Brief in Juggalo Appeal

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

[email protected]

[email protected]

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]

[email protected]

HOWARD HERTZ (P26653) Hertz Schram PC

for Appellants Bruce & Utsler1760 S. Telegraph Road, Suite 300

Bloomfield Hills, MI 48304

(248) 335-5000

[email protected]

Case: 14-1848 Document: 33 Filed: 02/24/2015 Page: 1

mailto:[email protected]















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




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




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




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




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




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.




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.




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.




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.


http://www.fbi.gov/stats-services/publications/2011-national-gang-threat-assessment







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




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.




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




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.




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.




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).




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,




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.)




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




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.




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




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.




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




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.




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




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




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

[email protected]

Michael J. Steinberg (P43085)

Daniel S. Korobkin (P72842)American Civil Liberties Union

Fund of Michigan

Detroit, Michigan 48201(313) 578-6814

[email protected]

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

[email protected]

Attorneys for Plaintiffs Bruce and Utsler











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


(313) 496-7646

[email protected]

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


(313) 496-7646

[email protected]

23835574







Documents

Brief in Juggalo Appeal