African People's Education and Defense Fund, Inc. v. Pinellas County

FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-13547
____________________
AFRICAN PEOPLE'S EDUCATION AND DEFENSE FUND,
INC.,
Plaintiff-Appellant,
versus
PINELLAS COUNTY,
a political subdivision of the State of Florida,
by and through the Pinellas County Board,
of County Commissioners,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:23-cv-02395-TPB-AAS
____________________
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2 Opinion of the Court 24-13547
Before NEWSOM , B RASHER , Circuit Judges, and H UCK ,∗ District
Judge.
NEWSOM , Circuit Judge:
Florida nonprofit African People’s Education and Defense
Fund twice applied for COVID-relief grants from monies made
available to Pinellas County by the federal government. The Pi-
nellas County Board of Commissioners initially approved APEDF’s
first grant request but later revoked that approval; the Board de-
nied the group’s second grant application outright. APEDF sued,
contending that the Board had revoked the first grant and denied
the second on the basis of race and because of the group’s associa-
tion with the “Uhuru Movement”—which APEDF describes as a
collection of “like-minded groups and individuals promoting Black
community empowerment.” The district court dismissed
APEDF’s First Amendment, equal-protection, and procedural-due-
process claims at the pleadings stage. We affirm in part and reverse
in part. In particular, we hold that the district court was correct to
dismiss APEDF’s procedural-due-process claim but that it erred in
dismissing the organization’s First Amendment and equal-protec-
tion claims.
∗ Honorable Paul C. Huck, United States District Judge for the Southern Dis-
trict of Florida, sitting by designation.
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24-13547 Opinion of the Court 3
I
A
Because this case comes to us on appeal from the district
court’s grant of a motion to dismiss, “for purposes of this appeal,
we take the facts alleged in the complaint as true and construe
them in the light most favorable to the plaintiff.” DeMarcus v. Univ.
of S. Ala., 133 F.4th 1305, 1309 n.1 (11th Cir. 2025) (citation modi-
fied).
The African People’s Education and Defense Fund is a
§ 501(c)(3) nonprofit organization. For almost 30 years, APEDF has
served the black community of south St. Petersburg, Florida.
APEDF’s stated mission is “to defend the human and civil rights of
the African community and end the disparities faced by African
people in health, healthcare, education, and economic develop-
ment.” Am. Compl. ¶ 1, Dkt. No. 35. To that end, APEDF provides
a host of services: It operates a gym, a licensed kitchen, a commu-
nity center, and a Saturday school, and it performs free HIV testing.
APEDF also runs a radio station, “Black Power 96,” which broad-
casts community health information, provides internships for local
youth, and supports local musicians.
APEDF’s community center is called the “Uhuru House.” In
Swahili, the word “Uhuru” means “freedom.” APEDF asserts that
it is associated with the “Uhuru Movement”—which, it says, “is not
a distinct or formal entity, but a broad characterization of like-
minded groups and individuals promoting Black community
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4 Opinion of the Court 24-13547
empowerment, such as the ‘Black Power Movement’ or the ‘Civil
Rights Movement.’” Id. ¶ 51(a).
Like so many other organizations, APEDF was hit hard by
COVID-19. Recognizing the pandemic’s widespread economic im-
pact, Congress passed the American Rescue Plan Act of 2021,
which authorized relief funds. Pub. L. No. 117-2, 135 Stat. 4 (2021)
(codified at 42 U.S.C. §§ 802–803). Pinellas County received ARPA
money to provide COVID-relief grants to nonprofits. Thereafter,
the County contracted with the Pinellas Community Foundation
to review grant applications and make recommendations to the
County’s Board of Commissioners.
In September 2022, APEDF applied for an ARPA grant to
purchase radio-station equipment so that Black Power 96 could
“continue broadcasting timely information on local health and ed-
ucational services and emergency alerts.” The Foundation ranked
APEDF’s application fourth out of the 55 that it received. On the
basis of the Foundation’s assessment, the Board approved funding
for the 34 highest-ranked grant applications—including APEDF’s.
Soon after, the Foundation sent APEDF an email confirming that
it would be awarded $36,801. The Foundation followed up with a
draft contract, which APEDF received, signed, and returned.
A month later, though, newly seated Board member Chris
Latvala raised questions about APEDF’s grant. Via text, he di-
rected his aide, Tyler Bonneau, to “Google the African peoples
one.” Am. Compl. Ex. F at 2, Dkt. No. 35–6. When Bonneau re-
sponded, “That’s the Uhuru House in St. Pete” and said that
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24-13547 Opinion of the Court 5
APEDF’s “website doesn’t look so good,” Latvala replied that he
was “going to raise hell.” Id.
Two days later, Latvala texted Bonneau again: “[L]ook to
see if this African group is a hate group or the uhurhus [sic] by ADL
[i.e., Anti-Defamation League] or sovern [sic] poverty law center.”
Am. Compl. Ex. G at 1, Dkt. No. 35–7. Bonneau responded with a
screenshot of an ADL webpage that included the following descrip-
tion: “The Uhuru Movement, also known as the International Peo-
ple’s Democratic Uhuru Movement (InPDUM), is a Florida-based
international socialist Black separationist organization.” Id. Quot-
ing the ADL site, Bonneau texted that “[t]he Uhuru Movement has
ties to antisemitic Black Nationalist organizations.” Id. Latvala
then asked: “[I]s the radio equip for [B]lack [P]ower 96”? Id. at 2.
Bonneau replied that the grant list didn’t detail how the funding
would be used. Id. Latvala ended the conversation by compliment-
ing Bonneau’s “great work.” Id.
Later the same day, Latvala voiced his concerns at a Board
work-session meeting, asserting that “[a]ccording to [APEDF’s]
website . . . they’re associated with the [Uhurus] in St. Petersburg.”
Am. Compl. Ex. H at 1, Dkt. No. 35–8. Latvala asked Foundation
CEO Duggan Cooley: “[H]ow would a group that has ties to anti-
semitic nationalist groups get approved for funding?” Id. Cooley
responded that APEDF “went through the funding process like
other organizations.” Id. He acknowledged that the Foundation
was “concerned about some of the issues that ha[d] arisen because
of [an] FBI investigation” of the Uhuru headquarters, but said that
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6 Opinion of the Court 24-13547
after flagging these issues for the County he was advised that
APEDF’s application should “be scored in this process like every
other organization.” Id.
During the same meeting, Latvala charged that the Uhurus
“once held a mock trial in which they sentenced the mayor and
chief of police in St. Petersburg to death[.]” Id. Cooley said that
while he was “not familiar” with that episode, he was “familiar with
some of the other challenges” associated with the Uhurus. Id. Lat-
vala also claimed that the Uhurus “support the release of all black
prisoners.” Id. Cooley responded that he didn’t know about that,
either.
The following day, Latvala texted Bonneau again: “[T]he
[U]hurus are claiming we are discriminating if we defund them.”
Am. Compl. Ex. G at 3. But, he said, “One of my questions yester-
day was about political parties being eligible so we are going to use
that.” Id. He signed off by saying, “[T]his ain’t my first rodeo.” Id.
A few days later, Latvala directed Bonneau to “write down
that African group on a sheet a [sic] paper for the meeting.” Am.
Compl. Ex. I at 1, Dkt. No. 35–9. At a Board meeting the following
day, Latvala formally moved to revoke APEDF’s funding. During
the meeting, Latvala explained that he “d[id] not think that we
should be funding radio stations with the amount of needs that
there are in our community,” and that, instead, the Board should
“prioritize[e] people over products and things.” Am. Compl. ¶ 82.
The Board ultimately revoked APEDF’s radio-equipment grant.
APEDF wasn’t notified that its grant would be discussed at the
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24-13547 Opinion of the Court 7
Board meeting, and the Board’s agenda didn’t list the grant as an
agenda item. In its complaint, APEDF alleges that at least four non-
profits that serve predominantly white communities—and aren’t
black-led—received grants for “products and things” despite Lat-
vala’s stated opposition to that type of funding. Id. ¶ 85.
A month before the revocation of its radio-station grant,
APEDF had applied for a second award in the amount of $67,327
to fund the purchase and installation of an “urgently needed” back-
up power generator for its building. Id. ¶¶ 42, 88. APEDF had ex-
perienced frequent outages due to storms and an aging power grid,
and it contended that a back-up generator would ensure its ability
to keep the radio on air, the kitchen open, and the food in its com-
mercial refrigerators and freezers cold.
After the revocation of the radio-station grant, though, the
Foundation raised concerns about APEDF’s second application. In
an email, Cooley stated that “[t]he ARPA Nonprofit Capital Project
Fund eligibility requires that the funding benefit 501(c)(3) direct
service nonprofits.” Id. ¶ 45. That was a problem, he said, because
it was “impossible to isolate the benefit of generators to solely ben-
efit the African People’s Education and Defense Fund”—the gener-
ator that APEDF sought, he believed, would be installed in a build-
ing that it shared with the African People’s Socialist Party. Id.
APEDF denies that it shares a location with the African People’s
Socialist Party. It further denies that location-sharing restrictions
appear in the eligibility criteria posted on the Foundation’s ARPA
Nonprofit Capital Project Fund’s website and insists that numerous
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8 Opinion of the Court 24-13547
ARPA grant recipients (including the YMCA) share their spaces
with other groups.
Eventually, Cooley distributed a memo with the Founda-
tion’s funding recommendations. It endorsed approval of 19 of the
78 applications, including APEDF’s. Indeed, the Foundation
ranked APEDF’s application fourth overall, though it footnoted a
concern about recipients sharing a benefit with non-applicants.
Two months later, the Pinellas County Commission’s staff recom-
mended changes to the Foundation’s list, including a directive to
“unassign” the funding for three applicants—including APEDF. Id.
¶ 49. The stated reason for “unassign[ing]” APEDF’s funding was
that the project wouldn’t directly counteract COVID’s effects. At a
later meeting, the Board voted to fund all applicants on the Foun-
dation’s original list except APEDF. In its complaint, APEDF al-
leges that at least three nonprofits that serve predominantly white
communities—and are not black-led—received grant funding even
though their projects wouldn’t directly counteract COVID’s ef-
fects.
B
Following the denial of its second grant application, APEDF
sued Pinellas County, by and through its Board of Commissioners,
under 42 U.S.C. § 1983. In particular, APEDF alleged (1) retaliation
in violation of the First Amendment, (2) racial discrimination in vi-
olation of the Equal Protection Clause of the Fourteenth Amend-
ment, and (3) procedural unfairness in violation of the Due Process
Clause of the Fourteenth Amendment. The district court
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24-13547 Opinion of the Court 9
dismissed all three claims with prejudice under Federal Rule of
Civil Procedure 12(b)(6).
This is APEDF’s appeal.1
II
The standard applicable under Rule 12(b)(6) is familiar. Dis-
missal for failure to state a claim is appropriate if, but only if, the
plaintiff fails to allege “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). A claim is facially plausible if the facts alleged “allow[] the
court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Although we needn’t accept “threadbare recitals of a cause
of action’s elements, supported by mere conclusory statements,”
we must “accept as true” all factual allegations in the complaint.
Id. at 663, 678.
We will consider the propriety of the dismissal of APEDF’s
claims in turn, beginning with its contention that the County retal-
iated against it in violation of the First Amendment.
A
“[A]s a general matter the First Amendment prohibits gov-
ernment officials from subjecting an individual to retaliatory
1 We “review[] de novo a district court’s order of dismissal, accepting the alle-
gations in the complaint as true and construing them in the light most favora-
ble to the plaintiff.” Mesa Valderrama v. United States, 417 F.3d 1189, 1194 (11th
Cir. 2005).
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10 Opinion of the Court 24-13547
actions” for engaging in protected speech or association. Hartman
v. Moore, 547 U.S. 250, 256 (2006). To state a valid First Amendment
retaliation claim, APEDF must show (1) that it engaged in “consti-
tutionally protected” activity, (2) that it “suffered adverse conduct
that would likely deter a person of ordinary firmness from engag-
ing in such” activity, and (3) that “there was a causal relationship
between the adverse conduct and the protected [activity].” Brannon
v. Finkelstein, 754 F.3d 1269, 1274 (11th Cir. 2014).
APEDF contends that the County violated its First Amend-
ment rights by revoking one grant award and denying the applica-
tion for another in retaliation for its expressive association with a
disfavored group—the Uhuru Movement. The district court re-
jected that claim, seemingly on two grounds. As an initial matter,
the court suggested that, as a new applicant for a government
grant, APEDF might be barred from asserting a First Amendment
retaliation claim under Board of County Commissioners v. Umbehr, 518
U.S. 668 (1996). In that case, the Supreme Court held that an inde-
pendent contractor with a preexisting commercial relationship
with the government could bring such a claim but declined to de-
cide whether new applicants for government contracts enjoy simi-
lar First Amendment protection. Id. at 685. Moreover, and in any
event, the district court held that even if APEDF could assert a re-
taliation claim, it hadn’t adequately alleged one.
For reasons we will explain, we hold (1) that Umbehr doesn’t
bar APEDF’s claim and (2) that APEDF has alleged enough to sur-
vive a motion to dismiss.
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24-13547 Opinion of the Court 11
1
First, Umbehr. There, the Supreme Court considered
whether and to what extent independent government contractors
have First Amendment rights. 518 U.S. at 673–74. A contractor
who had an existing trash-hauling contract with a municipal gov-
ernment brought a First Amendment retaliation claim alleging that
the county commission had terminated his at-will contract in retal-
iation for his public criticism. Id. at 671–72. The parties took dia-
metrically opposite positions: The plaintiff argued that because he
was an independent contractor rather than an employee, the gov-
ernment lacked any interest that could diminish his speech rights
and that he was therefore entitled to the full First Amendment pro-
tection enjoyed by ordinary citizens. Id. at 677. The County, by
contrast, asserted that the contractor wasn’t entitled to any First
Amendment protection—not even the limited protection typically
given to government employees. See id. at 676.
The Supreme Court rejected both extremes in favor of a
middle ground. The Court noted that the relevant precedents ex-
isted on a “spectrum”:
Our unconstitutional conditions precedents span a
spectrum from government employees, whose close
relationship with the government requires a balanc-
ing of important free speech and government inter-
ests, to claimants for tax exemptions, users of public
facilities, and recipients of small government subsi-
dies who are much less dependent on the government
but more like ordinary citizens whose viewpoints on
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12 Opinion of the Court 24-13547
matters of public concern the government has no le-
gitimate interest in repressing.
Id. at 680 (internal citations omitted). The Court held that an inde-
pendent contractor who (like the plaintiff before it) has a preexist-
ing commercial relationship with the government is akin to a gov-
ernment employee and therefore entitled to comparable constitu-
tional protection. Id. at 678. Accordingly, a First Amendment re-
taliation claim brought by such a contractor triggers so-called Pick-
ering-balancing—“a fact-sensitive and deferential weighing of the
government employer’s legitimate interests against its employees’
First Amendment rights.” Id. at 668 (citing Pickering v. Bd. of Ed. of
Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968)).
Even as it “recognize[d]” that independent contractors who
have preexisting relationships with the government have a (quali-
fied) right “not to be terminated for exercising their First Amend-
ment rights,” id. at 686, the Supreme Court reserved the question
whether “bidders or applicants for new government contracts” are
entitled to First Amendment protection, id. (emphasis added). Re-
lying heavily on that limiting language, the County argues here that
because APEDF is only an aspiring contractor, not an established
one, it has no First Amendment rights. See Br. of Appellee at 12–
13. APEDF rejoins that it is less like an aspiring government con-
tractor than an ordinary citizen applying for a limited government
benefit. See Br. of Appellant at 23 (citing Sherbert v. Verner, 374 U.S.
398 (1963)). We think that APEDF has the better of the argument.
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24-13547 Opinion of the Court 13
Where, as here, the government is doling out public fund-
ing, it operates as a sovereign rather than as an employer. Pinellas
County wasn’t seeking an ongoing relationship with APEDF, nor
was it offering to pay APEDF to perform a service or to act as an
agent. Rather, it was simply determining whether APEDF’s contri-
butions to the public justified an award of grant money. In that
respect, APEDF is less like an employee or a traditional govern-
ment contractor and “more like [an] ordinary citizen[] whose view-
points on matters of public concern the government has no legiti-
mate interest in repressing.” Umbehr, 518 U.S. at 680; cf. Wandering
Dago, Inc. v. Destito, 879 F.3d 20, 38 (2d Cir. 2018) (holding that food
vendors denied a license to sell in a public forum weren’t prospec-
tive government contractors).
To be sure, APEDF wasn’t (and isn’t) legally entitled to a
COVID-relief grant. And as the County emphasizes, the govern-
ment doesn’t engage in viewpoint discrimination simply because it
“selectively fund[s] a program to encourage certain activities it be-
lieves to be in the public interest, without at the same time funding
an alternative program which seeks to deal with the problem in
another way.” Nat’l Endowment for the Arts v. Finley, 524 U.S. 569,
588 (1998) (quoting Rust v. Sullivan, 500 U.S. 173, 193 (1991)). That
being said, “even in the provision of subsidies, the Government
may not ‘ai[m] at the suppression of dangerous ideas.’” Id. at 587
(quoting Regan v. Taxation With Representation of Wash., 461 U.S.
540, 550 (1983)); see also Perry v. Sindermann, 408 U.S. 593, 597 (1972)
(“[E]ven though a person has no ‘right’ to a valuable governmental
benefit and even though the government may deny him the benefit
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14 Opinion of the Court 24-13547
for any number of reasons, there are some reasons upon which the
government may not rely.”).
The Supreme Court’s decision in National Endowment for the
Arts v. Finley illustrates the First Amendment’s application to those
seeking government grants and subsidies. There, the Court re-
jected a facial challenge to a funding provision in a statute govern-
ing an arts-related grant program. 524 U.S. at 572–73. The clause
at issue required government officials to ensure that “artistic excel-
lence and artistic merit are the criteria by which [grant] applications
are judged, taking into consideration general standards of decency
and respect for the diverse beliefs and values of the American pub-
lic.” Id. at 572 (quoting 20 U.S.C. § 954(d)(1)). Unsuccessful grant
applicants argued that the provision was “a paradigmatic example
of viewpoint discrimination because it reject[ed] any artistic speech
that either fail[ed] to respect mainstream values or offend[ed]
standards of decency.” Id. at 580. The Court disagreed, concluding
that it did “not introduce considerations that, in practice, would
effectively preclude or punish the expression of particular views.”
Id. at 583. Notably, though, in so doing, the Court described the
sorts of circumstances that might give rise to a meritorious as-ap-
plied challenge:
If the [government] were to leverage its power to
award subsidies on the basis of subjective criteria into
a penalty on disfavored viewpoints, then we would
confront a different case. We have stated that, even
in the provision of subsidies, the Government may
not “ai[m] at the suppression of dangerous ideas,”
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24-13547 Opinion of the Court 15
Regan v. Taxation With Representation of Wash., 461
U.S. 540, 550 (1983) (internal quotation marks omit-
ted), and if a subsidy were “manipulated” to have a
“coercive effect,” then relief could be appropriate.
See Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S.
221, 237 (1987) (Scalia, J., dissenting); see also Leathers
v. Medlock, 499 U.S. 439, 447 (1991) (“[D]ifferential tax-
ation of First Amendment speakers is constitutionally
suspect when it threatens to suppress the expression
of particular ideas or viewpoints”).
Id. at 587.
The essence of APEDF’s First Amendment claim here is that
the County manipulated the ARPA grant program to suppress
ideas that it viewed as dangerous—namely, those associated with
the Uhuru Movement. That, it seems to us, is the very kind of
claim that the Finley Court suggested might have merit. Though
the government can deny funding to applicants for many reasons,
it “may not deny” even a discretionary “benefit to a person on a
basis that infringes his constitutionally protected interests—espe-
cially, his interest in freedom of speech.” Perry, 408 U.S. at 597; see
also Speiser v. Randall, 357 U.S. 513, 518 (1958) (“The appellees are
plainly mistaken in their argument that, because a tax exemption is
a ‘privilege’ or ‘bounty,’ its denial may not infringe speech.”).
Accordingly, we reject the County’s argument that Umbehr
forecloses APEDF’s First Amendment claim. We hold, to the con-
trary, that APEDF is entitled to the same First Amendment protec-
tion enjoyed by other grant applicants, with respect to which the
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16 Opinion of the Court 24-13547
County acts more as sovereign than traditional (or quasi) employer.
See Umbehr, 518 U.S. at 678 (“Umbehr is correct that if the Board
had exercised sovereign power against him as a citizen in response
to his political speech, it would be required to demonstrate that its
action was narrowly tailored to serve a compelling governmental
interest.”).
Next, we consider whether APEDF has adequately stated a
First Amendment retaliation claim.
2
Having concluded that APEDF is entitled to full (rather than
diminished) First Amendment protection, we restate the governing
test: To state a First Amendment retaliation claim, APEDF must
allege (1) that it engaged in “constitutionally protected” speech or
associational activity, (2) that it “suffered adverse conduct that
would likely deter a person of ordinary firmness from engaging”
in that activity, and (3) that “there was a causal relationship between
the adverse conduct” and the activity. Brannon, 754 F.3d at 1274.
i
We think it clear that APEDF engaged in “constitutionally
protected” activity. The right to association “has been character-
ized as a right ‘implicit’ in the First Amendment.” O’Laughlin v.
Palm Beach County, 30 F.4th 1045, 1053 (11th Cir. 2022). In particu-
lar, the Supreme Court has held that the First Amendment protects
both intimate and expressive association, the latter of which is at
issue here. The Court has variously described expressive associa-
tion as the “freedom to engage in association for the advancement
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24-13547 Opinion of the Court 17
of beliefs and ideas,” NAACP v. Alabama ex rel. Patterson, 357 U.S.
449, 460 (1958), and “the exercise of one’s right to choose one’s as-
sociates,” Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S.
537, 548 (1987).
APEDF has plausibly alleged that it engaged in constitution-
ally protected expressive association. The complaint states that
APEDF associates with those in the Uhuru Movement—which it
calls “a broad pro-Black tendency” of “like-minded groups and in-
dividuals promoting Black community empowerment”—and that
the County was made aware of its association as a result of the
“apparent content of [its] website” and the name of its community
center—the “Uhuru House.” Am. Compl. ¶¶ 51(a), 54. The com-
plaint further alleges that APEDF has served the black community
of south St. Petersburg for 28 years by offering a variety of services,
including the “Uhuru House” and a radio station called “Black
Power 96.” Id. ¶¶ 10, 51(a), 78. And APEDF’s stated mission—“de-
fend[ing] the human and civil rights of the African community”—
unquestionably aligns with the Uhuru Movement’s goal of black
empowerment. Id. ¶ 1. Taken together, the complaint’s allegations
about engaging in expressive association satisfy Rule 12(b)(6)’s
plausibility threshold.
ii
On, then, to whether APEDF adequately alleged that it suf-
fered adverse conduct of the sort that “would ‘chill a person of or-
dinary firmness’ in the plaintiff’s position from engaging in ‘future
First Amendment activity.’” Hous. Cmty. Coll. Sys. v. Wilson, 595 U.S.
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18 Opinion of the Court 24-13547
468, 477 (2022) (quoting Nieves v. Bartlett, 587 U.S. 391, 397 (2019));
see Brannon, 754 F.3d at 1274. Taking the facts as pleaded, we ask
whether a grant applicant “of ordinary firmness” would be de-
terred from associating with a disfavored group by the revocation
of one sizeable monetary grant and the denial of another.
We’ve said that one function of the objective ordinary-firm-
ness test is to “weed[] out” suits in which “the injuries complained
of are trivial or amount to no more than de minimis inconvenience
in the exercise of First Amendment rights.” Bennett v. Hendrix, 423
F.3d 1247, 1253 (11th Cir. 2005). “Some adverse actions may be easy
to identify—an arrest, a prosecution, or a dismissal from govern-
mental employment.” Hous. Cmty. Coll. Sys., 595 U.S. at 477. But
of course, “no one would think that a mere frown from a supervi-
sor constitutes a sufficiently adverse action to give rise to an action-
able First Amendment claim.” Id. Along that spectrum—from
criminal punishment to side-eye—the revocation and denial of gov-
ernment grants fall somewhere in the middle.
Pointing to the significance of the grants to its operations,
APEDF claims that the County’s actions would likely deter a non-
profit of ordinary firmness from engaging in expressive associa-
tion. The County denies the existence of any chill because, it says,
APEDF (1) “is free to engage in protected expressive association
(including with the Uhuru Movement) without the benefit of grant
funding” and (2) “in fact it does so.” Br. of Appellee at 19 (quoting
Dist. Ct. Ord., Sept. 30, 2024, at 7–8). Again, we think APEDF has
the better of the argument.
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To take the County’s second rejoinder first, it mistakes what
is an objective test for a subjective one. Our precedent doesn’t re-
quire a First Amendment plaintiff to allege that the government’s
retaliatory action in fact deterred it from engaging in protected ac-
tivity. Rather, the question is whether the allegedly “adverse con-
duct . . . would likely deter a person of ordinary firmness from engag-
ing” in such activity. Brannon, 754 F.3d at 1274 (emphasis added).
Accordingly, the mere fact (even if true) that APEDF has continued
to associate with the Uhuru Movement, even after the revocation
and denial of its grants, is not dispositive. The question isn’t what
APEDF has done, but rather what a nonprofit of ordinary firmness
in its circumstances would do.
So, what of the County’s principal contention—that, as a
matter of law, the denial of “the benefit of grant funding” can’t
cause the requisite objective chill? Br. of Appellee at 18. The short
answer is that Supreme Court precedent is to the contrary. In par-
ticular, the Court’s unconstitutional-conditions decisions—to
which we’ve already alluded, see supra at 13–15—make clear that
the denial of a government benefit for speech-discriminatory rea-
sons can have a chilling effect because that type of denial can oper-
ate to penalize a speaker’s viewpoint.
In Speiser v. Randall, the Supreme Court considered the con-
stitutionality of a state statute that required applicants for a tax ex-
emption to attest that they hadn’t advocated the overthrow of the
government. 357 U.S. at 515–17. There, as here, the government
asserted that because the tax exemption was a mere “privilege” or
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20 Opinion of the Court 24-13547
“bounty,” its denial didn’t infringe would-be recipients’ speech. Id.
at 518. The Court disagreed:
To deny an exemption to claimants who engage in
certain forms of speech is in effect to penalize them
for such speech. Its deterrent effect is the same as if
the State were to fine them for this speech. . . . [T]he
denial of a tax exemption for engaging in certain
speech necessarily will have the effect of coercing the
claimants to refrain from the proscribed speech.
Id.
The Supreme Court reiterated the same point in Finley. As
already discussed, the Court explained there that while the govern-
ment may “selectively fund a program to encourage certain activi-
ties it believes to be in the public interest,” 524 U.S. at 588 (citation
modified), it may not “leverage its power to award subsi-
dies . . . into a penalty on disfavored viewpoints,” id. at 587. The
Court further emphasized that “relief could be appropriate” where
“a subsidy [is] ‘manipulated’ to have a ‘coercive effect.’” Id. (quot-
ing Ragland, 481 U.S. at 237 (Scalia, J., dissenting)).
APEDF has adequately alleged that it was put in a suffi-
ciently “coercive” position here. The County offered nonprofits an
opportunity to apply for grants to mitigate and remediate the fi-
nancial harm caused by the global COVID pandemic. APEDF pre-
pared and submitted two competitive grant applications explaining
the economic harm it had suffered as a result of COVID and its
need for the grants. It scored high on objective markers, and it in-
itially won a $36,801 grant for radio equipment to permit Black
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24-13547 Opinion of the Court 21
Power 96 to “continue broadcasting timely information on local
health and educational services and emergency alerts.” Am.
Compl. ¶ 25. Then, though, APEDF claims that on account of its
association with the Uhuru Movement, its first grant was revoked
and its second application—for a $67,327 grant to purchase an “ur-
gently needed” back-up power generator—was denied. Id. ¶ 88; see
id. ¶¶ 53–56. Giving it the benefit of reasonable inferences, APEDF
has plausibly alleged that the County effectively punished it for as-
sociating with the Uhuru movement—forcing it to choose between
that association and an important infusion of cash that, by objec-
tive markers, it seemed to have warranted.
iii
Last up, whether APEDF adequately alleged that “there was
a causal relationship between the adverse conduct” and its pro-
tected activity. Brannon, 754 F.3d at 1274 (citation modified). The
Supreme Court has expressed the required causal relationship in
but-for terms: The question is whether “the government took an
‘adverse action’ in response to [plaintiff’s constitutional activity]
that ‘would not have been taken absent the retaliatory motive.’”
Hous. Cmty. Coll. Sys., 595 U.S. at 477 (quoting Nieves, 587 U.S. at
399).
We hold that APEDF has plausibly alleged the necessary
link. Together, the records of the text exchanges between Board
member Chris Latvala and his aide Tyler Bonneau and the tran-
scripts of the Board’s work-session meeting give rise to the reason-
able inferences (1) that Latvala objected to funding APEDF because
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22 Opinion of the Court 24-13547
of its association with the Uhuru Movement, and (2) that the Board
heeded Latvala’s objection and revoked APEDF’s first grant and de-
nied its application for the second because of APEDF’s association
with the Uhurus.
First, Latvala’s motivation: Prior to any adverse action
against APEDF, Latvala sent his aide several messages that give rise
to a reasonable inference that Latvala harbored animus toward the
Uhurus and believed that APEDF was associated with them. As
already explained, following Latvala’s instruction to “Google the
African peoples” group, Bonneau reported back that APEDF was
“the Uhuru House on St. Pete” and that its “website d[id]n’t look
so good.” Am. Compl. Ex. F at 2. Latvala responded that he was
“going to raise hell.” Id. The texts also show that Latvala asked his
aide to “look to see if this African group is a hate group or the
uhurhus [sic] by ADL or sovern [sic] poverty law center.” Am.
Compl. Ex. G at 1.
Then, at a Board work session, Latvala opposed funding
APEDF because “[a]ccording to [its] website” the group was “asso-
ciated with the [Uhurus].” Am. Compl. Ex. H at 1. Repeating in-
formation from an ADL source, Latvala asked Foundation CEO
Duggan Cooley, “[H]ow would a group that has ties to anti-semitic
nationalist groups get approved for funding?” Id. Cooley re-
sponded that although the Foundation initially had concerns about
APEDF’s association with the Uhurus, the County had advised it to
score APEDF like “every other organization.” Id. At the same
meeting, Latvala also asserted that the Uhurus “once held a mock
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24-13547 Opinion of the Court 23
trial in which they sentenced the mayor and chief of police in St.
Petersburg to death” and “support the release of all black prison-
ers.” Id.
After the work session concluded, Latvala texted his aide
again. Those messages show not only that Latvala began calling
APEDF “the Uhurus” but also that he planned to use a pretextual
reason to revoke APEDF’s grant funding. He noted that “the
[U]hurus are claiming we are discriminating if we defund them,”
but, he said, “One of my questions yesterday was about political
parties being eligible so we are going to use that.” Am. Compl. Ex.
G at 3. “[T]his,” he boasted, “ain’t my first rodeo.” Id.
Just a few days later, at a Board meeting, Latvala formally
moved to revoke the funding for APEDF’s radio equipment. He
said there that radio stations weren’t a worthwhile investment: “I
do not think that we should be funding radio stations with the
amount of needs that there are in our community”; rather, the
County should be “prioritizing people over products and things.”
Am. Compl. ¶ 82. But the record (such as it is) reveals an alternative
explanation that can’t be discounted. Given Latvala’s text messages
and his lengthy discussion with Cooley at the work session, it’s rea-
sonable to infer that he was actually motivated by APEDF’s associ-
ation with the Uhurus.
Second, the Board’s reliance on Latvala’s objection: The rec-
ord also permits a reasonable inference that Latvala’s Uhuru-re-
lated objections motivated the Board’s decision to revoke APEDF’s
first grant and deny its application for the second. Recall the
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24 Opinion of the Court 24-13547
sequence of events: County staff ranked APEDF’s first application
fourth out of 55, and on that basis the Board actually awarded
APEDF a $36,801 grant—only to revoke it (alone among all grants)
following Latvala’s anti-Uhuru advocacy at the work session. Id.
¶¶ 26–39. So too, APEDF’s second application ranked high—
fourth out of 78—but the Board declined to fund it (again, alone
among all applicants the Foundation recommended funding). Id.
¶¶ 47, 50, 90. The inference that the Board acted as it did based on
Latvala’s urging is not unreasonable.
* * *
For the foregoing reasons, we hold (1) that APEDF is entitled
to the full First Amendment protection enjoyed by ordinary citi-
zens, not the qualified protection given to government employees
and established government contractors, and (2) that it has plausi-
bly alleged that the County revoked its first grant and denied its
application for a second grant on account of its protected associa-
tion with the Uhuru Movement. Accordingly, we reverse the dis-
trict court’s dismissal of APEDF’s First Amendment retaliation
claim and remand for further proceedings.
B
In its complaint, APEDF also alleged that the County dis-
criminated against it on the basis of race, in violation of the Four-
teenth Amendment, when it revoked its first grant and denied the
second.
The Fourteenth Amendment’s Equal Protection Clause pro-
vides that “[n]o State shall . . . deny to any person within its
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24-13547 Opinion of the Court 25
jurisdiction the equal protection of the laws.” U.S. Const. amend.
XIV. To make out a race-discrimination claim under the Equal Pro-
tection Clause, a plaintiff must show that it was subjected to a gov-
ernment policy or determination that was animated by a discrimi-
natory intent or purpose. Burton v. City of Belle Glade, 178 F.3d 1175,
1188–89 (11th Cir. 1999); see Vill. of Arlington Heights v. Metro. Hous.
Dev. Corp., 429 U.S. 252, 265–66 (1977).
In its complaint, APEDF alleged that the County discrimi-
nated against it on the ground that it is a “Black-led and Black Com-
munity directed Organization.” Am. Compl. ¶ 78. In particular,
APEDF asserted that by revoking and denying its grants, the
County intentionally discriminated against it vis-à-vis non-black-
led and -directed nonprofits. The district court held that APEDF
had failed to state a valid equal-protection claim. As an initial mat-
ter, the court doubted “whether a corporate entity can have a ‘race’
at all.” Afr. People’s Educ. & Def. Fund, Inc. v. Pinellas County, No. 8:23-
cv-2395-TPB-AAS, 2024 WL 4349345, at *5 (M.D. Fla. Sep. 30, 2024)
(citing Arlington Heights, 429 U.S. at 263). But even assuming that it
could, the court concluded that APEDF had failed to state a plausi-
ble claim of intentional race discrimination because it hadn’t “al-
lege[d] sufficient facts to discern the racial identities of [APEDF]
itself or the ‘similarly situated’ entities that applied for and received
grant money.” Id.
For reasons we’ll explain, we hold that APEDF (1) didn’t
need to “take on” a particular racial identity in order to assert an
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26 Opinion of the Court 24-13547
equal-protection claim for racial discrimination and (2) has alleged
enough to survive a motion to dismiss.
1
We begin with the question whether APEDF, as an inani-
mate corporation, can assert a claim for race discrimination under
the Equal Protection Clause. Taking a cue from our existing prec-
edent, we conclude that it can. The district court rejected APEDF’s
claim on the ground that it had not alleged sufficient facts to deter-
mine its racial identity or that of its comparators. We hold, to the
contrary—and consistent with our caselaw—that a corporate en-
tity needn’t assume a racial identity in order to bring a race-discrim-
ination claim under the Equal Protection Clause.2 Rather, even a
“colorless” corporation (our term) can suffer—and sue to vindi-
cate—its own injury caused by a government actor’s intentionally
discriminatory conduct, even if that conduct is directed at others.
See Young Apartments, Inc. v. Town of Jupiter, 529 F.3d 1027, 1044
(11th Cir. 2008); Baytree of Inverrary Realty Partners v. City of
Lauderhill, 873 F.2d 1407, 1409 (11th Cir. 1989).
In Young Apartments, we held that a corporation that owned
an apartment complex occupied primarily by Hispanic individuals
2 We’ve never squarely decided whether a corporation can take on a racial
identity, see Sheba Ethiopian Rest., Inc. v. DeKalb County, No. 21-13077, 2023 WL
3750710, at *1 (11th Cir. June 1, 2023) (“[T]here’s no binding law in this circuit
clearly establishing that a corporation can have a race or that officials can dis-
criminate against a corporation because of the corporation’s race.”), and we
don’t do so here.
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24-13547 Opinion of the Court 27
had standing to bring an equal-protection claim for race discrimi-
nation against a city that allegedly adopted and enforced a zoning
ordinance as part of “[an] effort to eliminate available and afforda-
ble housing for Hispanic immigrant workers.” 529 F.3d at 1033.
We pointed out that other federal appellate courts had “similarly
found that a non-minority plaintiff has standing to allege that it was
injured by defendants’ discriminatory animus toward third par-
ties.” Id. at 1040–41 (collecting cases). We said that our holding
flowed naturally from “the uncontroversial principle that it is un-
constitutional for a state actor, motivated by discriminatory ani-
mus, to interfere with an individual’s right to contract or associate
with members of a protected class.” Id. at 1039 (citing Adickes v.
S.H. Kress & Co., 398 U.S. 144, 150–51 (1970) (“Few principles of law
are more firmly stitched into our constitutional fabric than the
proposition that a State must not discriminate against a person be-
cause of his race or the race of his companions . . . .”)). Notably,
we didn’t focus on the racial identity of the corporation; it was
enough, we held, that it alleged an injury caused by animus di-
rected toward its Hispanic residents. Id. at 1039–41; see also Baytree,
873 F.2d at 1408–09 (holding that a corporate real-estate developer
could bring a race-discrimination claim challenging a zoning ordi-
nance allegedly motivated by animus against black residents).
In the same way here, it is ultimately irrelevant whether a
race can properly be imputed to APEDF itself. APEDF alleges that
the County discriminated against it because many of its leaders are
black, most of its staff and volunteers are black, and it serves the
black community. In other words, APEDF alleges that it was
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28 Opinion of the Court 24-13547
treated unequally because it contracts with and “associate[s] with
members of a protected class.” Young Apartments, 529 F.3d at 1039.
Under our precedent, that is enough.3
In rejecting APEDF’s equal-protection claim, the district
court pointed to a statement in the Supreme Court’s decision in
Village of Arlington Heights v. Metropolitan Housing Development Corp.
that, at least on its face, seemed to question the ability of a corpo-
ration to sue for race discrimination under the Equal Protection
Clause. For reasons we’ll explain, the statement doesn’t under-
mine our conclusion.
In Arlington Heights, the Supreme Court had to decide,
among other issues, whether either of two plaintiffs had standing
to bring a Fourteenth Amendment race-discrimination claim. Both
3 In so holding, we’re in good company. Every other circuit to address the
issue has held that a corporation can allege race discrimination. See Des Vergnes
v. Seekonk Water Dist., 601 F.2d 9, 14 (1st Cir. 1979); Hudson Valley Freedom The-
ater, Inc. v. Heimbach, 671 F.2d 702, 706 (2d Cir. 1982); Woods v. City of Greens-
boro, 855 F.3d 639, 645 (4th Cir. 2017); White Glove Staffing, Inc. v. Methodist
Hosps. of Dall., 947 F.3d 301, 305–06 (5th Cir. 2020); Inner City Contracting, LLC
v. Charter Township of Northville, 87 F.4th 743, 753 (6th Cir. 2023); Triad Assocs.,
Inc. v. Chi. Hous. Auth., 892 F.2d 583, 591 (7th Cir. 1989), abrogated on other
grounds by Umbehr, 518 U.S. 668; Oti Kaga, Inc. v. S.D. Hous. Dev. Auth., 342 F.3d
871, 880–82 (8th Cir. 2003); Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc.,
368 F.3d 1053, 1060 (9th Cir. 2004); Guides, Ltd. v. Yarmouth Grp. Prop. Mgmt.,
Inc., 295 F.3d 1065, 1072 (10th Cir. 2002); Gersman v. Grp. Health Ass’n, 931 F.2d
1565, 1568 (D.C. Cir. 1991), vacated on other grounds by 502 U.S. 1068 (1992).
Although a number of the decisions arose under 42 U.S.C. § 1981, two in-
volved Fourteenth Amendment equal-protection claims. See Hudson Valley
Freedom Theater, Inc., 671 F.2d at 707; Triad Assocs., Inc., 892 F.2d at 590–91.
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24-13547 Opinion of the Court 29
(1) a corporation looking to build multi-family housing and (2) a
black plaintiff who alleged that he was a prospective tenant had
sued challenging the town board’s denial of the corporation’s re-
quest to rezone the area from single- to multi-family. See 429 U.S.
at 263–64. Because the Court concluded that the would-be tenant
had standing, it sidestepped the question whether the corporation
could sue:
In the ordinary case, a party is denied standing to as-
sert the rights of third persons. But we need not de-
cide whether the circumstances of this case would
justify a departure from that prudential limitation
and permit [the corporation] to assert the constitu-
tional rights of its prospective minority tenants. For
we have at least one individual plaintiff who has
demonstrated standing to assert these rights as his
own.
Id. (citations omitted). Notably, though, along the way, the Court
stated that “a corporation . . . has no racial identity and cannot be
the direct target of the petitioners’ alleged [racial] discrimination.”
Id. at 263.
To be fair, that last bit sounds pretty damning. We agree
with Judge Friendly, though, that in context the remark is “of only
academic importance.” Hudson Valley, 671 F.2d at 704. The reason,
as he explained, is that the Court’s statement was paradigmatic dic-
tum. Having concluded that the would-be tenant had standing, the
Court found it unnecessary to definitively decide anything about
the corporation’s own right to sue. See id. at 705 (“The Court
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30 Opinion of the Court 24-13547
therefore never did resolve the question of [the corporation’s]
standing, and the cases cited by it indicate that any resolution might
well have been favorable.”).
While we must of course give Supreme Court dicta appro-
priate deference, Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir.
2006), we agree with our sister circuits that the Arlington Heights
dictum is “unpersuasive,” Inner City Contracting, LLC, 87 F.4th at
753, for two reasons. First, it seems to have been overtaken by in-
tervening events. Since Arlington Heights, the Supreme Court has
strongly signaled that corporations may bring race-discrimination
claims. Perhaps most notably, in City of Richmond v. J.A. Croson Co.,
the Court ruled in favor of a corporation that challenged a minor-
ity-set-aside contracting program as a violation of its rights under
the Equal Protection Clause. 488 U.S. 469, 511 (1989). And more
recently, in Domino’s Pizza, Inc. v. McDonald, the Court noted that
“the Courts of Appeals [that] have considered the issue have con-
cluded that corporations may raise § 1981 claims” alleging race dis-
crimination in contracting. 546 U.S. 470, 473 n.1 (2006). And per-
haps most tellingly of all, our own precedents haven’t viewed Ar-
lington Heights as a bar; in both Young Apartments and Baytree, we
cited the Supreme Court’s decision in the course of holding that
the corporations before us in those cases could bring race-discrimi-
nation claims. See Young Apartments, 529 F.3d at 1045; Baytree, 873
F.2d at 1408–09.
Second, and separately, a rule permitting corporate entities
to bring race-discrimination claims follows from the law’s
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24-13547 Opinion of the Court 31
“personification” of corporations more generally. See, e.g., Metro.
Life Ins. Co. v. Ward, 470 U.S. 869, 881 n.9 (1985) (“It is well estab-
lished that a corporation is a ‘person’ within the meaning of the
Fourteenth Amendment.”); see also id. at 883 (permitting a foreign
corporation to challenge a tax statute on equal-protection
grounds); Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 342
(2010) (collecting cases recognizing that “First Amendment protec-
tion extends to corporations”). As Judge Friendly observed in Hud-
son Valley, “[i]t is not apparent why a corporation, although entitled
to advance equal protection challenges based on inequality in taxa-
tion or regulation, should lack standing to complain of discrimina-
tion because of its activities or stock ownership based on racial
grounds—the core of the equal protection clause.” 671 F.2d at 706
(footnote omitted). What Judge Friendly said there is equally ap-
plicable here: The nonprofit corporation is “in a better position
than anyone else to challenge discriminatory practices leading to
cutting its grant funds.” Id.4
2
So, the ultimate question: Has APEDF plausibly alleged that
it was subjected to a state policy or determination that was ani-
mated by a racially discriminatory intent or purpose?
4 To be sure, some constitutional rights are reserved for natural persons. See,
e.g., United States v. White, 322 U.S. 694, 698 (1944) (concluding that the right
against self-incrimination is reserved for natural persons). But it’s not apparent
to us that the right to be free from intentional race-based discrimination is one
of them.
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32 Opinion of the Court 24-13547
“Discriminatory purpose may be established by proof that the
[government] used race as a substantial or motivating factor in
its . . . decisions and practices . . . .” Burton, 178 F.3d at 1189. To
determine whether a challenged decision was the product of race
discrimination, we look to both direct and circumstantial evidence
of intent. Id. “[R]elevant evidentiary factors include substantial
disparate impact, a history of discriminatory official actions, pro-
cedural and substantive departures from the norms generally fol-
lowed by the decision-maker, and the legislative and administrative
history of the decision.” Id. (citing Arlington Heights, 429 U.S. at
265–69). It is also relevant whether the government treated “simi-
larly situated” individuals—or in this case, nonprofits—more favor-
ably. Young Apartments, 529 F.3d at 1045.
APEDF has plausibly alleged both direct and circumstantial
evidence indicating that the County acted with a prohibited dis-
criminatory intent. As for direct evidence, there are the blatantly
race-coded texts between Latvala and Bonneau. Latvala’s opening
salvo indicates that it was APEDF’s name that initially caught his
eye: “Google the African peoples one.” Am. Compl. Ex. F at 2.
Then, in a follow-up, he stated: “[S]ee if this African group is a hate
group.” Am. Compl. Ex. G at 1. In the same exchange, he asked
whether radio equipment specified in one of the grant applications
was “for [B]lack [P]ower 96.” Id. at 2. And continuing in the same
vein, at a later Board work session, Latvala objected to the fact that
APEDF was associated with the Uhurus, who, he said, were report-
edly tied to “black nationalist groups.” Am. Compl. Ex. H at 1.
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24-13547 Opinion of the Court 33
Circumstantial evidence also plausibly indicates that the
County acted with a discriminatory purpose. First, it appears that
the County took “procedural and substantive departures from the
norms [it] generally followed” when revoking and denying
APEDF’s funding requests. Burton, 178 F. 3d at 1189; see also Arling-
ton Heights, 429 U.S. at 267. APEDF’s first grant application was
ranked fourth out of 55 applications. The Board then awarded
funding to the 34 top-ranked organizations, including APEDF. No-
tably, APEDF’s was the only grant award later revoked, and it was
revoked without notice. So too with respect to APEDF’s second
grant application: It (too) was ranked highly—this time fourth out
of 78 applications. County staff recommended removing three or-
ganizations, including APEDF, from the list, but the Board ulti-
mately funded all the applicants on the list except APEDF.
Second, APEDF has plausibly alleged that the County treated
similarly situated white-coded comparators more favorably—and,
further, that the County’s explanations for its differential treatment
don’t hold water. For instance, with respect to the revocation of
APEDF’s first grant, Latvala asserted at a Board meeting that the
County should “prioritiz[e] people over products and things.” Am.
Compl. ¶ 82. But as APEDF’s complaint explains, while its grant
was revoked, four nonprofits that serve predominantly white com-
munities—and are not black-led—obtained funding for similar
“products and things”—building renovations, computers, a truck,
furniture, etc. See id. ¶ 85.
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34 Opinion of the Court 24-13547
So too with respect to APEDF’s second grant application,
which requested money to fund a back-up power generator. Alt-
hough, as already noted, APEDF’s application was ranked fourth
out of 78, in the Foundation’s recommendation list APEDF’s entry
was accompanied by a footnote flagging “concerns about the ina-
bility to isolate this applicant’s project to the sole benefit of a
501(c)[(]3[)] direct service nonprofit”—i.e., to ensure that APEDF
wasn’t planning to share its generator with another entity. Am.
Compl. Ex. Q at 2, Dkt. No. 35–17. In its complaint, APEDF alleges
that location-sharing concerns don’t appear in the eligibility criteria
posted on the Foundation’s ARPA Nonprofit Capital Project Fund’s
website and, further, that numerous ARPA grant recipients (includ-
ing the YMCA) share spaces with other groups. Am. Compl. ¶ 46.
Ultimately, Commission staff recommended “unassign[ing]”
APEDF’s funding on the ground that its “project . . . w[ould] not
directly counteract the effects of COVID-19.” Am. Compl. Ex. R
at 1, Dkt. No. 35–18. The Board then voted to fund all the organi-
zations recommended by the County—including two others that
staff recommended unassigning—except for APEDF. The prob-
lem, APEDF says, is that three nonprofits that serve predominantly
white communities (and were not black-led) received funding for
projects that likewise wouldn’t “directly counteract the negative
economic impact of COVID”—for instance, for a new building, ve-
hicles, and heavy equipment. Am. Compl. ¶ 89.
It’s not enough to say, as the County does, that APEDF’s
comparators aren’t “identical in all relevant respects.” Campbell v.
Rainbow City, 434 F.3d 1306, 1314 (11th Cir. 2006). To be sure, we’ve
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said in other types of equal-protection cases that this standard is
relevant at summary judgment, see Lewis v. City of Union City, 918
F.3d 1213, 1224 (11th Cir. 2019) (en banc), but here we are con-
cerned with Arlington Heights’ application at the pleading stage. Ac-
cordingly, the question is simply whether, giving it the benefit of
all reasonable inferences, APEDF has plausibly alleged that it was
treated differently for racially discriminatory reasons. APEDF’s as-
sertion that several white-coded organizations were funded, de-
spite issues of the same sort that were cited as reasons for the rev-
ocation and denial of its requests, underscores its circumstantial-
evidence case.
Finally, APEDF has plausibly alleged that the County sought
to establish a pretext for its discriminatory conduct. Recall one of
Latvala’s texts to Bonneau: “[T]he [U]hurus are claiming we are
discriminating if we defund them.” Am. Compl. Ex. G at 3. But,
he continued, “One of my questions yesterday was about political
parties being eligible [for funding] so we are going to use that”—be-
cause, he boasted, “this ain’t my first rodeo.” Id. (emphasis added).
* * *
Giving it the benefit of all reasonable inferences, APEDF has
plausibly alleged that the County intentionally discriminated
against it on the basis of race when it revoked its previously
awarded grant for radio equipment and then denied its second
grant request. Accordingly, we reverse the district court’s dismissal
of APEDF’s equal-protection claim and remand for further pro-
ceedings.
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36 Opinion of the Court 24-13547
C
Finally, in its complaint, APEDF alleged that the County vi-
olated its due process rights when it revoked its initial grant award
without giving it notice and an opportunity to be heard.
In relevant part, the Fourteenth Amendment provides that
“[n]o State shall . . . deprive any person of life, liberty, or property,
without due process of law.” U.S. Const. amend. XIV. To state a
traditional procedural-due-process claim, a plaintiff must allege
“(1) a deprivation of a constitutionally-protected liberty or prop-
erty interest; (2) state action; and (3) constitutionally inadequate
process.” Worthy v. City of Phenix City, 930 F.3d 1206, 1223 (11th Cir.
2019) (citation modified). The district court dismissed APEDF’s
due process claim on two grounds: (1) that it failed to allege a con-
stitutionally protected interest; and (2) that it failed to demonstrate
that it had been denied constitutionally adequate process. Because
we agree on the first ground, we needn’t address the second.
Property interests (at issue here) ordinarily don’t arise from
the Constitution itself; “[r]ather[,] they are created and their dimen-
sions are defined by existing rules or understandings that stem
from an independent source such as state law—rules or under-
standings that secure certain benefits and that support claims of
entitlement to those benefits.” Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 577 (1972). Therefore, perhaps most famously, the
plaintiffs in Goldberg v. Kelly, 397 U.S. 254 (1970), had a “property”
interest in the welfare payments they sought, because a statute
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24-13547 Opinion of the Court 37
defined the eligibility criteria for those payments. Roth, 408 U.S. at
577.
Unlike the welfare recipients in Goldberg, though, APEDF
hasn’t identified any independent source of law securing to it the
right to an ARPA grant. First, APEDF hasn’t pointed to any law,
regulation, or policy that requires the County to award grants to
particular entities based on particular criteria. To the contrary, the
pertinent rules governing the grant program, as listed on the Foun-
dation’s website, specified only that applications were open to
§ 501(c)(3) direct-service nonprofits that served Pinellas County
residents and could “demonstrate a negative, unremedied eco-
nomic harm caused by the COVID-19 pandemic.” Am. Compl. Ex.
O at 1, Dkt. No. 35–15. Beyond those baseline eligibility criteria,
though, grant awards were within the discretion of County offi-
cials. And controlling “cases recognize that a benefit is not a pro-
tected entitlement if government officials may grant or deny it in
their discretion.” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756
(2005).
Second, and separately, APEDF claims a constitutionally
protected interest in the contract for the radio-equipment grant
that it signed and then returned to the Foundation. The parties
dispute whether the contract was enforceable under Florida law
given that the County never countersigned it. We needn’t wade
into those waters because even if APEDF’s signature alone ren-
dered the agreement an enforceable contract, our precedent indi-
cates that it wouldn’t have created a constitutionally protected
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38 Opinion of the Court 24-13547
property interest. In particular, in Medical Laundry Services v. Board
of Trustees of University of Alabama, we held that a business that was
awarded a bid to provide services to a public hospital didn’t have a
constitutionally protected property interest in its contract. 906 F.2d
571, 573 (11th Cir. 1990). In so holding, we emphasized that “the
broad interpretation that any time one has an enforceable contract
to which the State is a party, there is constitutionally protected
property interest under that contract . . . is inconsistent with the
concept of the Fourteenth Amendment.” Id. (citation modified);
see Redondo-Borges v. HUD, 421 F.3d 1, 10 (1st Cir. 2005) (similarly
holding that a contractor’s interest in a bid award that was later re-
scinded “d[id] not rise to the level of a constitutionally protected
property interest”).
For these reasons, the district court was correct to hold that
APEDF failed to allege the deprivation of a constitutionally-pro-
tected interest, and we therefore affirm its dismissal of APEDF’s
due process claim.5
5 The district court also concluded that APEDF’s due process claim failed be-
cause it has an adequate state remedy. See Cotton v. Jackson, 216 F.3d 1328,
1331 n.2 (11th Cir. 2000) (“[P]rocedural due process violations do not even
exist unless no adequate state remedies are available.”). At most, it said,
APEDF has alleged the breach of a grant agreement, which it could remedy
through a lawsuit. Afr. People’s Educ. & Def. Fund, Inc. v. Pinellas County, No.
8:23-CV-2395-TPB-AAS, 2024 WL 4349345, at *4 (M.D. Fla. Sept. 30, 2024).
Our sister circuits have likewise held that a post-deprivation breach-
of-contract action is an adequate state-law remedy for due process purposes.
See Kaminski v. Coulter, 865 F.3d 339, 348 (6th Cir. 2017) (“[A] state breach of
contract action may . . . provide an adequate remedy for some deprivations of
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24-13547 Opinion of the Court 39
III
To sum up: We reverse the district court’s dismissal of
APEDF’s claims under the First Amendment and Equal Protection
Clause and remand for further proceedings. We affirm the district
court’s dismissal of APEDF’s claim under the Due Process Clause.
AFFIRMED in part, REVERSED and REMANDED in part.
a contractually created property interest.” (citation modified)); Indiana Land
Co. v. City of Greenwood, 378 F.3d 705, 710 (7th Cir. 2004) (“All states provide
judicial remedies for breach of contract and these remedies will almost always
provide all the process that is constitutionally due . . . .”). Because we con-
clude that APEDF failed to allege a constitutionally protected property inter-
est, we needn’t decide the adequate-state-law-remedy issue.
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