         10-1191-cv
         Schain v. Schmidt


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the twenty-third day of September, two thousand
 5       and ten.
 6
 7       PRESENT: ROGER J. MINER,
 8                PIERRE N. LEVAL,
 9                RICHARD C. WESLEY,
10                         Circuit Judges.
11
12
13
14       MARISSA SCHAIN, DANIEL BOGATIN, OLIVIA ALMENGOR,
15
16                                       Plaintiff-Appellants,
17
18                       -v.-                                                   10-1191-cv
19
20       BENNO C. SCHMIDT, PHILIP A. BERRY, VALERIE L. BEAL, RITA
21       DIMARTINO, JOSEPH J. LHOTA, HUGO M. MORALES, PETER S.
22       PANTALEO, KATHLEEN M. PESILE, CAROL A. ROBLES-ROMÁN, MARC V.
23       SHAW, CHARLES A. SHORTER, SAM A. SUTTON, JEFFREY S.
24       WIESENFELD, CHRISTOPH KIMMICH, FREIDA D. FOSTER-TOLLBERT,
25
26                                       Defendant-Appellees. *
27
28
29


                 *
                 The Clerk of the Court is respectfully directed to amend the official
         caption in this action to conform to the caption in this order.
 1   FOR APPELLANTS:      PHINEAS E. LEAHEY, Jones Day (Todd R.
 2                        Geremia and Briana R. Hulet, of counsel),
 3                        New York, NY.
 4
 5   FOR APPELLEES:       ROBERT C. WEISZ, Assistant Solicitor
 6                        General of the State of New York, New
 7                        York, NY.
 8
 9        Appeal from the United States District Court for the
10   Southern District (Kaplan, J.).
11
12       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

13   AND DECREED that the judgment of the District Court be

14   AFFIRMED.

15       Appellants appeal from a judgment of the United States

16   District Court for the Southern District of New York

17   (Kaplan, J.).     Having earlier dismissed most of their claims

18   on a motion for summary judgment, the District Court

19   disposed of the remaining claim on a motion for judgment on

20   the pleadings, issuing its final Order on March 11, 2010.

21   Appellants commenced the action below pursuant to 28 U.S.C.

22   § 1331, the First and Fourteenth Amendments of the United

23   States Constitution, and 42 U.S.C. § 1983, seeking

24   declaratory and injunctive relief voiding Brooklyn College’s

25   procedure for refunding mandatory NY-PIRG fees to students

26   who object to funding NY-PIRG, as well as CUNY’s regulations

27   governing expenditures by student organizations.     We assume

28   the parties’ familiarity with the underlying facts, the

                                     2
1    procedural history, and the issues presented for review.

2           Appellants seek reversal of the District Court’s ruling

3    that the challenged refund procedure is adequate as a matter

4    of law.    They ground their argument on the line of precedent

5    known collectively as the “union cases.”    See, e.g., Chicago

6    Teachers Union Local No. 1 v. Hudson, 475 U.S. 292 (1986);

7    see also Seidemann v. Bowen, 499 F.3d 119 (2d Cir. 2007).

8    However, the Supreme Court of the United States has ruled

9    that the “union cases” do not apply to a university’s

10   assessment and distribution of a mandatory student activity

11   fee.    Southworth v. Bd. of Regents of the Univ. Of Wis.

12   Syst., 529 U.S. 217, 232 (2000).    Thus, the procedural

13   requirements informing Seidemann cannot be imposed in the

14   instant action, and the challenged refund procedure,

15   supported as it is by explanations offered by defendants

16   below, is adequate as a matter of law.

17          Appellants further seek to overturn the District

18   Court’s dismissal of their challenge to the fiscal

19   regulations governing NY-PIRG’s campus activities.     However,

20   neither a facial nor an as-applied challenge to these

21   regulations was presented in a manner sufficient to survive

22   summary judgment.    First, the regulations are facially



                                    3
1    unobjectionable, since they categorize organizations

2    receiving student funds by their organizational structure,

3    rather than their ideological viewpoint.   Second, the record

4    below does not support an as-applied challenge to the

5    regulations, as no plaintiffs allege either that they or

6    their organization were denied a particular classification

7    under the regulations or that they suffered a cognizable

8    injury as a result of the regulations’ operation.     Finally,

9    the record below does not support a reasonable inference

10   that the regulations, although facially neutral, operate as

11   a pretext for viewpoint-based discrimination.

12       We decline to rule on Appellants’ ancillary motions

13   regarding retention of plaintiffs and reaffirmation of

14   jurisdiction, since these motions were crafted with an eye

15   to a possible remand for further proceedings, which

16   possibility we hereby forego.

17       For the foregoing reasons, the judgment of the district

18   court is hereby AFFIRMED.

19
20                               FOR THE COURT:
21                               Catherine O’Hagan Wolfe, Clerk
22
23




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