggalo subsets, classifying the activity as gang-like. As in Meese, “[a] judgment declaring the

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[action in question] unconstitutional would eliminate the need to choose between [First Amendment-protected activity] and incurring the risk that public perception of this criminal enforcement scheme will harm appellee’s reputation.” Id.
The Agencies also assert that an order declaring the 2011 NGIC Report unconstitutional would not alleviate the alleged harm entirely because the information on Juggalo activity is available through the aforementioned alternate channels. But it need not be likely that the harm will be entirely redressed, as partial redress can also satisfy the standing requirement. See Meese, 481 U.S. at 476 (“enjoining the application of the words ‘political propoganda’ to the films would at least partially redress the reputational injury of which appellee complains”); Laidlaw, 528 U.S. at 185 (finding civil penalties sufficient to satisfy redressability noting that they have at least “some deterrent effect”) (emphasis added). “It can scarcely be doubted that, for a plaintiff who is injured or faces the threat of future injury due to illegal conduct ongoing at the time of a suit, a sanction that effectively abates that conduct and prevents its recurrence provides a form of redress.” Laidlaw, 528 U.S. at 185-86. An order declaring the 2011 NGIC Report unconstitutional and setting it aside would abate the reflection of Juggalo criminal activity as gang or gang-like by the Agencies. Lambert further buttresses this conclusion. 517 F.3d at 438. The court held that Lambert had standing if she could likely show that the relief she was requesting “would not only combat future risk, but would also help to redress the past . . . injury that she has suffered.” Id. The declaration the Juggalos seek would likely combat at least some future risk that they would be subjected to reputational harm and chill due to the force of the DOJ’s criminal gang or gang-like designation.
The Agencies point to Raisins Landscape & Assoc., Inc. v. Michigan Department of Transportation as supportive of their argument that the Juggalos fail to satisfy redressability. 528 F. App’x 441 (6th Cir. 2013). In Raisins, the plaintiff-landscaping corporation filed a complaint with the Michigan Department of Transportation (the “Department”), alleging that prime contractors who were hired by the Department and subsequently hired the plaintiff as a subcontractor failed to pay the plaintiff for duly completed work. We held that the plaintiff did not have standing to pursue the claims, in part, because of a lack of redressability. The plaintiff had not shown that it was likely that “a prime contractor would pay its debts even if sanctioned,”

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the court explained. Id. at 445. While we cannot be certain whether and how the declaration sought by the Juggalos will affect third-party law enforcement officers, it is reasonable to assume a likelihood that the injury would be partially redressed where, as here, the Juggalos have alleged that the law enforcement officers violated their rights because of the 2011 NGIC Report. See Foretich, 351 F.3d at 1215 (“[s]uch a declaration will remove the imprimatur of government authority” from the 2011 NGIC Report).
The Agencies assert that “it is entirely conjectural whether the nonagency activity that affects respondents will be altered or affected by the agency activity they seek to achieve.” Defenders of Wildlife, 504 U.S. at 571. The “action agencies” here cannot be required to cease their behavior towards the Juggalos as they “are not directly bound as parties to the suit and otherwise not indirectly bound” because the 2011 NGIC Report does not prescribe regulations for conduct towards so-identified gangs. Id. at 596 (Blackmum, J., dissenting) (summarizing majority opinion rationale for finding lack of redressability). But the same rationale for why a non-prescriptive report can satisfy causation for the purposes of standing applies to redressability. The Juggalos sufficiently allege that the reputational harm and chill was caused by the 2011 NGIC Report and under Meese, where reputational harm and chill will likely be alleviated by the relief sought, redressability exists. We emphasize that our conclusion is based upon the allegations made in the Complaint. We express no opinion as to the 12(b)(6) motion to dismiss or the merits of the case.

III. DECLARATORY JUDGMENT ACT CLAIM
The Juggalos argue that they did not forfeit standing to assert their DJA claim even in the absence of standing to assert their other claims. In their Motion to Dismiss before the lower court, the Agencies argued that the statute does not provide a basis for jurisdiction and therefore the Juggalos’ DJA allegations could not survive as an independent claim. (R. 20, at 5 n.1). The Juggalos assert that the DJA solely provides a form of relief, while jurisdiction comes from the underlying constitutional issues presented in the claim. The Juggalos also assert that this argument was not waived because it was both included in their opposition memorandum to the Agencies’ Motion to Dismiss and raised during oral argument. (Appellants Br., at 17). On appeal, the Agencies fail to argue that the DJA claim may not survive. The Juggalos asserted in

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their response to the Agencies’ Motion to Dismiss that they appropriately pled the DJA as the basis of a claim for relief. Some of their arguments about the appropriateness of declaratory judgment as a remedy for constitutional violations could be construed as responsive to the Agencies’ cursory attack on the DJA claim. This was minimally sufficient to avoid forfeiting this claim.

IV. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s decision to dismiss for lack of standing and REMAND the case for consideration of Defendants’ 12(b)(6) failure to state a claim arguments.

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 14-1848

MARK PARSONS; BRANDON BRADLEY; SCOTT GANDY; ROBERT HELLIN; JOSEPH F. BRUCE; JOSEPH W. UTSLER,
Plaintiffs - Appellants,

FILED
Sep 17, 2015
DEBORAH S. HUNT, Clerk

v.

UNITED STATES DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF INVESTIGATION,
Defendants - Appellees.

Before: ROGERS and McKEAGUE, Circuit Judges; SARGUS, District Judge.

JUDGMENT

On Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

THIS CAUSE was heard on the record from the district court and was argued by counsel.

IN CONSIDERATION WHEREOF, it is ORDERED that the district court’s dismissal for lack of standing is REVERSED, and the case is REMANDED for consideration of Defendants’ 12(b)(6) failure to state a claim arguments.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARK PARSONS, BRANDON BRADLEY, SCOTT GANDY, ROBERT HELLIN, JOSEPH BRUCE and JOSEPH UTSLER,

Plaintiffs,

v.

Case No. 14-10071

UNITED STATES DEPARTMENT OF JUSTICE and FEDERAL BUREAU OF INVESTIGATION,

Defendants. /

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

Plaintiffs Mark Parsons, Brandon Bradley, Scott Gandy, Robert Hellin, Joseph

Bruce, and Joseph Utsler, all self-identified “Juggalos,” challenge Defendants United

States Department of Justice’s (“DOJ”) and Federal Bureau of Investigation’s (“FBI”)

use of the term “hybrid gang” in reference to Juggalos. Plaintiffs claim that the use of

this term infringes on their First Amendment rights to free association and expression,

and that the term further violates their Fifth Amendment due process rights and is an

arbitrary and capricious state action. Defendants move to dismiss Plaintiffs’ complaint.

On June 23, 2014, the court heard oral arguments on the motion For the following

reasons, Defendants’ motion to dismiss will be granted.

I. BACKGROUND A. General Allegations What is a Juggalo? According to the complaint, Juggalos are “fans of the musical group Insane Clown Posse (“ICP”)[1] and other bands on ICP’s independent record label, Psychopathic Records.” (Dkt. # 1, Pg. ID 2.) Although some of ICP’s music contains “hopeful, life-affirming themes about the wonders of life,” other songs fall into the genre of “horrorcore hip hop” which “uses very harsh language to tell nightmarelike stories with an underlying message that horrible things happen to people who choose evil over good.” (Id.) Juggalos often paint their faces to look like clowns, and wear distinctive symbols, including the “hatchetman” logo, which depicts a person with wild hair running with a butcher cleaver in his or her hand. (Id.) “Many Juggalos embrace ‘Juggaloism’ as a philosophy, an identity, [and] a way of life. ICP’s lyrics, through their description of a ‘Dark Carnival,’ address themes of good and evil, heaven and hell, and acceptance and tolerance of others.” (Id. at Pg. ID 6.) Juggalos attempt to live by the “moral code” of the Carnival, and see themselves as social outcasts, striving for acceptance and support from one another. (Id. at Pg. ID 7.) “Based on these shared values, Juggalos strongly identify with one another and often refer to themselves as a ‘family.’” (Id.) According to Plaintiffs, Juggalos gather and associate with each other in order to listen to ICP’s music, share ideas surrounding the music, and
1ICP is a musical group founded in 1991 and based in Farmington Hills, Michigan. (Dkt. # 2, Pg. ID 5.) Its principal members are Plaintiffs Joseph Bruce and Joseph Utsler, who go by the stage names “Violent J” and “Shaggy 2 Dope,” respectively. (Id. at Pg. ID 14.)
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express their support for the band. (Id. at Pg. ID 6.) “Organized crime is by no means part of the Juggalo culture.” (Id. at Pg. ID 3.)
B. The 2011 National Gang Threat Assessment Plaintiffs’ allegations stem from the National Gang Intelligence Center’s “2011 National Gang Threat Assessment: Emerging Trends” (“NGTA”). National Gang Intelligence Center, 2011 National Gang Threat Assessment: Emerging Trends, (2011), available at http://www.fbi.gov/stats-services/publications/ 2011-national-gang-threat-assessment (June 9, 2014) (rendering of URL contains spaces). The NGTA states that its purpose is to “examine emerging gang trends and threats posed by criminal gangs to communities throughout the United States.” Id. at 5. “It supports US Department of Justice strategic objectives 2.2 (to reduce the threat, incidence, and prevalence of violent crime) and 2.4 (to reduce the threat, trafficking, use, and related violence of illegal drugs).” Id. The NGTA further states that its data is based on federal, state, local, and tribal law enforcement reporting, as well as information supplied by correctional institutions. Id. In a section entitled “Non-Traditional Gangs,” the 2011 NGTA notes that “[t]he expansion of hybrid gangs—non-traditional gangs with multiple affiliations—is a continued phenomenon in many jurisdictions nationwide.” Id. at 22. The NGTA further observes that hybrid gangs are fluid in structure and size, present in at least 25 states, and that hybrid gang members commit a multitude of street and violent crime, including drug trafficking. Id. The report identifies Juggalos as a hybrid gang subset, and notes that Juggalo gangs are rapidly expanding into many communities. Arizona, California, Pennsylvania, and Utah are the only states that recognize Juggalos as a gang, but the
3

NGTA reports that “at least 21 states have identified criminal Juggalo sub-sets.” Id. Most crimes committed by Juggalos are sporadic, disorganized, individualistic, and often involve simple assault, personal drug use and possession, petty theft and vandalism. However, open source reporting suggests 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 NGTA warns that “Juggalo criminal activity has increased over the past several years and has expanded to several other states. Transient, criminal Juggalo groups pose a threat to communities due to the potential for violence, drug use/sales, and their general destructive and violent nature.” Id. at 23. The NGTA also noted that Juggalos are known to have members in the U.S. Army and Air Force. Id. at 36–37.
C. Alleged Harassment of Plaintiffs Following publication of the 2011 NGTA, Plaintiffs allege that local police departments evidenced an inexplicable and seemingly magnetic attraction to Plaintiffs’ activities. For example, Plaintiff Mark Parsons owned and operated a small trucking business, “Juggalo Express LLC.” (Dkt. # 1, Pg. ID 7.) His truck is decorated with a large ICP “hatchetman” logo. On July 9, 2013, a Tennessee State Trooper ordered Parsons to stop his truck for a safety inspection. The state trooper asked Parsons if he was a Juggalo, and told Parsons that he had detained him because of the “hatchetman” logo on the truck. (Id. at Pg. ID 8.) The trooper further informed Parsons that he believed Juggalos to be a gang because of the DOJ’s designation, and asked Parsons whether he had any axes, hatchets, or other chopping instruments in his truck. Parsons
4

told the trooper that he did not have any such items in his truck, and an hour-long search of the truck and interrogation of Parsons revealed no weapons or contraband.
Plaintiff Brandon Bradley also claims that police stopped him in order to interrogate him about his Juggalo affiliation. (Id. at Pg. ID 9.) In September 2012, a Citrus Hills, California police officer flashed his car’s lights and stopped Bradley while he was biking home. Bradley had visible Juggalo tattoos and was wearing Juggalo merchandise at the time. Bradley believes that the reason that the officer stopped him is because the officer saw Bradley’s Juggalo-related apparel, and assumed he was a member of a gang. The officer allegedly detained Bradley for fifteen minutes, interrogated him about being a Juggalo, and took notes regarding Bradley’s answers. Soon after the incident, an ex-Citrus Hills police officer told Bradley that he had heard about the incident, and that Bradley would have to get his Juggalo tattoos removed if he wanted to be a police officer because the tattoos were gang-related. Approximately a month later, a Sacramento police officer stopped Bradley, requested Bradley’s identification, and asked Bradley if he was a Juggalo. (Id. at Pg. ID 10.) The officer ran a background check on Bradley, and accused Bradley of being in a gang stating that “to be a Juggalo is to be a gang member.” (Id.) In a final incident in January 2013, Bradley was walking alone in a bike lane when a police cruiser pulled up behind him and stopped him. Two officers exited the cruiser and told Bradley that they had noticed the “hatchetman” symbol on his jacket. They ordered him to stand in front of a guardrail so that they could take pictures of his jacket, face, and tattoos. (Id. at Pg. ID 11.) They questioned Bradley regarding his Juggalo affiliation, and insisted that he was part of a
5

gang. As a result of these encounters, Bradley often chooses not to express his Juggalo affiliation, or wear Juggalo-related apparel.
Plaintiff Scott Gandy also alleges discrimination on the basis of his Juggalo affiliation. He claims that in 2012, he visited a U.S. Army recruiting station, and that at the time, he had large ICP tattoos on his chest. The recruiting officer asked Gandy whether he had any tattoos, and told Gandy that because Juggalos were on the federal government’s “gang list,” he considered Gandy’s tattoos to be gang-related. The officer questioned Gandy regarding his Juggalo affiliation, and instructed Gandy that he would have to remove or permanently cover his tattoos or the Army would immediately deny his application. Gandy subsequently spent hundreds of dollars to have his Juggalo tattoos covered with other tattoos. When he returned to the recruiting station, the officer accepted his application and told Gandy that he would receive consideration. Ultimately, the Army denied Gandy’s application. (Id. at Pg. ID 12–13.)
Plaintiff Robert Hellin is currently a corporal in the Army, and has served in Iraq, Afghanistan, and Korea. He has a number of visible ICP tattoos, but worries that because of the federal government’s designation of Juggalos as a hybrid gang, he is in imminent danger of discipline or involuntary discharge from the army. (Id. at Pg. ID 13.)
As mentioned earlier, Plaintiffs Bruce and Utsler are members of ICP. They claim that on August 20, 2012, they entered into a contract with AEG Live to perform at the Royal Oak Music Theater in Royal Oak, Michigan, for ICP’s annual “Hallowicked” event. On October 8, 2012, the Royal Oak Music Theater cancelled the “Hallowicked” event, informing Bruce and Utsler that its landlord prompted the cancellation. Upon further discussions with AEG Live and the Royal Oak Music Theater, Bruce and Utsler
6

discovered that the Royal Oak Police Department had asked the Royal Oak Music Theater to cancel the event, citing the federal Juggalo gang designation as a motivating reason. (Id. at Pg. ID 14.)
On March 21, 2014, after Plaintiffs filed the instant suit, the National Gang Intelligence Center released its 2013 National Gang Report. Neither Juggalos nor “hybrid gangs” receive any mention therein. See generally, National Gang Intelligence Center, 2013 National Gang Report (2014), available at http://www.fbi.gov/statsservices/publications/national-gang-report-2013/view (June 9, 2014) (rendering of URL contains spaces).
II. STANDARD A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6) tests the sufficiency of a complaint’s allegations. The court views the complaint in the light most favorable to the plaintiff and takes all well-pleaded factual allegations as true. Tackett v. M&G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009); Carrier Corp. v. Outokumu Oyj, 673 F.3d 430, 400 (6th Cir. 2012). Only a complaint that states a plausible claim for relief can survive a motion to dismiss, and “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief.
7

Id. at 679 (internal quotation marks, citation, and brackets and omitted). “In determining whether to grant a [motion to dismiss], the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account.” Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001) (quotation marks, citation, and emphasis omitted).
III. DISCUSSION “If Plaintiffs cannot establish constitutional standing, their claims must be dismissed for lack of subject matter jurisdiction.” Loren v. Blue Cross & Blue Shield of Mich., 505 F.3d 598, 607 (6th Cir. 2007). The constitutional standing inquiry is “especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (citation omitted). “Relaxation of standing requirements is directly related to the expansion of judicial power.” Id. (citation omitted). In order to satisfy constitutional standing requirements, Plaintiffs must show that: (1) [they have] suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (internal quotation marks omitted).2 Plaintiffs must demonstrate that the
2Although Plaintiffs also argue that Defendants’ alleged classification is “overbroad,” the court notes that the doctrine of overbreadth “creates an exception only
8

challenged action is “not the result of independent action of some third party not before the court.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citation, ellipsis, and brackets omitted).
[When t]he existence of one or more of the essential elements of standing depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict . . . it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such a manner as to produce causation and permit redressability of injury. Id. at 562 (citations omitted). “[T]he plaintiff need only allege injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.” Wuliger v. Mfrs. Life Ins. Co., 567 F.3d 787, 796 (6th Cir. 2009) (citation omitted). The court should exercise reluctance to “endorse standing theories that rest on speculation about the decisions of independent actors.” See Clapper, 133 S. Ct. at 1150. “Redressability and causation problems often go hand in hand: If a plaintiff fails to sue the entity causing its injury, a judgment is unlikely to do him any good.” United States v. Carroll, 667 F.3d 742, 745–46 (6th Cir. 2012). Plaintiffs’ complaint fails this crucial threshold test. Five of the six Plaintiffs complain of independent actions by third-parties who are not currently before the court. For example, Parsons alleges that while he was stopped at a weigh station operated by the Tennessee Department of Transportation, an unidentified Tennessee State Trooper
to the prudential standing inquiry,” and that the “injury[-]in[-]fact requirement still applies to overbreadth claims under the First Amendment.” Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 350 (6th Cir. 2007).
9

questioned him regarding the “hatchetman” symbol on his truck. (Dkt. # 1, Pg. ID 7.) Similarly, Bradley complains of conduct by Citrus Heights and Sacramento, California, police officers who allegedly stopped him on three occasions to ask him questions about his Juggalo tattoos and merchandise. (Id. at Pg. ID 9–11.) These allegations concern local law enforcement authorities in two different states, each of which made an independent decision to detain and question Plaintiffs. There is no indication that either the FBI or DOJ directed state police to detain and question either subject.3
Gandy alleges a third-party actor as the culprit of the alleged discriminatory conduct he experienced as well. Gandy states that he applied to join the U.S. Army, but his recruiting sergeant told him that if he wanted his application considered, he would have to cover his Juggalo tattoos. Despite having his tattoos covered, Gandy states that the Army ultimately denied his application. Again, there is no indication that either Defendant participated in any of these decisions. Even assuming arguendo that the Army denied Gandy’s application because of his Juggalo tattoos, the court notes that the Army utilizes detailed regulations which govern acceptable grooming standards for service members, including the display of any tattoos. See U.S. Dep’t of Army, Reg. 670-1, Wear and Appearance of Army Uniforms and Insignia, at 10–12 (March 31, 2014); Reg. 601-210, Active and Reserve Components Enlistment Program, at 32–33 (Feb. 8, 2011). Thus, Gandy is unable to plausibly allege that the 2011 NGTA prompted the Army’s decision to deny his application.
3The court further notes that the NGTA relied in part on the State of California’s recognition of Juggalos as a gang, further complicating Plaintiff Bradley’s theory of causation. See 2011 National Gang Threat Assessment, at 22.
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Bruce and Utsler allege at least two third-party actors who were responsible for their injury: the Royal Oak Music Theater and the Royal Oak Police Department. According to these Plaintiffs, the Royal Oak Music Theater decided to cancel their “Hallowicked” concert event following the Royal Oak Police Department’s request. Although Bruce and Utsler allege that the Royal Oak Police Department cited the DOJ’s report in asking the Theater to cancel the “Hallowicked” concert, the complaint does not allege that the DOJ or FBI directed either party to do so. Instead, the complaint reveals that two independent actors, neither of whom are present in the instant law suit, decided to cancel the event.
The court’s review of the NGTA illustrates the voluntary nature of this conduct by independent actors. The self-identified purpose of the National Gang Intelligence Center is “to operate as a repository and dissemination hub for gang intelligence.” Id. In order to accomplish this goal, the NGTA utilizes state, local, and federal voluntary reporting by police departments across the country to identify new and emerging gang trends. National Gang Threat Assessment at 5. The NGTA does not recommend any particular course of action for local law enforcement to follow, and instead operates as a descriptive, rather than prescriptive, assessment of nation-wide gang trends.
The court is reluctant to “endorse standing theories that rest on speculation about the decisions of independent actors.” See Clapper, 133 S. Ct. at 1150. And where, as here, reaching the merits of Plaintiffs’ allegations would force the court to decide whether actions by the executive branch are unconstitutional, the standing inquiry is especially rigorous. Id. at 1147. Although the complaint alleges that the 2011 NGTA motivated the third-party actors discussed above, each actor appears to have exercised
11

discretion in deciding whether to: question Parsons and Bradley, inform Gandy that he was ineligible for Army consideration, or cancel Bruce’s and Utlser’s event. Because any adjudication on the merits would involve speculation about the decisions of these independent actors, the court finds that Plaintiffs have not properly alleged constitutional standing to bring their claims before the court.
This conclusion is further illustrated by the redress Plaintiffs seek in their complaint. Plaintiffs request, inter alia, an order: declaring the 2011 NGTA’s discussion of Juggalos as a hybrid gang to be unlawful, requiring the DOJ to expunge and eliminate criminal intelligence information about Juggalos from its database, and enjoining the DOJ and FBI from gathering criminal intelligence information about the Juggalos “until the DOJ has sufficient facts to give a trained law enforcement or criminal investigative agency officer, investigator or employee a basis to believe that Juggalos, as a whole, are involved in a definable criminal activity or enterprise.” (Dkt. # 1, Pg. ID 37.) Although Plaintiffs argue that partial redressability is sufficient to satisfy the constitutional standing inquiry, it is unclear how any of Plaintiffs’ requested remedies would redress the damage they claim. An injunction mandating the retraction of the 2011 NGTA, even if warranted, would not compel or enjoin any action by the various independent actors who allegedly caused Plaintiffs’ injuries, and who are not parties to this action. As Defendants argue, “there are a multitude of state agencies and media reports that have described Juggalo gang activity long prior to the 2011 [NGTA] and would continue to do so regardless of the outcome of this action. (Dkt. # 27-1, Pg. ID 286.) The court finds that it is “merely speculative” to assert that Plaintiffs’ alleged injury would be redressed by a decision in their favor. Laidlaw, 528 U.S. at 181.
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This leaves Hellin. Unlike the other five Plaintiffs, Hellin does not allege that he has suffered any injury at all (at least not yet). He claims that he is currently a corporal in the U.S. Army and that he has visible ICP-related tattoos. According to the complaint, he fears that he will suffer discipline or involuntary discharge from the Army at some point in the future because of his Juggalo affiliation. These allegations are insufficient to grant Hellin constitutional standing. “[W]e have repeatedly reiterated that threatened injury must be certainly impending to constitute injury in fact, and that allegations of possible future injury are not sufficient.” Clapper, 133 S. Ct. at 1147 (emphasis in original). Hellin’s injury relies on his fear that the Army may take action against him at some point in the future, despite the fact that by his own allegations, he has been a soldier for six years and has served with honor in Iraq, Afghanistan, and Korea. There is no indication that Hellin’s discharge is “certainly impending” (let alone, impending at all), and Hellin’s allegations must also be dismissed for failing to properly allege constitutional standing to bring his suit.4
4During oral argument, Plaintiffs argued for the first time that their count seeking declaratory judgment should survive, citing Muniz-Muniz v. U.S. Border Patrol, 741 F.3d 668 (6th Cir. 2013), as support. However, the Muniz-Muniz court expressly declined to consider the defendant’s standing arguments, leaving resolution of the matter to the district court on remand. Id. at 674.
Further, by failing to raise this issue in their brief, Plaintiffs have forfeited this argument. United States v. Olano, 507 U.S. 725, 733 (1993); see also Automated Solutions Corp. v. Paragon Data Sys., Inc., No. 13-3025/3058, --- F.3d ---, at *22 (6th Cir. June 25, 2014).
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IV. CONCLUSION Because Plaintiffs are unable to properly allege constitutional standing to bring this action, the court finds it unnecessary to reach Defendants’ remaining arguments in support of their motion to dismiss. Accordingly, IT IS ORDERED that Plaintiffs’ complaint is DISMISSED.

Dated: June 30, 2014

s/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, June 30, 2014, by electronic and/or ordinary mail.
s/Lisa Wagner Case Manager and Deputy Clerk (313) 234-5522

S:\Cleland\JUDGE'S DESK\C2 ORDERS\14-10071.PARSONS.MotDismiss.jac.wpd
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 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARK PARSONS, et. al.,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF JUSTICE and FEDERAL BUREAU OF INVESTIGATIONS,
Defendants. /

Case No. 14-10071

JUDGMENT In accordance with the court’s “Opinion and Order Granting Defendants’ Motion to Dismiss” (Dkt. # 45) dated September 29, 2016, IT IS ORDERED AND ADJUDGED that judgment is entered in favor of Defendants United States Justice Department and Federal Bureau of Investigation, and against Plaintiffs Mark Parsons, Brandon Bradley, Scott Gandy, Robert Hellin, Joseph F. Bruce, and Joseph W. Utsler. Dated at Detroit, Michigan, this 29th day of September, 2016.

DAVID J. WEAVER CLERK OF THE COURT

BY: S/Lisa Wagner Lisa Wagner, Deputy Clerk and Case Manager to Judge Robert H. Cleland
C:\Users\wagner\AppData\Local\Temp\notesDF63F8\14-10071.PARSONS.Judgment.tlh.wpd

 
 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARK PARSONS, et. al.,

Plaintiffs,

v.

Case No. 14-10071

UNITED STATES DEPT. OF JUSTICE, et. al.,

Defendants. /

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

Now before the court is a Motion to Dismiss filed by Defendants United States

Department of Justice (“DOJ”) and Federal Bureau of Investigation (“FBI”). (Dkt. # 37.)

The matter is fully briefed, and the court finds that a hearing is unnecessary. See E.D.

LR 7.1(f)(2). For the reasons discussed below, the court will grant Defendants’ Motion.

I. BACKGROUND

As alleged in the complaint, “Juggalos” are “fans of the musical group Insane Clown Posse (“ICP”)[1] and other bands on ICP’s independent record label,

Psychopathic Records.” (Dkt. # 1, Pg. ID 2.) ICP’s music is generally referred to as

“horrorcore hip hop” which “uses very harsh language to tell nightmare-like stories . . . .”

(Id.) Juggalos often paint their faces to look like clowns, and wear distinctive symbols,

including the “hatchetman” logo, which depicts a person with wild hair wielding a

butcher’s meat cleaver. (Id.) The complaint alleges that “[m]any Juggalos embrace

‘Juggaloism’ as a philosophy, an identity, [and] a way of life. ICP’s lyrics, through their description of a ‘Dark Carnival,’ address themes of good and evil, heaven and hell, and acceptance and tolerance of others.” (Id. at Pg. ID 6.) These Juggalos observe “the moral code” of the Carnival, and see themselves as social outcasts, seeking support from one another. (Id. at Pg. ID 7.) “Based on these shared values, Juggalos strongly identify with one another and often refer to themselves as a ‘family.’” (Id.) According to Plaintiffs, Juggalos gather to listen to ICP’s performances, share ideas expressed in the ICP performances, and express their support for the band. (Id. at Pg. ID 6.)
A. The 2011 National Gang Threat Assessment Plaintiffs’ allegations stem from the National Gang Intelligence Center’s “2011 National Gang Threat Assessment: Emerging Trends” (“NGTA”).2 The NGTA states that its purpose is to “examine emerging gang trends and threats posed by criminal gangs to communities throughout the United States.” Id. at 5. “It supports US Department of Justice strategic objectives 2.2 (to reduce the threat, incidence, and prevalence of violent crime) and 2.4 (to reduce the threat, trafficking, use, and related violence of illegal drugs).” Id. The NGTA further states that its data are based on federal, state, local, and tribal law enforcement reporting, as well as information supplied by correctional institutions. Id.
1 ICP was founded in 1991 and based in Farmington Hills, Michigan. (Dkt. # 1, Pg. ID 5.) Its principal members are Plaintiffs Joseph Bruce and Joseph Utsler, who go by the stage names “Violent J” and “Shaggy 2 Dope,” respectively. (Id. at Pg. ID 14.)
2 National Gang Intelligence Center, 2011 National Gang Threat Assessment: Emerging Trends, (2011), available at http://www.fbi.gov/stats-
2

In a section entitled “Non-Traditional Gangs,” the 2011 NGTA notes that “[t]he expansion of hybrid gangs – non-traditional gangs with multiple affiliations – is a continued phenomenon in many jurisdictions nationwide.” Id. at 22. The NGTA further observes that hybrid gangs are fluid in structure and size, present in at least 25 states, and that hybrid gang members commit a multitude of street and violent crime, including drug trafficking. Id. The report identifies Juggalos as a hybrid gang subset, and notes that Juggalo gangs are rapidly expanding into many communities. Arizona, California, Pennsylvania, and Utah are the only states that recognize Juggalos as a gang, but the NGTA reports that “at least 21 states have identified criminal Juggalo sub-sets.” Id.
Most crimes committed by Juggalos are sporadic, disorganized, individualistic, and often involve simple assault, personal drug use and possession, petty theft and vandalism. However, open source reporting suggests 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 NGTA further reports that “Juggalo criminal activity has increased over the past several years and has expanded to several other states. Transient, criminal Juggalo groups pose a threat to communities due to the potential for violence, drug use/sales, and their general destructive and violent nature.” Id. at 23. The NGTA also noted that Juggalos are known to have members in the U.S. Army and Air Force. Id. at 36–37.
services/publications/2011-national-gang-threat-assessment (June 9, 2014) (rendering of URL contains spaces).
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B. Alleged Harassment of Plaintiffs Plaintiff Mark Parsons owned and operated a small trucking business, “Juggalo Express LLC.” (Dkt. # 1, Pg. ID 7.) His truck is decorated with a large ICP “hatchetman” logo. Parsons alleges that on July 9, 2013, a Tennessee State Trooper ordered him to stop his truck for a safety inspection. The state trooper asked Parsons if he was a Juggalo, and told Parsons that he had detained him because of the “hatchetman” logo on the truck. (Id. at Pg. ID 8.) The trooper further informed Parsons that he believed Juggalos to be a gang because of the DOJ’s designation, and asked Parsons whether he had any axes, hatchets, or other chopping instruments in his truck. Parsons told the trooper that he did not have any such items in his truck, and an hour-long search of the truck and interrogation of Parsons revealed no weapons or contraband. Plaintiff Brandon Bradley claims that police stopped him in order to interrogate him about his Juggalo affiliation. (Id. at Pg. ID 9.) In September 2012, a Citrus Hills, California, police officer stopped Bradley while he was biking home. Bradley had visible Juggalo tattoos and was wearing Juggalo merchandise, and avers that the officer stopped him because of Bradley’s Juggalo-related apparel — the officer assumed he was a member of a gang. The officer allegedly detained Bradley for fifteen minutes, interrogated him about being a Juggalo, and took notes regarding Bradley’s answers. Soon after the incident, an ex-Citrus Hills police officer told Bradley that he had heard about the incident, and that Bradley, an aspiring police officer, would have to get his Juggalo tattoos removed if he wanted to be a police officer because the tattoos were gang-related. Approximately a month later, a Sacramento police officer stopped
4

Bradley, requested Bradley’s identification, and asked Bradley if he was a Juggalo. (Id. at Pg. ID 10.) The officer ran a background check on Bradley and accused Bradley of being in a gang, stating that “to be a Juggalo is to be a gang member.” (Id.) In a final incident in January 2013, Bradley was walking alone in a bike lane when a police cruiser pulled up behind him and stopped him. Two officers exited the cruiser and told Bradley that they had noticed the “hatchetman” symbol on his jacket. They ordered him to stand in front of a guardrail so that they could take pictures of his jacket, face, and tattoos. (Id. at Pg. ID 11.) They questioned Bradley regarding his Juggalo affiliation, and insisted that he was part of a gang. As a result of these encounters, Bradley often chooses not to express his Juggalo affiliation, or wear Juggalo-related apparel.
Plaintiff Scott Gandy claims that in 2012, he visited a U.S. Army recruiting station, and that at the time, he had large ICP tattoos on his chest. The recruiting officer asked Gandy whether he had any tattoos, and told Gandy that because Juggalos were on the federal government’s “gang list,” he considered Gandy’s tattoos to be gangrelated. The officer questioned Gandy regarding his Juggalo affiliation, and instructed Gandy that he would have to remove or permanently cover his tattoos or the Army would immediately deny his application. Gandy subsequently spent hundreds of dollars to have his Juggalo tattoos covered with other tattoos. When he returned to the recruiting station, the officer accepted his application and told Gandy that he would receive consideration. Ultimately, the Army denied Gandy’s application. (Id. at Pg. ID 12–13.)
5

Plaintiff Robert Hellin is currently a corporal in the Army and has a number of visible ICP tattoos, and avers that because of the federal government’s designation of Juggalos as a hybrid gang, he is in imminent danger of discipline or involuntary discharge from the army. (Id. at Pg. ID 13.)
Plaintiffs Bruce and Utsler are members of ICP. They claim that on August 20, 2012, they contracted with AEG Live to perform at the Royal Oak Music Theater in Royal Oak, Michigan, for ICP’s annual “Hallowicked” event. On October 8, 2012, the theater cancelled the event, informing Bruce and Utsler that its landlord prompted the cancellation. Further discussions with AEG Live and the Royal Oak Music Theater suggested that the Royal Oak Police Department asked the theater to cancel the event, citing the federal Juggalo gang designation as a motivating reason. (Id. at Pg. ID 14.)
On March 21, 2014, after Plaintiffs filed the instant suit, the National Gang Intelligence Center released its 2013 National Gang Report. Neither Juggalos nor “hybrid gangs” receive any mention therein.3
Defendants filed a Motion to Dismiss (Dkt. # 20), which the court granted on standing grounds (Dkt. # 29.) Defendants appealed and the Sixth Circuit, finding standing adequately shown, reversed and remanded. (Dkt. # 33.) Defendants then filed the instant Motion to Dismiss. (Dkt. # 37.)
6

II. STANDARD 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). The court views the complaint in the light most favorable to the Plaintiff and accepts all well-pleaded factual allegations as true. Tackett v. M&G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009). The court, however, “need not accept as true legal conclusions or unwarranted factual inferences.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (quoting Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000)). To survive a motion to dismiss, the complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Bare allegations are not enough. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not show[n] – that the pleader is entitled to relief.” Id. at 679 (internal quotation marks omitted). “In determining whether to grant a Rule 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also
3 See National Gang Intelligence Center, 2013 National Gang Report, available at http://www.fbi.gov/stats-services/publications/national-gang-report-2013/view (June 9,
7

may be taken into account.” Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001) (quoting Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir.1997)).
III. DISCUSSION Plaintiffs’ Complaint contains five counts alleging violations of the Administrative Procedures Act (“APA”) and one under the Declaratory Judgment Act (“DJA”). (Dkt. # 1.) In Counts 1, 2, and 3, Plaintiffs assert that Defendants violated their constitutional rights of association, expression, and due process under the First and Fifth Amendments, respectively. (Dkt. # 1, Pg. ID 23-31.) Count 4 argues that the agencies’ decision to classify Juggalos as a “hybrid gang” was “arbitrary and capricious.” (Id. at Pg. ID 31.) In Count 5, Plaintiffs claim that the agency failed to observe the procedures required by law. Finally, in Count 6, Plaintiffs seek “a declaratory judgment holding that federal designations of the Juggalos, as a whole, as any kind of criminal ‘gang’ are unlawful.” (Id. at Pg. Id 36.) Defendants advance several independent theories to support their Motion to Dismiss. First, they argue that “Plaintiffs have not challenged a final agency action” as required to bring a claim under the APA (Dkt. # 37, Pg. ID 420); second, they claim the actions challenged under the APA are “committed to agency discretion” and therefore outside the court’s subject matter jurisdiction (Id. at Pg. ID 422); third, they claim that “Plaintiffs have adequate alternative remedies,” rendering their allegations unactionable (Id. at Pg. ID 424.) Defendants also argue that all six counts should be dismissed for failure to state a claim upon which relief may be granted. The court concludes that
2014). 8

Defendants are entitled to dismissal on several grounds, but will not reach all of Defendants’ arguments.
A. Final Agency Action The APA allows aggrieved individuals to seek judicial review of agency decisions when the challenged action is either “made reviewable by statute” or is a “final agency action for which there is no other adequate remedy in court.” 5 U.S.C. § 704. To be considered a “final agency action,” it must satisfy two requirements: First, the challenged action must mark the consummation of the agency’s decision making process. [U.S. Army Corps. Of Eng’rs v. Hawkes Co., 136 S.Ct. 1807, 1813 (2016) (citing Bennett v. Spear, 520 U.S. 154, 177-78 (1997))]. This means the action “must not be of a merely tentative or interlocutory nature,” Bennett, 520 U.S. at 178, such that judicial review of the action would “disrupt the orderly process of adjudication,” Port of Bos. Marine Terminal Ass’n v. Rederkiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970). Second the challenged action must determine rights and obligations of a party or cause legal consequences. Hawkes Co., 136 S. Ct. at 1813 (citing Bennett, 520 U.S. at 177-18). Berry v. United States Dep't of Labor, No. 15-6316, 2016 WL 4245459, at *3 (6th Cir. Aug. 11, 2016). Here, Plaintiffs first allege, and Defendants do not dispute, that the NGTA was the “consummation of the [FBI’s] decision making process.” Neither tentative nor interlocutory, the report was generated pursuant to the Violence Against Women and DOJ Reauthorization Act, which the National Gang Intelligence Center within the FBI specifically “to collect, analyze, and disseminate gang activity information.” Pub. L. No. 109-162, Title XI, § 1107(a), 119 Stat. 2960, 3093 (2006).
9

Second, Plaintiffs do not claim that the NGTA “determine[d] rights and obligations of [any] party.” The one remaining question to determine whether this was a final agency action is whether the agency report “cause[d] legal consequences.” It did not.
Plaintiffs argue “that the classification of Juggalos as criminal [sic] gang imposes direct legal consequences on Plaintiffs’ constitutionally protected activity.” (Dkt. # 42, Pg. ID 506.) They argue that the FBI’s collection, analysis, and dissemination of gang activity information has caused Plaintiffs to “face unfavorable treatment in employment and business relationships, divorce and custody disputes, and law enforcement and prosecutorial activities.” (Id. at Pg.ID 506-07.) Specifically, they allege that as a result of the NGTA’s designation of Juggalos as a hybrid gang:
 Plaintiff Parsons was unconstitutionally seized, searched, and interrogated by a Tennessee State Trooper; (Dkt. # 1, Pg. ID 7);
 Plaintiff Bradley was “detained and questioned” by members of the Sacramento Sheriff’s Department on three different occasions, (id. at Pg. ID 9-11);
 Plaintiff Gandy was told “he must remove or permanently cover his Juggalo tattoos or the Army would immediately deny his recruitment application”, (id. at Pg. ID 12);
 Plaintiff Hellin is “in imminent danger of suffering discipline or an involuntary discharge from the Army” because of his Juggalo identity, (id. at Pg. ID 13); and
10

 the Royal Oak Music Theater cancelled Plaintiffs Bruce and Utsler’s annual “Hallowicked” music event after contact by the Royal Oak Police Department, (id. at Pg. ID 14). Every one of these alleged events, as specified, constitutes a decision to act that
rests on the shoulders of others — the persons or entities who performed the alleged acts or took the alleged steps — and not the Defendants or the agency action at issue in this case. No allegation exists of Defendants acting to arrest or intimidate, or coercing similar actions on the part of third parties to the detriment of Plaintiffs. Even if there were such allegations, “coercive pressures [placed] on third parties” as a consequence of agency actions do not qualify as “legal consequences” and are therefore not reviewable under the APA. Flue-Cured Tobacco Coop. Stabilization Corp. v. U.S. Envtl. Prot. Agency, 313 F.3d 852, 859 (4th Cir. 2002). In Flue-Cured Tobacco, several tobacco companies argued that an EPA report “analyz[ing] the effects of secondhand smoke on human health” caused “legal consequences” because other federal agencies and private groups relied on the report to justify the adoption of regulations restricting tobacco use. 313 F.3d at 860-61. The Fourth Circuit, focusing on whether the effects were more than merely remote, disagreed, holding that the subsequent “regulations [were] not direct consequences of the Report, but [were] the product of independent agency decisionmaking [sic]” or “independent responses and choices of third parties.” Id. at 860-61. As a result, the Circuit held that “[t]he actions and consequences complained of by plaintiffs do not legally flow from the Report nor are they the result of
11

legal rights or consequences created by the Report.” Id. at 261. The Circuit went on to explain:
Furthermore, as a practical matter and of considerable importance, if we were to adopt the position that agency actions producing only pressures on third parties were reviewable under the APA, then almost any agency policy or publication issued by the government would be subject to judicial review. We do not think that Congress intended to create private rights of actions to challenge the inevitable objectionable impressions created whenever controversial research by a federal agency is published. Such policy statements are properly challenged through the political process and not the courts. Id. This court agrees with the Fourth Circuit’s analysis and its concern about the offhand creation of private causes of action. The Fourth Circuit returned to the issue in Invention Submission Corp. v. Rogan, 357 F.3d 452, 459-60 (4th Cir. 2004). The plaintiff in Invention Submission challenged the United States Patent and Trademark Office’s advertising campaign to alert the public about “invention promotion scams” as arbitrary and capricious under the APA. Id. In particular, the plaintiff alleged that the campaign was false and led to a journalist publishing a story identifying plaintiff as one of the scams, which substantially harmed the plaintiff’s business. Id. at 455. The Circuit, relying on Flue-Cured Tobacco, held that the harms to the plaintiff’s business were “the decisions of members of the public . . . attributable to independent responses and choices of third parties and cannot be imputed to [the agency] for purposes of determining whether its conduct was a final agency action.” Id. at 460 (quoting Flue-Cured Tobacco, 313 F.3d at 861) (internal quotation marks omitted).
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Similarly, in Franklin v. Massachusetts, 505 U.S. 788, 790 (1992), Massachusetts challenged a report submitted to the President by the Secretary of Commerce tabulating the results of the most recent census and recommending the number of representatives that should be apportioned to each state. Id. The Supreme Court found that the Secretary’s report did not constitute a final agency action because it “carrie[d] no direct consequences for reapportionment.” Id. at 798. No legal consequences were triggered until the President issued a statement to Congress showing “the number of Representatives to which each State would be entitled.” Id. at 792 (quoting 2 U.S.C. § 2a(a)). However persuasive the Secretary’s report may have been to the President, it was still only a “tentative recommendation.” Id. at 798.
As in Franklin and Flue-Cured Tobacco, none of the consequences complained of here by Plaintiffs (assuming them to be “legal consequences”) are in any way directly caused by NGTA. Instead, each one is either “the product of independent agency decisionmaking [sic]” or an “independent response[] and choice[] of third parties.” FlueCured Tobacco, 313 F.3d at 861.
Plaintiffs do not allege that the NGTA directs, authorizes, or empowers local police to stop or search Juggalos or object to ICP concerts. Nor do Plaintiffs claim that the armed services must discharge or refuse to consider applicants. However informational or influential the NGTA may have been to local law enforcement or Army recruiters, no alleged constitutional violations or any other consequences, “legal” or otherwise, emerged until local officials or members of other agencies — not the FBI, DOJ, or NGIC — decided to act.
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Plaintiffs’ present a misguided argument focused on the “classification,” not the publication, as the challenged action. (Dkt. # 42, Pg. ID 507.) Classifying Juggalos as a “hybrid gang,” Plaintiffs argue, causes Plaintiffs to “face unfavorable treatment in employment and business relationships, divorce and custody disputes, and law enforcement and prosecutorial activities. (Id.)
But the decision to describe Juggalos as a “hybrid gang” for the NGTA does not “mark the culmination of the decision making process,” the publication of the NGTA does. Hawkes, Co., 136 S.Ct. at 1813. In any event, Plaintiffs have not alleged any unfavorable treatment in divorce or custody disputes, and the other alleged consequences remain the result of independent responses and choices of third parties, not of the classification. Plaintiffs’ distinction is therefore immaterial.
Regardless of whether the challenged action is the decision to classify or the publication of the classification, Plaintiffs fail to allege legal consequences within the meaning of Hawks, Co. Id. In the absence of legal consequences, Plaintiffs’ claims are not reviewable under APA, and the court will therefore grant Defendants’ Motion with respect to Plaintiffs’ APA claims.
B. Committed To Agency Discretion Even assuming that the classification is a final agency action, that action is committed to agency discretion by law and not subject to APA review. Madison-Hughes v. Shalala, 80 F.3d 1121, 1127 (6th Cir. 1996) (citing Lincoln v. Virgil, 508 U.S. 182 (1993)). Section 701 provides for judicial review of agency actions except “to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency
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discretion by law.” Id. (citing 5 U.S.C. § 701). An agency action is “committed to agency discretion by law” if “the statute does not provide a meaningful standard against which to judge the agency’s exercise of discretion.” Id. (quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985)). If such a situation exists, the court “must decline to exercise jurisdiction over the matter.” Id.
The statute provides only that the Attorney General shall establish the NGIC “to collect, analyze, and disseminate gang activity information” from a variety of sources, and the NGIC “shall make available the [gang activity] information” to all levels of law enforcement, corrections, and prosecutorial agencies and “shall annually submit to Congress a report on gang activity.” Pub. L. No. 109-162, Title XI, § 1107. The statute defines neither “gang activity” nor “gang.” Nor does it mandate standards for collecting information, exclude groups based on size or type, demand maintenance of a database of groups classified as gangs, or require a process for identified groups to challenge their inclusion in a report, however absurd their inclusion may appear. See id.
The court is left with no standard against which to compare the reasoning or procedure behind the agency’s decision to include Juggalos in the report and, therefore, the action must be committed to agency discretion by law. Madison-Hughes, 80 F.3d at 1127. While the mere “fact that an agency’s decision is committed to its discretion by law does not, ipso facto, preclude review of constitutional claims,” Burdue v. F.A.A., 774 F.3d 1076, 1082 (6th Cir. 2014), only Counts 1, 2, and 3 are constitutional claims. As a result, at least Counts 4 and 5 must be dismissed on this alternative ground as well.
15

C. Vagueness Plaintiffs also do not allege a plausible vagueness claim. Plaintiffs are correct that “Due Process requires lawmakers to avoid vagueness and instead provide fair notice about what the law requires.” FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012). But neither the report nor the decision to classify Juggalos as a “hybrid gang” require anything, and Plaintiffs do not allege anything to the contrary. Plaintiffs’ cited cases are inapposite – all deal with criminal offenses or civil law regulations. (Dkt. # 42, Pg. ID 520.) Plaintiffs provide no authority to support their proposition that an agency action with no regulatory aim or actual, direct effect can be subject to vagueness challenges. Because neither the inclusion of Juggalos in the NGTA nor its publication “require” anything, the actions cannot be unconstitutionally vague “about what the law requires.” Fox Television, 132 S. Ct. at 2317. Count 3 fails to state a claim for this alternative reason as well.
D. Declaratory Relief Having concluded that dismissal is appropriate for Counts 1-5, the court can also dispense with Plaintiffs’ claim under the DJA. In their response, Plaintiffs concede that the DJA does not create an independent cause of action. (Dkt. # 42, Pg. ID 524 n.9.) Thus the court will grant Defendants’ Motion with respect to Count 6 as well.
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IV. CONCLUSION IT IS ORDERED that Defendants’ Motion to Dismiss (Dkt. # 37) is GRANTED.
s/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE Dated: September 29, 2016 I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, September 29, 2016, by electronic and/or ordinary mail. s/Lisa Wagner Case Manager and Deputy Clerk (313) 234-5522
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Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: December 18, 2017
Mr. Howard Hertz Hertz Schram, 1760 S. Telegraph Road, Suite 300 Bloomfield Hills, MI 48302
Mr. Paul D. Hudson Miller Canfield 277 S. Rose Street Suite 5000 Kalamazoo, MI 49007
Mr. Daniel S. Korobkin Mr. Michael Jay Steinberg American Civil Liberties Union Of Michigan 2966 Woodward Avenue Detroit, MI 48201
Ms. Emily C. Palacios Miller, Canfield, Paddock & Stone 101 N. Main Street, Seventh Floor Ann Arbor, MI 48104
Ms. Lindsey Powell Mr. Michael S. Raab U.S. Department of Justice Commercial Litigation-Civil Division 1100 L Street, N.W., 8th Floor Washington, DC 20530
Re: Case No. 16-2440, Mark Parsons, et al v. DOJ, et al Originating Case No. : 2:14-cv-10071
Dear Counsel,
The court today announced its decision in the above-styled case.

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Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
Yours very truly,
Deborah S. Hunt, Clerk

cc: Mr. David J. Weaver Enclosures Mandate to issue.

Cathryn Lovely Deputy Clerk

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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, ││>

v.

│

│

UNITED STATES DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF INVESTIGATION,

│ │ │

Defendants-Appellees. │

┘

No. 16-2440

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.

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_________________
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 lawenforcement 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.”

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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 lawenforcement 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

1The 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.
2The 2011 NGIC Report is available on NGIC’s website at https://www.fbi.gov/statsservices/publications/2011-national-gang-threat-assessment.
3DOJ and FBI have not labeled the individual Appellants as Juggalos, and the individual Appellants are not named in the 2011 NGIC Report.

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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

4Appellants 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.
5We 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).

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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

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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

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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.

6Appellants 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.

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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
7DOJ 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.
8DOJ 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.

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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,

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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 baseclosure 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

2:14-cv-1C0a0s7e1:-1R6H-2C4-4P0JK DDooccum#e4n9t: 3F2i-l2ed 1F2i/l1e8d/:1172/1P8g/210317of 14PagPeg: 1ID1 595 (13 of 14)

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.

9Although 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.

2:14-cv-1C00a7se1:-R1H6-C2-4P4J0K DDooccu#m4e9nt: 3F2il-e3d 12F/i1le8d/1: 712/1P8g/21041o7f 14PagPeg: I1D 596 (14 of 14)

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 16-2440

MARK PARSONS; BRANDON BRADLEY; SCOTT GANDY; ROBERT HELLIN; JOSEPH F. BRUCE; JOSEPH W. UTSLER,
Plaintiffs - Appellants,
v.
UNITED STATES DEPARTMENT OF JUSTICE; FEDERAL BUREAU OF INVESTIGATION,
Defendants - Appellees.

FILED
Dec 18, 2017
DEBORAH S. HUNT, Clerk

Before: BOGGS, BATCHELDER, and KETHLEDGE, Circuit Judges.
JUDGMENT
On Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
THIS CAUSE was heard on the record from the district court and was argued by counsel.
IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court is AFFIRMED.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 211 F.Supp.3d 994 United States District Court, E.D. Michigan, Southern Division.
Mark PARSONS, et. al., Plaintiffs, v.
UNITED STATES DEPT. OF JUSTICE, et. al., Defendants.
Case No. 14-10071 |
Signed 09/29/2016
Synopsis Background: Fans and members of musical group, who self-identified as “Juggalos,” brought action against the Department of Justice (DOJ) and Federal Bureau of Investigation (FBI), alleging that use of the term “hybrid gang” in reference to Juggalos in National Gang Intelligence Center threat assessment violated their constitutional rights of association, expression, and due process under the First and Fifth Amendments, that classification as hybrid gang was arbitrary and capricious, and that agency failed to observe procedures required under Administrative Procedure Act (APA), and seeking declaratory judgment that federal designations of Juggalos as any kind of criminal gang were unlawful. Following dismissal for lack of standing, 30 F.Supp.3d 648, the United States Court of Appeals for the Sixth Circuit, 801 F.3d 701, reversed and remanded. Defendants then filed motion to dismiss for failure to state a claim.
Holdings: The District Court, Robert H. Cleland, J., held that:
[1] threat assessment did not cause legal consequences and, thus, was not a final agency action subject to review under the APA;
[2] threat assessment was action committed to agency discretion and, thus, was not subject to review under APA; and
[3] threat assessment and classification did not require anything, and thus the actions could not be unconstitutionally vague about what the law required under the Due Process Clause.
Motion granted.

West Headnotes (8)
[1] Administrative Law and Procedure Finality;  ripeness
To be considered a “final agency action” and thus subject to review under Administrative Procedure Act (APA) when there is no other adequate remedy in court, it must satisfy two requirements: first, the challenged action must mark the consummation of the agency’s decision making process, meaning the action must not be of a merely tentative or interlocutory nature, such that judicial review of the action would disrupt the orderly process of adjudication; second, the challenged action must determine rights and obligations of a party or cause legal consequences. 5 U.S.C.A. § 704.
Cases that cite this headnote

[2]

Federal Courts

Particular Decisions, Matters, or Questions as

Reviewable

Gang threat assessment report prepared by National Gang Intelligence Center (NGIC) within the FBI, referring to “Juggalos,” fans and members of musical group, as a “hybrid gang,” did not cause legal consequences and, thus, was not a “final agency action” subject to review under the Administrative Procedure Act (APA), although fans alleged that local police stopped and searched them and that fans were in danger of discipline or discharge from Army because of gang designation; alleged consequences were result of independent responses and choices of third parties, not of the classification. 5 U.S.C.A. § 704.

Cases that cite this headnote

[3] Administrative Law and Procedure Decisions and Acts Reviewable

Coercive pressures placed on third parties as a consequence of agency actions do not qualify as legal consequences and are therefore not reviewable under the Administrative Procedure Act (APA). 5 U.S.C.A. § 704.
Cases that cite this headnote
[4] Federal Courts Particular Decisions, Matters, or Questions as
Reviewable
Gang threat assessment report prepared by National Gang Intelligence Center (NGIC) within the FBI, referring to “Juggalos,” fans and members of musical group, as “hybrid gang,” was action committed to agency discretion by law and, thus, was not subject to judicial review under Administrative Procedure Act (APA); statute did not provide meaningful standard against which to judge agency’s exercise of discretion, statute provided only that Attorney General shall establish NGIC to collect, analyze, and disseminate gang activity information from variety of sources and that NGIC shall make available information and shall annually submit to Congress a report on gang activity, statute did not define “gang activity” nor “gang,” and statute did not mandate standards for collecting information, exclude groups based on size or type, demand maintenance of database of groups classified as gangs, or require process for identified groups to challenge their inclusion in a report. 5 U.S.C.A. § 701.
Cases that cite this headnote
[5] Administrative Law and Procedure Decisions and Acts Reviewable
An agency action is committed to agency discretion by law if the statute does not provide a meaningful standard against which to judge the agency’s exercise of discretion; if such a situation exists, the court must decline to exercise jurisdiction over the matter under the Administrative Procedure Act (APA). 5

U.S.C.A. § 701.
Cases that cite this headnote
[6] Administrative Law and Procedure Decisions and Acts Reviewable
The mere fact that an agency’s decision is committed to its discretion by law does not, ipso facto, preclude review of constitutional claims challenging agency action. 5 U.S.C.A. § 701.
Cases that cite this headnote
[7] Constitutional Law Investigative activity in general
Gang threat assessment report prepared by National Gang Intelligence Center (NGIC) within the FBI, classifying “Juggalos,” fans and members of musical group, as “hybrid gang,” did not require anything, and thus neither the report nor the classification could be unconstitutionally vague about what the law required under the Due Process Clause. U.S. Const. Amend. 5.
Cases that cite this headnote
[8] Constitutional Law Certainty and definiteness;  vagueness
Due Process requires lawmakers to avoid vagueness and instead provide fair notice about what the law requires. U.S. Const. Amend. 5.
Cases that cite this headnote
Attorneys and Law Firms *996 Daniel S. Korobkin, Michael J. Steinberg, American

Civil Liberties Union Fund of Michigan, Detroit, MI, Emily C. Palacios, Miller, Canfield, Ann Arbor, MI, James D. Boufides, Miller, Canfield, Paddock and Stone, PLC, Kalamazoo, MI, Saura J. Sahu, Battle Creek City Attorney, Battle Creek, MI, Elizabeth C. Thomson, Howard Hertz, Joseph A. Bellanca, Hertz Schram PC, Bloomfield Hills, MI, for Plaintiffs.
Amy Powell, U.S. Department of Justice, Washington, DC, for Defendants.
Opinion
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
ROBERT H. CLELAND, UNITED STATES DISTRICT JUDGE
Now before the court is a Motion to Dismiss filed by Defendants United States Department of Justice (“DOJ”) and Federal Bureau of Investigation (“FBI”). (Dkt. # 37.) The matter is fully briefed, and the court finds that a hearing is unnecessary. See E.D. LR 7.1(f)(2). For the reasons discussed below, the court will grant Defendants’ Motion.
I. BACKGROUND
As alleged in the complaint, “Juggalos” are “fans of the musical group Insane Clown Posse (“ICP”)1 and other bands on ICP’s independent record label, Psychopathic Records.” (Dkt. # 1, Pg. ID 2.) ICP’s music is generally referred to as “horrorcore hip hop” which “uses very harsh language to tell nightmare-like stories....” (Id.) Juggalos often paint their faces to look like clowns, and wear distinctive symbols, including the “hatchetman” logo, which depicts a person with wild hair wielding a butcher’s meat cleaver. (Id.) The complaint alleges that “[m]any Juggalos *997 embrace ‘Juggaloism’ as a philosophy, an identity, [and] a way of life. ICP’s lyrics, through their description of a ‘Dark Carnival,’ address themes of good and evil, heaven and hell, and acceptance and tolerance of others.” (Id. at Pg. ID 6.) These Juggalos observe “the moral code” of the Carnival, and see themselves as social outcasts, seeking support from one another. (Id. at Pg. ID 7.) “Based on these shared values, Juggalos strongly identify with one another and often refer to themselves as a ‘family.’ ” (Id.) According to Plaintiffs, Juggalos gather to listen to ICP’s performances, share ideas expressed in the ICP performances, and

express their support for the band. (Id. at Pg. ID 6.)
A. The 2011 National Gang Threat Assessment
Plaintiffs’ allegations stem from the National Gang Intelligence Center’s “2011 National Gang Threat Assessment: Emerging Trends” (“NGTA”).2 The NGTA states that its purpose is to “examine emerging gang trends and threats posed by criminal gangs to communities throughout the United States.” Id. at 5. “It supports US Department of Justice strategic objectives 2.2 (to reduce the threat, incidence, and prevalence of violent crime) and 2.4 (to reduce the threat, trafficking, use, and related violence of illegal drugs).” Id. The NGTA further states that its data are based on federal, state, local, and tribal law enforcement reporting, as well as information supplied by correctional institutions. Id.
In a section entitled “Non-Traditional Gangs,” the 2011 NGTA notes that “[t]he expansion of hybrid gangs—non-traditional gangs with multiple affiliations—is a continued phenomenon in many jurisdictions nationwide.” Id. at 22. The NGTA further observes that hybrid gangs are fluid in structure and size, present in at least 25 states, and that hybrid gang members commit a multitude of street and violent crime, including drug trafficking. Id. The report identifies Juggalos as a hybrid gang subset, and notes that Juggalo gangs are rapidly expanding into many communities. Arizona, California, Pennsylvania, and Utah are the only states that recognize Juggalos as a gang, but the NGTA reports that “at least 21 states have identified criminal Juggalo sub-sets.” Id.
Most crimes committed by Juggalos are sporadic, disorganized, individualistic, and often involve simple assault, personal drug use and possession, petty theft and vandalism. However, open source reporting suggests 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 NGTA further reports that “Juggalo criminal activity has increased over the past several years and has expanded to several other states. Transient, criminal Juggalo groups pose a threat to communities due to the potential for violence, drug use/sales, and their

general destructive and violent nature.” Id. at 23. The NGTA also noted that Juggalos are known to have members in the U.S. Army and Air Force. Id. at 36–37.
B. Alleged Harassment of Plaintiffs
Plaintiff Mark Parsons owned and operated a small trucking business, “Juggalo Express LLC.” (Dkt. # 1, Pg. ID 7.) His truck is decorated with a large ICP “hatchetman” logo. Parsons alleges that on July 9, 2013, a Tennessee State Trooper ordered him to stop his truck for a safety inspection. The state trooper asked Parsons *998 if he was a Juggalo, and told Parsons that he had detained him because of the “hatchetman” logo on the truck. (Id. at Pg. ID 8.) The trooper further informed Parsons that he believed Juggalos to be a gang because of the DOJ’s designation, and asked Parsons whether he had any axes, hatchets, or other chopping instruments in his truck. Parsons told the trooper that he did not have any such items in his truck, and an hour-long search of the truck and interrogation of Parsons revealed no weapons or contraband.
Plaintiff Brandon Bradley claims that police stopped him in order to interrogate him about his Juggalo affiliation. (Id. at Pg. ID 9.) In September 2012, a Citrus Hills, California, police officer stopped Bradley while he was biking home. Bradley had visible Juggalo tattoos and was wearing Juggalo merchandise, and avers that the officer stopped him because of Bradley’s Juggalo-related apparel—the officer assumed he was a member of a gang. The officer allegedly detained Bradley for fifteen minutes, interrogated him about being a Juggalo, and took notes regarding Bradley’s answers. Soon after the incident, an ex-Citrus Hills police officer told Bradley that he had heard about the incident, and that Bradley, an aspiring police officer, would have to get his Juggalo tattoos removed if he wanted to be a police officer because the tattoos were gang-related. Approximately a month later, a Sacramento police officer stopped Bradley, requested Bradley’s identification, and asked Bradley if he was a Juggalo. (Id. at Pg. ID 10.) The officer ran a background check on Bradley and accused Bradley of being in a gang, stating that “to be a Juggalo is to be a gang member.” (Id.) In a final incident in January 2013, Bradley was walking alone in a bike lane when a police cruiser pulled up behind him and stopped him. Two officers exited the cruiser and told Bradley that they had noticed the “hatchetman” symbol on his jacket. They ordered him to stand in front of a guardrail so that they could take pictures of his jacket, face, and tattoos. (Id. at Pg. ID 11.) They questioned Bradley regarding his Juggalo affiliation, and insisted that he was part of a gang. As a result of

these encounters, Bradley often chooses not to express his Juggalo affiliation, or wear Juggalo-related apparel.
Plaintiff Scott Gandy claims that in 2012, he visited a U.S. Army recruiting station, and that at the time, he had large ICP tattoos on his chest. The recruiting officer asked Gandy whether he had any tattoos, and told Gandy that because Juggalos were on the federal government’s “gang list,” he considered Gandy’s tattoos to be gang-related. The officer questioned Gandy regarding his Juggalo affiliation, and instructed Gandy that he would have to remove or permanently cover his tattoos or the Army would immediately deny his application. Gandy subsequently spent hundreds of dollars to have his Juggalo tattoos covered with other tattoos. When he returned to the recruiting station, the officer accepted his application and told Gandy that he would receive consideration. Ultimately, the Army denied Gandy’s application. (Id. at Pg. ID 12–13.)
Plaintiff Robert Hellin is currently a corporal in the Army and has a number of visible ICP tattoos, and avers that because of the federal government’s designation of Juggalos as a hybrid gang, he is in imminent danger of discipline or involuntary discharge from the army. (Id. at Pg. ID 13.)
Plaintiffs Bruce and Utsler are members of ICP. They claim that on August 20, 2012, they contracted with AEG Live to perform at the Royal Oak Music Theater in Royal Oak, Michigan, for ICP’s annual “Hallowicked” event. On October 8, 2012, the theater cancelled the event, informing Bruce and Utsler that its landlord prompted the cancellation. Further discussions *999 with AEG Live and the Royal Oak Music Theater suggested that the Royal Oak Police Department asked the theater to cancel the event, citing the federal Juggalo gang designation as a motivating reason. (Id. at Pg. ID 14.)
On March 21, 2014, after Plaintiffs filed the instant suit, the National Gang Intelligence Center released its 2013 National Gang Report. Neither Juggalos nor “hybrid gangs” receive any mention therein.3
Defendants filed a Motion to Dismiss (Dkt. # 20), which the court granted on standing grounds (Dkt. # 29.) Defendants appealed and the Sixth Circuit, finding standing adequately shown, reversed and remanded. (Dkt. # 33.) Defendants then filed the instant Motion to Dismiss. (Dkt. # 37.)
II. STANDARD

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). The court views the complaint in the light most favorable to the Plaintiff and accepts all well-pleaded factual allegations as true. Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009). The court, however, “need not accept as true legal conclusions or unwarranted factual inferences.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (quoting Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000)).
To survive a motion to dismiss, the complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative level...on the assumption that all the allegations in the complaint are true.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). Bare allegations are not enough. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not show[n]—that the pleader is entitled to relief.” Id. at 679, 129 S.Ct. 1937 (internal quotation marks omitted).
“In determining whether to grant a Rule 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account.” Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001) (quoting Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997)).
III. DISCUSSION
Plaintiffs’ Complaint contains five counts alleging violations of the Administrative Procedures Act (“APA”) and one under the Declaratory Judgment Act (“DJA”). (Dkt. # 1.) In Counts 1, 2, and 3, Plaintiffs assert that Defendants violated their constitutional rights of association, expression, and due process under the First and Fifth Amendments, respectively. (Dkt. # 1, Pg. ID 23-31.) Count 4 argues that the agencies’ decision to classify Juggalos as a “hybrid gang” was “arbitrary and capricious.” (Id. at Pg. ID 31.) In Count 5, Plaintiffs claim that the agency failed to observe the procedures required by law. Finally, in Count 6, Plaintiffs seek “a declaratory judgment holding that federal designations of the

Juggalos, as a whole, as any kind of *1000 criminal ‘gang’ are unlawful.” (Id. at Pg. Id. 36.)
Defendants advance several independent theories to support their Motion to Dismiss. First, they argue that “Plaintiffs have not challenged a final agency action” as required to bring a claim under the APA (Dkt. # 37, Pg. ID 420); second, they claim the actions challenged under the APA are “committed to agency discretion” and therefore outside the court’s subject matter jurisdiction (Id. at Pg. ID 422); third, they claim that “Plaintiffs have adequate alternative remedies,” rendering their allegations unactionable (Id. at Pg. ID 424.) Defendants also argue that all six counts should be dismissed for failure to state a claim upon which relief may be granted. The court concludes that Defendants are entitled to dismissal on several grounds, but will not reach all of Defendants’ arguments.
A. Final Agency Action
[1]The APA allows aggrieved individuals to seek judicial review of agency decisions when the challenged action is either “made reviewable by statute” or is a “final agency action for which there is no other adequate remedy in court.” 5 U.S.C. § 704. To be considered a “final agency action,” it must satisfy two requirements:
First, the challenged action must mark the consummation of the agency’s decision making process. [U.S. Army Corps. of Eng’rs v. Hawkes Co., –––U.S. ––––, 136 S.Ct. 1807, 1813, 195 L.Ed.2d 77 (2016) (citing Bennett v. Spear, 520 U.S. 154, 177–78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)) ]. This means the action “must not be of a merely tentative or interlocutory nature,” Bennett, 520 U.S. at 178, 117 S.Ct. 1154, such that judicial review of the action would “disrupt the orderly process of adjudication,” Port of Bos. Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970). Second the challenged action must determine rights and obligations of a party or cause legal consequences. Hawkes Co., 136 S.Ct. at 1813 (citing Bennett, 520 U.S. at 177–18, 117 S.Ct. 1154).
Berry v. United States Dep’t of Labor, 832 F.3d 627, 633 (6th Cir.2016).
Here, Plaintiffs first allege, and Defendants do not dispute, that the NGTA was the “consummation of the [FBI’s] decision making process.” Neither tentative nor interlocutory, the report was generated pursuant to the Violence Against Women and DOJ Reauthorization Act,

which the National Gang Intelligence Center within the FBI specifically “to collect, analyze, and disseminate gang activity information.” Pub. L. No. 109-162, Title XI, § 1107(a), 119 Stat. 2960, 3093 (2006).
[2]Second, Plaintiffs do not claim that the NGTA “determine[d] rights and obligations of [any] party.” The one remaining question to determine whether this was a final agency action is whether the agency report “cause[d] legal consequences.” It did not.
Plaintiffs argue “that the classification of Juggalos as criminal [sic] gang imposes direct legal consequences on Plaintiffs’ constitutionally protected activity.” (Dkt. # 42, Pg. ID 506.) They argue that the FBI’s collection, analysis, and dissemination of gang activity information has caused Plaintiffs to “face unfavorable treatment in employment and business relationships, divorce and custody disputes, and law enforcement and prosecutorial activities.” (Id. at Pg. ID 506-07.) Specifically, they allege that as a result of the NGTA’s designation of Juggalos as a hybrid gang:
• Plaintiff Parsons was unconstitutionally seized, searched, and interrogated by a Tennessee State Trooper; (Dkt. # 1, Pg. ID 7);
*1001 • Plaintiff Bradley was “detained and questioned” by members of the Sacramento Sheriff’s Department on three different occasions, (id. at Pg. ID 9-11);
• Plaintiff Gandy was told “he must remove or permanently cover his Juggalo tattoos or the Army would immediately deny his recruitment application”, (id. at Pg. ID 12);
• Plaintiff Hellin is “in imminent danger of suffering discipline or an involuntary discharge from the Army” because of his Juggalo identity, (id. at Pg. ID 13); and
• the Royal Oak Music Theater cancelled Plaintiffs Bruce and Utsler’s annual “Hallowicked” music event after contact by the Royal Oak Police Department, (id. at Pg. ID 14).
[3]Every one of these alleged events, as specified, constitutes a decision to act that rests on the shoulders of others—the persons or entities who performed the alleged acts or took the alleged steps—and not the Defendants or the agency action at issue in this case. No allegation exists of Defendants acting to arrest or intimidate, or coercing similar actions on the part of third parties to the detriment of Plaintiffs. Even if there were such allegations, “coercive pressures [placed] on third parties” as a consequence of agency actions do not qualify as “legal consequences” and are therefore not reviewable under the

APA. Flue–Cured Tobacco Coop. Stabilization Corp. v. U.S. Envtl. Prot. Agency, 313 F.3d 852, 859 (4th Cir. 2002). In Flue–Cured Tobacco, several tobacco companies argued that an EPA report “analyz[ing] the effects of secondhand smoke on human health” caused “legal consequences” because other federal agencies and private groups relied on the report to justify the adoption of regulations restricting tobacco use. 313 F.3d at 860–61. The Fourth Circuit, focusing on whether the effects were more than merely remote, disagreed, holding that the subsequent “regulations [were] not direct consequences of the Report, but [were] the product of independent agency decisionmaking [sic]” or “independent responses and choices of third parties.” Id. at 860–61. As a result, the Circuit held that “[t]he actions and consequences complained of by plaintiffs do not legally flow from the Report nor are they the result of legal rights or consequences created by the Report.” Id. at 861. The Circuit went on to explain:

Furthermore, as a practical matter

and of considerable importance, if

we were to adopt the position that

agency actions producing only

pressures on third parties were

reviewable under the APA, then

almost any agency policy or

publication issued by the

government would be subject to

judicial review. We do not think

that Congress intended to create

private rights of actions to

challenge

the

inevitable

objectionable impressions created

whenever controversial research by

a federal agency is published. Such

policy statements are properly

challenged through the political

process and not the courts.

Id. This court agrees with the Fourth Circuit’s analysis and its concern about the offhand creation of private causes of action.

The Fourth Circuit returned to the issue in Invention Submission Corp. v. Rogan, 357 F.3d 452, 459–60 (4th Cir. 2004). The plaintiff in Invention Submission challenged the United States Patent and Trademark Office’s advertising campaign to alert the public about “invention promotion scams” as arbitrary and capricious under the APA. Id. In particular, the plaintiff alleged that the campaign was false and led to a journalist publishing a story identifying plaintiff as one of the scams, which substantially harmed the *1002 plaintiff’s business. Id. at 455. The Circuit, relying on Flue–Cured Tobacco, held that the harms to the plaintiff’s business were “the

decisions of members of the public... attributable to independent responses and choices of third parties and cannot be imputed to [the agency] for purposes of determining whether its conduct was a final agency action.” Id. at 460 (quoting Flue–Cured Tobacco, 313 F.3d at 861) (internal quotation marks omitted).
Similarly, in Franklin v. Massachusetts, 505 U.S. 788, 790, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992), Massachusetts challenged a report submitted to the President by the Secretary of Commerce tabulating the results of the most recent census and recommending the number of representatives that should be apportioned to each state. Id. The Supreme Court found that the Secretary’s report did not constitute a final agency action because it “carrie[d] no direct consequences for reapportionment.” Id. at 798, 112 S.Ct. 2767. No legal consequences were triggered until the President issued a statement to Congress showing “the number of Representatives to which each State would be entitled.” Id. at 792, 112 S.Ct. 2767 (quoting 2 U.S.C. § 2a(a)). However persuasive the Secretary’s report may have been to the President, it was still only a “tentative recommendation.” Id. at 798, 112 S.Ct. 2767.
As in Franklin and Flue–Cured Tobacco, none of the consequences complained of here by Plaintiffs (assuming them to be “legal consequences”) are in any way directly caused by NGTA. Instead, each one is either “the product of independent agency decisionmaking [sic]” or an “independent response[ ] and choice[ ] of third parties.” Flue–Cured Tobacco, 313 F.3d at 861.
Plaintiffs do not allege that the NGTA directs, authorizes, or empowers local police to stop or search Juggalos or object to ICP concerts. Nor do Plaintiffs claim that the armed services must discharge or refuse to consider applicants. However informational or influential the NGTA may have been to local law enforcement or Army recruiters, no alleged constitutional violations or any other consequences, “legal” or otherwise, emerged until local officials or members of other agencies—not the FBI, DOJ, or NGIC—decided to act.
Plaintiffs’ present a misguided argument focused on the “classification,” not the publication, as the challenged action. (Dkt. # 42, Pg. ID 507.) Classifying Juggalos as a “hybrid gang,” Plaintiffs argue, causes Plaintiffs to “face unfavorable treatment in employment and business relationships, divorce and custody disputes, and law enforcement and prosecutorial activities. (Id.)
But the decision to describe Juggalos as a “hybrid gang” for the NGTA does not “mark the culmination of the decision making process,” the publication of the NGTA does. Hawkes, Co., 136 S.Ct. at 1813. In any event,

Plaintiffs have not alleged any unfavorable treatment in divorce or custody disputes, and the other alleged consequences remain the result of independent responses and choices of third parties, not of the classification. Plaintiffs’ distinction is therefore immaterial.
Regardless of whether the challenged action is the decision to classify or the publication of the classification, Plaintiffs fail to allege legal consequences within the meaning of Hawkes, Co. Id. In the absence of legal consequences, Plaintiffs’ claims are not reviewable under APA, and the court will therefore grant Defendants’ Motion with respect to Plaintiffs’ APA claims.
B. Committed To Agency Discretion
[4] [5]Even assuming that the classification is a final agency action, that action is committed to agency discretion by law and not subject to APA review. Madison–Hughes v. Shalala, 80 F.3d 1121, 1127 (6th Cir. 1996) (citing *1003 Lincoln v. Vigil, 508 U.S. 182, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993)). Section 701 provides for judicial review of agency actions except “to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” Id. (citing 5 U.S.C. § 701). An agency action is “committed to agency discretion by law” if “the statute does not provide a meaningful standard against which to judge the agency’s exercise of discretion.” Id. (quoting Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985)). If such a situation exists, the court “must decline to exercise jurisdiction over the matter.” Id.
The statute provides only that the Attorney General shall establish the NGIC “to collect, analyze, and disseminate gang activity information” from a variety of sources, and the NGIC “shall make available the [gang activity] information” to all levels of law enforcement, corrections, and prosecutorial agencies and “shall annually submit to Congress a report on gang activity.” Pub. L. No. 109-162, Title XI, § 1107. The statute defines neither “gang activity” nor “gang.” Nor does it mandate standards for collecting information, exclude groups based on size or type, demand maintenance of a database of groups classified as gangs, or require a process for identified groups to challenge their inclusion in a report, however absurd their inclusion may appear. See id.
[6]The court is left with no standard against which to compare the reasoning or procedure behind the agency’s decision to include Juggalos in the report and, therefore, the action must be committed to agency discretion by law. Madison–Hughes, 80 F.3d at 1127. While the mere “fact

that an agency’s decision is committed to its discretion by law does not, ipso facto, preclude review of constitutional claims,” Burdue v. F.A.A., 774 F.3d 1076, 1082 (6th Cir. 2014), only Counts 1, 2, and 3 are constitutional claims. As a result, at least Counts 4 and 5 must be dismissed on this alternative ground as well.

at 2317. Count 3 fails to state a claim for this alternative reason as well.
D. Declaratory Relief

C. Vagueness
[7] [8]Plaintiffs also do not allege a plausible vagueness claim. Plaintiffs are correct that “Due Process requires lawmakers to avoid vagueness and instead provide fair notice about what the law requires.” FCC v. Fox Television Stations, Inc., 567 U.S. 239, 132 S.Ct. 2307, 2317, 183 L.Ed.2d 234 (2012). But neither the report nor the decision to classify Juggalos as a “hybrid gang” require anything, and Plaintiffs do not allege anything to the contrary. Plaintiffs’ cited cases are inapposite—all deal with criminal offenses or civil law regulations. (Dkt. # 42, Pg. ID 520.) Plaintiffs provide no authority to support their proposition that an agency action with no regulatory aim or actual, direct effect can be subject to vagueness challenges. Because neither the inclusion of Juggalos in the NGTA nor its publication “require” anything, the actions cannot be unconstitutionally vague “about what the law requires.” Fox Television, 132 S.Ct.

Having concluded that dismissal is appropriate for Counts 1-5, the court can also dispense with Plaintiffs’ claim under the DJA. In their response, Plaintiffs concede that the DJA does not create an independent cause of action. (Dkt. # 42, Pg. ID 524 n.9.) Thus the court will grant Defendants’ Motion with respect to Count 6 as well.
IV. CONCLUSION IT IS ORDERED that Defendants’ Motion to Dismiss (Dkt. # 37) is GRANTED.
All Citations 211 F.Supp.3d 994

Footnotes

1

ICP was founded in 1991 and based in Farmington Hills, Michigan. (Dkt. # 1, Pg. ID 5.) Its principal members are

Plaintiffs Joseph Bruce and Joseph Utsler, who go by the stage names “Violent J” and “Shaggy 2 Dope,” respectively.

(Id. at Pg. ID 14.)

2

National Gang Intelligence Center, 2011 National Gang Threat Assessment: Emerging Trends, (2011), available at

http://www.fbi.gov/stats-services/publications/2011-national-gang-threat-assessment (June 9, 2014) (rendering of URL

contains spaces).

3

See National Gang Intelligence Center, 2013 National Gang Report, available at

http://www.fbi.gov/stats-services/publications/national-gang-report-2013/view (June 9, 2014).

 
 Case: 2:14-cv-10071 As of: 04/06/2018 05:14 PM EDT 1 of 7
CLOSED,REOPENED
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:14−cv−10071−RHC−PJK

Parsons et al v. United States Department of Justice et al Assigned to: District Judge Robert H. Cleland Referred to: Magistrate Judge Paul J. Komives Case in other court: U.S. Court of Appeals − Sixth Circuit,
14−01848
U.S. Court of Appeals − Sixth Circuit, 14−01848
U.S. Court of Appeals − Sixth Circuit, 16−02440
U.S. Court of Appeal, 16−02440 Cause: 28:1331 Fed. Question: Review Agency Decision
Plaintiff

Date Filed: 01/08/2014 Date Terminated: 09/29/2016 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Mr. Mark Parsons

represented by Daniel S. Korobkin American Civil Liberties Union of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578−6824 Fax: (313) 578−6811 Email: dkorobkin@aclumich.org ATTORNEY TO BE NOTICED

Emily C. Palacios Miller, Canfield, 101 N. Main Street 7th Floor Ann Arbor, MI 48104−1400 734−663−2445 Fax: 734−663−8624 Email: palacios@millercanfield.com ATTORNEY TO BE NOTICED

James D. Boufides Miller, Canfield, Paddock and Stone, PLC 277 South Rose Street Suite 5000 Kalamazoo, MI 49007 269−381−7030 Fax: 269−382−0244 Email: boufides@millercanfield.com ATTORNEY TO BE NOTICED

Michael J. Steinberg American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 313−578−6814 Email: msteinberg@aclumich.org ATTORNEY TO BE NOTICED

Saura J. Sahu Clancy PLC 1624 Estates Drive Detroit, MI 48206 269−808−3140

Case: 2:14-cv-10071 As of: 04/06/2018 05:14 PM EDT 2 of 7

Email: sahu@clancyadvisors.com ATTORNEY TO BE NOTICED

Plaintiff Brandon Bradley

represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED

Emily C. Palacios (See above for address) ATTORNEY TO BE NOTICED

James D. Boufides (See above for address) ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) ATTORNEY TO BE NOTICED

Saura J. Sahu (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Scott Gandy

represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED

Emily C. Palacios (See above for address) ATTORNEY TO BE NOTICED

James D. Boufides (See above for address) ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) ATTORNEY TO BE NOTICED

Saura J. Sahu (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Robert Hellin

represented by Daniel S. Korobkin (See above for address) ATTORNEY TO BE NOTICED

Emily C. Palacios (See above for address) ATTORNEY TO BE NOTICED

James D. Boufides (See above for address) ATTORNEY TO BE NOTICED

Michael J. Steinberg (See above for address) ATTORNEY TO BE NOTICED

Saura J. Sahu

Case: 2:14-cv-10071 As of: 04/06/2018 05:14 PM EDT 3 of 7

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff Joseph F. Bruce

represented by Elizabeth C. Thomson Hertz Schram PC 1760 South Telegraph Road Suite 300 Bloomfield Hills, MI 48302 248−335−5000 Fax: 248−335−3346 Email: lthomson@hertzschram.com ATTORNEY TO BE NOTICED

Howard Hertz Hertz Schram 1760 S. Telegraph Road Suite 300 Bloomfield Hills, MI 48302 248−335−5000 Email: hhertz@hertzschram.com ATTORNEY TO BE NOTICED

Joseph A. Bellanca Hertz Schram 1760 S. Telegraph Road Suite 300 Bloomfield Hills, MI 48302 248−335−5000 Fax: 248−335−3346 Email: jbellanca@hertzschram.com ATTORNEY TO BE NOTICED

Saura J. Sahu (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Joseph W. Utsler

represented by Elizabeth C. Thomson (See above for address) ATTORNEY TO BE NOTICED

Howard Hertz (See above for address) ATTORNEY TO BE NOTICED

Joseph A. Bellanca (See above for address) ATTORNEY TO BE NOTICED

Saura J. Sahu (See above for address) ATTORNEY TO BE NOTICED

V. Defendant United States Department of Justice

represented by Amy Powell U.S. Department of Justice Civil Division 20 Massachusetts Ave., NW Washington, DC 20001

Case: 2:14-cv-10071 As of: 04/06/2018 05:14 PM EDT 4 of 7

202−514−9836 Fax: 202−616−8202 Email: amy.powell@usdoj.gov ATTORNEY TO BE NOTICED

Defendant Federal Bureau of Investigation

represented by Amy Powell (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/08/2014
01/08/2014
01/08/2014 01/08/2014 01/08/2014 01/10/2014 01/10/2014 01/13/2014 01/13/2014 01/14/2014 01/14/2014
01/30/2014 01/30/2014 01/30/2014 02/19/2014 03/04/2014 03/13/2014

# Docket Text
1 COMPLAINT filed by All Plaintiffs against All Defendants. Plaintiff requests summons issued. Receipt No: 0645−4443592 − Fee: &#036 400. County of 1st Plaintiff: Out of State − County Where Action Arose: Wayne County − County of 1st Defendant: USA. [Previously dismissed case: No] [Possible companion case(s): None] (Sahu, Saura) (Entered: 01/08/2014)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (KKra) (Entered: 01/08/2014)
2 SUMMONS Issued for *Federal Bureau of Investigation* (KKra) (Entered: 01/08/2014)
3 SUMMONS Issued for *United States Department of Justice* (KKra) (Entered: 01/08/2014)
4 SUMMONS Issued for the United States Attorney and the Office of the Attorney General. (KKra) (Entered: 01/08/2014)
5 NOTICE of Appearance by Howard Hertz on behalf of Joseph F. Bruce, Joseph W. Utsler. (Hertz, Howard) (Entered: 01/10/2014)
6 NOTICE of Appearance by Elizabeth C. Thomson on behalf of Joseph F. Bruce, Joseph W. Utsler. (Thomson, Elizabeth) (Entered: 01/10/2014)
7 NOTICE by Joseph F. Bruce, Joseph W. Utsler of Potentially Related Cases (Hertz, Howard) (Entered: 01/13/2014)
8 NOTICE of Appearance by Daniel S. Korobkin on behalf of Brandon Bradley, Scott Gandy, Robert Hellin, Mark Parsons. (Korobkin, Daniel) (Entered: 01/13/2014)
9 NOTICE of Appearance by Michael J. Steinberg on behalf of Brandon Bradley, Scott Gandy, Robert Hellin, Mark Parsons. (Steinberg, Michael) (Entered: 01/14/2014)
10 CERTIFICATE of Service/Summons Returned Executed. U.S. Attorney on behalf of All Plaintiffs. (Sahu, Saura) Modified on 1/15/2014 (KKra). [US ATTORNEY SERVED 1/10/14] (Entered: 01/14/2014)
11 CERTIFICATE of Service/Summons Returned Executed. U.S. Attorney General served on January 10, 2014. (Sahu, Saura) (Entered: 01/30/2014)
12 CERTIFICATE of Service/Summons Returned Executed. U.S. Department of Justice served on January 10, 2014. (Sahu, Saura) (Entered: 01/30/2014)
13 CERTIFICATE of Service/Summons Returned Executed. Federal Bureau of Investigation served on January 10, 2014. (Sahu, Saura) (Entered: 01/30/2014)
14 NOTICE of Appearance by Amy Powell on behalf of All Defendants. (Powell, Amy) (Entered: 02/19/2014)
15 MOTION for Extension of Time to File Response/Reply to the Complaint, Unopposed by All Defendants. (Powell, Amy) (Entered: 03/04/2014)
16 ORDER granting 15 Motion for Extension of Time to File Response 15 to the Complaint, Response due by 4/1/2014. Signed by District Judge Robert H. Cleland.

Case: 2:14-cv-10071 As of: 04/06/2018 05:14 PM EDT 5 of 7

03/28/2014 03/31/2014 04/04/2014
04/07/2014 04/09/2014 04/11/2014 04/30/2014
05/15/2014 05/16/2014 05/20/2014
05/20/2014 06/01/2014 06/06/2014 06/17/2014 06/17/2014 06/23/2014
06/30/2014

(LWag) (Entered: 03/13/2014)
17 NOTICE of Appearance by James D. Boufides on behalf of Brandon Bradley, Scott Gandy, Robert Hellin, Mark Parsons. (Boufides, James) (Entered: 03/28/2014)
18 STIPULATION AND ORDER for Extension of Time for Defendants to file a response, ( Response due by 4/4/2014) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 03/31/2014)
19 Ex Parte MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Proposed Filing − Motion to Dismiss and Supporting Memorandum, # 2 Exhibit Butler Declaration in Support of Motion to Dismiss) (Powell, Amy) (Entered: 04/04/2014)
TEXT−ONLY ORDER GRANTING 19 Ex Parte MOTION for Leave to File Excess Pages filed by United States Department of Justice, Federal Bureau of Investigation. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 04/07/2014)
20 MOTION to Dismiss by All Defendants. (Attachments: # 1 Exhibit Declaration of Diedre Butler) (Powell, Amy) (Entered: 04/09/2014)
21 NOTICE OF HEARING on 20 MOTION to Dismiss . Motion Hearing set for 6/4/2014 02:00 PM before District Judge Robert H. Cleland (LWag) (Entered: 04/11/2014)
22 STIPULATION AND ORDER for Extension of Time to Responses and Joint Request to Reschedule Hearing as to 20 MOTION to Dismiss :( Response due by 5/16/2014, Reply due by 5/30/2014, Motion Hearing re−set for 6/23/2014 02:00 PM before District Judge Robert H. Cleland) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 04/30/2014)
23 ATTORNEY APPEARANCE: Emily C. Palacios appearing on behalf of Brandon Bradley, Scott Gandy, Robert Hellin, Mark Parsons (Palacios, Emily) (Entered: 05/15/2014)
24 Ex Parte MOTION for Leave to File Excess Pages by All Plaintiffs. (Attachments: # 1 Exhibit Plaintiffs' Response to Defendants' Motion to Dismiss) (Sahu, Saura) (Entered: 05/16/2014)
TEXT−ONLY ORDER GRANTING 24 Ex Parte MOTION for Leave to File Excess Pages filed by Robert Hellin, Joseph W. Utsler, Joseph F. Bruce, Scott Gandy, Brandon Bradley, Mark Parsons. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 05/20/2014)
25 RESPONSE to 20 MOTION to Dismiss filed by All Plaintiffs. (Sahu, Saura) (Entered: 05/20/2014)
26 STIPULATION AND ORDER for extension of time to file the reply as to 20 MOTION to Dismiss :( Reply due by 6/6/2014) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 06/01/2014)
27 Ex Parte MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Proposed Filing − Defendants' Reply in Support of Motion to Dismiss) (Powell, Amy) (Entered: 06/06/2014)
TEXT−ONLY ORDER GRANTING 27 Ex Parte MOTION for Leave to File Excess Pages filed by United States Department of Justice, Federal Bureau of Investigation. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 06/17/2014)
28 REPLY to Response re 20 MOTION to Dismiss filed by All Defendants. (Powell, Amy) (Entered: 06/17/2014)
Minute Entry for proceedings held before District Judge Robert H. Cleland: Motion Hearing held on 6/23/2014 re 20 MOTION to Dismiss filed by United States Department of Justice, Federal Bureau of Investigation Disposition: TAKEN UNDER ADVISEMENT(Court Reporter Christin Russell) (LWag) (Entered: 06/24/2014)
29 OPINION AND ORDER granting 20 Defendants' Motion to Dismiss. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 06/30/2014)

Case: 2:14-cv-10071 As of: 04/06/2018 05:14 PM EDT 6 of 7

07/08/2014 07/08/2014 07/21/2014 07/25/2014
09/17/2015 11/19/2015 11/30/2015 12/09/2015 12/17/2015
01/29/2016 02/08/2016 02/09/2016 02/10/2016 03/11/2016 04/04/2016 04/05/2016

30 NOTICE OF APPEAL by All Plaintiffs re 29 Order on Motion to Dismiss. Receipt No: 0645−4720248 − Fee: $ 505 − Fee Status: Fee Paid. (Sahu, Saura) (Entered: 07/08/2014)
31 Certificate of Service re 30 Notice of Appeal. (TMcg) (Entered: 07/08/2014)
Court Reporter Acknowledgment of Transcript Order Form received on 7/17/2014. Transcript for court proceeding held on: 6/23/2014. Estimated transcript completion date: 8/16/2014. Estimated number of pages: 50. Payment arrangements were made on 7/21/2014. (Russell, C.) (Entered: 07/21/2014)
32 TRANSCRIPT of Motion Hearing held on 6/23/2014. (Court Reporter/Transcriber: Christin E. Russell) (Number of Pages: 50) (Appeal Purposes) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 8/15/2014. Redacted Transcript Deadline set for 8/25/2014. Release of Transcript Restriction set for 10/23/2014. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Russell, C.) (Entered: 07/25/2014)
33 JUDGMENT from U.S. Court of Appeals − Sixth Circuit re 30 Notice of Appeal filed by Robert Hellin, Joseph W. Utsler, Joseph F. Bruce, Scott Gandy, Brandon Bradley, Mark Parsons [Appeal Case Number 14−1848] (KCla) (Entered: 09/18/2015)
36 MANDATE from U.S. Court of Appeals − Sixth Circuit as to 33 Appeal Order/Opinion/Judgment [Appeal Case Number 14−1848] (Ahmed, N) (Entered: 12/15/2015)
34 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 12/17/2015 09:30 AM before District Judge Robert H. Cleland THE COURT WILL INITIATE THE CALL (LWag) (Entered: 11/30/2015)
35 NOTICE of Appearance by Joseph A. Bellanca on behalf of Joseph F. Bruce, Joseph W. Utsler. (Bellanca, Joseph) (Entered: 12/09/2015)
Minute Entry for proceedings before District Judge Robert H. Cleland: Status Conference held on 12/17/2015, Set Motion and Response Deadline as to (Motion to Dismiss to be filed by 1/29/2016, Response due by 2/16/2016) Disposition: Government's Motion to Dismiss to be filed. Counsel to indicate if Oral Argument would be requested. (LWag) (Entered: 01/12/2016)
37 Second MOTION to Dismiss by All Defendants. (Powell, Amy) (Entered: 01/29/2016)
38 [STRICKEN] STIPULATION TO EXTENSION OF TIME TO RESPOND TO DEFENDANTS' MOTION TO DISMISS by Brandon Bradley, Scott Gandy, Robert Hellin, Mark Parsons (Palacios, Emily) Modified on 2/9/2016 (LWag). (Entered: 02/08/2016)
TEXT−ONLY ORDER STRIKING as Improvidently filed 38 Stipulation filed by Robert Hellin, Scott Gandy, Brandon Bradley, Mark Parsons. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 02/09/2016)
39 STIPULATION AND ORDER to Extend Time to File a Response as to 37 Second MOTION to Dismiss :( Response due by 3/14/2016) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 02/10/2016)
40 STIPULATION AND ORDER Extending time to file responses as to 37 Second MOTION to Dismiss :( Response due by 4/4/2016, Reply due by 4/26/2016) Signed by District Judge Robert H. Cleland. (LWag) (Entered: 03/11/2016)
41 Ex Parte MOTION for Leave to File Excess Pages by Brandon Bradley, Scott Gandy, Robert Hellin, Mark Parsons. (Attachments: # 1 Plaintiffs' Response to Defendants' Motion to Dismiss) (Palacios, Emily) (Entered: 04/04/2016)
TEXT−ONLY ORDER GRANTING 41 Ex Parte MOTION for Leave to File Excess Pages filed by Robert Hellin, Scott Gandy, Brandon Bradley, Mark Parsons and Directing Plaintiffs' to file their Brief in Opposition as soon as possible. Signed by

Case: 2:14-cv-10071 As of: 04/06/2018 05:14 PM EDT 7 of 7

04/05/2016 04/26/2016 04/27/2016
04/29/2016 09/29/2016 09/29/2016 10/13/2016
10/13/2016 12/18/2017
02/09/2018

District Judge Robert H. Cleland. (LWag) (Entered: 04/05/2016)
42 RESPONSE to 37 Second MOTION to Dismiss filed by Brandon Bradley, Scott Gandy, Robert Hellin, Mark Parsons. (Palacios, Emily) (Entered: 04/05/2016)
43 MOTION for Leave to File Excess Pages by All Defendants. (Attachments: # 1 Proposed Reply Memorandum) (Powell, Amy) (Entered: 04/26/2016)
TEXT−ONLY ORDER GRANTING 43 MOTION for Leave to File Excess Pages filed by United States Department of Justice, Federal Bureau of Investigation. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 04/27/2016)
44 REPLY to Response re 37 Second MOTION to Dismiss filed by All Defendants. (Powell, Amy) (Entered: 04/29/2016)
45 OPINION AND ORDER granting 37 Defendants' Motion to Dismiss. Signed by District Judge Robert H. Cleland. (LWag) (Entered: 09/29/2016)
46 JUDGMENT in favor of Defendants against Planitiff (LWag) (Entered: 09/29/2016)
47 NOTICE OF APPEAL by Brandon Bradley, Scott Gandy, Robert Hellin, Mark Parsons re 45 Order on Motion to Dismiss. Receipt No: 0645−5913409 − Fee: $ 505 − Fee Status: Fee Paid. (Palacios, Emily)[FILING ERROR: NOTICE OF APPEAL FILED BY ALL PLAINTIFFS] Modified on 10/19/2016 (DPer). (Entered: 10/13/2016)
48 Certificate of Service re 47 Notice of Appeal. (DWor) (Entered: 10/13/2016)
49 OPINION AND JUDGMENT from U.S. Court of Appeals − Sixth Circuit re 47 Notice of Appeal, filed by Robert Hellin, Scott Gandy, Brandon Bradley, Mark Parsons [Appeal Case Number 16−2440] (SKra) (Entered: 12/18/2017)
50 MANDATE from U.S. Court of Appeal as to 49 Appeal Order/Opinion/Judgment, 47 Notice of Appeal, filed by Robert Hellin, Scott Gandy, Brandon Bradley, Mark Parsons [Appeal Case Number 16−2440] (DWor) (Entered: 02/13/2018)