Hollander v. Members of the Board of Regents of the University , 524 F. App'x 727 ( 2013 )


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  • 12-2362-cv
    Hollander v. Members of the Board of Regents
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
    SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
    GOVERNED BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE
    PROCEDURE 32.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
    COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
    DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
    ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
    At a stated Term of the United States Court of Appeals for the Second
    Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,
    in the City of New York, on the 10th day of April, two thousand thirteen.
    Present:    BARRINGTON D. PARKER,
    SUSAN L. CARNEY,
    Circuit Judges,
    JED S. RAKOFF,
    District Judge.*
    ______________________________________________________
    |
    ROY DEN HOLLANDER, on behalf of himself and           |
    all others similarly situated,                        |
    |
    Plaintiff-Appellant,            |
    |
    v.                            |                    No. 12-2362-cv
    |
    MEMBERS OF THE BOARD OF REGENTS OF THE                |
    UNIVERSITY OF THE STATE OF NEW YORK, in their |
    official capacities, in their individual capacities,  |
    MERRYL H. TISCH, Chancellor of the Board of Regents; |
    in her official capacity, Chancellor of the Board of  |
    Regents; in her individual capacity, DAVID M.         |
    STEINER, New York State Commissioner of the           |
    Department of Education; in his official capacity,    |
    New York State Commissioner of the Department         |
    of Education; in his individual capacity, ELSA MAGEE, |
    *
    The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New
    York, sitting by designation.
    Acting President of the New York State Higher         |
    Education Services Corp.; in his official capacity,   |
    Acting President of the New York State Higher         |
    Education Services Corp.; in his individual capacity, |
    UNITED STATES DEPARTMENT OF EDUCATION,                |
    ARNE DUNCAN, United States Secretary of Education;    |
    in his official capacity,                             |
    |
    Defendants-Appellees.               |
    ______________________________________________________|
    Appearing for Plaintiff-Appellant:    ROY DEN HOLLANDER, Law Office of Roy D.
    Hollander, New York, NY.
    Appearing for New York State          LESLIE B. DUBECK, Assistant Solicitor
    Defendants-Appellees:                 General (Barbara D. Underwood, Solicitor
    General, Steven C. Wu, Special Counsel to
    the Solicitor General, Laura R. Johnson,
    Assistant Solicitor General, on the brief), for
    Eric T. Schneiderman, Attorney General of
    the State of New York.
    Appearing for Federal                 SARAH J. NORTH (Jean-David Barnea, Sarah
    Defendants:                           S. Normand, on the brief), Assistant United
    States Attorneys, for Preet Bharara, United
    States Attorney for the Southern District of
    New York.
    Appeal from the United States District Court for the Southern District of
    New York (Laura Taylor Swain, Judge). ON CONSIDERATION WHEREOF, it is
    hereby ORDERED, ADJUDGED, and DECREED that the judgment of the District
    Court be and it hereby is AFFIRMED.
    Plaintiff-Appellant Roy Den Hollander appeals from an October 31, 2011
    judgment of the District Court (Swain, J.) dismissing his complaint, and a May 21,
    2012 order of the District Court denying his motion to vacate the judgment and
    amend his complaint. We assume the parties’ familiarity with the underlying facts,
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    the procedural history, and the issues on appeal, to which we refer only as
    necessary to explain our decision.
    In December 2010, Hollander brought this putative class action against
    several New York State education officials (the “State Defendants”), as well as the
    United States Department of Education and the United States Secretary of
    Education (the “Federal Defendants”). Hollander claims that the State and Federal
    Defendants violate the Establishment Clause of the United States Constitution by
    providing public funding to Columbia University, which maintains an Institute for
    Research on Women’s and Gender Studies and a Women’s Studies program.
    According to Hollander, feminism is a “modern-day religion,” Compl. ¶ 1, and by
    providing public funding to Columbia, the Defendants unconstitutionally “promote
    and favor the religion Feminism while inhibiting other contradictory viewpoints,”
    id. § VI. Hollander, who seeks declaratory and injunctive relief, contends that he
    has standing to bring his Establishment Clause claim both as a New York State
    and federal taxpayer, id. ¶¶ 72-78, and as a Columbia alumnus whose “direct
    contact with the offensive religion” of feminism, id. ¶ 80, makes him “very
    uncomfortable” and interferes with his “use and enjoyment of Columbia as [a]
    member[ ] of the Columbia community,” id. ¶ 79.
    Several years ago, we affirmed the dismissal of a nearly identical suit – also
    brought by Hollander – for lack of standing. Hollander v. Institute for Research on
    Women & Gender at Columbia Univ., 372 F. App’x 140 (2d Cir. 2010) (“Hollander
    I”) (summary order). In Hollander I, as here, Hollander claimed that “the existence
    of Columbia University’s Women’s Studies Program” promoted “feminism as a
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    religion,” and that federal and state funding of Columbia therefore violated the
    Establishment Clause. Id. at 141. We concluded that Hollander’s “claims of harm
    amount[ed] to the kind of speculative harm for which courts cannot confer
    standing,” id., and that Hollander had failed to “ma[ke] out the requirements for
    taxpayer standing for his Establishment Clause claim,” id. at 142.
    In the present case, the District Court granted summary judgment to the
    Defendants after concluding that “collateral estoppel precludes this action because
    [Hollander] previously litigated the issue of his standing to bring such a claim.”
    Hollander v. Members of the Bd. of Regents of the Univ. of the State of N.Y,, No. 10
    Civ. 9277, 
    2011 WL 5222912
    , at *1 (S.D.N.Y. Oct. 31, 2011) (adopting Report and
    Recommendation of Magistrate Judge Pitman). For substantially the reasons
    stated in Judge Pitman’s thorough Report and Recommendation, as adopted by the
    District Court, we agree that summary judgment was correctly entered.
    Hollander’s standing to assert an Establishment Clause claim based on the
    Defendants’ provision of public funding to Columbia was fully litigated and decided
    in Hollander I. He is therefore barred from relitigating the standing issue in the
    present action. See, e.g., Mrazek v. Suffolk County Bd. of Elections, 
    630 F.2d 890
    ,
    896 n.10 (2d Cir. 1980); see also Coll. Sports Council v. Dep’t of Educ., 
    465 F.3d 20
    ,
    22-23 (D.C. Cir. 2006) (per curiam); 18 Charles Alan Wright, Arthur R. Miller &
    Edward H. Cooper, Federal Practice and Procedure § 4402 (2d ed. 2012). “[I]t does
    not make sense to allow a plaintiff to begin the same suit over and over again in the
    same court, each time alleging additional facts that the plaintiff was aware of from
    the beginning of the suit, until [he] finally satisfies the jurisdictional requirements
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    [for standing].” Perry v. Sheahan, 
    222 F.3d 309
    , 318 (7th Cir. 2000) (internal
    quotation marks omitted). Accordingly, we affirm the District Court’s judgment
    dismissing Hollander’s complaint.
    We also affirm the District Court’s order denying Hollander’s motion to
    vacate the judgment and amend his complaint. “A party seeking to file an amended
    complaint postjudgment must first have the judgment vacated or set aside pursuant
    to Rules 59(e) or 60(b).” Williams v. Citigroup Inc., 
    659 F.3d 208
    , 213 (2d Cir. 2011)
    (per curiam) (internal quotation marks and brackets omitted). Hollander’s motion
    to vacate arose under Rule 59(e). A court may grant a Rule 59(e) motion only if the
    movant satisfies the heavy burden of demonstrating “an intervening change of
    controlling law, the availability of new evidence, or the need to correct a clear error
    or prevent manifest injustice.” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 
    956 F.2d 1245
    , 1255 (2d Cir. 1992) (internal quotation marks omitted); see also Munafo
    v. Metro. Transp. Auth., 
    381 F.3d 99
    , 105 (2d Cir. 2004). Hollander contends that
    vacatur was warranted here because, after the District Court entered judgment
    against him, he discovered two new potential plaintiffs who allegedly have standing
    to challenge the Defendants’ funding decisions. But new plaintiffs are not “new
    evidence,” and Hollander’s discovery of additional individuals willing to press
    Establishment Clause claims against the Defendants does not satisfy the
    requirements of Rule 59(e). See United States v. Int’l Bhd. of Teamsters, 
    247 F.3d 370
    , 392 (2d Cir. 2001). Nor has Hollander shown that the denial of his Rule 59(e)
    motion works a “manifest injustice” against the recently discovered plaintiffs.
    Nothing in the District Court’s order purports to preclude those individuals from
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    bringing suit in their own names. We therefore discern no abuse of discretion in the
    District Court’s denial of Hollander’s motion to vacate the judgment and amend his
    complaint. Schwartz v. Liberty Mut. Ins. Co., 
    539 F.3d 135
    , 150 (2d Cir. 2008).
    One additional point deserves mention. By presenting a court with a
    pleading, an attorney certifies, inter alia, that (1) the pleading “is not being
    presented for any improper purpose, such as to harass, cause unnecessary delay, or
    needlessly increase the cost of litigation”; (2) “the claims, defenses, and other legal
    contentions are warranted by existing law or by a nonfrivolous argument for
    extending, modifying, or reversing existing law or for establishing new law”; and (3)
    “the factual contentions have evidentiary support or, if specifically so identified, will
    likely have evidentiary support after a reasonable opportunity for further
    investigation or discovery.” Fed. R. Civ. P. 11(b). Hollander is an attorney. Before
    again invoking his feminism-as-religion thesis in support of an Establishment
    Clause claim, we expect him to consider carefully whether his conduct passes
    muster under Rule 11.
    We have considered Hollander’s remaining arguments and find them to be
    unavailing. Accordingly, the judgment of the district court is AFFIRMED.
    FOR THE COURT:
    Catherine O’Hagan Wolfe, Clerk
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