Parsons v. U.S. Dep't of Justice

• Decision Date: 18 December 2017
• Docket Number: No. 16-2440,16-2440
• Citation: 878 F.3d 162
• Parties: 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.
• Court: U.S. Court of Appeals — Sixth Circuit

878 F.3d 162

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

United States Court of Appeals, Sixth Circuit.

Argued: October 11, 2017
Decided and Filed: December 18, 2017

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.

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

ALICE M. BATCHELDER, Circuit Judge.

Juggalos are fans of the musical group "Insane Clown Posse." In 2011, the National Gang Intelligence Center labeled Juggalos "a loosely-organized hybrid gang." A group of self-identified Juggalos brought Administrative Procedure Act ("APA") claims against the Department of Justice ("DOJ") and Federal Bureau of Investigation ("FBI"), asserting that the gang designation violated their First and Fifth Amendment rights. The district court determined that the gang designation was not a final agency action and dismissed the suit. We agree and affirm.

I.

In 2005, Congress directed the Attorney General to "establish a National Gang Intelligence Center [ ("NGIC") ] and gang information database to be housed at and administered by the [FBI] to collect, analyze, and disseminate gang activity information from" various federal agencies and federal, state, and local law enforcement, prosecutors, corrections officers, and jails. Violence Against Women and Department of Justice Reauthorization Act of 2005, Pub. L. 109–162, § 1107, 119 Stat. 2960, 3093–94 (codified at 34 U.S.C. § 41507 ). Congress also directed NGIC to make the gang-activity information available to federal, state, and local law-enforcement

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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."

The current litigation focuses on NGIC's 2011 gang-activity report, which described Juggalos as "a loosely-organized hybrid gang."¹ Nat'l Gang Intelligence Ctr., 2011 National Gang Threat Assessment Emerging Trends 22 (2011) [hereinafter "2011 NGIC Report" or the "Report"].² The 2011 NGIC Report compiled information from federal, state, and local law-enforcement and corrections agencies, "including information and data provided by the National Drug Intelligence Center (NDIC) and the National Gang Center ... [and] information retrieved from open source documents and data collected through April 2011." Id . at 5. As relevant here, the 2011 NGIC Report stated that "many Juggalo[ ] subsets exhibit gang-like behavior and engage in criminal activity and violence." Id. at 22. Although "[m]ost crimes committed by Juggalos are sporadic, disorganized, individualistic," and relatively minor, the 2011 NGIC Report explained that "a small number of Juggalos are forming more organized subsets and engaging in more gang-like criminal activity, such as felony assaults, thefts, robberies, and drug sales." Id. at 22–23. The 2011 NGIC Report further noted that only Arizona, California, Pennsylvania, and Utah recognized Juggalos as a gang, but "law enforcement reporting suggests that Juggalo criminal activity has increased over the past several years and has expanded to several other states." Id.

Appellants characterize themselves as Juggalos.³ They allege that they do not knowingly affiliate with any criminal gang, but that they have suffered violations of their Fifth Amendment due-process rights and a chill in the exercise of their First Amendment expression and association rights due to the Juggalo gang designation. Appellants allege that federal, state, and local law-enforcement officials rely on the 2011 NGIC Report to target members of gangs identified by the DOJ, including Juggalos. Appellants also allege that DOJ

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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

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.

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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 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 ,...