United States Court of Appeals
` For the Eighth Circuit
`___________________________
`
`No. 20-1538
`___________________________
`
`Animal Legal Defense Fund; Animal Equality; Center for Biological Diversity;
`Food Chain Workers Alliance,
`
`lllllllllllllllllllllPlaintiffs - Appellants,
`
`v.
`
`Jonathan Vaught, doing business as Prayer Creek Farm; DeAnn Vaught, doing
`business as Prayer Creek Farm; Peco Foods, Inc.,
`
`lllllllllllllllllllllDefendants - Appellees.
`
`------------------------------
`
`Reporters Committee for Freedom of the Press; Deans and Law Professors; 23
`Media Organizations,
`
`lllllllllllllllllllllAmici on Behalf of Appellants.
` ____________
`
`Appeal from United States District Court
`for the Eastern District of Arkansas - Central
` ____________
`
` Submitted: February 25, 2021
`Filed: August 9, 2021
`____________
`
`
`Before COLLOTON, WOLLMAN, and SHEPHERD, Circuit Judges.
`____________
`
`COLLOTON, Circuit Judge.
`
`

`

`Animal Legal Defense Fund, Animal Equality, Center for Biological Diversity,
`and Food Chain Workers Alliance brought an action against Peco Foods, Inc., and
`Jonathan and DeAnn Vaught. The complaint sought an order that would prevent Peco
`Foods and the Vaughts from bringing a civil suit against the plaintiffs under an
`Arkansas statute, Ark. Code Ann. § 16-118-113. The district court dismissed the
`action, reasoning that the complaint failed to allege sufficient facts to establish Article
`III standing. We reach a different conclusion, and reverse and remand for further
`proceedings.
`
`The statute at issue provides a “[c]ivil cause of action for unauthorized access
`to property.” Ark. Code Ann. § 16-118-113. The law prohibits a person “who
`knowingly gains access to a nonpublic area of a commercial property” from engaging
`in “an act that exceeds the person’s authority.” Id. § 16-118-113(b). The plaintiffs,
`who describe themselves as “nonprofit organizations dedicated to reforming industrial
`animal agriculture,” claim that the statute violates their rights to free speech under the
`First Amendment. According to the complaint, defendant DeAnn Vaught was a
`sponsor of the legislation while serving in the Arkansas legislature.
`
`The two lead organizations, Animal Legal Defense Fund and Animal Equality,
`allege that they have “specific and definite plans” to investigate Peco Foods’s chicken
`slaughterhouses and the Vaughts’ pig farm. The organizations allege that they would
`send undercover investigators to seek employment with the slaughterhouse and the
`farm, or with third parties who have access to the target facilities. Once employed,
`the investigators would collect information on the operation of the facilities by
`personal observation or through the use of unattended recording devices. But the lead
`organizations have refrained from investigating due to the threat that Peco Foods and
`the Vaughts, as commercial property owners, will bring a lawsuit against them under
`
`the statute. Center for Biological Diversity and Food Chain Workers Alliance engage
`in advocacy and assert that they have made arrangements with the lead organizations
`
`-2-
`
`

`

`to receive useful information that would result from their investigations. The
`plaintiffs argue that they have been “chilled” from engaging in activity that is
`protected under the First Amendment.
`
`The district court concluded that the plaintiffs failed adequately to allege Article
`III standing to sue. The court decided that any injury was too speculative, because
`neither Peco Foods nor the Vaughts had hired an investigator affiliated with the
`plaintiffs, so no such investigator had developed information that the organizations
`would seek to publish. The court further reasoned that the complaint failed to allege
`that Peco Foods and the Vaughts engage “in the type of practices [the plaintiffs]
`would like to expose.” The plaintiffs appeal, and we review the district court’s
`decision de novo.
`
`To establish Article III standing, plaintiffs must show (1) an injury in fact, (2)
`a causal relationship between the injury and the challenged conduct, and (3) that a
`favorable decision will likely redress the injury. Lujan v. Defs. of Wildlife, 504 U.S.
`555, 560-61 (1992). The plaintiffs bear “the burden of establishing these elements,”
`and must support each element “in the same way as any other matter” on which they
`bear the burden of proof. Id. at 561. On a motion to dismiss, therefore, the plaintiffs
`must allege sufficient facts to support a reasonable inference that they can satisfy the
`elements of standing. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp.
`v. Twombly, 550 U.S. 544, 555-56 (2007); Stalley v. Cath. Health Initiatives, 509 F.3d
`517, 521 (8th Cir. 2007). A plaintiff satisfies the injury-in-fact element if it alleges
`“an intention to engage in a course of conduct arguably affected with a constitutional
`interest, but proscribed by a statute, and there exists a credible threat of prosecution
`thereunder.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (quoting
`Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298
`
`-3-
`
`

`

`(1979)). “An allegation of future injury may suffice if the threatened injury is
`‘certainly impending,’ or there is a ‘substantial risk that the harm will occur.’” Id. at
`158 (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410, 414 n.5 (2013)).
`
`We conclude that the complaint adequately alleges the elements of Article III
`standing. First, the plaintiffs allege that, but for the statute, the lead organizations
`would send an investigator to gather information and take video and audio recordings
`in the facilities owned by Peco Foods and the Vaughts. They assert that all plaintiffs
`would use the results of the investigations in their advocacy. This conduct is arguably
`affected with a constitutional interest, because “the creation and dissemination of
`information are speech within the meaning of the First Amendment.” Sorrell v. IMS
`Health Inc., 564 U.S. 552, 570 (2011).
`
`Second, the complaint alleges an intention to engage in a course of conduct
`arguably proscribed by the Arkansas statute. See Susan B. Anthony List, 573 U.S. at
`162-63; PETA, Inc. v. Stein, 737 F. App’x 122, 130 (4th Cir. 2018) (per curiam). The
`statute prohibits “an act that exceeds” a person’s authority in nonpublic areas of
`commercial property, and it lists activities in which an employee may not engage.
`Ark. Code Ann. § 16-118-113(b), (c).
`
`The lead organizations allege that they have retained an experienced
`investigator to conduct an employment-based investigation into Peco Foods’s
`facilities and the Vaughts’ farm. The complaint asserts that the investigator will
`“apply for and obtain a job through the usual channels,” and “gather information and
`record audio files and video footage in the facilities’ nonpublic areas” for use in
`advocacy. In the terms of the statute, the complaint describes an intention to engage
`in an act that “[c]aptures or removes the employer’s data, paper, [or] records,” or
`“[r]ecords images or sound” in order to use that information “in a manner that
`damages the employer.” Id. § 16-118-113(c)(1)-(2). The organizations also allege
`
`-4-
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`

`

`that by so doing, they would commit “an act that substantially interferes with the
`ownership or possession” of the property. Id. § 16-118-113(c)(5). The complaint
`further provides that the investigators will place “an unattended camera . . . to record
`images or data” without authorization and in violation of the statute. Id. § 16-118-
`113(c)(3).
`
`The lead organizations agreed to “share the information they obtain[] from [the]
`investigations” into the Vaughts’ farm and Peco Foods’s facilities, so that the Center
`for Biological Diversity and Food Chain Workers Alliance may advocate against the
`activities at the facilities. The advocacy organizations thus allege an intent to engage
`in a course of conduct that arguably “assists” an employee to use a “recording in a
`manner that damages the employer.” Id. § 16-118-113(c)(2), (d).
`
`Third, the complaint sufficiently alleges a credible threat of enforcement. A
`plaintiff’s fear of enforcement must be objectively reasonable, meaning that the threat
`of enforcement may not be “imaginary or wholly speculative.” Susan B. Anthony List,
`573 U.S. at 160 (quoting Babbitt, 442 U.S. at 302); see also 281 Care Comm. v.
`Arneson, 638 F.3d 621, 629-30 (8th Cir. 2011). Peco Foods and the Vaughts first
`contend that it is speculative that an investigator will be hired by either of them, and
`the Vaughts suggest that a family farm “does not frequently hire employees.” But
`Animal Legal Defense Fund states that it has successfully investigated “facilities like
`those” owned by Peco Foods and the Vaughts. Animal Equality alleges that it has
`filmed inside hundreds of facilities, and that it was “the first organization” to do so at
`several facilities. These allegations of previous success lend “concreteness and
`specificity to the plaintiffs’ claims.” Initiative & Referendum Inst. v. Walker, 450
`F.3d 1082, 1089 (10th Cir. 2006) (en banc). The complaint also explains that
`investigators need not be placed directly with Peco Foods or the Vaughts, but could
`be employed by another business that has access to the target facilities.
`
`-5-
`
`

`

`Like the plaintiffs in PETA, Inc. v. Stein, the organizations here alleged they
`have “in the past conducted actual undercover investigations . . . for the purpose of
`uncovering unethical or illegal treatment of animals and disseminating such
`information to the public.” 737 F. App’x at 130. And they allege that “they wish to
`continue such investigations in furtherance of their missions and that they are fully
`prepared to go forward but for their fear of liability.” Id. Under those circumstances,
`we agree with the Fourth Circuit that the complaint has alleged sufficient facts to
`establish a plausible claim of injury in fact and jurisdiction.
`
`The Vaughts and Peco Foods argue that there is no credible threat that they
`would enforce the statute, because the organizations would not find it worthwhile to
`infiltrate their facilities in the first place. This is so, say the property owners, because
`they do not engage in the type of practices that the lead organizations would like to
`document. The complaint alleges, however, that it is “likely,” given the dimensions
`of the Vaughts’ farm, that pigs will be contained in “nearly immovable quarters.” The
`plaintiffs further assert that “regardless of what particular practices” the farm employs,
`the organizations “have an interest in uncovering the activities and conditions” on the
`farm, because DeAnn Vaught sponsored the legislation and allegedly wished to
`conceal the activities and conditions. The complaint also alleges that the federal
`government authorized one of Peco Foods’s facilities to use a high-speed slaughter
`line, and all of Peco Foods’s facilities use a “live hang” method for slaughter. The
`complaint states that the investigator will document the conditions in the facilities
`because there is an “important public interest in understanding how Peco operates.”
`These allegations, taken as true, show an intent to record the conditions of the
`facilities and to use those recordings.
`
`Peco Foods and the Vaughts next argue that for the plaintiffs to have an injury
`in fact, they must be poised to publish information gathered from the facilities. This
`argument understates the scope of the statute. The law prohibits the placement of an
`
`-6-
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`

`

`“unattended camera . . . to record images or data for an unlawful purpose,” with no
`requirement that the “images or data” be published. Ark. Code Ann. § 16-118-
`113(c)(3). The statute provides for liquidated damages up to $5,000 per day of
`violation. Id. § 16-118-113(e)(4). The complaint, moreover, plausibly alleges that the
`plaintiffs would collect and disseminate information from the facilities in violation of
`the statute. A plaintiff need not expose itself to liability in order to show an injury in
`fact, and the statute’s deterrent effect on the investigations is sufficient to establish an
`injury. See Susan B. Anthony List, 573 U.S. at 158-59.
`
`Peco Foods and the Vaughts argue finally that there is no credible threat of
`enforcement because they are private parties and have not threatened to bring suit. A
`formal threat, however, is not required to establish an injury in fact. The question is
`whether the plaintiffs have an objectively reasonable fear of legal action that chills
`their speech. Balogh v. Lombardi, 816 F.3d 536, 542 (8th Cir. 2016).
`
`Citing Eckles v. City of Corydon, 341 F.3d 762 (8th Cir. 2003), the Vaughts
`argue that a specific threat of enforcement is necessary before there is an objectively
`reasonable fear of enforcement. Eckles does not support that proposition. The
`plaintiff in Eckles was embroiled in a dispute with a city and county over signage on
`his property that violated a city ordinance. The lawsuit asserted an injury in fact based
`on a letter from a law firm saying that it would “recommend” that county officials
`pursue a libel action against the plaintiff if he did not remove certain signs. This court
`noted that the law firm’s letter did not contain a threat of prosecution (no county
`ordinance was involved), but the decision did not hold that such a threat was essential
`to establish injury. Rather, the court determined that the alleged injury from the
`county in that case was “merely conjectural or hypothetical,” because it was premised
`on a conditional recommendation from a law firm to pursue a private civil action. Id.
`at 768-69.
`
`-7-
`
`

`

`In this case, the lead organizations sent letters to Peco Foods and the Vaughts
`requesting that they waive their rights under the statute; neither defendant responded.
`The purpose of the Arkansas statute is to provide parties like Peco Foods and the
`Vaughts a right of action against organizations like the plaintiffs if they gain
`unauthorized access to commercial property. The property owners have declined to
`disavow an intent to pursue their rights under the law if they are subjected to
`violations. It is plausible to believe that the defendants “will likely react in predictable
`ways” by resorting to their legal remedies. See Dep’t of Com. v. New York, 139 S. Ct.
`2551, 2565-66 (2019). Under those circumstances, we conclude that the
`organizations’ alleged fear of enforcement is objectively reasonable. Cf. Phelps-
`Roper v. City of Manchester, 697 F.3d 678, 687 (8th Cir. 2012) (en banc). Finally, the
`injury is fairly traceable to potential legal action by Peco Foods and the Vaughts, and
`a favorable decision will likely redress the injury. See Rodgers v. Bryant, 942 F.3d
`451, 455 (8th Cir. 2019). Accordingly, the complaint is sufficient to establish a case
`or controversy.*
`
`Separate from Article III standing, Peco Foods argues that the district court
`lacked jurisdiction because the plaintiffs have no cause of action to enjoin private
`parties from commencing a lawsuit. Whether a plaintiff has a cause of action,
`
`*The dissent concludes in a footnote that the plaintiffs’ claims are not ripe for
`review because they rest upon contingent future events. The ripeness doctrine draws
`“both from Article III limitations on judicial power and from prudential reasons for
`refusing to exercise jurisdiction.” Reno v. Cath. Soc. Servs., Inc., 509 U.S. 43, 57 n.18
`(1993). Where a plaintiff alleges a chill on speech, “Article III standing and ripeness
`issues . . . ‘boil down to the same question.’” Susan B. Anthony List, 573 U.S. at 157
`n.5 (quoting MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128 n.8 (2007)). For
`the same reasons that the plaintiffs have adequately alleged Article III standing, the
`case is ripe for purposes of Article III. To the extent the dissent suggests that
`prudential concerns make the claims nonjusticiable, we disagree. The constitutional
`challenges to the Arkansas statute present legal issues that are fit for review, and
`delaying judicial review would result in hardship to the plaintiffs. Id. at 167-68.
`-8-
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`

`

`however, goes to the merits of a claim and does not implicate the court’s “statutory
`or constitutional power to adjudicate the case.” Steel Co. v. Citizens for a Better
`Env’t, 523 U.S. 83, 89 (1998); see Davis v. Passman, 442 U.S. 228, 239 n.18 (1979).
`Having concluded that the plaintiffs have established Article III standing, we will
`remand the case for the district court to consider the merits in the first instance.
`
`For these reasons, the judgment of the district court is reversed, and the case is
`remanded for further proceedings.
`
`SHEPHERD, Circuit Judge, dissenting.
`
`I disagree that Appellants have alleged an injury in fact sufficient to confer
`Article III standing because they are not yet, and may never be, in a position to engage
`in the course of conduct actually proscribed by Ark. Code Ann. § 16-118-113. “To
`establish injury in fact for a First Amendment challenge to a state statute, . . . the
`plaintiff needs only to establish that he would like to engage in arguably protected
`speech, but that he is chilled from doing so by the existence of the statute.” 281 Care
`Comm. v. Arneson, 638 F.3d 621, 627 (8th Cir. 2011) (citation omitted). Such “[s]elf-
`censorship can itself constitute injury in fact,” but the plaintiff’s self-censorship must
`be based upon more than “mere allegations of a ‘subjective’ chill resulting from a
`statute.” Id. (citation omitted). Instead, “[t]he relevant inquiry is whether a party’s
`decision to chill his speech in light of the challenged statute was ‘objectively
`reasonable,’” which requires the plaintiff to show “an intention to engage in a course
`of conduct arguably affected with a constitutional interest, but proscribed by [the]
`statute, and [that] there exists a credible threat of prosecution.” Id. (second alteration
`in original) (citations omitted). However, the plaintiff suffers no injury when his fears
`of prosecution are the product of mere imagination or speculation. See id.
`
`Here, I find that Appellants’ fears of prosecution are currently nothing more
`
`-9-
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`than the product of their own imagination and thus are insufficient to constitute an
`injury in fact. As the district court noted, for Appellants to open themselves up to
`civil liability under Ark. Code Ann. § 16-118-113, the following would need to occur:
`
`An investigator hired by ALDF and AE (who they have already chosen)
`gets a job at one of [Appellees’] facilities, the investigator performs the
`investigation (such as ALDF and AE have successfully done numerous
`times in the past), ALDF and AE receive information from the
`investigations that they and CBD and FCWA promulgate in the public
`interest (information such as has led to prosecutions, food safety recalls,
`citation and closures in the past), and [Appellees] file civil actions
`pursuant to [the statute] as a result.
`
`R. Doc. 51, at 5. This chain of events, which may or may not occur, is “too
`speculative for Article III purposes” which requires the injury to be “certainly
`impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (citation
`omitted); see also 281 Care Comm., 638 F.3d at 627 (“[P]ersons having no fears
`of . . . prosecution except those that are imaginary or speculative, are not to be
`accepted as appropriate plaintiffs.” (citation omitted)).
`
`True, a plaintiff need only allege an intention to engage in the course of conduct
`rather than actually engaging in such conduct. See Iowa Right to Life Comm., Inc.
`v. Tooker, 717 F.3d 576, 604 (8th Cir. 2013). But without the actual ability to engage
`in that course of conduct, there can be no credible threat of prosecution. See Zanders
`v. Swanson, 573 F.3d 591, 594 (8th Cir. 2009) (“The gravamen of Plaintiffs’ claims
`on appeal is whether Plaintiffs satisfy the injury-in-fact requirement for constitutional
`standing[—]that is, have they asserted facts that affirmatively and plausibly suggest
`that they are indeed subject to a credible threat of prosecution under the statute for
`engaging in the conduct for which they invoke constitutional protection.”). Generally,
`our cases where we have found that an injury in fact exists involve a plaintiff who is
`already in the position to carry out the proscribed conduct and refuses to do so only
`
`-10-
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`

`

`out of fear of being prosecuted under the statute. See generally, e.g., Jones v. Jegley,
`947 F.3d 1100 (8th Cir. 2020) (donating to a candidate during “blackout” dates);
`Balogh v. Lombardi, 816 F.3d 536 (8th Cir. 2016) (publishing the identities of
`individuals who participate in executions); 281 Care Comm., 638 F.3d 621
`(publishing false statements about proposed ballot initiatives); St. Paul Area Chamber
`of Com. v. Gaertner, 439 F.3d 481 (8th Cir. 2006) (using general treasury funds to
`support candidates for office). Instead, Appellants’ claim here is contingent upon
`events out of their control: whether Appellees (or another organization with access to
`Appellees’ facilities) will hire Appellants’ investigator and whether Appellees are
`engaged in the type of practices that Appellants suspect. See Clapper, 568 U.S. at 413
`(“In the past, we have been reluctant to endorse standing theories that require
`guesswork as to how independent decisionmakers will exercise their judgment.”).1
`
`Appellants argue that executing their plans would expose them to liability, but
`the course of conduct proscribed by the statute does not begin until an employee (or
`another individual with access to Appellees’ facilities) exceeds his or her authority to
`enter a nonpublic area of Appellees’ facilities. See Ark. Code Ann. § 16-118-113(b).
`Appellants cannot be chilled from engaging in speech that is not proscribed by the
`
`1Alternatively, I would find that Appellants have brought their claim
`prematurely, i.e., their claim is not ripe. “The touchstone of a ripeness inquiry is
`whether the harm asserted has ‘matured enough to warrant judicial intervention.’”
`Parrish v. Dayton, 761 F.3d 873, 875 (8th Cir. 2014) (citation omitted); see also Vogel
`v. Foth & Van Dyke Assocs., Inc., 266 F.3d 838, 840 (8th Cir. 2001) (“The ripeness
`doctrine ‘seeks to prevent courts, through avoidance of premature adjudication, from
`entangling themselves in abstract disagreements.’” (citation omitted)); Johnson v.
`Missouri, 142 F.3d 1087, 1090 n.4 (8th Cir. 1998) (“Although we realize that standing
`and ripeness are technically different doctrines, they are closely related in that each
`focuses on ‘whether the harm asserted has matured sufficiently to warrant judicial
`intervention.’” (citation omitted)). Appellants’ current apprehension of a credible
`threat of prosecution impermissibly rests upon “contingent future events that may not
`occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S.
`296, 300 (1998) (citation omitted). Accordingly, I would find that their claim,
`notwithstanding the absence of an injury, is not yet ripe for adjudication.
`-11-
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`

`

`statute. Cf. Zanders, 573 F.3d at 594-95 (holding that plaintiffs had not suffered an
`objective chill when the statute did not proscribe plaintiffs’ intended speech). Unlike
`the statute in ALDF v. Reynolds that prohibited even accessing an agricultural facility
`through fraudulent means, see 297 F. Supp. 3d 901, 909 (S.D. Iowa 2018), nothing in
`§ 16-118-113 prohibits Appellants’ investigator from gaining employment, even by
`fraudulent means, at Appellees’ facilities. Nor do the provisions Appellants challenge
`prevent that investigator from investigating nonpublic areas in Appellees’ facilities.
`It is only after the investigator sets up an “unattended camera or electronic
`surveillance device . . . to record images or data for an unlawful purpose” that
`Appellants would face liability under the statute. See Ark. Code Ann. § 16-118-
`113(c)(3). Furthermore, under subsections (c)(1) and (2), Appellants would not face
`liability until they use the information or effects “in a manner that damages the
`employer.” I do not attempt to draw the exact line that Appellants must approach to
`suffer an injury in fact, but at minimum their investigator must “knowingly gain
`access to a nonpublic area” of Appellees’ facilities before Appellants can be said to
`have been chilled from engaging in the course of conduct proscribed by the statute and
`for any credible threat of prosecution to exist.
`
`Nothing in Appellants’ complaint otherwise convinces me that there currently
`exists a credible threat of prosecution. While evidence of Appellants’ past
`engagement in undercover investigations supports the “concreteness and specificity
`of the [Appellants’] claims” by substantiating their intentions to commit such an
`investigation, see Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1089 (10th
`Cir. 2006) (en banc), it does not make their current risk of prosecution any more
`credible when they currently lack the ability to carry out their intentions due to
`circumstances out of their control. Similarly, while DeAnn Vaught’s connection to
`the legislation and the alleged “important public interest in understanding how Peco
`operates” may give credence to Appellants’ intentions, these allegations do not speak
`to whether Appellants are in fact able to engage in their desired First Amendment
`activity. And while Appellants allege that Appellees are “likely” engaged in
`
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`inhumane practices, these are not statements of fact upon which this Court can draw
`reasonable inferences, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Lujan
`v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (noting that “each element [of standing]
`must be supported in the same way as any other matter on which the plaintiff bears the
`burden of proof”), but rather hypotheticals upon which Article III standing cannot be
`based, see Zanders, 573 F.3d at 594 (“While general factual allegations of injury
`might suffice to establish standing in some instances, general allegations of possible
`or potential injury do not.”). Further, as noted above, the statute does not prevent
`Appellants
`from conducting an
`investigation
`into Appellees’
`facilities
`(notwithstanding the use of an unattended camera to record). In my view, this Court
`should not accept Appellants’ chain of speculation when Appellants could proceed
`with their plan (as allowable under the statute) and establish a credible threat of
`prosecution with more concreteness and particularity.
`
`In short, I find that Appellants are not actually exercising self-censorship. At
`this time, their ability to engage in their desired speech is inhibited not by the statute,
`but instead by a chain of events yet to occur. Under these circumstances, I find that
`Appellants are “simply attempting to obtain an advisory opinion or to enlist the court
`in a general effort to purge the [Arkansas] statute books of unconstitutional
`legislation.” United Food & Com. Workers Int’l Union v. IBP, Inc., 857 F.2d 422,
`430 (8th Cir. 1988). Accordingly, I respectfully dissent, and I would affirm the
`district court’s dismissal.
`
`______________________________
`
`-13-
`
`