Ctr. For Bio–ethical Reform Inc. v. Napolitano

• Citation: 648 F.3d 365
• Decision Date: 05 October 2011
• Docket Number: No. 10–1439.,10–1439.
• Parties: CENTER FOR BIO–ETHICAL REFORM, INC., Gregg Cunningham, and Kevin Murray, Plaintiffs–Appellants,v.Janet NAPOLITANO, in her capacity as Secretary of the Department of Homeland Security, and Eric H. Holder, Jr., in his capacity as Attorney General of the United States, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

648 F.3d 365

CENTER FOR BIO–ETHICAL REFORM, INC., Gregg Cunningham, and Kevin Murray, Plaintiffs–Appellants,
v.
Janet NAPOLITANO, in her capacity as Secretary of the Department of Homeland Security, and Eric H. Holder, Jr., in his capacity as Attorney General of the United States, Defendants–Appellees.

No. 10–1439.

United States Court of Appeals, Sixth Circuit.

Argued: June 7, 2011.Decided and Filed: Aug. 4, 2011.Rehearing and Rehearing En Banc Denied Oct. 5, 2011.

[648 F.3d 367]

ARGUED: Robert Joseph Muise, Thomas More Law Center, Ann Arbor, Michigan, for Appellants. Chantale Fiebig, Assistant United States Attorney, Detroit, Michigan, for Appellees. ON BRIEF: Robert Joseph Muise, Thomas More Law Center, Ann Arbor, Michigan, for Appellants. Steven P. Croley, Assistant United States Attorney, Detroit, Michigan, for Appellees.Before: COLE, CLAY, and GILMAN, Circuit Judges.OPINION CLAY, Circuit Judge.

In this action arising under the First and Fifth Amendments to the U.S. Constitution, Plaintiffs Center for Bio–Ethical Reform, Inc., Gregg Cunningham, and Kevin Murray appeal the district court's dismissal of their claims against Defendant Janet Napolitano, in her capacity as Secretary of the Department of Homeland Security, and Defendant Eric H. Holder, Jr., in his capacity as Attorney General of the United States, for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, we AFFIRM.

BACKGROUND

Plaintiff Center for Bio–Ethical Reform, Inc. (“CBR”) is a “pro-life, non-profit corporation” that “was established ... to promote prenatal justice and the right to life for the unborn[.]” (R. 16; Amended Complaint (“Am. Compl.”) ¶¶ 9, 71.) CBR's “antiabortion activities” are numerous. ( Id. ¶¶ 9, 71–75.) The CBR Reproductive Choice Campaign “consists of [displaying] large, colorful [and] graphic images of first-term aborted fetuses” on trucks that are driven throughout the nation. ( Id. ¶ 72.) The CBR Airborne Reproductive Choice Campaign consists of the same images but “displayed on banners towed behind aircraft” that are flown throughout the nation. ( Id. ¶ 73.) The CBR Genocide Awareness Project consists of a “traveling photo-mural exhibit” that compares abortion to the Holocaust. ( Id. ¶ 74.) Finally, the CBR Obama Awareness Campaign utilizes trucks and aerial banners to “juxtapose[ ] images and quotations of President [Barack] Obama alongside aborted fetuses and aborted preborn children.” ( Id. ¶ 75.)

Plaintiff Gregg Cunningham is CBR's executive director, and Plaintiff Kevin Murray is a private individual and former U.S. Marine. ( Id. ¶¶ 10–11.) Defendants are Janet Napolitano, Secretary of the U.S. Department of Homeland Security (“DHS”), and Eric H. Holder, Jr., Attorney General of the United States. ( Id. ¶¶ 12–13.)

According to the Amended Complaint, this is an action “challenging the policy, practice, procedure, and/or custom of Defendants that targets for disfavored treatment those individuals and groups that Defendants deem to be ‘rightwing extremists' (hereinafter RWE Policy).” ( Id. ¶ 1.) Plaintiffs characterize this “policy, practice, procedure, and/or custom” as constituting a “Rightwing Extremist Policy” or “RWE Policy.” ( Id.) Plaintiffs do not define the RWE Policy with any precision or specificity, but allege that the “RWE Policy was created, adopted, implemented, and enforced through a partnership with private organizations that are political adversaries of Plaintiffs,” including the Anti–Defamation League, Southern Poverty Law Center, and the National Abortion Federation. ( Id. ¶¶ 2, 55–56.)

Plaintiffs allege that the “RWE Policy was recently and publicly confirmed by the Department of Homeland Security in an

[648 F.3d 368]

assessment entitled, ‘Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment,’ ” or “DHS Assessment.” ( Id. ¶ 3.) The DHS Assessment, which is not attached to the Complaint or Amended Complaint, or otherwise contained in the record, is alleged to be “part of the RWE Policy.” ( Id. ¶ 15.)

Plaintiffs allege that they have been harmed by Defendants' “policy of targeting certain individuals and groups, including Plaintiffs, for disfavored treatment based on their viewpoint on controversial political issues [.]” ( Id. ¶ 4.) Plaintiffs claim further harm on account of the “partnership that was forged between Defendants and certain private organizations to create, adopt, implement, and enforce the RWE Policy.” ( Id.)

On April 16, 2009, Plaintiffs commenced this action in the district court, and on June 9, 2009, filed an Amended Complaint against Defendants, asserting claims under the First and Fifth Amendments of the U.S. Constitution. Specifically, the Amended Complaint contains three claims: (1) “First Amendment—Freedom of Speech;” (2) “First Amendment—Expressive Association;” and (3) “Fifth Amendment—Equal Protection.” ( Id. ¶¶ 113–21.)

Based on these alleged constitutional violations, the Amended Complaint seeks a declaration:

that [ (1) ] through the creation, adoption, implementation, and enforcement of the RWE Policy, Defendants have violated Plaintiffs' [ ] constitutional rights[; (2) ] the RWE Policy infringes upon the right to engage in controversial political speech[ and] upon [ ] freedom of expressive association in violation of the First Amendment ...; [and (3) ] the RWE Policy violates ... the Fifth Amendment by targeting certain individuals and groups for disfavored treatment based on the viewpoint of their speech.

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

[ (1) ] enjoining the RWE Policy and its application to Plaintiffs' speech and activities; [ (2) ] directing the disclosure of any files or databases containing information about Plaintiffs or Plaintiffs' activities[;(3) ] enjoining the creation or maintenance of files or databases containing information about Plaintiffs or Plaintiffs' activities[; and (4) ] enjoining the disclosure of information or data about Plaintiffs or Plaintiffs' activities to private organizations.

( Id.)

On September 11, 2009, Defendants moved to dismiss the Amended Complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. After the motion was fully briefed, the district court, on March 30, 2010, granted the motion and accordingly entered judgment for Defendants. The district court explained that

Plaintiffs fail to address affirmative conduct undertaken by the defendants. They fail to allege any time, place, or manner restrictions that Defendants have imposed on their speech. They fail to allege that Defendants taxed or punished their First Amendment activities. They fail to allege that Defendants imposed any prior restraint on their protected speech. They fail to allege any form of retaliation by Defendants for their exercise of protected speech on identified occasions.

Ctr. for Bio–Ethical Reform, Inc. v. Napolitano, No. 09–11441, 2010 WL 1257361, at *3 (E.D.Mich. Mar. 30, 2010). Plaintiffs

[648 F.3d 369]

then filed this timely appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.DISCUSSION

Based on our review of the allegations contained in the Amended Complaint, we conclude that Plaintiffs have failed to state a claim against Defendants under either the First or Fifth Amendments to the U.S. Constitution. As explained in detail below, the Amended Complaint contains numerous irrelevant allegations, and those that are relevant fail to plausibly allege that Defendants have violated Plaintiffs' constitutional rights. For this reason, we AFFIRM the dismissal of this action.

I. Standard of Review

The sufficiency of a complaint is a question of law, and we therefore review de novo the district court's dismissal of the Amended Complaint for failure to state a claim. See, e.g., City of Monroe Emps. Ret. Sys. v. Bridgestone Corp., 399 F.3d 651, 664 (6th Cir.2005). Our task is to “consider the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1951, 173 L.Ed.2d 868 (2009).

A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although the complaint need not contain “detailed factual allegations,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), Rule 8(a)(2) of the Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S.Ct. at 1949. As the Supreme Court explained in Iqbal: “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (internal quotation marks, citations, and alterations omitted).

Following Twombly and Iqbal, it is well settled that “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). A claim is plausible on its face if the “plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Plausibility is not the same as probability, but rather “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (stating that factual allegations “merely consistent with liability stop[ ] short of the line between possibility and plausibility”).

In reviewing the dismissal of the Amended Complaint, we are guided by the following “working principles.” Id. First, the general rule that the court must accept as...