                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit Rule 206
                               File Name: 11a0203p.06

             UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                              _________________


                                                   X
                                                    -
 CENTER FOR BIO-ETHICAL REFORM, INC.,

                           Plaintiffs-Appellants, --
 GREGG CUNNINGHAM, and KEVIN MURRAY,

                                                    -
                                                        No. 10-1439

                                                    ,
                                                     >
                                                    -
            v.

                                                    -
                                                    -
 JANET NAPOLITANO, in her capacity as
                                                    -
 Secretary of the Department of Homeland
 Security, and ERIC H. HOLDER, JR., in his          -
                                                    -
                                                    -
 capacity as Attorney General of the United

                          Defendants-Appellees. -
 States,
                                                    -
                                                    -
                                                   N
                     Appeal from the United States District Court
                  for the Eastern District of Michigan at Ann Arbor.
                No. 09-11441—John Corbett O’Meara, District Judge.
                              Argued: June 7, 2011
                       Decided and Filed: August 4, 2011
              Before: COLE, CLAY, and GILMAN, Circuit Judges.

                               _________________

                                   COUNSEL
ARGUED: Robert Joseph Muise, THOMAS MORE LAW CENTER, Ann Arbor,
Michigan, for Appellants. Chantale Fiebig, ASSISTANT UNITED STATES
ATTORNEY, Detroit, Michigan, for Appellees. ON BRIEF: Robert Joseph Muise,
THOMAS MORE LAW CENTER, Ann Arbor, Michigan, for Appellants. Steven P.
Croley, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for
Appellees.




                                         1
No. 10-1439         Center for Bio-Ethical Reform, Inc.,                              Page 2
                    et al. v. Napolitano, et al.


                                   _________________

                                         OPINION
                                   _________________

         CLAY, Circuit Judge.        In this action arising under the First and Fifth
Amendments to the U.S. Constitution, Plaintiffs Center for Bio-Ethical Reform, Inc.,
Gregg Cunningham, and Kevin Murray appeal the district court’s dismissal of their
claims against Defendant Janet Napolitano, in her capacity as Secretary of the
Department of Homeland Security, and Defendant Eric H. Holder, Jr., in his capacity as
Attorney General of the United States, for failure to state a claim upon which relief can
be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the
reasons set forth below, we AFFIRM.

                                     BACKGROUND

         Plaintiff Center for Bio-Ethical Reform, Inc. (“CBR”) is a “pro-life, non-profit
corporation” that “was established . . . to promote prenatal justice and the right to life for
the unborn[.]” (R. 16; Amended Complaint (“Am. Compl.”) ¶¶ 9, 71.) CBR’s “anti-
abortion activities” are numerous. (Id. ¶¶ 9, 71-75.) The CBR Reproductive Choice
Campaign “consists of [displaying] large, colorful [and] graphic images of first-term
aborted fetuses” on trucks that are driven throughout the nation. (Id. ¶ 72.) The CBR
Airborne Reproductive Choice Campaign consists of the same images but “displayed on
banners towed behind aircraft” that are flown throughout the nation. (Id. ¶ 73.) The
CBR Genocide Awareness Project consists of a “traveling photo-mural exhibit” that
compares abortion to the Holocaust. (Id. ¶ 74.) Finally, the CBR Obama Awareness
Campaign utilizes trucks and aerial banners to “juxtapose[] images and quotations of
President [Barack] Obama alongside aborted fetuses and aborted preborn children.” (Id.
¶ 75.)

         Plaintiff Gregg Cunningham is CBR’s executive director, and Plaintiff Kevin
Murray is a private individual and former U.S. Marine. (Id. ¶¶ 10-11.) Defendants are
No. 10-1439        Center for Bio-Ethical Reform, Inc.,                           Page 3
                   et al. v. Napolitano, et al.


Janet Napolitano, Secretary of the U.S. Department of Homeland Security (“DHS”), and
Eric H. Holder, Jr., Attorney General of the United States. (Id. ¶¶ 12-13.)

       According to the Amended Complaint, this is an action “challenging 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. ¶ 1.) Plaintiffs characterize this “policy, practice,
procedure, and/or custom” as constituting a “Rightwing Extremist Policy” or “RWE
Policy.” (Id.) Plaintiffs do not define the RWE Policy with any precision or specificity,
but allege that the “RWE Policy was created, adopted, implemented, and enforced
through a partnership with private organizations that are political adversaries of
Plaintiffs,” including the Anti-Defamation League, Southern Poverty Law Center, and
the National Abortion Federation. (Id. ¶¶ 2, 55-56.)

       Plaintiffs 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,’” or “DHS Assessment.” (Id. ¶ 3.) The DHS Assessment, which is not
attached to the Complaint or Amended Complaint, or otherwise contained in the record,
is alleged to be “part of the RWE Policy.” (Id. ¶ 15.)

       Plaintiffs allege that they have been harmed by Defendants’ “policy of targeting
certain individuals and groups, including Plaintiffs, for disfavored treatment based on
their viewpoint on controversial political issues[.]” (Id. ¶ 4.) Plaintiffs claim further
harm on account of the “partnership that was forged between Defendants and certain
private organizations to create, adopt, implement, and enforce the RWE Policy.” (Id.)

       On April 16, 2009, Plaintiffs commenced this action in the district court, and on
June 9, 2009, filed an Amended Complaint against Defendants, asserting claims under
the First and Fifth Amendments of the U.S. Constitution. Specifically, the Amended
Complaint contains three claims: (1) “First Amendment – Freedom of Speech;”
No. 10-1439         Center for Bio-Ethical Reform, Inc.,                               Page 4
                    et al. v. Napolitano, et al.


(2) “First Amendment – Expressive Association;” and (3) “Fifth Amendment – Equal
Protection.” (Id. ¶¶ 113-21.)

        Based on these alleged constitutional violations, the Amended Complaint seeks
a declaration:

        that [(1)] through the creation, adoption, implementation, and
        enforcement of the RWE Policy, Defendants have violated Plaintiffs’
        [] constitutional rights[; (2)] the RWE Policy infringes upon the right to
        engage in controversial political speech[ and] upon [] freedom of
        expressive association in violation of the First Amendment . . . ; [and (3)]
        the RWE Policy violates . . . the Fifth Amendment by targeting certain
        individuals and groups for disfavored treatment based on the viewpoint
        of their speech.

(Id. ¶ 5.) The Amended Complaint also seeks, in addition to attorneys’ fees, an order:

        [(1)] enjoining the RWE Policy and its application to Plaintiffs’ speech
        and activities; [(2)] directing the disclosure of any files or databases
        containing information about Plaintiffs or Plaintiffs’ activities[; (3)]
        enjoining the creation or maintenance of files or databases containing
        information about Plaintiffs or Plaintiffs’ activities[; and (4)] enjoining
        the disclosure of information or data about Plaintiffs or Plaintiffs’
        activities to private organizations.

(Id.)

        On September 11, 2009, Defendants moved to dismiss the Amended Complaint
for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. After the motion was fully briefed, the district
court, on March 30, 2010, granted the motion and accordingly entered judgment for
Defendants. The district court explained that

        Plaintiffs fail to address affirmative conduct undertaken by the
        defendants. They fail to allege any time, place, or manner restrictions
        that Defendants have imposed on their speech. They fail to allege that
        Defendants taxed or punished their First Amendment activities. They fail
        to allege that Defendants imposed any prior restraint on their protected
        speech. They fail to allege any form of retaliation by Defendants for
        their exercise of protected speech on identified occasions.
No. 10-1439        Center for Bio-Ethical Reform, Inc.,                            Page 5
                   et al. v. Napolitano, et al.


Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, No. 09-11441, 2010 WL 1257361, at *3
(E.D. Mich. Mar. 30, 2010). Plaintiffs then filed this timely appeal. We have
jurisdiction pursuant to 28 U.S.C. § 1291.

                                     DISCUSSION

       Based on our review of the allegations contained in the Amended Complaint, we
conclude that Plaintiffs have failed to state a claim against Defendants under either the
First or Fifth Amendments to the U.S. Constitution. As explained in detail below, the
Amended Complaint contains numerous irrelevant allegations, and those that are
relevant fail to plausibly allege that Defendants have violated Plaintiffs’ constitutional
rights. For this reason, we AFFIRM the dismissal of this action.

I.     Standard of Review

       The sufficiency of a complaint is a question of law, and we therefore review de
novo the district court’s dismissal of the Amended Complaint for failure to state a claim.
See, e.g., City of Monroe Emps. Ret. Sys. v. Bridgestone Corp., 399 F.3d 651, 664 (6th
Cir. 2005). Our task is to “consider the factual allegations in [the] complaint to
determine if they plausibly suggest an entitlement to relief.” Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1951 (2009).

       A complaint must contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although the complaint need
not contain “detailed factual allegations,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007), Rule 8(a)(2) of the Federal Rules of Civil Procedure “demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S. Ct. at
1949. As the Supreme Court explained in Iqbal: “A pleading that offers labels and
conclusions or a formulaic recitation of the elements of a cause of action will not do.
Nor does a complaint suffice if it tenders naked assertions devoid of further factual
enhancement.” Id. (internal quotation marks, citations, and alterations omitted).
No. 10-1439         Center for Bio-Ethical Reform, Inc.,                              Page 6
                    et al. v. Napolitano, et al.


        Following Twombly and Iqbal, it is well settled that “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). A claim is plausible on its face if the
“plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S.
at 556). Plausibility is not the same as probability, but rather “asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (stating that factual allegations
“merely consistent with liability stop[] short of the line between possibility and
plausibility”).

        In reviewing the dismissal of the Amended Complaint, we are guided by the
following “working principles.” Id. First, the general rule that the court must accept as
true all allegations in the complaint “is inapplicable to legal conclusions.” Id. This
means that conclusory recitals of the elements of a claim, including legal conclusions
couched as factual allegations, “do not suffice.” Id. at 1949-50 (“[Rule 8] does not
unlock the doors of discovery for a plaintiff armed with nothing more than
conclusions.”). Second, “only a complaint that states a plausible claim for relief survives
a motion to dismiss.” Id. at 1950. Plausibility is a context-specific inquiry, and the
allegations in the complaint must “permit the court to infer more than the mere
possibility of misconduct,” namely, that the pleader has “show[n]” entitlement to relief.
Id. (quoting Fed. R. Civ. P. 8(a)(2)) (alteration in original).

II.     Nature of the Claims in the Amended Complaint

        At the outset, we note that our review is complicated by Plaintiffs’ failure to
properly define the issues to be decided, or the nature of their claims. Plaintiffs’
appellate brief contains more rhetoric than structured legal analysis; indeed, Plaintiffs
rely primarily on a recitation of the policies underlying the First and Fifth Amendments,
and an amalgamation of case citations, without reference to the standard underlying
constitutional liability.   Plaintiffs’ brief discusses various alleged violations of
“fundamental rights” in a confused manner, without any reference to the elements of
No. 10-1439         Center for Bio-Ethical Reform, Inc.,                            Page 7
                    et al. v. Napolitano, et al.


their claims, or a meaningful recognition of the analytical interplay between the First and
Fifth Amendments. And while Plaintiffs characterize their claims as being asserted
against Defendants in their “official capacities,” many of the allegations in the Amended
Complaint appear to raise Bivens-type claims that may be asserted against federal
officials only in their individual capacities. See Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971) (holding that a plaintiff may bring an action against a federal
official for a violation of constitutional rights).

        Based on our review of the Amended Complaint, it appears that Plaintiffs, in
substance, seek to assert a First Amendment retaliation claim, and a Fifth Amendment
equal protection claim, against Defendants in both their individual and official
capacities. Recognizing that this action was dismissed in its infancy, we will construe
the Amended Complaint broadly as alleging such claims. We will construe the official
capacity claims as an as-applied challenge to the existence and enforcement of the
claimed RWE Policy, and the individual capacity claims as seeking equitable relief
under Bivens. Our analysis applies equally to both types of claims.

III.    Application

        As explained below, Plaintiffs have failed to plausibly allege the existence of the
RWE Policy—dooming their official capacity claims—and have failed to plausibly
allege any constitutional violation by Defendants—dooming their individual capacity
claims. Our analysis proceeds in three parts. First, we identify and disregard those
allegations in the Amended Complaint that are wholly irrelevant to Plaintiffs’
constitutional claims. Second, we consider whether Plaintiffs have stated a claim under
the First Amendment. Finally, we consider whether Plaintiffs have stated a claim under
the Fifth Amendment.
No. 10-1439         Center for Bio-Ethical Reform, Inc.,                             Page 8
                    et al. v. Napolitano, et al.


        A.      Irrelevant Allegations

        The 25-page Amended Complaint contains numerous allegations, and an exhibit,
that are wholly irrelevant to Plaintiffs’ constitutional claims. Prior to considering
questions of plausibility, we briefly note, and disregard, these irrelevant portions of the
Amended Complaint, so that we may focus our judicial inquiry on the precise issues to
be decided. See Kermanj v. Goldstein, 401 F. App’x 458, 460 (11th Cir. 2010) (stating
that the “irrelevant statements” in the complaint “made it impossible to separate out the
factual allegations supporting” the claims). Cf. Mazera v. Varsity Ford Mgmt. Servs.,
LLC, 565 F.3d 997, 1002 (6th Cir. 2009) (disregarding irrelevant assertions by the
parties in considering the validity of an arbitration clause).

        The irrelevant allegations in the Amended Complaint that we disregard include
statements seeking to vindicate the rights of non-party interest groups (Am. Compl.
¶¶ 33, 47, 77-80), and non-party individuals, including an unidentified “Christian man”
in Oklahoma who was stopped at an unidentified time by an unidentified “local law
enforcement officer for having a sign displayed in his vehicle that read, ‘Abort Obama
Not the Unborn,’” and who was subsequently “investigated” by unnamed individuals
and/or agencies of the “federal government.” (Id. ¶ 34.) Other irrelevant allegations in
the Amended Complaint that we disregard include statements relating to the U.S.
Congress (id. ¶¶ 54 (committee report), 64 (proposed legislation)); harassment by the
Internal Revenue Service and the Federal Aviation Administration (id. ¶¶ 83-84), neither
of which are parties to this litigation; Defendants’ views on the Second Amendment (id.
¶ 45 (“Defendants do not consider a private citizen’s right to bear arms to be an
individual right”)); the allocation of resources within the “federal government” (id.
¶¶ 27, 30 (referencing anonymous statement of a “current FBI agent” that the
intelligence community has shifted resources to target “those who used to be patriots”);
the actions of non-federal law enforcement agencies (id. ¶ 50 (referencing “state, local,
tribal, and private organizations”)); and the nature of Plaintiff Murray’s unrelated lawsuit
against the Secretary of the Treasury that sought to “enjoin the unconstitutional
No. 10-1439            Center for Bio-Ethical Reform, Inc.,                                       Page 9
                       et al. v. Napolitano, et al.


distribution to, and use of federal taxpayer funds by, American International Group, Inc.
(AIG).” (Id. ¶ 98.)

         Additionally, we disregard the exhibit to the Amended Complaint that is neither
referenced in the Amended Complaint, nor in any way relevant to the sufficiency of the
Amended Complaint. (Id., Ex. A.) Exhibit A of the Amended Complaint consists of
four pages of graphic images of aborted fetuses apparently used by CBR as part of the
Obama Awareness Campaign. These images of aborted fetuses, which are placed atop
U.S. currency,1 have no bearing on the issues to be decided. Plaintiffs do not argue to
the contrary on appeal.

         We now turn to Plaintiffs’ constitutional claims, and consider whether, based
upon the remaining allegations in the Amended Complaint, Plaintiffs can show their
entitlement to relief.

         B.       First Amendment Claim

         We begin with Plaintiffs’ First Amendment claim, which we evaluate under the
framework set forth by the Supreme Court in Mount Healthy City School District Board
of Education v. Doyle, 429 U.S. 274 (1977). See Ctr. for Bio-Ethical Reform, Inc. v. City
of Springboro, 477 F.3d 807, 821 (6th Cir. 2007). Under Mount Healthy and its
progeny, a plaintiff must show that (1) the plaintiff was participating in a constitutionally
protected activity; (2) the defendant’s action injured the plaintiff in a way likely to deter
a person of ordinary firmness from further participation in that activity; and (3) the
adverse action was motivated at least in part by the plaintiff’s protected conduct. See,
e.g., Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 723 (6th Cir. 2010); Thaddeus-X
v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc); Bloch v. Ribar, 156 F.3d 673,
678 (6th Cir. 1998) (internal citations omitted).




         1
          We do not address whether these depictions may give rise to criminal liability for the defacement
of U.S. currency, in violation of 18 U.S.C. §§ 331 and 333.
No. 10-1439           Center for Bio-Ethical Reform, Inc.,                         Page 10
                      et al. v. Napolitano, et al.


          Once a plaintiff raises an inference that the defendant’s conduct was motivated
in part by the plaintiff’s protected activity, the burden shifts to the defendant to
“demonstrate that it would have taken the same action in the absence of the protected
activity.” Arnett v. Myers, 281 F.3d 552, 560-61 (6th Cir. 2002) (citing Thaddeus-X, 175
F.3d at 399). The inquiry of “whether activity is ‘protected’ or an action is ‘adverse’”
is context-specific. Thaddeus-X, 175 F.3d at 388. We now consider each element in
detail.

                 1.      Whether Plaintiffs were participating in constitutionally
                         protected activity
          The First Amendment generally protects controversial speech. “The fact that the
messages conveyed by those communications may be offensive to their recipients does
not deprive them of constitutional protection.” Hill v. Colorado, 530 U.S. 703, 714-15
(2000); see also Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949) (“Speech is often
provocative and challenging. It may strike at prejudices and preconceptions and have
profound unsettling effects. . . . That is why freedom of speech, though not absolute, . . .
is nevertheless protected against censorship or punishment.”).

          In this case, Defendants do not challenge Plaintiffs’ participation in
constitutionally protected activity, and we will assume, for purposes of this appeal, that
this element is satisfied and accordingly focus on the remaining two elements. See Fritz,
592 F.3d at 723 (conduct was protected by the First Amendment, for purposes of a
motion for judgment on the pleadings, where the defendants did not argue otherwise).

                 2.      Whether Defendants’ action injured Plaintiffs in a way likely
                         to deter a person of ordinary firmness from further
                         participation in constitutionally protected activity
          The second element of a First Amendment retaliation claim requires an “adverse
action” by the defendant that “would deter a person of ordinary firmness from continuing
to engage in the kinds of protected conduct in which [the plaintiff] was engaging.” Id.
(internal quotation marks and citations omitted). Adverse actions that may deter a
person of ordinary firmness from exercising protected conduct may include “harassment
No. 10-1439            Center for Bio-Ethical Reform, Inc.,                                        Page 11
                       et al. v. Napolitano, et al.


or publicizing facts damaging to a person’s reputation.” Id. at 724 (citing Thaddeus-X,
175 F.3d at 396). Although much of our First Amendment retaliation jurisprudence
addresses claims by public employees and prisoners, the same legal framework applies
where, as here, private parties challenge governmental action. Id. at 725.

         As applied to this case, the operative question is whether Plaintiffs have
adequately pleaded that Defendants’ actions would be sufficient to deter a citizen of
ordinary firmness from participating in meetings or otherwise criticizing federal officials
about matters relevant to Plaintiffs’ political views. Id. On appeal, Plaintiffs group their
allegations of Defendants’ alleged unconstitutional actions, taken pursuant to the RWE
Policy, into three categories: first, “officially designating political opponents as
dangerous ‘rightwing extremists,’” (Pls.’ Br. at 32); second, “conducting intrusive and
coercive investigations and surveillance to dissuade political opposition,” (id.); and third,
“sharing official files and records with political opponents.” (Id. at 36.)

         Consistent with Iqbal, “[w]e begin our analysis by identifying the [relevant]
allegations in the complaint that are not entitled to the assumption of truth.” Iqbal, 129
S. Ct. at 1951. In this case, those allegations are numerous.

         Most significantly, Plaintiffs have failed to plausibly allege the existence of the
claimed RWE policy pursuant to which they allege constitutional violations. Indeed, it
is altogether unclear what constitutes the RWE Policy in light of Plaintiffs’ vague and
conclusory allegations and arguments on appeal. As best we can tell, the policy is
alleged to be an Orwellian monster that consists of some amorphous combination of a
“policy, practice, procedure, and/or custom of Defendants.” (Am. Compl. ¶ 1; see also
Pls.’ Br. at 38 (arguing that the RWE Policy “takes us a step closer to 1984”).) The
Amended Complaint identifies no document, policy directive, or anything else that
would constitute the RWE Policy.2 As explored below, even if we assume arguendo the

         2
           We note Plaintiffs’ allegation that the DHS Assessment is “part of the RWE Policy.” But the
DHS Assessment is not contained in the record, nor do Plaintiffs explain how the DHS Assessment
supports their claim. The DHS Assessment is publicly available on the internet (see, e.g.,
http://www.fas.org/irp/eprint/rightwing.pdf), and we could perhaps take judicial notice of this document,
but there is no need for us to do so. Instead we note, as an observation unrelated to our disposition of this
No. 10-1439            Center for Bio-Ethical Reform, Inc.,                                        Page 12
                       et al. v. Napolitano, et al.


existence of the RWE Policy, Plaintiffs have failed to show that any actions taken
pursuant to the RWE Policy would entitle them to relief.

         The Amended Complaint alleges that “[a]ccording to the RWE Policy, Plaintiffs
are ‘rightwing extremists.’” (Am. Compl. ¶ 20.) Without any plausible statements as to
when, where, in what, or by whom such a designation was made, this allegation amounts
to a “naked assertion[] devoid of further factual enhancement” that is not entitled to a
presumption of truth.3 Iqbal, 129 S. Ct. at 1949 (internal quotation marks, citations, and
alterations omitted). Cf. Meese v. Keene, 481 U.S. 465 (1987) (considering a First
Amendment challenge to the federal government’s official labeling of a movie as
“political propaganda” pursuant to a statute authorizing such a designation).

         Next, the Amended Complaint makes numerous conclusory and bare allegations
about law enforcement activities, including surveillance, that have been directed towards
Plaintiffs. (See, e.g., Am. Compl. ¶ 31 (“covert surveillance”); id. (“collect data”); id.
¶ 32 (“targeting anti-abortion organizations as potential domestic terrorists”); id. ¶ 33
(“emerging patter [sic] of abuse”); id. ¶ 35 (“conducting surveillance”); id. (“taking law
enforcement actions”); id. ¶ 36 (“conducting surveillance on public events, such as the
national TEA parties[4] and anti-abortion protests and demonstrations”); id. ¶ 37 (“target
of federal and local law enforcement actions”); id. ¶¶ 46-48 (“increasing government
surveillance and scrutiny”); id. ¶ 51 (“encourag[ing] the reporting of information



matter, that the document makes no reference to any of the named plaintiffs in this case, and simply states,
in a footnote, that rightwing extremism “may” be found within certain “groups and individuals that are
dedicated to a single issue, such as opposition to abortion or immigration.”
         3
            Further casting doubt on the plausibility of this allegation, elsewhere in the Amended Complaint
Plaintiffs seem to suggest that Defendants never labeled Plaintiffs as “rightwing extremists,” but rather the
label has been “broadly applied and construed” by unspecified parties “to include Plaintiffs and those that
associate with them.” (Am. Compl. ¶ 19.) Indeed, many of the allegations about the labeling of Plaintiffs
are pleaded in the passive voice. (See id. ¶¶ 17-18 (“those deemed to be ‘rightwing extremists”); id.
¶ 18 (same); id. ¶ 31 (“individuals and groups declared to be ‘rightwing extremists’”); id. ¶ 35 (“deemed
to be ‘rightwing extremists’”); id. ¶¶ 46-47, 50, 57 (same)); see also Strategic Income Fund, L.L.C. v.
Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1296 (11th Cir. 2002) (noting that excessive use of the
passive voice in pleadings leads to “unnecessary confusion and obfuscation”).
         4
           The Amended Complaint describes “TEA parties” as “peaceful public protests to the expansion
of the federal government and federal spending programs under the current administration and the increase
in taxes that will be required to fund them.” (Am. Compl. ¶ 22.)
No. 10-1439         Center for Bio-Ethical Reform, Inc.,                            Page 13
                    et al. v. Napolitano, et al.


concerning ‘suspicious’ or ‘criminal’ activity of ‘rightwing extremists’”); id. ¶ 69
(collecting “personal information”); id. ¶ 76 (“greater target for law enforcement action”
as a result of the “Obama Awareness Campaign”); id. ¶ 81 (“target of surveillance and
enforcement actions”); id. ¶ 85 (“increased government scrutiny, investigation,
surveillance, and intimidation”); id. ¶ 95 (law enforcement “slow to investigate threats
to CBR”); id. ¶¶ 99, 106 (“government scrutiny, investigation, surveillance, and
intimidation”); id. ¶ 105 (“DHS-sanctioned . . . harass[ment]”).)

        None of these bare allegations provide the factual context that would render them
plausible and thus entitle them to a presumption of truth at this stage in the litigation.
See Iqbal, 129 S. Ct. at 1950; Nagim v. Napolitano, No. 10-CV-00329, 2011 WL
841285, at *1-2 (D. Colo. Mar. 8, 2011) (dismissing similar challenge to claimed
“rightwing extremist policy”). Unlike Fritz v. Charter Township of Comstock, where
the plaintiff alleged three specific retaliatory phone calls to her employer, Plaintiffs in
this case rely on vague and undated assertions of law enforcement activities directed at
them. See Fritz, 592 F.3d at 723. The Amended Complaint is silent about the location,
manner, duration, extent or timing of the alleged government harassment, surveillance,
and scrutiny. Cf. Gee v. Pacheco, 627 F.3d 1178, 1188 (10th Cir. 2010) (finding
allegations sufficient, where complaint stated prison officials confiscated and destroyed
prisoner’s outgoing mail on two specific dates); Ctr. for Bio-Ethical Reform, Inc., 477
F.3d at 821 (prior litigation by CBR, alleging specific unlawful actions on a specific date
and time).

        With regard to information sharing, the Amended Complaint similarly offers
conclusory and bare allegations, which are consequently not well-pleaded, and
“disentitle[d] . . . to the presumption of truth.” Iqbal, 129 S. Ct. at 1951. (See, e.g., Am.
Compl. ¶ 50 (“share information”); id. ¶ 52 (information is gathered, and then “it is
shared with certain private organizations that are political adversaries of Plaintiffs”); id.
¶ 57 (“no safeguards for the use or distribution of the information collected pursuant to
the policy”); id. ¶ 69 (information “is shared with private organizations . . . such as
SPLC, NAF, and ADL”); id. ¶ 70 (“sharing of information”); id. ¶ 109 (“improper
No. 10-1439         Center for Bio-Ethical Reform, Inc.,                             Page 14
                    et al. v. Napolitano, et al.


sharing of private information and data”).) Plaintiffs do not describe the type of
information that “is shared,” who shared this information, or why any claimed “sharing”
would operate to chill their First Amendment rights. The allegations in the Amended
Complaint amount to nothing more than the type of “unadorned, the
defendant-unlawfully-harmed-me” accusations that Iqbal deemed insufficient. See
Iqbal, 129 S. Ct. at 1949. Plaintiffs do not even explain how the alleged information
sharing has resulted in any concrete harm. See Gordon v. Warren Consol. Bd. of Educ.,
706 F.2d 778, 781 (6th Cir. 1983) (holding that the plaintiffs’ “subjective fear” about
misuse of information collected pursuant to a law enforcement operation “is insufficient
to establish a First Amendment claim”).

        Finally, the Amended Complaint makes numerous conclusory and bare
allegations that Defendants’ actions have had the effect of chilling Plaintiffs’ speech.
(See, e.g., Am. Compl. ¶¶ 88-89, 108 (“negatively affected CBR’s reputation, thereby
making it difficult to recruit volunteers, to raise money, and to obtain permission to
engage in speech activity at public locations, such as college and university campuses”);
id. ¶¶ 91, 108 (“negatively affected CBR’s ability to raise money through donations to
support its anti-abortion speech activities”); id. ¶ 92 (“negatively affected CBR’s present
effort to forge working relationships with mega-churches, which do not want to be
associated with ‘extremist’ groups of any sort”); id. ¶¶ 100-04 (“Plaintiff Murray is
deterred from attending, participating in, or associating with those who participate in
TEA parties . . . [and] those who engage in anti-abortion protests and activities . . . for
fear that he would be denied employment” in the federal government on account of his
expressive activities); id. ¶ 105 (“deterrent effect on political speech and expressive
association”); id. ¶ 106 (“deterrent effect on . . . activities and . . . rights to freedom of
speech and expressive association”).) These allegations are not well-pleaded, and their
conclusory nature “disentitles them to the presumption of truth.” Iqbal, 129 S. Ct. at
1951.

        Having set aside the conclusory and unadorned allegations that are not entitled
to a presumption of truth as well-pleaded allegations, we “consider the [remaining]
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                    et al. v. Napolitano, et al.


factual allegations . . . to determine if they plausibly suggest an entitlement to relief.”
Id. To be sure, the Amended Complaint does contain certain allegations that are
relatively more specific, but none of them give the Amended Complaint the ring of
plausibility as to the second element of a First Amendment retaliation claim. We
consider the remaining allegations in turn.

        First, in Paragraphs 28 and 29, the Amended Complaint alleges:

        ¶ 28. Pursuant to the RWE Policy, on or about March 23, 2009, a
        confidential directive was issued by FBI headquarters in Washington,
        D.C. to each of its 56 field offices, instructing the Special Agent in
        Charge (SAC) to verify the date, time, and location of each TEA party
        within his or her region and to supply that information to FBI
        headquarters. The directive instructed the field office to obtain and
        confirm the identity of the individual(s) involved in the actual planning
        and coordination of the event in its region. The directive was tightly
        controlled.
        ¶ 29. Pursuant to the RWE Policy, a second directive was issued by FBI
        headquarters on or about April 6, 2009. This directive instructed each
        SAC to coordinate and conduct, either at the field office level and/or with
        the appropriate resident agency, covert video surveillance and data
        collection of the participants of the TEA parties. This information was to
        be submitted to Washington, D.C.

        These allegations describe Defendants’ actions on certain dates—March 23, 2009
and April 6, 2009—but fail to adequately plead that the actions of Defendants were
likely to deter a person of ordinary firmness from further participation in expressive
activities.   The allegations refer to “confidential” directives that were “tightly
controlled,” making it implausible that Plaintiffs, or others, were aware of these
directives, in the absence of any allegation that the directives were publicly disclosed.
The “mere presence of an intelligence data-gathering activity” does not give rise to
constitutional liability. Gordon, 706 F.2d at 781. Without additional allegations with
regard to these “directives,” their mere existence is insufficient to state a claim.

        Second, perhaps related to the above-allegations, the Amended Complaint alleges
in Paragraphs 22 and 24:
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                    et al. v. Napolitano, et al.


        ¶¶ 22, 24. The DHS Assessment was “leaked” to the public
        approximately one week prior to the TEA (Taxed Enough Already)
        parties that were scheduled to be held across the country on April 15,
        2009. . . . The public release of the DHS Assessment had the intended
        and calculated effect of deterring people, such as Plaintiffs and those who
        associate with them, from participating in events such as the national
        TEA parties and anti-abortion protests and demonstrations.

Although perhaps more than a bare conclusion, this allegation is insufficient to plead that
Defendants’ action injured Plaintiffs in a way likely to deter a person of ordinary
firmness from further participation in constitutionally protected activity. Plaintiffs allege
only that the DHS Assessment “was leaked,” but make no allegation as to who or what
leaked the document, or whether that person or entity was affiliated with Defendants, or
how and to what degree the information was disseminated. Moreover, Plaintiffs fail to
explain why the release of the DHS Assessment would deter them from attending “TEA
parties,” or any specific TEA party event that they, or anyone else, would have otherwise
attended.

        Third, regarding President Obama’s commencement speech at the University of
Notre Dame in 2009, the Amended Complaint alleges in Paragraphs 77, 79, and 80:

        ¶ 77. According to sources within FEMA . . . a number of violent
        “right-wing,” anti-abortion individuals and groups arrived in South Bend,
        Indiana in May 2009 to protest President Obama’s participation in the
        commencement ceremony at the University of Notre Dame.
        ¶¶ 79-80. CBR was one of the “right-wing” groups that arrived in South
        Bend, and it deployed its “Obama Awareness Campaign” to protest the
        [P]resident and his policies on abortion. Although there were no reported
        acts of violence committed during the ceremony, the anti-abortion groups
        that participated in the protest, such as CBR, were publicly described by
        federal officials as “right-wing” and “violent.”

But the Amended Complaint does not allege any action by Defendants—it merely refers
to “federal officials,” who might work for myriad federal agencies unconnected to
Defendants. Moreover, the Amended Complaint refers only to one action of these
“federal officials,” namely “publicly describ[ing]” anti-abortion groups protesting at the
No. 10-1439         Center for Bio-Ethical Reform, Inc.,                             Page 17
                    et al. v. Napolitano, et al.


commencement as “right-wing” and “violent.” The Amended Complaint does not state
when, or by what means, such a “public” pronouncement was made, nor does the
Amended Complaint allege the identity or activities of the other “anti-abortion groups
that participated in the protest,” rendering it impossible to evaluate the plausibility of the
allegation that any public pronouncement had or was likely to have had an adverse effect
on protected speech. See Brown v. Matauszak, No. 09-2259, 2011 WL 285251, at *5-6
(6th Cir. Jan. 31, 2011) (dismissing complaint for failure to state a claim, where prisoner
alleged that prisoner officials improperly withheld court documents sent to him, but
failed to plead facts about the nature of the withheld documents).

        Fourth, the Amended Complaint alleges in Paragraph 81:

        ¶ 81. CBR and its employees and volunteers have been detained by
        agents from the FBI, who described CBR as a domestic terrorist
        organization on account of CBR’s opposition to abortion. The
        Department of Justice defended the actions of the FBI, claiming that the
        FBI agents reasonably believed that CBR was involved in domestic
        terrorism.

This allegation is likewise deficient. The Amended Complaint does not identity, for
example, who the FBI has detained, when or for how long the FBI did so, whether any
charges were filed, and what the circumstances were surrounding the detentions,
including whether a proper law enforcement purpose was served. The Amended
Complaint also does not allege that any of the individual detentions were connected to
CBR or the individual Plaintiffs in this case. In fact, the Amended Complaint appears
to allege that CBR, a corporate entity, was somehow itself detained by the FBI, but
provides no further elaboration. The Amended Complaint makes no allegation, aside
from conclusory statements made throughout, that these arrests had the effect of chilling
their speech, or would reasonably be expected to do so.

        Fifth, with regard to Plaintiff Murray, the Amended Complaint alleges in
Paragraph 103:
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                     et al. v. Napolitano, et al.


        ¶ 103 . . . . To date, Plaintiff has been denied employment with the U.S.
        Border Patrol and with the U.S. Immigration and Customs Enforcement.

But the Amended Complaint makes no allegation that these agencies denied federal
employment to Plaintiff Murray on account of his expressive associations or activities,
or pursuant to any alleged unconstitutional policy, or that Plaintiff Murray was otherwise
qualified for these positions that he claims to have sought. In fact, the Amended
Complaint contains no allegation that Plaintiff Murray is in any way connected to CBR.

        Accordingly, based on a review of the allegations in the Amended Complaint, we
conclude that Plaintiffs have failed to adequately plead that any of Defendants’ actions
injured Plaintiffs in any way that would deter a person of ordinary firmness from further
participation in constitutionally protected activity.

                3.      Whether any adverse action by Defendants was motivated at
                        least in part by Plaintiffs’ constitutionally protected activity
        Alternatively, even if Plaintiffs could satisfy the second element of a First
Amendment retaliation claim, we conclude that Plaintiffs have failed to adequately plead
the third element, namely that any adverse action by Defendants was motivated at least
in part by Plaintiffs’ constitutionally protected activity.

        Plaintiffs present nothing more than unadorned allegations concerning
Defendants’ intent and motivation. (See, e.g., Am. Compl. ¶ 40 (“Defendants seek to
officially censor, correct, and/or condemn certain political views and ideas and thereby
prescribe what shall be orthodox in politics, nationalism, religion, and other matters of
opinion”); id. ¶ 41 (“The RWE Policy is designed to deter, prevent, and preempt
activities that government officials deem to be in opposition to . . . the current
administration”); id. (“Defendants seek to influence domestic public opinion in support
of . . . the current administration”); id. ¶ 42 (“tool of intimidation” to “stifle political
opinion and opposition”); id. ¶ 44 (“deter ‘rightwing extremist’ speech activities”); id.
¶¶ 51-52 (“in order to deter”); id. ¶ 105 (“silence political opposition” “marginalize
political opponents”; “deter and diminish political opponents”); id. ¶ 107 (“designed to
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                   et al. v. Napolitano, et al.


marginalize them and their opposition to the policies and practices of the federal
government”).)

       These vague and conclusory allegations of nefarious intent and motivation by
officials at the highest levels of the federal government are not well-pleaded, and are
therefore insufficient to “plausibly suggest an entitlement to relief.” Iqbal, 129 S. Ct.
at 1951; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 970 (9th Cir. 2009) (“The bald
allegation of impermissible motive . . . , standing alone, is conclusory and is therefore
not entitled to an assumption of truth.”).

       In Iqbal, the plaintiff alleged that high ranking federal officials had adopted a
policy of unconstitutional detention based on race, religion and/or national origin. In
declining to credit as true the plaintiff’s allegations of intent, the Supreme Court held
that “conclusory” allegations of intent “without reference to [] factual context” are
deficient. See Iqbal, 129 S. Ct. at 1954. In this case, similar to Iqbal, nothing in the
Amended Complaint states a plausible claim that Defendants personally, or through their
respective departments, took any actions on account of Plaintiffs’ constitutionally
protected activities, or that any policy was adopted or enforced on an improper basis.
Nothing in the alleged conduct of relevant federal law enforcement officers plausibly
suggests that they were motivated by anything other than a proper law enforcement
motive.

       Indeed, the Amended Complaint makes no plausible allegation that the relevant
actions of law enforcement were not supported by probable cause, or otherwise taken
pursuant to a valid law enforcement purpose. See Gordon, 706 F.2d at 781 n.3 (“Courts
have recognized that [government activity] in connection with a good faith law
enforcement investigation does not violate First Amendment rights, even though it may
be directed at communicative or associative activities.”); see also Leonard v. Robinson,
477 F.3d 347, 355-36 (6th Cir. 2007) (“Probable cause is clearly relevant to [] First
Amendment retaliation claims.”). Cf. Ctr. for Bio-Ethical Reform, Inc., 477 F.3d at 822-
24 (holding that a three-hour detention without probable cause would suggest improper
No. 10-1439            Center for Bio-Ethical Reform, Inc.,                        Page 20
                       et al. v. Napolitano, et al.


motive where, during the detention, the officers knew of and discussed the political
activity of plaintiffs).

            The Ninth Circuit confronted a similar claim in Moss v. U.S. Secret Service,
where protestors who were removed by the U.S. Secret Service claimed that the agency
had a policy of removing protestors who were critical of President George W. Bush in
violation of the First Amendment. 572 F.3d at 962. The Ninth Circuit rejected the claim
on a motion to dismiss, reasoning:

        The allegation of systematic viewpoint discrimination at the highest
        levels of the Secret Service, without any factual content to bolster it, is
        just the sort of conclusory allegation that the Iqbal Court deemed
        inadequate, and thus does nothing to enhance the plausibility of
        Plaintiffs’ viewpoint discrimination claim against the Agents.

Id. at 970. Likewise in this case, and for the reasons discussed herein, the Amended
Complaint fails to adequately plead that any adverse actions by Defendants were
motivated by a desire to discriminate or retaliate against Plaintiffs on account of their
constitutionally protected expressive activities. See Iqbal, 129 S. Ct. at 1950-51 (stating
that the plaintiff has not “nudged his claims of invidious discrimination across the line
from conceivable to plausible”) (internal quotation marks, citations, and alterations
omitted).

        Accordingly, Plaintiffs have failed to adequately plead that any adverse action
by Defendants was motivated at least in part by Plaintiffs’ constitutionally protected
activity.

                  4.       Summary

        Plaintiffs have failed to state a claim against Defendants, in either their official
or individual capacities, under the First Amendment. To the extent Plaintiffs seek to
challenge the constitutionality of the alleged RWE Policy, Plaintiffs have failed to
plausibly allege the existence of such a policy. And to the extent Plaintiffs seek to
challenge the alleged retaliation by Defendants on account of Plaintiffs’ protected
No. 10-1439         Center for Bio-Ethical Reform, Inc.,                              Page 21
                    et al. v. Napolitano, et al.


activities, Plaintiffs’ allegations are likewise deficient. Plaintiffs have failed to plausibly
allege that any actions by Defendants injured Plaintiffs in a way that would deter a
person of ordinary firmness from further participation in constitutionally protected
activity. Nor have Plaintiffs plausibly alleged that any adverse action by Defendants was
motivated at least in part by Plaintiffs’ constitutionally protected activity.

        C.      Equal Protection Claim

        We now turn to Plaintiffs’ Fifth Amendment claim, alleging that Defendants
violated Plaintiffs’ right to equal protection “by targeting Plaintiffs for disfavored
treatment on account of Plaintiffs’ viewpoint on certain political issues.” (Am. Compl.
¶ 120.) The Fifth Amendment, of course, does not itself contain a guarantee of equal
protection, but instead incorporates, as against the federal government, the Equal
Protection Clause of the Fourteenth Amendment. See Bolling v. Sharpe, 347 U.S. 497,
500 (1954). We evaluate equal protection claims against the federal government under
the Fifth Amendment just as we would evaluate equal protection claims against state and
local governments under the Fourteenth Amendment. See United States v. Angel,
355 F.3d 462, 471 (6th Cir. 2004) (citing Buckley v. Valeo, 424 U.S. 1, 93 (1976)).

        The Equal Protection Clause of the Fourteenth Amendment commands that “no
state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
U.S. Const. amend. XIV, § 1. To state an equal protection claim, a plaintiff must
adequately plead that the government treated the plaintiff “disparately as compared to
similarly situated persons and that such disparate treatment either burdens a fundamental
right, targets a suspect class, or has no rational basis.” Club Italia Soccer & Sports Org.,
Inc. v. Charter Twp. of Shelby, Mich., 470 F.3d 286, 299 (6th Cir. 2006). As we have
held, the “threshold element of an equal protection claim is disparate treatment; once
disparate treatment is shown, the equal protection analysis to be applied is determined
by the classification used by government decision-makers.” Scarbrough v. Morgan
Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006).
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                   et al. v. Napolitano, et al.


       In this case, the Amended Complaint fails to make a plausible allegation that
similarly situated organizations and individuals, of a different political viewpoint, have
not been subject to the same alleged treatment by Defendants. See Nali v. Ekman, 355
F. App’x 909, 913 (6th Cir. 2009) (allegation of discriminatory intent based on race must
be “accompanied by some evidence that the people not disciplined were similarly
situated and of a different race”). The allegations contained in the Amended Complaint
as to disparate treatment amount to conclusory and unadorned assertions that,
consequently, are not well-pleaded, and not entitled to a presumption of truth at this
stage in the litigation. (See, e.g., Am. Compl. ¶¶ 1-5, 120 (conclusory averment of
“disfavored treatment”).)

       Plaintiffs fail to make any comparison to similarly situated groups, and, read
broadly, the Amended Complaint alleges injury to nearly all Americans. (Id. ¶ 27
(referencing statement of an anonymous FBI agent that “true patriotic citizens of this
country are on the Titanic”); id. ¶ 33 (“[T]here is an emerging pattern of systematic
abuse of state and federal law enforcement and intelligence assets to target law-abiding
Americans engaged in the peaceful expression of political views.”).)

       Accordingly, in the absence of any plausible allegation of disparate treatment,
the Amended Complaint fails to state an equal protection claim under the Fifth
Amendment.

                                    CONCLUSION

       For the reasons set forth above, we conclude that the Amended Complaint fails
to state a claim under either the First or Fifth Amendments to the U.S. Constitution. In
so concluding, we express no view on the “propriety or desirability, from a policy
standpoint,” of the alleged activities of Defendants. See Laird v. Tatum, 408 U.S. 1, 15
(1972). Our decision is more narrow: we simply hold that, based on the allegations in
the Amended Complaint, Plaintiffs have not pleaded a claim that plausibly suggests their
entitlement to relief, and therefore the district court’s dismissal of this action pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure was not in error.
No. 10-1439     Center for Bio-Ethical Reform, Inc.,    Page 23
                et al. v. Napolitano, et al.


      The judgment of the district court is AFFIRMED.
