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Center for Bio-Ethical Reform, Inc. v. Napolitano

March 30, 2010

CENTER FOR BIO-ETHICAL REFORM, INC.; GREGG CUNNINGHAM; AND KEVIN MURRAY, PLAINTIFFS,
v.
JANET NAPOLITANO, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY; AND ERIC HOLDER, JR., IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES, DEFENDANTS.



The opinion of the court was delivered by: John Corbett O'Meara United States District Judge

Honorable John Corbett O'Meara

OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND DENYING AS MOOT MOTIONS FOR JOINDER AND TO INTERVENE

This matter came before the court on Defendants' September 11, 2009 motion to dismiss. Plaintiffs filed a response October 2, 2009; and Defendants filed a reply brief October 9, 2009. A number of motions for joinder and motions to intervene have been filed. Pursuant to LR 7.1(e)(2)(E.D. Mich. Dec. 1, 2005), no oral argument was heard.

BACKGROUND FACTS

Plaintiff Center for Bio-Ethical Reform ("CBR") is a not for profit, pro-life advocacy group that, among other things, advocates against abortion through its "Reproductive Choice Campaign," which includes the posting of large, graphic pictures of aborted fetuses on trucks and aerial banners. Plaintiff Gregg Cunningham is CBR's executive director, and plaintiff Kevin Murry is a private individual affiliated with the group.

Defendants are Janet Napolitano, Secretary of the Department of Homeland Security, and Eric H. Holder, Jr., Attorney General of the United States. Both are being sued in their official capacities.

In their amended complaint filed July 9, 2009, Plaintiffs contend that "[t]his case seeks to protect and vindicate fundamental constitutional rights." Am. compl. at 1. Plaintiffs claim to challenge "the policy, practice, procedure, and/or custom of Defendants that targets for disfavored treatment those individuals and groups that Defendants deem to be 'rightwing extremists' (hereinafter RWE Policy)." Id. at 2. Plaintiffs allege that the "RWE Policy was created, adopted, implemented, and enforced through a partnership with private organizations that are political adversaries of Plaintiffs." Id. Plaintiffs further allege that the "RWE Policy was recently and publicly confirmed by the Department of Homeland Security in an assessment entitled, 'Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment.'" Id.

The three counts of the amended complaint allege causes of action for violation of Plaintiffs' rights to free speech in Count I, to expressive association in Count II, and to equal protection in Count III. Plaintiffs seek a declaration that through the creation, adoption, implementation, and enforcement of the RWE Policy, Defendants have violated Plaintiffs' clearly established constitutional rights . . . , a declaration that the RWE Policy infringes upon the right to engage in controversial political speech in violation of the First Amendment; a declaration that the RWE Policy infringes upon the freedom of expressive association . . .; a declaration that the RWE Policy violates the equal protection guarantee of the Fifth Amendment by targeting certain individuals and groups for disfavored treatment based on the viewpoint of their speech; a permanent injunction enjoining the RWE Policy and its application to Plaintiffs' speech and activities; an order directing the disclosure of any files or databases containing information about Plaintiffs or Plaintiffs' activities . . . ; a permanent injunction enjoining the creation or maintenance of files or databases containing information about Plaintiffs or Plaintiffs' activities . . . ; a permanent injunction enjoining the disclosure of information or data about Plaintiffs or Plaintiffs' activities to private organizations . . . ; and an award of attorney fees and costs . . . .

Id. at 2-3.

LAW AND ANALYSIS

The United States Supreme Court has held that to withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the allegations in a complaint must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). The Court also made it clear that for the purposes of a motion to dismiss, courts are not bound to assume the truth of a complaint's legal conclusions and that a complaint's factual allegations "must be enough to raise a right to relief above the speculative level." Id. Furthermore, factual assertions raising a question of "possible" misfeasance, as opposed to allegations with "enough heft" to establish "plausible" misfeasance, are necessary to withstand a motion to dismiss. Id. at 557.

Although Twombly was an antitrust case, the Court recently noted, "Our decision in Twombly expounded the pleading standard for 'all civil actions,' . . . ." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1953 (2009)(citations omitted). In Iqbal, the plaintiffs were Arab Americans who sued the Attorney General and the FBI, alleging that the defendants confined them "as a matter of policy" because of their religion, race, and national origin, not for legitimate law enforcement purposes. Id. at 1951.

These bare assertions, much like the pleading of conspiracy in Twombly, amount to nothing more than a 'formulaic recitation of the elements' of a constitutional discrimination claim, namely, that petitioners adopted a policy of 'because of,' not ...


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