Parsons v. United States Department of Justice , 2015 FED App. 0230P ( 2015 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0230p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MARK PARSONS; BRANDON BRADLEY; SCOTT ┐
GANDY; ROBERT HELLIN; JOSEPH F. BRUCE; JOSEPH │
W. UTSLER, │
│ No. 14-1848
Plaintiffs-Appellants,
│
v. >
│
│
UNITED STATES DEPARTMENT OF JUSTICE; FEDERAL │
BUREAU OF INVESTIGATION, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:14-cv-10071—Robert H. Cleland, District Judge.
Argued: June 18, 2015
Decided and Filed: September 17, 2015
Before: ROGERS and McKEAGUE, Circuit Judges; SARGUS, District Judge*
_________________
COUNSEL
ARGUED: Saura J. Sahu, MILLER, CANFIELD, PADDOCK AND STONE, PLC, Detroit,
Michigan, for Appellants. Lindsey Powell, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellees. ON BRIEF: Saura J. Sahu, Emily C. Palacios, MILLER,
CANFIELD, PADDOCK AND STONE, PLC, Detroit, Michigan, Michael J. Steinberg, Daniel
S. Korobkin, ACLU FUND OF MICHIGAN, Detroit, Michigan, Howard Hertz, HERTZ
SCHRAM PC, Bloomfield Hills, Michigan, for Appellants. Lindsey Powell, Michael S. Raab,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.
*
The Honorable Edmund A. Sargus, Jr., Chief United States District Judge for the Southern District of
Ohio, sitting by designation.
1
No. 14-1848 Parsons v. United States Dep’t of Justice Page 2
_________________
OPINION
_________________
SARGUS, District Judge. Plaintiffs appeal the district court’s dismissal of this action for
lack of standing. We REVERSE and REMAND.
OVERVIEW
This is a case about fans of the Insane Clown Posse, who call themselves “Juggalos,” and
their ability to bring a lawsuit against government law enforcement agencies for alleged
violations of their constitutional rights. The Insane Clown Posse is a commercially successful
musical art group whose fans self-identify as “Juggalos.” Juggalos are easily spotted because
they frequently display, on person or property, insignia representative of the band. In 2011, the
National Gang Intelligence Center—an informational center operating under the Federal Bureau
of Investigation—released a congressionally-mandated report on gang activity that included a
section on Juggalos. The report identified Juggalos as a “hybrid gang” and relayed information
about criminal activity committed by Juggalo subsets. Plaintiff-Juggalos allege that they
subsequently suffered violations of their First and Fifth Amendment constitutional rights at the
hands of state and local law enforcement officers who were motivated to commit the injuries in
question due to the identification of Juggalos as a criminal gang. Plaintiffs filed suit against the
Department of Justice and Federal Bureau of Investigation under the Administrative Procedure
Act and the Declaratory Judgment Act. The district court dismissed for lack of standing. For the
reasons that follow we REVERSE the dismissal and REMAND the case for consideration of
Defendants’ Fed. R. Civ. P. 12(b)(6) arguments.
I. BACKGROUND
A. Factual Background
Because this case is before us on a motion to dismiss, we “must accept as true all material
allegations of the complaint, and must construe the complaint in favor of the complaining party.”
Kardules v. City of Columbus, 95 F.3d 1335, 1346 (6th Cir. 1996) (quoting Warth v. Seldin,
422 U.S. 490, 501 (1975)). When considering whether pleadings make out a justiciable case for
No. 14-1848 Parsons v. United States Dep’t of Justice Page 3
want of standing, our analysis must be confined to the four corners of the complaint. Id. at 1347
n.4.
1. Musical Group ICP and Juggalos
The Insane Clown Posse (“ICP”) is a musical group formed in 1991 and based in
Farmingham Hills, Michigan. The group is well known for elaborate live performances and has
enjoyed substantial commercial success. ICP’s songs “often use harsh language and themes”
that deal with social, political, religious or counter-cultural issues. (R. 1 ¶ 22). Specifically,
ICP’s music ranges from songs with “hopeful, life-affirming themes about the wonders of life
and the support that Juggalos give to one another,” to “horrorcore hip hop”—music that “uses
very harsh language to tell nightmare-like stories with an underlying message that horrible things
happen to people who choose evil over good.” (Id. ¶ 3).
Members of ICP’s dedicated musical fan base—fans of ICP and other bands on ICP’s
independent record label, Psychopathic Records—are widely known as “Juggalos.” “As an
expression of their identity, Juggalos often obtain and display distinctive tattoos of ICP and
Psychopathic Record art and icons. They also wear and otherwise display ICP art, symbols and
insignia on their clothing and other personal belongings.” (Id. ¶ 24). These displays of identity
include the practice of painting their faces to look like clowns and often incorporate the
“hatchetman” logo—a distinctive Juggalo symbol.
Plaintiffs self-identify as Juggalos. “Juggalos gather and associate with each other to
listen to ICP’s music, to share ideas surrounding the music, to express their support of or interest
in the ideas that ICP expresses through its music, to express their affiliation with ICP and the
artists on its record label, and to express their affiliation with one another.” (Id. ¶ 25).
2. Defendants and the National Gang Intelligence Center
Defendant Department of Justice (“DOJ”) is a department of the United States
government. Defendant Federal Bureau of Investigation (“FBI”) is an agency housed within the
DOJ. In 2005, Congress directed the U.S. Attorney General, through Public Law 109-162, 119
Stat. 2960, to “establish a National Gang Intelligence Center (‘NGIC’) and gang information
database to be housed at and administered by the [FBI] to collect, analyze, and disseminate gang
No. 14-1848 Parsons v. United States Dep’t of Justice Page 4
activity information from the FBI, the Bureau of Prisons, the Drug Enforcement Administration,
other federal agencies, and state and local law enforcement, prosecutors, and correctional
officers.” (Id. ¶ 100). In the same federal statute, Congress directed the NGIC to make the
information available to federal, state and local law enforcement agencies, among others. The
statute also directed the NGIC to annually submit a report to Congress on gang activity. “The
DOJ promptly established the Center in response to Congress’s direction and . . . the FBI has
administered the Center since its inception.” (Id. ¶ 101).
In 2011, the NGIC published its 2011 National Gang Threat Assessment (the “2011
NGIC Report,” or “Report”), in which the NGIC summarized and reported information it had
collected and analyzed in relation to gangs. “According to the [NGIC], the [2011 NGIC Report]
‘supports [DOJ] strategic objectives 2.2 (to reduce the threat, incidence, and prevalence of
violent crime) and 2.4 (to reduce the threat, trafficking, use and related violence of illegal
drugs).’” (Id. ¶ 121). The 2011 NGIC Report “is based on federal, state, local, and tribal law
enforcement and corrections agency intelligence . . . .” (Id. at ¶ 122). From its publication
through at least the time of the filing of the Complaint in this case, the 2011 NGIC Report has
been available to the general public on the NGIC website. See https://www.fbi.gov/stats-
services/publications/2011-national-gang-threat-assessment.
In the 2011 NGIC Report, Juggalos are classified as a “loosely-organized hybrid gang.”
(Id. ¶ 132). The Report defines hybrid-gangs as “non-traditional gangs with multiple
affiliations” that “are adopting national symbols and gang members often crossover from gang to
gang.” (Id. ¶ 131). The Report further states the following:
 “Many Juggalo subsets exhibit gang-like behavior and engage in criminal activity
and violence.”
 “Most crimes committed by Juggalos are sporadic, disorganized, individualistic,
and often involve simple assault, personal drug use and possession, petty theft and
vandalism.”
 “A small number of Juggalos are forming more organized subsets and engaging in
more gang-like criminal activity, such as felony assaults, thefts, robberies, and
drug sales.”
No. 14-1848 Parsons v. United States Dep’t of Justice Page 5
 “Juggalos’ disorganization and lack of structure within their groups, coupled with
their transient nature, makes it difficult to classify them and identify their
members and migration patterns.”
(Id. ¶ 140). The Report also notes that Arizona, California, Pennsylvania and Utah are the only
states officially recognizing Juggalos as a gang, but that Juggalo gang-related criminal activity is
reported in other states.
3. Plaintiffs’ Alleged Injuries
a. Plaintiff Mark Parsons (“Parsons”)
On July 9, 2013, Parsons was riding with a driver-trainee in a semi-truck on an interstate
freeway outside Knoxville, Tennessee for his small trucking business, entitled “Juggalo Express
LLC.” The side of Parsons’ truck was decorated with a large, visible ICP “hatchetman” logo.
(Id. ¶¶ 31-34). Parsons and the trainee pulled into the bypass lane of a weigh station, where a
Tennessee State Trooper ordered them to stop and park for a safety inspection. Once they
parked, the State Trooper approached Parsons and asked if he was a Juggalo. (Id. ¶¶ 34-37).
The State Trooper indicated that he detained Parsons for an inspection due to the hatchetman
logo on the truck. He then indicated that he considered Juggalos to be a criminal gang because
of the DOJ’s designation. (Id. ¶¶ 38-39). He proceeded to detain and question Parsons about
whether he had any axes, hatchets or other similar instruments in the vehicle. He searched the
vehicle and continued to question Parsons for about an hour, during which time he did not find
any weapons or contraband and did not issue a ticket or a citation to Parsons. (Id. ¶¶ 40-41).
b. Plaintiff Brandon Bradley (“Bradley”)
Bradley has been detained numerous times by law enforcement officers in California due
to visible Juggalo insignia on his person or clothing. In September 2012, a Citrus Heights,
California Police Officer in a patrol car stopped Bradley while he was biking. Bradley’s Juggalo
tattoos were visible and he was wearing a Juggalo merchandise T-shirt. (Id. ¶¶ 47-48). The
officer detained Bradley for fifteen minutes while questioning him about being a Juggalo. (Id. ¶
52). “Later, an ex-Citrus Heights Police Officer told Bradley that the ex-officer heard about the
above encounter” and also told Bradley “the tattoos are gang-affiliated.” (Id. ¶ 54).
No. 14-1848 Parsons v. United States Dep’t of Justice Page 6
In October 2012, Bradley was stopped by a deputy from the Sacramento Sheriff’s
Department while walking across a street in downtown Sacramento. Bradley was wearing a shirt
bearing ICP-related insignia and some of his tattoos were visible. After confirming Bradley self-
identified as a Juggalo, the deputy asked to see Bradley’s identification. (Id. ¶¶ 55-60). The
deputy took Bradley’s identification and ICP-themed wallet, ran a background check on Bradley
and detained and questioned Bradley for “a substantial amount of time, during which the deputy
accused Bradley of being in a gang because he was a Juggalo. The deputy stated that to be a
Juggalo is to be a gang member. The deputy also asked Bradley about his ICP-related tattoos.”
(Id. ¶¶ 60-63).
In January 2013, Bradley was walking while wearing an ICP jacket with a large red
“hatchetman” insignia on the back. Two police officers pulled up in a cruiser and stopped him.
They told Bradley they noticed his jacket with the “hatchetman” insignia and ordered him to
stand in front of a guardrail with his back to them so they could take pictures of it. They also
took photographs of his face and his tattoos. (Id. ¶¶ 64-70). The officers “interrogated Bradley
about his status as a Juggalo and about whether he was a gang member.” (Id. ¶ 71).
c. Plaintiff Scott Gandy (“Gandy”)
Gandy has large ICP-related tattoos on his chest. (Id. ¶ 79). In 2012, Gandy visited an
Army recruiting office where he was asked if he had any tattoos. (Id. ¶¶ 78, 80). Upon
displaying his tattoos, Gandy was told by the Army’s recruiting Sergeant that Juggalos “were on
the federal government’s gang list.” The Sergeant said that he “considered Gandy’s Juggalo
tattoos to be gang-related” and then “questioned Gandy about whether he was a gang member.”
(Id. ¶¶ 81-82). “The Sergeant instructed Gandy that he must remove or permanently cover his
Juggalo tattoos or the Army would immediately deny his recruitment application.” (Id. ¶ 83).
As a result of this instruction, Gandy went through the painful and costly procedure of covering
his Juggalo tattoos with other tattoos. He returned to the recruitment office, showed the Sergeant
his new tattoos and received approval for his application to be considered. However, Gandy was
ultimately denied a position. (Id. ¶¶ 86-88).
No. 14-1848 Parsons v. United States Dep’t of Justice Page 7
d. Plaintiff Robert Hellin (“Hellin”)
Hellin has visible ICP-related tattoos. (Id. ¶ 92). He enlisted in the Army in 2008 and is
currently a corporal. (Id. ¶ 91). Hellin believes that, because of the Juggalo gang designation,
his identity as a Juggalo “places him in imminent danger of suffering discipline or an involuntary
discharge from the Army.” (Id. ¶ 93).
e. Plaintiffs Joseph Bruce (“Bruce”) and Joseph Utsler (“Utsler”)
Bruce and Utsler are members of ICP. (Id. ¶ 94). In August 2012, they contracted with
AEG Live to perform at the Royal Oak Music Theater in Royal Oak, Michigan for their annual
musical event known as “Hallowicked,” to be held in October 2012. On October 8, 2012, the
Royal Oak Music Theater cancelled Hallowicked without prior notice. (Id. ¶¶ 96-97). “After
discussions with AEG Live and Royal Oak Music Theater, ICP’s record label discovered that the
Royal Oak Police Department asked the Royal Oak Music Theater to cancel the event. When
asking the Royal Oak Music Theater to cancel the Hallowicked event, the Royal Oak Police
Department cited the federal Juggalo gang designation.” (Id. ¶¶ 98-99).
B. Procedural Background
Plaintiff-appellants Parsons, Bradley, Gandy, Hellin, Bruce, and Utsler (the “Juggalos”)
filed suit against the DOJ and FBI (the “Agencies”) asserting claims under the Administrative
Procedure Act (“APA”) and various constitutional provisions.1 Specifically, the Juggalos allege
that the 2011 NGIC Report violated their rights under the First and Fifth Amendments to the
U.S. Constitution (Claims 1-3), was arbitrary and capricious (Claim 4), and failed to observe
procedures required by law (Claim 5). The Juggalos also seek relief under the Declaratory
Judgment Act (“DJA”) (Claim 6).
The Agencies moved to dismiss the complaint on April 9, 2014, arguing, under Fed. R.
Civ. P. 12(b)(1) and 12(b)(6), that the Juggalos lacked constitutional standing and also had failed
to state a claim.
1
The Juggalos bring their first five claims under the Administrative Procedure Act. Their first three claims
specifically state First and Fifth Amendment violations.
No. 14-1848 Parsons v. United States Dep’t of Justice Page 8
In June 2014, the district court granted the motion to dismiss based on the Juggalos’
failure to satisfy the requisite three-part test for standing: (1) injury in fact; (2) causation; and
(3) redressability. The district court held that Hellin had not demonstrated an injury in fact
because he failed to allege any injury he had suffered. His fears that the Army might take action
against him at some point in the future did not demonstrate that injury existed or was fairly
impending. As for the remaining five plaintiffs, the district court found that causation and
redressability were not satisfied because their alleged injuries were independent actions taken by
third-parties who were not before the court. The district court also held that the Juggalos had
forfeited an argument that they had standing to assert the DJA claim even in the absence of
standing to assert their other claims. Having reached the dispositive standing issue, the court did
not consider the Agencies’ failure to state a claim argument.
II. ARTICLE III STANDING
Motions to dismiss for lack of standing are reviewed de novo. Miller v. Cincinnati,
622 F.3d 524, 531 (6th Cir. 2010).
“The threshold question in every federal case is whether the court has the judicial power
to entertain the suit.” National Rifle Assoc. of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997)
(citing Warth v. Seldin, 422 U.S. 490, 498 (1975)). Article III of the United States Constitution
prescribes that federal courts may exercise jurisdiction only where an actual “case or
controversy” exists. See U.S. Const. art. III, § 2. Courts have explained the “case or
controversy” requirement through a series of “justiciability doctrines,” including, “perhaps the
most important,” that a litigant must have “standing” to invoke the jurisdiction of the federal
courts. Magaw, 132 F.3d at 279.
The Supreme Court has enumerated the following elements necessary to establishing
standing:
First, Plaintiff must have suffered an injury in fact—an invasion of a legally-
protected interest which is (a) concrete and particularized; and (b) actual or
imminent, not conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct complained of—the injury has to
be fairly traceable to the challenged action of the defendant, and not the result of
the independent action of some third party not before the court. Third, it must be
No. 14-1848 Parsons v. United States Dep’t of Justice Page 9
likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations and quotations
omitted). The standing inquiry is particularly rigorous when reaching the merits of the dispute
“would force [the Court] to decide whether an action taken by one of the other two branches of
the Federal Government was unconstitutional.” Clapper v. Amnesty Intern. USA, 133 S. Ct.
1138, 1147 (2013) (quoting Raines v. Byrd, 521 U.S. 811, 819-20 (1997)).
A plaintiff must have standing for each claim pursued in federal court. Daimler Chrysler
Corp. v. Cuno, 547 U.S. 332, 352 (2006). However, only one plaintiff needs to have standing in
order for the suit to move forward. See Horne v. Flores, 557 U.S. 433, 446-47 (2009) (“[T]he
critical question is whether at least one petitioner has alleged such a personal stake in the
outcome of the controversy as to warrant his invocation of federal-court jurisdiction.”);
Massachusetts v. EPA, 549 U.S. 497, 518 (2007).
“For purposes of ruling on a motion to dismiss for want of standing, both the trial and
reviewing courts must accept as true all material allegations of the complaint, and must construe
the complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501 (1975).
“The party invoking federal jurisdiction bears the burden of establishing these elements.”
Defenders of Wildlife, 504 U.S. at 561; accord Kardules v. City of Columbus, 95 F.3d 1335,
1346 (6th Cir. 1996).
A. Injury in Fact
The injury prong of the standing doctrine requires that the harm be actual or imminent.
In other words, the harm must have already occurred or it must be likely to occur “imminently.”
Defenders of Wildlife, 504 U.S. at 560. “Imminent” in this context is defined as “certainly
impending,” in contradistinction to “allegations of possible future injury.” Clapper, 133 S. Ct. at
1147. “At the pleading stage, general factual allegations of injury resulting from the defendant’s
conduct may suffice, for on a motion to dismiss we presume that general allegations embrace
those specific facts that are necessary to support the claim.” Defenders of Wildlife, 504 U.S. at
561 (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990)). Moreover, the
injury must be to a legally cognizable right. McConnell v. FEC, 540 U.S. 93 (2003) (overruled
No. 14-1848 Parsons v. United States Dep’t of Justice Page 10
on other grounds); Citizens United v. FEC, 558 U.S. 310 (2010); Diamond v. Charles, 476 U.S.
54, 64 (1986).
The Juggalos claim the following injuries resulted from the 2011 NGIC Report: chilling
effects on their freedoms of speech and association; stigmatic reputational injury; and various
harms inflicted by third-party law enforcement agencies, such as improper stops, detentions,
interrogations, searches, denial of employment, and interference with contractual relations.
1. First Amendment & Due Process Claims (1-3)
The Agencies assert that the alleged First Amendment and reputational injuries are too
speculative and too generalized to establish an injury in fact.
To satisfy the injury in fact requirement on an allegation of chilled speech, the
repercussions responsible for the chilling effect must be imminent. “Allegations of a subjective
‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of
specific future harm.” Laird v. Tatum, 408 U.S. 1, 13-14 (1972).
Generally, standing is found based on First Amendment violations where the rule, policy
or law in question has explicitly prohibited or proscribed conduct on the part of the plaintiff.
See, e.g., Nat’l Right to Life PAC v. Connor, 323 F.3d 684 (8th Cir. 2003) (Missouri election
provisions required out-of-state committees to have an in-state treasurer and deposit account if
annual spending exceeded $1500); Clapper, 133 S. Ct. at 1153 (noting that case law does not
“hold[] or even suggest[] that plaintiffs can establish standing simply by claiming that they
experienced a ‘chilling effect’ that resulted from a governmental policy that does not regulate,
constrain, or compel any action on their part”). Here, the 2011 NGTA Report does not “regulate,
constrain, or compel any action” on the part of the plaintiffs. Clapper, 133 S. Ct. at 1153. The
chilling effect alone, therefore, does not constitute an injury in fact. See Morrison v. Bd. of
Educ., 521 F.3d 602, 609-610 (6th Cir. 2008) (“First Amendment chill typically constitutes the
‘reason why the governmental imposition is invalid rather than the harm which entitles a party to
challenge it.’”) (quoting Adult Video Assoc. v. Dep’t of Justice, 71 F.3d 563, 566 (6th Cir.
1995)).
No. 14-1848 Parsons v. United States Dep’t of Justice Page 11
Reputational injury, on the other hand, is sufficient to establish an injury in fact. Meese
v. Keene, 481 U.S. 465, 473-76 (1987) (exhibitor of foreign films had standing to challenge the
DOJ’s label of certain films as “political propaganda”); Turkish Coal. Of Am., Inc. v. Bruininks,
678 F.3d 617, 622-23 (8th Cir. 2012) (cognizable injury to reputation pled resulting from
defendant labeling plaintiff’s website “unreliable”); NCAA v. Governor of N.J., 730 F.3d 208,
220-22 (3d Cir. 2013) (injury in fact requirement satisfied by evidence that sports leagues’
reputations would be harmed by legalized gambling on games); Foretich v. U.S., 351 F.3d 1198,
1213 (D.C. Cir. 2003) (“Case law is clear that where reputational injury derives directly from an
unexpired and unretracted government action, that injury satisfies the requirements of Article III
standing to challenge the action.”). Specifically, where claims of a chilling effect are
accompanied by concrete allegations of reputational harm, the plaintiff has shown injury in fact.
Meese, 481 U.S. at 473-75. In Meese, the Supreme Court noted that the plaintiff would not have
had standing had he merely alleged a chilling effect, but by introducing affidavits stating that his
reputation would suffer if he showed films designated by the government as “political
propaganda,” plaintiff cleared the injury in fact hurdle. Id. at 473-74. Cf. Laird, 408 U.S. at 10-
11 (rejecting argument that the plaintiffs’ First Amendment rights were being “chilled by the
mere existence, without more, of [the Army’s] investigative and data-gathering activity”)
(emphasis added).
The Juggalos’ allegations that their First Amendment rights are being chilled are
accompanied by allegations of concrete reputational injuries resulting in allegedly improper
stops, detentions, interrogations, searches, denial of employment, and interference with
contractual relations. Stigmatization also constitutes an injury in fact for standing purposes.
Heckler v. Matthews, 465 U.S. 728, 739-40 (1984). As required, these reputational injuries are
cognizable claims under First Amendment and due process causes of action. Meese, 481 U.S. at
473-74; see Paul v. Davis, 424 U.S. 693, 710 (1976) (where reputational injury is accompanied
by concrete harm, such as termination of employment, cognizable claim under Due Process
Clause exists). For the reasons stated above, the injury in fact requirement was satisfied as to the
First Amendment and due process claims.
No. 14-1848 Parsons v. United States Dep’t of Justice Page 12
2. Procedural Claims (4-5)
Claims for violations of procedural rights are treated uniquely under the standing inquiry.
“The person who has been accorded a procedural right to protect his concrete interests can assert
that right without meeting all the normal standards for redressability and immediacy.” Defenders
of Wildlife, 504 U.S. at 572, n.7; accord Wright v. O’Day, 706 F.3d 769, 771-72 (6th Cir. 2013);
Klein v. U.S. Dep’t of Energy, 753 F.3d 576, 579 (6th Cir. 2014). However, in order to sustain a
claim for procedural injury for standing purposes, “the procedures in question [must be] designed
to protect some threatened concrete interest of [plaintiff’s] that is the ultimate basis of his
standing.” Defenders of Wildlife, 504 U.S. at 573, n.8. Additionally, the plaintiff must suffer a
concrete injury as a result of the disregarded procedural requirement. Wright, 706 F.3d at 772.
Consequently, the 2011 NGIC Report—the agency “action, finding or conclusion”—at issue
here must be designed to protect some threatened concrete interest of plaintiffs, such that the
alleged arbitrary, capricious and contrary to law nature of the report is personally injurious to
them.
Wright is instructive on this point. We found that freedom from placement on a child-
abuser registry is a sufficiently concrete interest to establish standing on a procedural due process
claim. 706 F.3d at 772. The Juggalos allege that they have suffered reputational injury and have
been harassed, detained and otherwise mistreated by law enforcement officers as a result of the
compilation of information and analyses on Juggalos contained within the 2011 NGIC Report.
These alleged injuries are concrete and particular to the Appellant-Juggalos, rather than the
general population of citizens suffering no adverse effects as a result of the inclusion of the
Juggalo subsection. Cf. Defenders of Wildlife, 504 U.S. at 572 (no concrete or particular injury
to plaintiffs with generalized grievance against statute); Summers v. Earth Island Inst., 555 U.S.
488, 497 (2009) (no standing for environmental groups to challenge U.S. Forest Service
regulation in absence of dispute over application of regulations). As in Wright, Appellant-
Juggalos are the “object of the challenged action”—the placement of Juggalos in the 2011 NGIC
Report. Id. Thus, their freedom from placement in the 2011 NGIC Report is a sufficiently
concrete interest to establish a procedural injury in fact. We find the Juggalos have established
an injury in fact on their procedural APA claims.
No. 14-1848 Parsons v. United States Dep’t of Justice Page 13
B. Causation
The second prong of the Article-III standing test requires the Juggalos to show that the
injury “fairly can be traced to the challenged action.” Whitmore v. Arkansas, 495 U.S. 149, 155
(1990); Valley Forge Christian College v. Americans United for Separation of Church & State,
Inc., 454 U.S. 464, 472 (1982). The causation need not be proximate. Lexmark Int’l, Inc. v.
Static Control Components, Inc., 134 S. Ct. 1377, 1391 n.6 (2014). To that end, the fact that an
injury is indirect does not destroy standing as a matter of course. See United States v. Students
Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 (1973) (indirect
“attenuated line of causation to the eventual injury” was sufficient to satisfy standing
requirements at the pleading stage). A defendant’s actions may have directly affected someone
other than the plaintiff. Bennett v. Spear, 520 U.S. 154, 169 (1997); Meese, 481 U.S. at 472-77.
However, the Supreme Court has cautioned that standing, albeit not precluded, is generally more
difficult to establish when the injury is indirect. Summers, 555 U.S. at 493; Allen, 468 U.S. at
751.
The district court found that the Juggalos failed to demonstrate causation because the
third-party law enforcement officials exercised independent judgment in committing the alleged
injuries. (R. 29, at 9-12). The district court relied on Defenders of Wildlife and Clapper in
drawing its conclusion. (Id). Both are distinguishable.
In Defenders of Wildlife, the Supreme Court did not hold that the plaintiffs failed to
satisfy the causation element of standing—only that the plaintiffs failed to satisfy injury and
redressability. 504 U.S. at 562. (“Respondents had not made the requisite demonstration of (at
least) injury and redressability.”). While the Court did enumerate a heightened standard for
demonstrating causation in the case of indirect injury caused by a third party, it makes clear that
such a standard is satisfied where the plaintiff was able to “adduce facts showing that [the third-
party’s] choices have been or will be made in such manner as to produce causation and permit
redressability of injury.” Id. Here, the Juggalos alleged facts demonstrating that their injuries
were caused, at least in part, by the Agencies’ actions in publishing the 2011 NGTA Report:
 Parsons alleged that the Tennessee State Trooper who stopped, detained and
searched Parsons indicated that he considered Juggalos to be a criminal gang
No. 14-1848 Parsons v. United States Dep’t of Justice Page 14
based on the DOJ’s designation and that he had stopped Parsons for an
inspection because of the hatchetman logo on Parsons’ truck. (R. 1 ¶ 39).
 Gandy alleged that an Army Recruiting Sergeant told Gandy that Juggalos were
a prohibited criminal gang based on the DOJ’s Juggalo gang designation and,
therefore, the Sergeant considered Gandy’s tattoos to be gang-related. (Id. ¶ 81).
 When asking the Royal Oak Music Theater to cancel Bruce and Utsler’s
Hallowicked concert, the Royal Oak Police Department cited the federal Juggalo
designation. (Id. ¶ 99).
This panel must accept as true these material allegations. The Juggalos’ allegations link
the 2011 NGTA Report to their injuries by stating that the law enforcement officials themselves
acknowledged that the DOJ gang designation had caused them to take the actions in question. At
this initial stage of the case, the Juggalos’ allegations must suffice. See Lambert v. Hartman,
517 F.3d 433, 435-38 (6th Cir. 2008). Should the case proceed to discovery, the Agencies would
have the opportunity to factually challenge the allegations.
In support of its finding that causation is broken by the independent law enforcement
officers’ voluntary conduct, the district court noted that the Agencies did not direct the third-
party law enforcement entities to stop, detain and question Plaintiffs, or to cancel the
Hallowicked concert. (R. 29, at 10-11). See City of Detroit v. Secretary of Commerce, 4 F.3d
1367, 1373 (6th Cir. 1993) (no causation due to “an independent act breaking the chain of
causation between the challenged actions … and the injury to plaintiffs”). But, it is still possible
to motivate harmful conduct without giving a direct order to engage in said conduct. The
Juggalos allege that the injurious third-party actions were motivated by the DOJ gang
designation. In the nebulous land of “fairly traceable,” where causation means more than
speculative but less than but-for, the allegation that a defendant’s conduct was a motivating
factor in the third party’s injurious actions satisfies the requisite standard.
No. 14-1848 Parsons v. United States Dep’t of Justice Page 15
The district court also noted that the 2011 NGTA Report relied in part on individual
States’ designations of Juggalos as a gang,2 “further complicating Plaintiff Bradley’s theory of
causation.” (R. 29, at 10; see also 2011 National Gang Threat Assessment, at 22). However,
courts have held that the fact that a defendant was one of multiple contributors to a plaintiff’s
injuries does not defeat causation. Connecticut v. American Elec. Power Co., Inc., 582 F.3d 309,
345-47 (2d Cir. 2009), rev’d on other grounds, 131 S. Ct. 2527 (2011); Libertarian Party of Va.
v. Judd, 718, F.3d 308, 316 (4th Cir. 2013) (causation is satisfied if witness residency
requirement for gathering signatures on petitions was partially responsible for frustrating
plaintiff’s First Amendment rights, even where unrelated knee injury would also have hindered
assertion of rights); Barnum Timber Co. v. EPA, 633 F.3d 894, 901 (9th Cir. 2011) (causation
satisfied where defendant’s listing of plaintiff’s property as “impaired water body” may have
only been one contributing factor to decreasing property value). In American Elec. Power Co.,
the Second Circuit held that injuries were fairly traceable to the defendants’ carbon dioxide
emissions, even though third parties not before the court had also emitted carbon dioxide
contributing to the plaintiffs’ alleged injuries. 582 F.3d at 345-47. The Supreme Court affirmed
the Second Circuit’s exercise of jurisdiction in a divided opinion. Four Justices concluded that at
least some plaintiffs had standing and four concluded that none had standing, with Justice
Sotomayor taking no part in the decision. Id.
Resolution of this issue is not necessary in this case. The injuries alleged all occurred
within law enforcement jurisdictions having ready access to the challenged report. Several
occurred in states which had not previously designated the Juggalos as a gang. In these
circumstances, we need not definitively address the multiple causation issue.
The Agencies’ arguments on causation are also unavailing. The Agencies claim that the
Juggalos fail to satisfy the pleading standards with respect to their allegations that the third-
parties relied on the 2011 NGIC Report in improperly detaining, searching and otherwise
mistreating the Juggalos. (Appellees Br. at 20-22). However, the test for standing is not whether
the Juggalos met Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly,
2
The district court noted that the 2011 NGTA Report relied on the State of California’s designation of the
Juggalos as a gang. (R. 29, at 10). The 2011 NGTA Report states that Arizona, California, Pennsylvania and Utah
designate Juggalos as gangs. (Appellees Br., at A5).
No. 14-1848 Parsons v. United States Dep’t of Justice Page 16
550 U.S. 540 (2007) pleading requirements, but rather whether they have demonstrated their
injuries to be fairly traceable to the Agencies’ actions.3 The Agencies seek to distinguish the
cases relied upon by the Juggalos—Lambert and Foretich—through the level of detail provided
in the plaintiffs’ allegations pertaining to causation. Of course, causation to support standing is
not synonymous with causation sufficient to support a claim. Nonetheless, the question of
whether the causal nexus has been pled with particularity is not the question we now address.
The Juggalos’ allegations, which we must credit at the motion to dismiss stage, satisfy the fairly
traceable requirement.
The Agencies also cite Clapper, in which the Supreme Court found that the plaintiffs’
claimed injuries and causation theories were too speculative to establish an injury in fact that was
fairly traceable to the defendants. 133 S. Ct. at 1150. We note that Clapper was dismissed for
lack of standing at the summary judgment stage. The burden on the plaintiffs was therefore
significantly higher—they could not rest on “mere allegations” but had to “set forth by affidavit
or other evidence specific facts” demonstrating their injuries and causation. Defenders of
Wildlife, 504 U.S. at 561. In this case, the Juggalos need only allege facts adducing that their
injuries are fairly traceable to the Agencies’ actions. Parsons, Gandy, Bruce and Utsler have
done so with their allegations that law enforcement officers communicated the motivation behind
their actions to be the DOJ’s Juggalo gang designation.
C. Redressability
The third prong of the Article III standing test is redressability, i.e. the relief the plaintiff
is seeking must provide redress for the injury. An injury is redressable if a court order can
provide “substantial and meaningful relief.” Larson v. Valente, 456 U.S. 228, 243 (1982).
“[A] plaintiff satisfies the redressability requirement when he shows that a favorable decision
will relieve a discrete injury to himself. He need not show that a favorable decision will relieve
his every injury.” Id. at 244 n.15; accord. Massachusetts v. EPA, 549 U.S. 497, 525 (2007). The
relevant standard is likelihood—whether it is “likely, as opposed to merely speculative, that the
3
The Agencies raised 12(b)(6) arguments in their initial Motion to Dismiss before the district court. (R. 20,
at 19-30). Because the lower court dismissed the action for lack of standing, it did not proceed to consider whether
the Juggalos failed to state a claim. Neither party raised the 12(b)(6) arguments before this panel, with the exception
of the Agencies’ reference to pleading standards in their argument against causation.
No. 14-1848 Parsons v. United States Dep’t of Justice Page 17
injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC) Inc., 528 U.S. 167, 181 (2000). Redressability is typically more
difficult to establish where the prospective benefit to the plaintiff depends on the actions of
independent actors. See ASARCO, Inc. v. Kadish, 490 U.S. 605, 615 (1989).
The Juggalos have requested several forms of relief, including, inter alia: (1) an order
declaring the 2011 NGIC Report unlawful and setting it aside; (2) an order holding the
classification of Juggalos by the DOJ, FBI or NGIC as a “criminal street gang” to be unlawful;
(3) an order requiring the Agencies to expunge all criminal intelligence information regarding
the Juggalos from NGIC’s databases; (4) injunctive relief prohibiting the Agencies from
investigating, collecting information regarding or reporting on the criminal activities of Juggalos;
and (5) a declaration that the designation of Juggalos as a “gang” or “hybrid gang” is
unconstitutional, pursuant to the First and Fifth Amendments. The Agencies assert that only the
first form of relief is available under the APA or the DJA, but even the broader relief sought by
the Juggalos would not redress their injuries because reporting by state and local law
enforcement and other entities would likely perpetuate the alleged injuries. (Appellees Br., at
14).
The Agencies argue that the alleged reputational harm and chilling effect would not be
remedied by an order setting aside the 2011 NGIC Report because information about criminal
activity performed by Juggalo subsets is available from a variety of other sources, including state
and local law enforcement in the locations where the Juggalos were allegedly injured. (Id. at
21). In Meese, the defendant, the Attorney General, espoused an analogous argument—that
enjoinment of the DOJ’s label of certain films as “political propaganda” would not stem negative
reaction to the plaintiff’s exhibition of the films. 481 U.S. at 476-77. The Supreme Court
disagreed, articulating that the harm to plaintiff occurred because “the Department of Justice has
placed the legitimate force of its criminal enforcement powers behind the label of ‘political
propaganda.’” Id. at 477. The Juggalos in this case also suffer alleged harm due to the force of a
DOJ informational label. While the 2011 NGIC Report is not the designation itself, it reflects
the designation and includes an analytical component of the criminal activity performed by
Juggalo subsets, classifying the activity as gang-like. As in Meese, “[a] judgment declaring the
No. 14-1848 Parsons v. United States Dep’t of Justice Page 18
[action in question] unconstitutional would eliminate the need to choose between [First
Amendment-protected activity] and incurring the risk that public perception of this criminal
enforcement scheme will harm appellee’s reputation.” Id.
The Agencies also assert that an order declaring the 2011 NGIC Report unconstitutional
would not alleviate the alleged harm entirely because the information on Juggalo activity is
available through the aforementioned alternate channels. But it need not be likely that the harm
will be entirely redressed, as partial redress can also satisfy the standing requirement.
See Meese, 481 U.S. at 476 (“enjoining the application of the words ‘political propoganda’ to the
films would at least partially redress the reputational injury of which appellee complains”);
Laidlaw, 528 U.S. at 185 (finding civil penalties sufficient to satisfy redressability noting that
they have at least “some deterrent effect”) (emphasis added). “It can scarcely be doubted that,
for a plaintiff who is injured or faces the threat of future injury due to illegal conduct ongoing at
the time of a suit, a sanction that effectively abates that conduct and prevents its recurrence
provides a form of redress.” Laidlaw, 528 U.S. at 185-86. An order declaring the 2011 NGIC
Report unconstitutional and setting it aside would abate the reflection of Juggalo criminal
activity as gang or gang-like by the Agencies. Lambert further buttresses this conclusion.
517 F.3d at 438. The court held that Lambert had standing if she could likely show that the relief
she was requesting “would not only combat future risk, but would also help to redress the past . .
. injury that she has suffered.” Id. The declaration the Juggalos seek would likely combat at
least some future risk that they would be subjected to reputational harm and chill due to the force
of the DOJ’s criminal gang or gang-like designation.
The Agencies point to Raisins Landscape & Assoc., Inc. v. Michigan Department of
Transportation as supportive of their argument that the Juggalos fail to satisfy redressability.
528 F. App’x 441 (6th Cir. 2013). In Raisins, the plaintiff-landscaping corporation filed a
complaint with the Michigan Department of Transportation (the “Department”), alleging that
prime contractors who were hired by the Department and subsequently hired the plaintiff as a
subcontractor failed to pay the plaintiff for duly completed work. We held that the plaintiff did
not have standing to pursue the claims, in part, because of a lack of redressability. The plaintiff
had not shown that it was likely that “a prime contractor would pay its debts even if sanctioned,”
No. 14-1848 Parsons v. United States Dep’t of Justice Page 19
the court explained. Id. at 445. While we cannot be certain whether and how the declaration
sought by the Juggalos will affect third-party law enforcement officers, it is reasonable to assume
a likelihood that the injury would be partially redressed where, as here, the Juggalos have alleged
that the law enforcement officers violated their rights because of the 2011 NGIC Report.
See Foretich, 351 F.3d at 1215 (“[s]uch a declaration will remove the imprimatur of government
authority” from the 2011 NGIC Report).
The Agencies assert that “it is entirely conjectural whether the nonagency activity that
affects respondents will be altered or affected by the agency activity they seek to achieve.”
Defenders of Wildlife, 504 U.S. at 571. The “action agencies” here cannot be required to cease
their behavior towards the Juggalos as they “are not directly bound as parties to the suit and
otherwise not indirectly bound” because the 2011 NGIC Report does not prescribe regulations
for conduct towards so-identified gangs. Id. at 596 (Blackmum, J., dissenting) (summarizing
majority opinion rationale for finding lack of redressability). But the same rationale for why a
non-prescriptive report can satisfy causation for the purposes of standing applies to
redressability. The Juggalos sufficiently allege that the reputational harm and chill was caused
by the 2011 NGIC Report and under Meese, where reputational harm and chill will likely be
alleviated by the relief sought, redressability exists. We emphasize that our conclusion is based
upon the allegations made in the Complaint. We express no opinion as to the 12(b)(6) motion to
dismiss or the merits of the case.
III. DECLARATORY JUDGMENT ACT CLAIM
The Juggalos argue that they did not forfeit standing to assert their DJA claim even in the
absence of standing to assert their other claims. In their Motion to Dismiss before the lower
court, the Agencies argued that the statute does not provide a basis for jurisdiction and therefore
the Juggalos’ DJA allegations could not survive as an independent claim. (R. 20, at 5 n.1). The
Juggalos assert that the DJA solely provides a form of relief, while jurisdiction comes from the
underlying constitutional issues presented in the claim. The Juggalos also assert that this
argument was not waived because it was both included in their opposition memorandum to the
Agencies’ Motion to Dismiss and raised during oral argument. (Appellants Br., at 17). On
appeal, the Agencies fail to argue that the DJA claim may not survive. The Juggalos asserted in
No. 14-1848 Parsons v. United States Dep’t of Justice Page 20
their response to the Agencies’ Motion to Dismiss that they appropriately pled the DJA as the
basis of a claim for relief. Some of their arguments about the appropriateness of declaratory
judgment as a remedy for constitutional violations could be construed as responsive to the
Agencies’ cursory attack on the DJA claim. This was minimally sufficient to avoid forfeiting
this claim.
IV. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s decision to dismiss for lack
of standing and REMAND the case for consideration of Defendants’ 12(b)(6) failure to state a
claim arguments.