RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0100p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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ZANONIA WHITE, et al.,
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Plaintiffs-Appellants,
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No. 09-3158
v.
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Defendants-Appellees. -
UNITED STATES OF AMERICA, et al.,
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 08-00118—Gregory L. Frost, District Judge.
Argued: January 14, 2010
Decided and Filed: April 9, 2010
Before: KENNEDY, COLE, and GRIFFIN, Circuit Judges.
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COUNSEL
ARGUED: Mark Lee Pollot, LAW OFFICE, Boise, Idaho, for Appellants. John
Samuel Koppel, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellees. ON BRIEF: Mark Lee Pollot, LAW OFFICE, Boise, Idaho, for
Appellants. John Samuel Koppel, Michael Jay Singer, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Mark Douglas
Cooley, ARNOLD & PORTER LLP, Washington, D.C., for Amicus Curiae.
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OPINION
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COLE, Circuit Judge. Plaintiffs-Appellants appeal the district court’s dismissal
of their pre-enforcement challenge to the anti-animal-fighting provisions of the Animal
Welfare Act, naming as defendants the United States, the Secretary and Department of
Agriculture, the Attorney General and Department of Justice, and the Postmaster General
and the United States Postal Service. The plaintiffs-appellants allege that these
1
No. 09-3158 White, et al. v. United States, et al. Page 2
provisions are unconstitutional insofar as they constitute a bill of attainder; violate the
principles of federalism contained in, inter alia, the Ninth, Tenth, and Eleventh
Amendments to the United States Constitution; and unduly impinge on the plaintiffs-
appellants’ First Amendment right of association, constitutional right to travel, and Fifth
Amendment right to due process for deprivations of property and liberty. The district
court dismissed the lawsuit for lack of Article III standing, a decision that we now
AFFIRM.
I. BACKGROUND
A. Statutory background
Before the district court, the plaintiffs-appellants (“the plaintiffs”) sought a
declaratory judgment that all provisions of the Animal Welfare Act (“AWA”), 7 U.S.C.
§§ 2131-56, are “unconstitutional and void in their entirety” insofar “as they apply to
gamefowl or activities and products relating to gamefowl,” and an injunction prohibiting
enforcement of these provisions. The targeted provisions of the AWA are contained in
§ 2156, which places restrictions on cockfighting and other “animal fighting ventures,”
defined as “any event, in or affecting interstate or foreign commerce, that involves a
fight conducted or to be conducted between at least 3 animals for purposes of sport,
wagering, or entertainment.” 7 U.S.C. § 2156(g)(1). In February 2008, at the time the
plaintiffs filed their complaint, § 2156 prohibited:
• knowingly sponsoring or exhibiting animals in an animal fighting
venture if any of the animals was moved in interstate or foreign
commerce, id. § 2156(a)(1), except for persons (1) sponsoring or
exhibiting birds in a state where fighting ventures involving live birds are
not illegal, (2) who had not knowingly bought, sold, delivered,
transported, or received the birds in interstate or foreign commerce for
the purpose of participating in the fighting venture, id. § 2156(a)(2);
• knowingly selling, buying, transporting, delivering, or receiving any
animal for the purpose of having the animal participate in an animal
fighting venture, id. § 2156(b);
• knowingly using the United States Postal Service or any instrumentality
of interstate commerce for commercial speech for promoting, or in any
other manner furthering, an animal fighting venture in the United States,
No. 09-3158 White, et al. v. United States, et al. Page 3
id. § 2156(c), unless the promoted activity is one that involves live birds
and takes place in a state where bird fighting is legal, id. § 2156(d); and
• knowingly selling, buying, transporting, or delivering in interstate or
foreign commerce a knife, gaff, or other sharp instrument attached or
intended to be attached to the leg of a bird for use in an animal fighting
venture, id. § 2156(e).
Originally, § 2156 contained a broader exception for live birds: its prohibitions
applied to fighting ventures involving birds “only if the fight is to take place in a State
where it would be in violation of the laws thereof.” See Animal Welfare Act
Amendments of 1976, Pub. L. No. 94-279, 90 Stat. 417 (1976) (adding § 2156 to the
AWA). In 2002, Congress limited this exception considerably by eliminating its
applicability to subsection (b) (which covers the knowing sale, purchase, transport,
delivery, and receipt of animals for fighting purposes) and amending subsection
(a) (which covers the knowing sponsorship and exhibition of animals for fighting
purposes) to the wording that existed at the time of the plaintiffs’ complaint. See Farm
Security and Rural Investment Act of 2002, Pub. L. No. 107-171, 116 Stat. 134, 491-92
(2002). In 2007, Congress added subsection (d), covering knives, gaffes and other sharp
instruments intended for bird-fighting purposes. Animal Fighting Prohibition
Enforcement Act, Pub. L. No. 110-22, 121 Stat. 88 (2007).1
In sum, at the time the plaintiffs filed their complaint, § 2156 restricted (and
continues to restrict) various activities associated with animal fighting that involve
interstate travel and commerce, but did not (and does not) itself prohibit animal fighting,
including cockfighting. All fifty states have legislation prohibiting cockfighting,
however, although the defendants concede that Louisiana’s ban had not yet taken effect
at the time the plaintiffs filed their complaint and that cockfighting remains legal in some
U.S. territories and the Commonwealth of Puerto Rico.2
1
Congress further amended § 2156 in June 2008, see Food, Conservation, and Energy Act of
2008, Pub. L. No. 110-246, 122 Stat. 2223 (2008), after the plaintiffs filed their complaint. The plaintiffs
do not challenge the 2008 amendments.
2
For the purposes of § 2156, “State” is defined as “any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.”
28 U.S.C. § 2156(g)(3). Thus, the AWA’s prohibitions on activities involving interstate travel and
No. 09-3158 White, et al. v. United States, et al. Page 4
B. Plaintiffs’ alleged injuries
In support of their claims for declaratory and injunctive relief, the plaintiffs
allege that the AWA has caused them various individual and collective injuries. We
accept the factual basis of these injuries as true because the plaintiffs’ suit was dismissed
at the pleading stage. See Fednav, Ltd. v. Chester, 547 F.3d 607, 614 (6th Cir. 2008).
Zanonia White, a resident of Weimar, Texas, who supplements her retirement
income by selling chickens, alleges that she no longer fights birds and sells chickens
only for breeding and show purposes. She does not sell birds to any person she believes
will use them for fighting purposes and requires all customers to sign a form certifying
the same. Nonetheless, she is contemplating ceasing her breeding business because she
fears arrest under the AWA and consequent economic damages. She claims to know of
other law-abiding breeders who have been harassed by law enforcement officials
regarding their breeding activities.
Ben J. Taylor, a resident of Newport, Tennessee, raises and sells gamefowl for
show and breeding purposes, but no longer for fighting purposes. He claims that the
AWA has significantly reduced the market for his birds, both because it has restricted
his sales to non-fighting purposes and because customers who might otherwise buy his
birds for show or breeding purposes are loathe to transport birds across state lines for
fear of wrongful prosecution under § 2156. He, too, is reluctant to ship his birds across
state lines for fear of wrongful prosecution.
Teresa Doolittle, also a resident of Newport, has operated a feed store there for
over a decade. While the gamefowl industry originally provided approximately sixty
percent of the store’s business, the AWA allegedly has led that figure to decline to about
twenty percent (representing a $30,000 to $60,000 loss in gross revenue), and Doolittle
estimates that the figure will drop further to about fifteen percent. Following
amendments to the AWA in 2007, Doolittle ceased to ship birds even for lawful
purposes because of the risk of wrongful prosecution.
commerce extend to Puerto Rico and American territories and possessions.
No. 09-3158 White, et al. v. United States, et al. Page 5
Anthony Seville is president of the American Game Fowl Society, a nonprofit
organization that promotes the showing of gamefowl and that is affiliated with the
American Poultry Association. He claims that the AWA has adversely affected his
ability to work as a gamefowl judge and promote gamefowl shows because potential
exhibitors are reluctant to participate due to the legal risks associated with transporting
birds, including that of wrongful prosecution.3
Milton Brooks is a Georgia resident who has been collecting rare gamefowl stock
for show and breeding purposes for the past ten years. He claims that, as a result of the
AWA, he no longer can transport or sell birds across state lines for fighting purposes,
even to those (unspecified) states where cockfighting remains legal. Moreover, the
AWA has reduced his ability to sell birds for non-fighting purposes because it has
chilled the purchase and transport of breeding and show birds.
In addition to these individual injuries, the plaintiffs argue that they collectively
have suffered and will continue to suffer violations of various constitutional rights
because of the AWA. First, the plaintiffs argue that the AWA creates an
“unconstitutional impairment of plaintiffs’ Fifth Amendment liberty interests in their
right to travel,” by prohibiting them “from taking the property they own from a place
where they have the right to own, possess, and enjoy it to another place where they have
the right to own, possess, and enjoy it,” and chilling the right to travel with chickens
intended for non-fighting purposes. Second, the AWA allegedly impinges the plaintiffs’
First Amendment association rights by making it impossible for the plaintiffs to travel
to the events at which they ordinarily would associate with like-minded people. Third,
the plaintiffs argue that the AWA inflicts punishment on them and other members of the
gamefowl community without a judicial trial and therefore is a bill of attainder. Finally,
the plaintiffs argue that the AWA violates principles of federalism embodied, inter alia,
in the Ninth, Tenth, and Eleventh Amendments to the United States Constitution by
3
The complaint alleges that, by the same token, the AWA also has adversely affected the
organizational interests of the American Game Fowl Society and its members by chilling the transportation
of birds for show across state lines. Neither the American Game Fowl Society nor its other members,
however, is party to this lawsuit.
No. 09-3158 White, et al. v. United States, et al. Page 6
impermissibly favoring the domestic policies of those states that have enacted
cockfighting bans over those of states that have not.
C. Procedural history
On the basis of these alleged injuries, the plaintiffs filed suit on February 7, 2008.
On October 28, the defendants filed a motion to dismiss the complaint for lack of
standing under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim
under Rule 12(b)(6). The plaintiffs filed a response on December 9. On January 26,
2009, the district court granted the defendants’ motion to dismiss for lack of standing,
noting that, to be conferred standing, the plaintiffs had the burden of demonstrating that
they had (1) personally suffered an “injury in fact” that was actual or imminent and not
conjectural or hypothetical; (2) that the injury was “fairly traceable” to the challenged
action of the defendant (i.e., the enactment and enforcement of § 2156); and (3) that a
favorable decision likely would redress the injury. White v. United States, No. 2:08-cv-
118, 2009 WL 173509, at *2 (S.D. Ohio Jan. 26, 2009) (op. & order) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
Rather than address individually the plaintiffs’ various alleged economic and
constitutional injuries, the court consolidated the injuries into two basic “premises”: first,
that the plaintiffs feared false prosecution under § 2156, and second, that they had
suffered economic injuries because of the AWA. Id. at *3. On the first premise, the
court found that the plaintiffs’ fear of false prosecution did not constitute an “injury in
fact” sufficient to confer constitutional standing. In the court’s words, because the
“‘[p]ossibility of future harm [is] neither actual nor imminent, but [is] conjectural at
best,’” the plaintiffs’ potential injury due to false prosecution “‘[is] not within the
purview of disputes that the federal courts are permitted to adjudicate.’” Id. at *4
(quoting Hyman v. City of Louisville, 53 F. App’x 740, 744 (6th Cir. 2002)). On the
second premise, the court reasoned that, because cockfighting is now illegal in all fifty
states and in the District of Columbia, there would be no legal domestic market for
cockfighting even if § 2156 were declared unconstitutional. Thus, any economic injuries
the plaintiffs had suffered were not traceable to the AWA nor redressable by the
No. 09-3158 White, et al. v. United States, et al. Page 7
declaratory or injunctive relief sought, as required under the second and third prongs of
the test for Article III standing. Id. at *4-*5.
The plaintiffs timely appealed the district court’s decision that they lack
constitutional standing to bring their claims. We have jurisdiction over the final decision
of the district court under 28 U.S.C. § 1291.
II. STANDARD OF REVIEW
The plaintiffs argue that the district court erred in dismissing their lawsuit for
lack of constitutional standing. We review the district court’s decision de novo. Stalley
v. Methodist Healthcare, 517 F.3d 911, 916 (6th Cir. 2008) (citing Prime Media, Inc. v.
City of Brentwood, 485 F.3d 343, 348 (6th Cir. 2007)); see also Raines v. Byrd, 521 U.S.
811, 820 (1997) (“[O]ur standing inquiry has been especially rigorous when reaching the
merits of the dispute would force us to decide whether an action taken by one of the
other two branches of the Federal Government was unconstitutional.”). Constitutional
standing under Article III has three elements. Fednav, 547 F.3d at 614. “‘First, the
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.’” Id. (quoting Lujan, 504 U.S. at 560). Second, the injury must be “‘fairly
traceable to the challenged action of the defendant.’” Id. (quoting Lujan, 504 U.S. at
560). Third, it must be likely that the injury will be “‘redressed by a favorable
decision.’” Id. (quoting Lujan, 504 U.S. at 561).
Each of these elements “‘must be supported in the same way as any other matter
on which the plaintiff bears the burden of proof, i.e., with the manner and degree of
evidence required at the successive states of the litigation.’” Id. (quoting Lujan, 504
U.S. at 561). As stated above, because the plaintiffs’ suit was dismissed at the pleading
stage, we “‘must accept as true all material [factual] allegations of the complaint.’” Id.
(quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)). We also must construe the
complaint liberally in favor of the complaining party. See United States v. Salti, 579
F.3d 656, 667 n.11 (6th Cir. 2009) (citing Warth, 422 U.S. at 501). General factual
allegations of injury may suffice to demonstrate standing, “for on a motion to dismiss
No. 09-3158 White, et al. v. United States, et al. Page 8
we presum[e] that general allegations embrace those specific facts that are necessary to
support the claim.” Lujan, 504 U.S. at 561 (internal quotation marks omitted).
However, “standing cannot be inferred . . . from averments in the pleadings, but rather
must affirmatively appear in the record,” Spencer v. Kemna, 523 U.S. 1, 10-11 (1998),
nor will “naked assertion[s] devoid of further factual enhancement” suffice, Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted). Rather, the
complaint must contain “sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Id. (internal quotation marks omitted).
Rather than examine each of the various injuries alleged by the plaintiffs to
determine which, if any, satisfy the test for constitutional standing, we can distill the
claimed injuries into four categories: first, the plaintiffs’ economic injuries caused by the
AWA; second, the plaintiffs’ fear of false prosecution under the AWA and resulting
“chill” on the plaintiffs’ conduct; third, the AWA’s violation of plaintiffs’ constitutional
rights; and fourth, the AWA’s violation of the principles of federalism contained in the
Ninth, Tenth, and Eleventh Amendments. None of these alleged injuries suffices to
confer standing on the plaintiffs.
III. DISCUSSION
A. Economic injuries
The plaintiffs argue that the district court was compelled to accept as true their
allegations that there are states and territories where cockfighting remains legal and note
that even the defendants conceded that cockfighting is allowed in Puerto Rico and some
American territories. By consequence, according to the plaintiffs, the district court erred
in finding that the economic injuries they have suffered and continue to suffer cannot be
traced to § 2156’s prohibition on activities involving interstate and foreign travel and
commerce for the purposes of cockfighting. Rather, they argue, their injuries may be
fairly traced to the AWA, and a declaration that § 2156 is unconstitutional and an order
enjoining its enforcement would redress these injuries. In their words, “if the court finds
the statutory provisions to be unconstitutional . . . persons who have stopped the
No. 09-3158 White, et al. v. United States, et al. Page 9
activities prohibited by the statute would resume them, and the . . . injuries sustained by
appellants, including but not limited to economic losses . . . would be limited or avoided
in the future.”
Contra the plaintiffs’ argument, the district court was not compelled to accept
their legal allegations as true. See Iqbal, 129 S. Ct. at 1949 (“[T]he tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.”). Neither are we. Cockfighting is banned to a greater or lesser degree in
all fifty states and the District of Columbia. Thus, while economic injuries may
constitute an injury-in-fact for the purposes of Article III standing, see Lujan, 504 U.S.
at 559-61; see also Lambert v. Hartman, 517 F.3d 433, 437 (6th Cir. 2008) (noting that
“actual financial injuries” may satisfy the injury-in-fact requirement), the plaintiffs’
alleged economic injuries due to restrictions on cockfighting are not traceable only to
the AWA. Cf. San Diego County Gun Rights v. Reno, 98 F.3d 1121, 1130 (9th Cir.
1996) (holding that state law banning activities similar to those prohibited by challenged
federal law undercut traceability). Nor would these injuries be redressed by the relief
plaintiffs seek, since the states’ prohibitions on cockfighting would remain in place
notwithstanding any action we might take in regard to the AWA.
While the defendants concede that cockfighting remains legal in Puerto Rico and
some territories of the United States, this concession does not aid the plaintiffs. The
complaint does not allege that the plaintiffs have ever derived any income from or
engaged in any trade with individuals in Puerto Rico or U.S. territories. Nor does it
claim that the plaintiffs have any intent to do so in future. Absent any allegation that the
plaintiffs have lost or will lose income because of the AWA’s restrictions on interstate
commerce with these locales, the bald assertion that plaintiffs have suffered economic
injury due to the AWA is not sufficient to confer standing based on the continued
legality of cockfighting there. See Bishop v. Lucent Techs., Inc., 520 F.3d 516, 522 (6th
Cir. 2008) (“The court should not assume facts that could and should have been pled, but
No. 09-3158 White, et al. v. United States, et al. Page 10
were not.”); cf. Iqbal, 129 S. Ct. at 1949 (complaint must contain “sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face”).4
B. Fear of false prosecution and resulting “chill” on plaintiffs’ conduct
The risk of false prosecution under the AWA also is too speculative to confer
standing on the plaintiffs. In reaching the same conclusion, the district court emphasized
that none of the plaintiffs alleged any intention to engage in conduct prohibited by the
AWA. White, 2009 WL 173509, at *3. This emphasis is misplaced. Whether or not the
plaintiffs alleged an intention to engage in prohibited conduct is not relevant to their
allegations that they risk false prosecution under the AWA even if they engage only in
lawful conduct. This issue aside, however, the district court was correct to conclude that
the risk of false prosecution to the plaintiffs is too speculative to confer standing.
“‘A threatened injury must be certainly impending to constitute injury in fact.’”
Rosen v. Tenn. Comm’r of Fin. & Admin., 288 F.3d 918, 929 (6th Cir. 2002) (quoting
Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)); accord City of Los Angeles v. Lyons,
461 U.S. 95, 102 (1983). The plaintiffs’ allegations of potential false prosecution
amount to a claim that, if they transport or sell chickens across state lines for non-
fighting purposes and if they are stopped by law enforcement authorities, the authorities
may misinterpret the plaintiffs’ intent and may wrongly prosecute them. This claim
accordingly bears some similarity to the allegations presented in O’Shea v. Littleton,
414 U.S. 488 (1974), which the Supreme Court found insufficient for standing. In
O’Shea, the plaintiffs sought injunctive relief against two judges who allegedly were
engaged in “a continuing pattern and practice” of discriminatory and unconstitutional
bond-setting, sentencing, and mandating of fee payments. Id. at 491-92. The Court
found that these allegations amounted to a claim “that if respondents proceed to violate
an unchallenged law and if they are charged, held to answer, and tried in any
4
In February 2008, when the plaintiffs filed their complaint, Louisiana’s ban on cockfighting had
not yet gone into effect. See La. Rev. Stat. Ann. § 14:102.23 (2008); Cleveland Branch, NAACP v. City
of Pharma, 263 F.3d 513, 524 (6th Cir. 2001) (“The Supreme Court has consistently held that ‘jurisdiction
is tested by the facts as they existed when the action [was] brought . . . .’”) (quoting Smith v. Sperling,
354 U.S. 91, 93 n.1 (1957)). The plaintiffs have not alleged any present or future economic loss due to
foregone revenues from Louisiana, and the state’s now effective ban would render moot any such claim.
No. 09-3158 White, et al. v. United States, et al. Page 11
proceedings before [the judges], they will be subjected to the discriminatory practices
that [the judges] are alleged to have followed.” Id. at 497. As in O’Shea, the chain of
events necessary for the plaintiffs in this case to suffer false prosecution veers “into the
area of speculation and conjecture.” Id. In the district court’s words, the “[p]laintiffs’
pleading as to the scenario of events that must unfold to injure them―their allegations
that they might incur injury in the future if the law is not properly followed and if their
intentions are misconstrued―is simply too . . . highly conjectural” to present a threat of
immediate injury, as the allegations “rest[] on a string of actions the occurrence of which
is merely speculative.” White, 2009 WL 173509, at *4. While wrongful prosecution
may be more likely here than in O’Shea in light of the plaintiffs’ claim that law
enforcement officials mistakenly believe, due to misinformation provided by entities like
the Humane Society, that birds intended for fighting are distinguishable from birds that
are not, the risk remains too remote to confer standing.5
Nor does the “chill” on the plaintiffs’ right of travel, right of association, and
“right to be free of bills of attainder,” which the plaintiffs claim results from their fear
of false prosecution, suffice for standing. Our jurisprudence assumes that only the
chilling of First Amendment rights may confer standing. Moreover, where a plaintiff
seeks injunctive or declaratory relief to remedy a First Amendment violation, a
subjective fear of chilling will not suffice for standing absent a real and immediate threat
of future harm. See Hange v. City of Mansfield, 257 F. App’x 887, 891 (6th Cir. 2007)
(“[T]o seek an injunction . . . the mere subjective fear that a plaintiff will be subjected
. . . to an allegedly illegal action is not sufficient to confer standing.”) (citing Lyons, 461
U.S. at 107 n.8 (“It is the reality of the threat of repeated injury that is relevant to the
standing inquiry, not the plaintiff’s subjective apprehensions.”)); see also Fieger v.
Mich. Supreme Court, 553 F.3d 955, 962 (6th Cir. 2009) (“‘[T]he Supreme Court is
emphatic: ‘Allegations of a subjective ‘chill’ are not an adequate substitute for a claim
5
The complaint included as defendants “Does 1-50 [who] include other persons or entities who,
like defendant [Humane Society of the United States] have been acting on behalf or in concert with the
named defendants . . . in carrying out or assisting law enforcement and government officials,” and sought
to enjoin any defendant from providing to law enforcement officials or other organizations “false or
misleading information pertaining to characteristics of chickens.” The plaintiffs’ brief before this Court
does not mention these defendants nor this prayer for relief.
No. 09-3158 White, et al. v. United States, et al. Page 12
of specific present objective harm or a threat of specific future harm.’’”) (quoting Laird
v. Tatum, 408 U.S. 1, 13-14 (1972)). As argued above, the risk of false prosecution the
plaintiffs face in this case is too speculative to confer standing. Their resulting decision
to curtail their activities based on their subjective fear of prosecution—the alleged
“chill” on their constitutional rights—does not affect this analysis. As we stated in
Morrison v. Board of Education, 521 F.3d 602 (6th Cir. 2008), “subjective apprehension
and a personal (self-imposed) unwillingness” to engage in First Amendment conduct,
“without more,” “fail to substantiate an injury-in-fact for standing purposes.” Id. at 610
(citing ALCU v. NSA, 493 F.3d 644, 662 (6th Cir. 2007)). While the plaintiffs argue that
law enforcement officials’ mistaken belief regarding the distinctive characteristics of
fighting birds helps transform their subjective apprehension of prosecution into a fear
of imminent injury sufficient to confer standing, the risk of wrongful prosecution
remains overly speculative, even in light of this allegation.
C. Violations of plaintiffs’ constitutional rights
The plaintiffs’ brief focuses on the chill to plaintiffs’ constitutional rights based
on the fear of false prosecution. However, the plaintiffs’ complaint also appears to
allege constitutional violations based on § 2156’s ban on interstate sales and
transportation of chickens actually intended for fighting purposes, since some of the
plaintiffs allegedly would sell and / or transport chickens for fighting purposes but for
the AWA’s restrictions. By prohibiting the sale and transportation of chickens for
fighting purposes, the AWA violates (or so the complaint argues) the plaintiffs’ rights
of travel and association, their “rights to due process in the deprivation of their rights to
property and liberty,” and their “right to be free from bills of attainder.”
The plaintiffs argue that they need not allege an intention to violate the AWA in
order to have standing based on these alleged violations of their constitutional rights.
We indeed have held that “[a] plaintiff can meet the standing requirements when suit is
brought under the Declaratory Judgment Act by establishing ‘actual present harm or a
significant possibility of future harm,’ People’s Rights Org. v. City of Columbus,
152 F.3d 552, 527 (6th Cir. 1998), ‘even though the injury-in-fact has not yet been
No. 09-3158 White, et al. v. United States, et al. Page 13
completed.’ Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 280 (6th Cir. 1997).”
Hyman, 53 F. App’x at 743. In other words, the plaintiffs are correct that they need not
actually violate the AWA in order to have standing. However, they still must
demonstrate an injury-in-fact to a legally protected interest that is actual or imminent and
that satisfies the other prongs of the constitutional standing test.
The purported constitutional violations the plaintiffs allege do not satisfy this
standard. Even if the plaintiffs’ allegations that they would sell chickens for fighting
purposes but for § 2156 are sufficient to demonstrate a significant possibility of future
harm, none of the purported “constitutional” injuries actually implicates the Constitution.
Cf. Lujan, 504 U.S. at 560 (injury-in-fact must implicate legally protected interest). The
plaintiffs’ arguments to the contrary are near frivolous. The plaintiffs offer no support
for their argument that the right to travel “includes within it the right . . . to bring with
them their property . . . in this case birds and paraphernalia including . . . ‘sharp
implements.’” Nor do they provide any support for the argument that their rights to
association are violated because the AWA “mak[es] it impossible to travel to the events
at which [the plaintiffs] would ordinarily associate with like-minded people” since “[t]he
very property which Congress wants plaintiffs to leave at home is the very reason the
plaintiffs associate with other[s] in the gamefowl community.” In fact, § 2156 neither
prohibits travel nor prevents individuals from associating for the purposes of animal
fighting in locations where animal fighting remains legal. Nor does it deprive the
plaintiffs of property or liberty without due process. If the plaintiffs violate the AWA
and are arrested for doing so, there is no reason to think they will not receive the
procedural protections of the federal criminal justice system. By the same token,
because the AWA does not impose any penalties without a judicial trial, it is not a bill
of attainder. Cf. United States v. Brown, 381 U.S. 437, 448-49 (1965) (describing
features of bills of attainder). Because none of these alleged injuries actually implicates
the Constitution, none is sufficient to confer standing.
No. 09-3158 White, et al. v. United States, et al. Page 14
D. Federalism violation
Finally, the plaintiffs argue that the anti-animal-fighting provisions of the AWA
violate the principles of federalism contained in the Ninth, Tenth, and Eleventh
Amendments by favoring the policies of those states that ban cockfighting in a manner
that imposes burdens on those states that have not enacted such bans. Even assuming
the plaintiffs are correct that a constitutional violation has occurred, they do not have
standing to challenge it. A party invoking the court’s jurisdiction must show that he has
“personally suffered” some actual or threatened injury. Lujan, 504 U.S. at 563; see also
Warth, 422 U.S. at 499 (“The Art. III judicial power exists only to redress or otherwise
protect against injury to the complaining party . . . . A federal court’s jurisdiction
therefore can be invoked only when the plaintiff himself has suffered some threatened
or actual injury . . . .”) (internal quotation marks omitted). Any injury here is to the
impacted states, and perhaps to their citizens or the citizens of the United States in
general. Thus, the plaintiffs cannot be said to have “personally suffered” the alleged
federalism violation in a manner that would confer standing. Cf. Greater Cincinnati
Coal. for the Homeless v. City of Cincinnati, 56 F.3d 710, 716 (6th Cir. 1995) (standing
cannot be conferred based upon “a mere interest in a problem”) (citing Sierra Club v.
Morton, 405 U.S. 727, 739 (1972)).
IV. CONCLUSION
For the reasons described above, we AFFIRM the decision of the district court.