8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 1/28
No. 14-1848
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; et al.,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
APPELLANTS’ REPLY BRIEF
SAURA J. SAHU (P69627)EMILY C. PALACIOS (P64941)
Miller, Canfield, Paddock and Stone, PLC for Appellants Parsons, Bradley, Gandy & Hellin,
Cooperating Counsel, ACLU Fund of Michigan
150 West Jefferson, Suite 2500
Detroit, Michigan 48226
(313) 963-6420
MICHAEL J. STEINBERG (P43085)
DANIEL S. KOROBKIN (P72842)ACLU Fund of Michiganfor Appellants Parsons, Bradley, Gandy & Hellin
2966 Woodward AvenueDetroit, Michigan 48201
(313) 578-6814 [email protected]
HOWARD HERTZ (P26653) Hertz Schram PC
for Appellants Bruce & Utsler1760 S. Telegraph Road, Suite 300
Bloomfield Hills, MI 48304
(248) 335-5000
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 1
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 2/28
TABLE OF CONTENTS Page
ii
A. THE ISSUE IS NOT THE REPORT, IT’S THE DESIGNATION. .............. 3
B. THE DOJ MISTAKES WHICH INJURIES ARE AT ISSUE, BUT
THE KEY INJURIES ARE FAIRLY TRACEABLE TO THE DOJ’SOWN ACTIONS AND WOULD BE REDRESSED BY THE
REQUESTED RELIEF. ............................................................................... 10
C. PLAINTIFFS PLEADED A FINAL AGENCY ACTION. ......................... 13
D. THE DECLARATORY JUDGMENT CLAIM MUST SURVIVE. ........... 19
CERTIFICATE OF COMPLIANCE ........................................................... 22
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 2
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 3/28
iii
INDEX OF AUTHORITIES
Page(s)
Cases
Act Now to Stop War & End Racism Coal. v. D.C., 589 F.3d 433(D.C. Cir. 2009) .................................................................................................... 6
Al-Tombigbee Rivers Coal. v. Norton, 338 F.3d 1244 (11th Cir. 2003) ................. 13
Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000) .................... 15, 16
Bennett v. Spear , 520 U.S. 154 (1997) .............................................................. 15, 16
Bowen v. Michigan Acad. of Family Phys., 476 U.S. 667 (1986) ........................... 11
Carey v. Wolnitzek , 614 F.3d 189 (6th Cir. 2010) ..................................................... 9
Clapper v. Amnesty Intern. USA, 133 S. Ct. 1138 (2013) ....................................... 11
Doe v. Tenenbaum, 8:11-CV-02958-AW, 2012 WL 5245523 (D. Md.Oct. 9, 2012) ....................................................................................................... 16
Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist.,
428 F.3d 223 (6th Cir. 2005) .............................................................................. 14
FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307 (2012) .................................. 3
Fenelon v. Riddle, 34 Fed. App’x 265 (9th Cir. 2002) .............................................. 9
Flue-Cured Tobacco v. EPA, 313 F.3d 852 (4th Cir. 2002) .................................... 19
Franklin Fed. Sav. Bank v. Dir., Office of Thrift Supervision, 927 F.2d
1332 (6th Cir. 1991) ...................................................................................... 16, 19
Franklin v. Massachusetts, 505 U.S. 788 (1992) .............................................. 16, 19
Gate Guard Servs., L.P. v. Solis, 2011 WL 2784447, No. V-10-91(S.D. Tex. July 12, 2011) .................................................................................... 17
Laird v. Tatum, 408 U.S. 1 (1972) ............................................................................. 8
Meese v. Keene, 481 U.S. 465 (1987) .................................................................. 13, 8
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 3
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 4/28
iv
Miller v. California Speedway Corp., 536 F.3d 1020 (9th Cir. 2008) .............. 14, 16
Muniz v. United States Board Patrol , 741 F.3d 668 (6th Cir. 2013) ....................... 21
Nat’l Council of La Raza v. Gonzales, 468 F. Supp. 2d 429 (E.D.N.Y.
2007), aff’d sub nom. Nat’l Council of La Raza v. Mukasey, 283Fed. App’x 848 (2d Cir. 2008) ........................................................................... 16
Raines v. Byrd , 521 U.S. 811 (1997) ....................................................................... 11
Reno v. ACLU , 521 U.S. 844 (1997) ......................................................................... 3
Richards v. Gen. Motors Corp., 991 F.2d 1227 (6th Cir. 1993) ............................. 13
Sierra Club v. Slater , 120 F.3d 623 (6th Cir. 1997) ................................................ 16
Skidmore v. Swift & Co., 323 U.S. 134 (1944) ........................................................ 15
Synthetic Organic Chem. Mfrs. Assoc. v. Secretary, Dep’t Health & Human Servs., 720 F. Supp. 1244 (W.D. La. 1989) ..................................... 15, 17
Whaley v. County of Tuscola, 58 F.3d 1111 (6th Cir. 1995) ................................... 14
Statutes
5 U.S.C. § 551(4) ................................................................................... 14, 15, 18, 19
5 U.S.C. § 551(13) ................................................................................................... 14
18 U.S.C. § 521(a) ................................................................................................. 4, 5
28 U.S.C. § 1331 ................................................................................................ 20, 21
Court Rules
Rule 12(b)(6) ............................................................................................................ 14
Constitutional Provisions
First Amendment, U.S. Const. Am. I ......................................................... 3, 8, 10, 17
Fifth Amendment, U.S. Const. Am. V ............................................................... 3, 7, 8
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 4
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 5/28
v
Other Authorities
28 C.F.R. § 23.20 ....................................................................................................... 9
DOJ 2011 National Gang Threat Assessment: Emerging Trends 49-79
(Oct. 2011), available at http://www.fbi.gov/stats-services/ publications/2011-national-gang-threat-assessment (last viewedFeb. 23, 2015) ....................................................................................................... 5
Webster’s Ninth New Collegiate Dictionary ............................................................. 6
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 5
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 6/28
1
This case is about the direct burden and injury that the Department of
Justice’s administrative rules and policies impose upon the Juggalo Plaintiffs-
Appellants’ personal constitutional and statutory rights. The DOJ is responsible for
enforcing federal criminal laws. While interpreting those laws and implementing
its related policies, the DOJ identifies criminal gangs. By 2011, the DOJ had
designated the Juggalos as a “hybrid gang,” based on reports about a small number
of the music fans. That gang designation was an agency interpretive rule or rule-
equivalent under the APA. The rule used (and continues to use) terms that are so
vague or so broad as to reach substantial numbers of law-abiding Juggalo music
fans, including Plaintiffs. Evidence of the gang designation and its unconstitutional
scope later surfaced publicly in a November 2011 Gang Threat Assessment
(“Report”). To challenge the unlawful rule, Plaintiffs sued and asserted six
different claims, each of which attacks the direct burdens on Plaintiffs’ personal
rights. As of today, the hybrid gang label continues to burden those rights. Since
Plaintiffs are suing to address these direct constitutional and statutory injuries, their
standing is clear and the district court’s order must be reversed.
Faced with these direct claims, the DOJ’s argument changes the subject.
Contrary to the government’s contentions, this case is not limited to its 2011
Threat Assessment. It also challenges the underlying gang designation, which
surfaces elsewhere including in the NGIC’s informational materials. Similarly, it is
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 6
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 7/28
2
not limited to a claim of arbitrary or capricious decision-making under the APA, a
standard that only applies to one of Plaintiffs’ six claims. The four constitutional
claims simply litigate the constitutional issues de novo and give rise to a claim for
relief under the Declaratory Judgment Act. Another claim concerns the DOJ’s
failure to comply with lawful procedures.1
Moreover, although the DOJ’s argument often focuses on “harms” and
damages, it does not address the primary injuries-in-fact that are at the center of the
constitutional standing issues; namely, its violations of the First and Fifth
Amendments and the APA. This is not a case about whether local law enforcement
violated the Fourth Amendment or whether a military recruiter violated the law.
The real issue is whether the DOJ is violating and unconstitutionally burdening
Plaintiffs’ personal rights by adhering to a vague and excessive gang label that
targets them.
The Complaint allegations here present a traditionally justiciable challenge
to vindicate Plaintiffs’ personal constitutional and statutory rights. Their
1 The DOJ limits its discussion of the APA’s standards to the single claim thatPlaintiffs pleaded under § 706(2)(A), which provides relief for arbitrary and
capricious agency action. (Appellee’s Br. at 2.) But Plaintiffs pleaded threeseparate and additional constitutional claims under § 706(2)(B), which provides
direct de novo review of agency action that violates constitutional rights. Plaintiffsalso pleaded one claim under § 706(2)(D) (agency action violating procedures
required by law), and a claim under the Declaratory Judgment Act for relief from
constitutional and statutory violations.
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 7
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 8/28
3
allegations plausibly plead a basis for standing that is well settled and that requires
this case to be reversed and remanded for further proceedings.
A. THE ISSUE IS NOT THE REPORT, IT’S THE DESIGNATION.
This case is not solely about the 2011 Gang Threat Assessment, which the
DOJ refers to as the “Report.” It is about the DOJ’s vague, indiscriminate agency
designation that brands Juggalos as a hybrid street gang, and the DOJ’s policy and
practice of interpreting the federal gang laws in a way that violates and burdens
Plaintiffs’ personal constitutional rights. Although the 2011 Threat Assessment
publicized the vague gang designation, the designation was not limited to that
Assessment. (See Appellants’ Original Corr’d Br. at 5.) Instead, the underlying
designation has informed and continues to guide the DOJ’s actions and to be
communicated to federal and state officials through the NGIC’s informational
materials.
At this early stage in the proceedings, the 2011 Assessment offers a tangible
example of why the DOJ’s vague underlying gang designation violates the
Constitution.2 In the 2011 Assessment, the DOJ identifies “Juggalos” as
2 The vagueness here implicates not only the right to due process under the Fifth
Amendment, but also Plaintiffs’ First Amendment rights. Where, as here, FirstAmendment concerns exist, “rigorous adherence to th[e] requirement[ of clarity] is
necessary to ensure that ambiguity does not chill protected speech.” FCC v. FoxTelevision Stations, Inc., 132 S. Ct. 2307, 2317 (2012). For content-based
restrictions, “[t]he vagueness of [the restriction] raises special First AmendmentContinued on next page.
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 8
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 9/28
4
“traditionally fans of the musical group the Insane Clown Posse.” (Appellee’s Br.
App’x at A5 n. “e”.) The DOJ then calls Juggalos a “loosely-organized hybrid
[criminal] gang,” (id. at A5), and it paints a confusing picture of broader
criminality, without offering any way to separate law-abiding music fans from
criminal street gang members:
“Although recognized as a gang in only four states, many Juggalo
subsets exhibit gang-like behavior and engage in criminal activity andviolence.” ( Id.)
“Most crimes committed by Juggalos are sporadic, disorganized,individualistic, and often involve simple assault, personal drug useand possession, petty theft, and vandalism.” ( Id.)
“[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 A6.)
“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.)
Amid these confusing labels, the DOJ does not define a “hybrid gang.”3 Instead, it
suggests that hybrid gangs are groups of people who affiliate with other gangs:
Continued from previous page.
concerns because of its obvious chilling effect on free speech.” Reno v. ACLU , 521U.S. 844, 871-72 (1997).3 The federal statutory definition of a “criminal street gang,” 18 U.S.C. § 521(a),
does not help the DOJ’s argument. That statute does not define a “hybrid gang,”and it shows why the DOJ’s broad-ranging “gang” label suggests that the Juggalos
are criminals. To qualify as a criminal street gang, a group must have a primary purpose of “commi[tting] 1 or more [federal felony-level] cr iminal offenses”
involving drugs, violence, or a conspiracy to commit the same. Id. The group’sContinued on next page.
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 9
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 10/28
5
“The expansion of hybrid gangs— non-traditional gangs with multiple
affiliations — is a continued phenomenon in many jurisdictionsnationwide. 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 continuouslyevolving.”
Hybrid gangs “are adopting national symbols and gang members often
crossover from gang to gang.”
( Id. at A5.) In its appendix of “Gangs By State” at the end of the Threat
Assessment, the DOJ simply lists the “Juggalos” as a “gang” in numerous states
such as Alabama, Florida, Massachusetts, Tennessee, and Wyoming, where the
Juggalos appear alongside groups like the Latin Kings, Crips, Bloods, and the
Outlaws MC. (DOJ 2011 National Gang Threat Assessment: Emerging Trends 49-
79 (Oct. 2011), available at http://www.fbi.gov/stats-services/publications/2011-
national-gang-threat-assessment (last viewed Feb. 23, 2015).) The Assessment
does not offer anything to separate the purported “subsets” from the ordinary
music fans.
Where, as here, a DOJ rule directly targets a musical fan base or its
“subsets,” or is so vague and confusing that it could be reasonably interpreted as
doing so, its action objectively burdens their rights as a protected association and
Continued from previous page.
members must have engaged in a continuing series of those offenses within the past five years. Id. Finally, the group must have at least five members and its
activities must affect interstate commerce. Id. As alleged in the Complaint, that
label cannot properly apply to the Juggalo music fans generally.
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 10
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 11/28
6
as individuals. That designation also has another impact: it directly controls how
federal law enforcement agencies within the DOJ and NGIC enforce the law, and it
impacts how other law enforcement agencies do the same. In these cases, standing
exists as long as Plaintiffs intend to identify themselves as Juggalos and the gang
designation remains in place. See Act Now to Stop War & End Racism Coal. v.
D.C., 589 F.3d 433, 435 (D.C. Cir. 2009). The law presumes that the government
will enforce and apply its rules against all of them absent clear evidence to the
contrary. Id. And because the gang designation is so vague and confusing, law-
abiding Juggalos reasonably alter their protected expressive and associational
conduct to avoid being targeted as criminals.
The DOJ argues that its designation of Juggalos as “a loosely-organized
hybrid gang” was not excessive because of its sporadic use of the term “subset.”
This does not adequately limit the designation or eliminate the vagueness. Law
enforcement and the public, not to mention Juggalos themselves, have consistently
and reasonably understood the label to broadly call Juggalos a gang. (See
Appellants’ Original Corr’d Br. at 5 & n.2.) How could they not? The term
“subset” is utterly vague, meaning simply “a set each of whose elements is an
element of the inclusive set.” Webster’s Ninth New Collegiate Dictionary. A
subset of Juggalos could include one or one million, and the DOJ’s rule does not
tell us anything about where the line is. Instead, the DOJ expressly relies on
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 11
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 12/28
7
“Juggalo” markers to identify the subset, as reflected in the 2011 Assessment.
Figure 5 of that Report – the image identified as depicting a “Juggalo member” –
confirms that. Likewise, Footnote “e” of the Report tellingly pairs Juggalos’ status
as ICP music fans with their gang status under the law of four states.4 These are the
same symbols that identify the music fans generally, like the hatchetman logo,
clown-paint faces, and ICP fan status. If these are markers of Juggalo gang subsets,
it is no wonder that independent, established media outlets reported that the DOJ
classified Juggalos generally as gang.
The impact of the DOJ’s gang designation is nothing short of defamatory,
and it has an objectively foreseeable chilling effect on Juggalos’ constitutionally
protected expressive and associational activities. It brands them as criminals and
subjects them to unjustified government action. Contrary to the DOJ’s suggestion,
the effects are not speculative or impersonal. Instead, by being targeted, the
Plaintiffs suffer not only a direct attack on their personal First and Fifth
Amendment rights, but also actual and specific harms at the hands of officials who
foreseeably act upon the DOJ’s guidance. Either the DOJ’s designation of a
4 The DOJ concludes its discussion of Juggalos by broadly warning: “Transient,
criminal Juggalo groups pose a threat to communities due to the potential forviolence, drug use/sales, and their general destructive and violent nature.” The
district court appears to have read the report in the same commonsense way. Itdescribed the report as identifying Juggalos “as a hybrid gang subset,” (Opin. &
Order, RE 29, Page ID # 311), i.e., a subset of hybrid gangs – which is
meaningless to someone trying to enforce clear standards.
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 12
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 13/28
8
“subset” is impermissibly vague, or it reaches these law-abiding Juggalos. Either
way, it unconstitutionally burdens Plaintiffs’ First and Fifth Amendment rights.
On these issues, the DOJ cannot avoid that Foretich, 351 F.3d 1198, and
Keene, 481 U.S. 465, are firmly in Plaintiffs’ favor. In both cases, it was
immaterial whether the plaintiffs challenged “laws” versus other kinds of
governmental “action.” In fact, Foretich found standing even though the statute’s
provisions were moot and unenforceable against the plaintiff. 351 F.3d at 1210.
The courts did not consider as decisive the issue whether the laws “were
enforceable against the plaintiffs.” While it is generally fair to describe the body of
First Amendment case law as finding standing where government action is
regulatory, proscriptive or compulsory, Laird v. Tatum, 408 U.S. 1, 11 (1972),
those qualities are not absolute requirements for challenges to other kinds of
agency action under the APA. In Foretich, the court discussed a case finding
standing based on the r eputational injury from a “public reprimand” officially
characterizing the plaintiff as abusive, and another having a court order
characterizing an attorney’s professional conduct unfavorably, 351 F.3d at 1213-
14. Neither involved “laws” enforceable against the plaintiffs, but just as here,
those were adverse government actions with consequences.
Importantly, Plaintiffs have also alleged why this designation is equivalent
to a content-based restriction on speech and association. Thus, strict scrutiny
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 13
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 14/28
9
applies. See Carey v. Wolnitzek , 614 F.3d 189, 198 (6th Cir. 2010). Under that
standard, the DOJ must use a narrowly tailored approach. Its confusing, broad-
brush designation does not meet that standard.5
Finally, the DOJ argues that the existence of a particular “designation” is not
plausible, as if the term “designation” were a technical one. But if the DOJ did not
operate under an interpretive rule or principle that Juggalos are a gang, it could not
lawfully collect intelligence about them, let alone publish reports about purported
activity of their vague “subsets.” 6
See 28 C.F.R. § 23.20. Among the information
upon which Plaintiffs base the beliefs alleged in the Complaint, in February 2011,
before the publication of the 2011 Threat Assessment, the DOJ published a
confidential report focusing exclusively on Juggalos and describing them as a gang.
The DOJ also maintains a digital warehouse containing Juggalo data that – by
Congressional design – plays a leading role in law enforcement’s identification of
gang members. (See Compl. ¶¶ 103, 115, RE 1, Page ID # 15, 17.) The warehouse
includes an encyclopedia of gang images and a database of materials cataloging
5 If the DOJ designated a similarly protected class of Muslims or Muslim “subsets”
as a hybrid gang, there would be no question standing would be present. See, e.g.,
Fenelon v. Riddle, 34 Fed. App’x 265, 266 (9th Cir. 2002).6 The DOJ is the sole source of information about its rules, including the
interpretative rule or equivalent that designates Juggalos as a gang. A defendantcannot avoid discovery by simply asking the Court to credit its version of the
circumstances. At this stage, Plaintiffs plausibly pleaded claims that warrant
discovery.
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 14
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 15/28
10
distinctive First Amendment-protected Juggalo symbols such as the hatchetman
logo and other ICP-related symbols and other information about these music fans.
Within these materials, the DOJ does not provide any way for law enforcement to
distinguish the vast majority of law-abiding Juggalos from the purported “subsets”
of gang members. Now, the DOJ suggests only a circular definition that the good
Juggalos are the ones who don’t commit gang-related crimes. That is no standard
at all for due process or the First Amendment.
B. THE DOJ MISTAKES WHICH INJURIES ARE AT ISSUE, BUT THEKEY INJURIES ARE FAIRLY TRACEABLE TO THE DOJ’S OWN
ACTIONS AND WOULD BE REDRESSED BY THE REQUESTED
RELIEF.
Although the DOJ’s argument consistently focuses on practical harms
inflicted by third parties, the Supreme Court’s rulings over the past two decades
confirm that – for purposes of standing – “injury” does not mean “harm” or
“damage,” but rather a colorable legal violation of the plaintiff’s rights. It becomes
an injury-in-fact where, as here, the DOJ’s violation of the First or Fifth
Amendments or of the APA has actually occurred or is imminent, rather than
hypothetical. See, e.g., Am. Civil Liberties Union of Minnesota v. Tarek ibn Ziyad
Acad., 643 F.3d 1088, 1092 (8th Cir. 2011). By mistaking the rights at issue and
avoiding the primary point of the Plaintiffs’ claims, the DOJ’s argument deflects
attention toward others’ actions, rather than addressing how its own administrative
actions violate the Constitution.
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 15
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 16/28
11
Contrary to the DOJ’s interpretation, (Appellee’s Br. at 8, 11), there is no
special standing test here – whether for the constitutional claims or any other
claims. See Clapper v. Amnesty Intern. USA, 133 S. Ct. 1138 (2013). While the
Supreme Court has sometimes described the standing review as “rigorous” if
another branch of government is involved, id. at 1147 (citing Raines v. Byrd , 521
U.S. 811, 819-20 (1997), that neither changes the substantive elements nor alters
the Court’s “province and duty” to declare what the Constitution means.7 Instead,
the dicta elucidated in Raines reminds courts not to follow the “natural urge” to
rush to a judgment on the constitutional merits, and instead to carefully consider if
the plaintiff has alleged a colorable legal violation that is fairly traceable to the
defendant’s conduct and is redressable by the requested relief. See Raines, 521
U.S. at 820. In sum, the showing required for standing here is essentially the same
as in any other case.
The district court erred by failing to address Plaintiffs’ primary
constitutional injuries, instead focusing on other harms inflicted by third parties.
As shown in Appellants’ opening brief, if the district court had considered
Plaintiffs’ other injuries – the direct burden on their associational and expressive
7 In cases involving the APA, Congress specifically intended to allow review ofexecutive action, and courts consider “the strong presumption that Congress
intends judicial review of administrative action.” Bowen v. Michigan Acad. of
Family Phys., 476 U.S. 667, 670 (1986).
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 16
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 17/28
12
rights, their stigmatization as criminals and reputational damage, and their actual
chilled speech – it could not have avoided acknowledging the traceability of those
injuries to DOJ’s gang designation. Nor could it have avoided acknowledging that
that declaratory or injunctive relief could at least partially redress those injuries.
The DOJ’s argument invites repetition of that mistake by changing the subject
from the designation to the Report, and from a broader gang rule to some vague
language about subsets. The DOJ argues that the 2011 Report does not make a
“sweeping statement” reaching Plaintiffs, and their injuries are “too speculative
and too generalized.” (Appellee’s Br. at 9, 16.) But that interpretation is belied by
the DOJ’s past indiscriminate ap plication of the designation to Juggalos, and by a
commonsense reading of the Hybrid Gang section as a whole (above), which refers
to Juggalos as a whole. The vague term “subset” does not avoid the sweeping
nature of the DOJ’s statements because no one knows what it means. And it cannot
possibly avoid Plaintiffs’ standing to litigate the due process vagueness claim,
which challenges what it means. The constitutional injuries alleged in the
Complaint support standing.
Finally, as to redressability, the DOJ fails to explain why equitable relief
could not partially redress these injuries. Instead, it focuses on third-party harms,
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 17
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 18/28
13
but that approach confuses the injuries to be redressed.8 Settled law supports the
Plaintiffs. Redress of their constitutional injuries need not be certain, only likely,
Meese v. Keene, 481 U.S. 465, 476 (1987), and partial relief is sufficient, see, e.g.,
Al-Tombigbee Rivers Coal. v. Norton, 338 F.3d 1244, 1256 (11th Cir. 2003). It is
undisputed that the DOJ has neither retracted its operational Juggalo gang-rule, nor
retracted the 2011 Report publicly discussing that designation. The requested relief
would partly redress the injuries. Plaintiffs have more than adequately alleged the
basis for standing, and the district court’s order should be reversed.
C. PLAINTIFFS PLEADED A FINAL AGENCY ACTION.
Perhaps concerned about the strength of its standing arguments, the DOJ
raises an issue left untouched by the district court: whether its gang designation
constitutes a “final agency action” under the APA. This issue has nothing to do
with Plaintiffs’ claim for relief under the Declaratory Judgment Act and cannot
support a dismissal of that claim. Given that the trial court has not addressed the
8 The DOJ alternatively challenges the allegations of third-party harms as beingconclusory, but the DOJ’s argument is itself “conclusory.” (Appellees Br. at 21.)
The DOJ does not identify any deficient allegations. Instead, Plaintiffs allege thateither the relevant officials said they were r elying on the DOJ’s designation, or the
overall facts – including the intended local reliance on the designation – indicate asmuch. It is blackletter law that “reliance” is a factual question, not a legal one. See
Richards v. Gen. Motors Corp., 991 F.2d 1227, 1233 (6th Cir. 1993). Moreover,the third- parties’ actions merely amplify Plaintiffs’ stake, but they are not central
to the direct burden that the DOJ imposes on Plaintiffs’ constitutional and statutory
rights. (See Compl., RE 1, Page ID # 25.)
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 18
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 19/28
14
issue, the better course would be to remand the case for further proceedings. See,
e.g., Whaley v. County of Tuscola, 58 F.3d 1111, 1113 n.1 (6th Cir. 1995). But
even if this Court decides to address the issue, the Complaint plausibly pleads that
the DOJ’s hybrid gang designation is a reviewa ble final agency action.
As with any motion under Rule 12(b)(6), the Court must accept the
Plaintiffs’ allegations as true and construe them in a light most favorable to
Plaintiffs – neither crediting the DOJ’s characterization of the Complaint nor being
swayed by the DOJ’s statements about how it conducts its internal affairs. Evans-
Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., 428 F.3d 223, 228
(6th Cir. 2005). Here, and contrary to the DOJ’s suggestion, (Appellee’s Br. at 23),
the law is clear that a final agency action is not limited to formal notice and
comment rulemaking. See, e.g., Miller v. California Speedway Corp., 536 F.3d
1020, 1033 (9th Cir. 2008). An agency “action” is simply “the whole or part of any
agency rule, order, license, sanction, relief, or other equivalent or denial thereof, or
failure to act.” 5 U.S.C. § 551(13). Although the DOJ’s brief does not
acknowledge what a “rule” is under the APA, the statute clearly defines that term
at § 551(4). Rules include any “ part of an agency statement of general or
particular applicability and future effect designed to implement, interpret, or
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 19
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 20/28
15
prescribe law or policy . . . .” 5 U.S.C. § 551(4) (emphasis added).9 Thus, rules are
expressly not limited to prescriptions of general law or policy. And setting
formality aside, subsection (13) expressly includes anything that is “equivalent” to
a rule or any other action. Importantly, “agency actions” are “interpreted
expansively … to assure the complete coverage of every form of agency
power … .” Synthetic Organic Chem. Mfrs. Assoc. v. Secretary, Dep’t Health &
Human Servs., 720 F. Supp. 1244, 1249 (W.D. La. 1989) (quoting FTC v.
Standard Oil Co. of Cal., 449 U.S. 232, 238 n.7 (1980)). The point is to provide a
way to challenge the exercise of that power in order to prevent its abuse.
When identifying agency action, courts recognize that “the substance of
agency activities” is “the controlling factor, regardless of the label that may be
applied.” Id .; see also Appalachian Power Co. v. EPA, 208 F.3d 1015, 1021-23
(D.C. Cir. 2000). Many reviewable agency actions are not formal rules, including:
9 Insofar as the district court read the APA as requiring a prescriptive effect in all cases (rather than some cases about certain rules), its dicta misinterpreted the APA
and erased language from the law. “Rules” include the partial, particularinterpretations or implementations of law or policy. Where, as here, an agency is
tasked with enforcing a body of law (e.g., federal criminal law), the APA providesa way to evaluate the legality of the agency’s internal operating norms, practices,
procedures, or other guidelines that inform the agency in carrying out its duties.See generally Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (“Executive
actors often must interpret the enactments that Congress has charged them withenforcing and implementing.”). That analysis fits squarely within the broader
purpose and framework of the APA, which provides a means to review agencies’
exercise of their power.
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 20
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 21/28
16
agency opinions, Bennett v. Spear , 520 U.S. 154, 156 (1997);
interpretive decisions published as “Bulletins,” Franklin Fed. Sav.
Bank v. Dir., Office of Thrift Supervision, 927 F.2d 1332, 1337 (6thCir. 1991); and
agency decisions to publish information on a publicly available
database, see Doe v. Tenenbaum, 8:11-CV-02958-AW, 2012 WL
5245523 (D. Md. Oct. 9, 2012) (Consumer Product SafetyCommission’s decision to publish in a publicly available database –
the creation of which was mandated by statute – an incident report
pertaining to a manufacturer’s product); Nat’l Council of La Raza v.
Gonzales, 468 F. Supp. 2d 429, 435 (E.D.N.Y. 2007), aff’d sub nom.
Nat’l Council of La Raza v. Mukasey, 283 F. App’x 848 (2d Cir.
2008) (entering civil immigration information into the National CrimeInformation Center database and disseminating that information tostate and local officials).
Interpretive rules and policy statements are “rules” or rule-“equivalents,” entitled
to APA review just like those adopted through a formal process. See supra note 9.
Without this context, one cannot properly convey what the courts mean in
saying that an action can only be “final” if it consummates decision-making and if
“legal consequences will flow” from it. Bennett , 520 U.S. at 177-78. (internal
citations omitted); see Franklin v. Massachusetts, 505 U.S. 788, 797 (1992)),
quoted in Sierra Club v. Slater , 120 F.3d 623, 631 (6th Cir. 1997). Different
actions have different effects. For rules to be reviewable under the APA, “final”
does not mean forever, set-in-stone, or iron-clad. Appalachian Power Co., 208
F.3d at 1022 (“[A]ll laws are subject to change. Even . . . the Constitution . . . may
be amended from time to time.”). Nothing in the APA requires an interpretive rule
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 21
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 22/28
17
to be permanent or to be as prescriptive as a regulation. See Miller , 536 F.3d at
1033 (reviewing DOJ’s interpretation of the Americans with Disabilities Act).
Such a holding would run afoul of precedent and the statute’s text. The real issue is
whether the agency’s “action” – rather than an intermediate official’s individual
action – has run afoul of the Constitution or laws. Courts must consider the matter
“in a ‘pragmatic way,’ [which] also considers whether the agency action ‘has a
direct effect on the day-to-day business’ of the plaintiff.” Gate Guard Servs., L.P.
v. Solis, 2011 WL 2784447 at *4, No. V-10-91 (S.D. Tex. July 12, 2011) (quoting
Abbott Labs. v. Gardner , 387 U.S. 136, 149, 152 (1967)). Where, as here, an
agency employs a vague operating rule that allegedly burdens Plaintiffs’ First
Amendment associational rights and rights to free expression and due process, the
action is reviewable under the APA.
As for legal consequences, the court’s analysis in Synthetic Organic
Chemical Manufacturers, supra, is instructive. A group of chemical manufacturers
and sellers sought to preclude HHS from classifying something as carcinogenic in
a report. The court found that the “Report was intended to offer [HHS’] judgment
as to carcinogenicity for reference by a broad range of regulatory agencies and to
play an important role setting the regulatory agenda.” 720 F. Supp. at 1249. That
was enough to make the action reviewable. Id. at 1249-50.
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 22
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 23/28
18
Here, the Complaint allegations state a factual basis for why the same is true.
The gang designation consummates a decision-making process required by
Congress, which directed the Attorney General to establish the NGIC and the gang
database and further directed the FBI to “collect, analyze, and disseminate gang
activity information.” (Compl. ¶ 100, RE 1, Page ID # 14.) Although the DOJ now
professes to simply operate a garbage-in‒garbage-out warehouse, the Attorney
General provided a report to Congress stressing the critical nature of the DOJ’s
analytical work. ( Id. ¶ 103, Page ID # 15.) By disseminating the FBI’s analysis, the
DOJ and NGIC “guide the appropriate officials in coordinating investigations and
prosecutions to disrupt and dismantle gangs.” ( Id.) The DOJ’s database and reports
are designed to help set the federal, state, and local agendas, and they actually play
that role. Federal agencies directly implement the DOJ’s designation, and state
organizations intentionally rely on it to set the agenda.
The DOJ protests that Congress did not specifically give the NGIC
regulatory authority, but that is beside the point. The DOJ has the power to
implement and interpret federal criminal laws while enforcing them, and Congress
has not expressly stripped that authority here. The APA reaches the DOJ’s
interpretive rules and their equivalents.
Likewise, it is immaterial whether the 2011 Report is descriptive, rather than
prescriptive. The APA’s text covers actions that implement and interpret laws or
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 23
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 24/28
19
policy, as well as actions that prescribe them. 5 U.S.C. § 551(4). The issue is
whether the gang designation consummates the agency’s decision-making process.
That practical inquiry depends on the particular agency action. Different actions
involve different processes. Here, Plaintiffs allege that the gang designation serves
as an operational rule, which consummates the DOJ’s gang-identification process.
(Compl., RE 1, Page ID # 23) Plaintiffs allege that this “rule” is guiding relevant
federal and state law enforcement agendas across the country. (See, e.g., id. ¶ 164,
Page ID # 25.) That is enough to plead a final agency action.
The DOJ’s reliance on Flue-Cured Tobacco v. EPA, 313 F.3d 852 (4th Cir.
2002), and Franklin v. Massachusetts, 505 U.S. 788 (1992), is misplaced. Flue-
Cured held that an EPA report was not a reviewable final agency action because
Congress expressly stripped the EPA’s rule-making authority; so, its report could
not have the final say. Id. at 858-59. That did not depend on if the report was
descriptive or prescriptive. Likewise, in Franklin, Congress specifically vested the
power in the President, not the Cabinet. 505 U.S.at 797-98. A Secretary could not
have the final say. By contrast here, a decision about the gang designation is within
the DOJ’s general power to interpret gang laws and to decide which groups to
target. The problem is that the DOJ targeted the wrong group in a ham-fisted way.
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 24
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 25/28
20
D. THE DECLARATORY JUDGMENT CLAIM MUST SURVIVE.
Aside and apart from Plaintiffs’ APA claims, their claim for declaratory
relief must survive. Like the district court, the DOJ neglects that Plaintiffs pleaded
a straightforward claim for relief from constitutional and statutory violations under
the Declaratory Judgment Act. Although the DOJ acknowledges the existence of
that claim, (Appellee’s Br. at 6), it makes no mention of it in the statement of
issues, (id . at 1), and offers nothing to support the district court’s ruling that the
claim was somehow forfeited even though Plaintiffs asserted it at every step.
The district court erred by holding that the claim was forfeited. The DOJ’s
motion to dismiss almost entirely neglected the claim. In fact, the DOJ opened by
stating incorrectly that Plaintiffs brought “all of their claims under the
Administrative Procedure Act.” (Defs.’ Mot. Dismiss, RE 20, Page ID # 147.) In a
footnote, the DOJ dismissively brushed it off as jurisdictional folly:
“Count 6 purports to be an independent claim under the DeclaratoryJudgment Act, but it is well established that the Declaratory Judgment
Act does not provide an independent basis for jurisdiction. Rather, it provides courts with discretion to fashion a remedy in cases where
federal jurisdiction already exists.” ( Id. Page ID # 151.)
That argument was meritless. (Pls.’ Resp. Br., RE 25, Page ID # 248 n.8.) The
Complaint never relied on the Act as a basis for jurisdiction; instead, it pleaded
federal question jurisdiction under 28 U.S.C. § 1331, in light of the other
constitutional and regulatory questions presented. The declaratory judgment claim
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 25
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 26/28
21
simply provides another remedy, should the APA itself prove ineffective as a
vehicle for relief. Plaintiffs made that point clear in their response brief, (id. Page
ID # 248-49), where they also discussed why “final agency action” is not a
jurisdictional issue. ( Id . Page ID # 248 n.8 (citing Muniz v. United States Board
Patrol , 741 F.3d 668 (6th Cir. 2013).) Ostensibly conceding these points, the DOJ
gave no reply to them in their briefs.
At oral argument, the DOJ offered two new but unavailing arguments. First,
it said the Declaratory Judgment Act does not create a separate claim, but only a
remedy. The DOJ conceded that a declaratory judgment is a proper remedy where,
as here, the court has jurisdiction and the plaintiff alleges a constitutional violation.
The DOJ also conceded that according to Muniz , a plaintiff can use the APA’s
waiver of sovereign immunity to bring constitutional claims that do not involve a
final agency action. (Hr’g Tr., RE 32, Page ID # 374.)
Second, the DOJ said that the Complaint did not plead the APA waiver of
sovereign immunity as a basis for these constitutional claims. The DOJ conceded,
however, that such a “defect” could be remedied by amending the Complaint. ( Id.
Page ID # 374-75.) But the DOJ cannot bury an argument about sovereign
immunity in vague and meritless allusions to jurisdiction. It had to make that
argument explicit. And even if the argument had been explicit, it would have been
meritless. The Complaint’s jurisdictional statement pleads the entire APA as one of
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 26
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 27/28
22
two bases of jurisdiction, which fully encompasses the APA’s waiver of sovereign
immunity. (Compl., RE 1, Page ID # 4.)
Since none of the DOJ’s arguments could support the jurisdictional
challenge or a forfeiture of the claim for declaratory relief, it is no surprise that the
DOJ does not defend the district court’s ruling on appeal. With on -point case law,
Plaintiffs directly and repeatedly addressed the only jurisdictional issues that the
DOJ clearly raised. The district court erred, and its dismissal without leave to
amend is unfair and prejudicial. The decision must be reversed.
Respectfully submitted,
/s/ Saura J. SahuSaura J. Sahu (P69627)
Emily C. Palacios (P64941)Miller, Canfield, Paddock and Stone, PLC
Cooperating Counsel, American CivilLiberties Union Fund of Michigan
150 W. Jefferson Avenue, Suite 2500Detroit, Michigan 48226(313) 496-7646
Michael J. Steinberg (P43085)
Daniel S. Korobkin (P72842)American Civil Liberties Union
Fund of Michigan
Detroit, Michigan 48201(313) 578-6814
Attorneys for Plaintiffs Parsons, Bradley,Gandy and Hellin
Dated: February 24, 2015
/s/ Howard HertzHoward Hertz (P26653)Hertz Schram PC
1760 South Telegraph Road, Suite 300
Bloomfield Hills, Michigan 48304(248) 335-5000
Attorneys for Plaintiffs Bruce and Utsler
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 27
8/9/2019 Brief in Juggalo Appeal
http://slidepdf.com/reader/full/brief-in-juggalo-appeal 28/28
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), the
undersigned counsel hereby certifies that this brief complies with the type-volume
limitation in Federal Rule of Appellate Procedure 32(a)(7)(B) because, as counted
by the Microsoft Word word-count tool, this brief contains 5,438 words, excluding
the parts exempted by Rule 32(a)(7)(B)(iii). This brief complies with the typeface
requirements in Rule 32(a)(5)(A) and the type-style requirements in Rule 32(a)(6)
because this brief has been prepared in proportionally spaced 14-point Times New
Roman font.
/s/ Saura J. Sahu (P69627)Miller, Canfield, Paddock & Stone, PLC
Detroit, Michigan 48226
(313) 496-7646
CERTIFICATE OF SERVICE
I hereby certify that on February 24, 2015, I electronically filed the
foregoing paper with the Clerk of the court using the CM/ECF system, which will
send notification of such filing to all counsel of record.
/s/ Saura J. Sahu (P69627)Miller, Canfield, Paddock & Stone, PLC
Detroit, Michigan 48226
(313) 496-7646
23835574
Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 28
Top Related