     14-1441
     Jewish People for the Betterment of Westhampton Beach v. Village of Westhampton Beach

                          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 FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 6th day of January, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                REENA RAGGI,
 8                DEBRA ANN LIVINGSTON,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       Jewish People for the Betterment of
13       Westhampton Beach, Arnold Sheiffer,
14       Estelle Lubliner,
15                Plaintiffs-Appellants,
16
17                    -v.-                                               14-1441
18
19       The Village of Westhampton Beach, East
20       End Eruv Association, Inc., Verizon
21       New York, Inc., and the Long Island
22       Lighting Company, d/b/a LIPA,
23                Defendants-Appellees.
24       - - - - - - - - - - - - - - - - - - - -X
25
26       FOR APPELLANTS:                       JONATHAN SINNREICH, with Timothy
27                                             F. Hill, Sinnreich Kosakoff &
28                                             Messina LLP, Central Islip, New
29                                             York.

                                                  1
 1   FOR APPELLEES:             YEHUDAH L. BUCHWEITZ, with
 2                              Robert G. Sugarman, Weil,
 3                              Gotshal & Manges LLP, New York,
 4                              New York, for East End Eruv
 5                              Association, Inc.
 6
 7                              ERICA S. WEISGERBER, with
 8                              Michael E. Wiles, Debevoise &
 9                              Plimpton LLP, New York, New
10                              York, for Verizon New York, Inc.
11
12                              ZACHARY MURDOCK, with David
13                              Lazer, Lazer Aptheker Rosella &
14                              Yedid PC, Melville, New York,
15                              for Long Island Lighting Company
16                              d/b/a LIPA.
17
18        Appeal from judgments of the United States District
19   Court for the Eastern District of New York (Wexler, J.).
20
21        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
22   AND DECREED that the judgment of the district court be
23   AFFIRMED.
24
25        Arnold Sheiffer, Estelle Lubliner, and Jewish People
26   for the Betterment of Westhampton Beach (collectively
27   “plaintiffs”) appeal from judgments of the United States
28   District Court for the Eastern District of New York (Wexler,
29   J.), dismissing their complaint. We assume the parties’
30   familiarity with the underlying facts, the procedural
31   history, and the issues presented for review.
32
33        Plaintiffs allege violations of 42 U.S.C. § 1983 in
34   connection with the installation in Westhampton Beach, New
35   York of inconspicuous strips attached to utility poles.
36   Because the strips delineate an “eruv,” which is significant
37   to some as a matter of Jewish law, plaintiffs allege an
38   unconstitutional establishment of religion. We affirm.
39
40        1. Defendants raise two jurisdictional challenges,
41   neither of them persuasive.
42
43        a. Defendants argue that the order appealed from was
44   not a final judgment under 28 U.S.C. § 1291, because a
45   stipulation filed by plaintiffs dismissed their claims
46   without prejudice against defendant Village of Westhampton
47   Beach. But in this Circuit, a plaintiff may cure such a

                                  2
 1   defect in appellate jurisdiction by disclaiming an intent to
 2   revive the dismissed claim (effectively, converting it to a
 3   dismissal with prejudice, for reasons of estoppel). See
 4   Leung v. N.Y. Univ., 495 F. App’x 124, 125 (2d Cir. 2012)
 5   (citing Slayton v. Am. Exp. Co., 460 F.3d 215, 225 (2d Cir.
 6   2006)). Plaintiffs’ reply brief disclaims any intent to
 7   revive their dismissed claim against the Village of
 8   Westhampton Beach. So that potential obstacle to appellate
 9   jurisdiction is removed.
10
11        b. Defendants also argue that plaintiffs lack standing
12   under Article III, which limits the judicial power of the
13   United States to the resolution of cases and controversies.
14   U.S. Const. art. III, § 2. To satisfy this jurisdictional
15   requirement, “(1) the plaintiff must have suffered an
16   injury-in-fact; (2) there must be a causal connection
17   between the injury and the conduct at issue; and (3) the
18   injury must be likely to be redressed by a favorable
19   decision.” Cooper v. U.S. Postal Serv., 577 F.3d 479, 489
20   (2d Cir. 2009) (internal quotation marks omitted).
21
22        We have found standing in the Establishment Clause
23   context for a plaintiff who alleged that he “was made
24   uncomfortable by direct contact with religious displays.”
25   Id. at 491. Plaintiffs here allege that “[t]he eruv . . .
26   will not go unnoticed; rather, it will be a constant and
27   ever-present symbol, message and reminder to the community
28   at large, that the secular public spaces of the Village have
29   been transformed for religious use and identity.” Compl.
30   ¶ 1. Plaintiffs, in particular, allege that they “will be
31   confronted with the . . . religious display on a daily
32   basis.” Id. ¶ 5. Those allegations, such as they are,
33   suffice under our precedents.
34
35        Defendants seek to distinguish the eruv from the
36   religious displays at issue in Cooper on the ground (inter
37   alia) that the eruv is far less obtrusive, and that--
38   contrary to plaintiffs’ allegations--the eruv does not
39   convey any message to the uninitiated. But those fact-based
40   arguments are insufficient at the pleadings stage, in which
41   we must assume the truth of plaintiffs’ well-pleaded factual
42   allegations.1 Other courts have found no standing problem


         1
              The parties submitted (extensive) factual material
     outside the pleadings. While the district court did not
     explicitly exclude this material, its decisions dismissing
                                  3
 1   in challenges to government involvement in the construction
 2   of an eruv. See ACLU of N.J. v. City of Long Branch, 670 F.
 3   Supp. 1293, 1294 (D.N.J. 1987).
 4
 5        2. On the merits, however, plaintiffs have failed to
 6   state a claim for a violation of the Establishment Clause
 7   against any of defendants-appellees.
 8
 9        a. Two of the remaining three defendants--Verizon New
10   York, Inc., and the East End Eruv Association, Inc.--are
11   plainly not state actors. See Compl. ¶ 11 (“EEEA is a not-
12   for-profit-corporation”); id. ¶ 13 (“Verizon New York Inc.
13   is a . . . subsidiary of Verizon Communications, Inc., a
14   publicly held corporation.”). The Establishment Clause is a
15   check on the power of our government. See, e.g., Cooper,
16   577 F.3d at 491. So all claims against these defendants
17   must be dismissed for lack of state action.
18
19        b. The remaining defendant, LIPA, does not dispute
20   that, as “a political subdivision of the State of New York,”
21   Compl. ¶ 12, it is a state actor. So we turn to the merits
22   of plaintiffs’ Establishment Clause claims against LIPA.
23
24        Although “much criticized,” the Lemon test still
25   governs cases alleging violations of the Establishment
26   Clause. Am. Atheists, Inc. v. Port Auth. of N.Y. & N.J.,
27   760 F.3d 227, 238 n.12 (2d Cir. 2014). Under Lemon, for
28   “government action to satisfy the neutrality principle of
29   the Establishment Clause, it must (1) ‘have a secular
30   purpose,’ (2) have a ‘principal or primary effect that
31   neither advances nor inhibits religion,’ and (3) ‘not foster
32   an excessive government entanglement with religion.’” Id.
33   at 238 (quoting Lemon v. Kurtzman, 403 U.S. 602, 612-13
34   (1971)) (internal ellipses omitted).
35
36        An eruv is a “demarcation of a defined geographic area
37   within which adherents subscribing to a certain
38   interpretation of Jewish law believe that they may perform
39   certain activities that are otherwise prohibited on the
40   Jewish Sabbath and Yom Kippur.” Compl. ¶ 19. It is


     plaintiffs’ claims give us no “reason to believe that the
     extrinsic evidence actually affected [its] decision[s]” and
     we accordingly conclude that the extrinsic material was
     “implicitly excluded.” See Amaker v. Weiner, 179 F.3d 48,
     50 (2d Cir. 1999).
                                  4
 1   undisputed that the Westhampton eruv was delineated by
 2   “nearly invisible” staves and wires attached to utility
 3   poles. Compl. ¶¶ 1, 20. Plaintiffs do not allege that
 4   these staves contain any overtly religious features that
 5   would distinguish them to a casual observer as any different
 6   from strips of material that might be attached to utility
 7   poles for secular purposes.
 8
 9        Plaintiffs have not plausibly pleaded that there was no
10   secular purpose to the governmental action here--LIPA’s
11   entry into a paid licensing agreement allowing the
12   installation of items of religious significance on utility
13   poles. While plaintiffs repeatedly state in their complaint
14   that the establishment of an eruv serves no secular purpose,
15   the complaint does not contain similar allegations with
16   regard to LIPA’s action of permitting the EEEA to attach
17   lechis to its utility poles, and does not allege that LIPA
18   granted access to its utility poles in a non-neutral manner.
19   Neutral accommodation of religious practice qualifies as a
20   secular purpose under Lemon. See, e.g., Good News Club v.
21   Milford Cent. School, 533 U.S. 98, 114 (2001). And other
22   courts have held that absent evidence that the erection of
23   an eruv is facilitated in a non-neutral manner, permitting
24   an organization to attach lechis to utility poles serves the
25   secular purpose of accommodation. See, e.g., Long Branch,
26   670 F. Supp. at 1295-96.
27
28        In religious display cases, Lemon’s second
29   consideration collapses into the question whether a
30   “reasonable observer of the display in its particular
31   context [would] perceive a message of governmental
32   endorsement or sponsorship of religion.” Skoros v. City of
33   New York, 437 F.3d 1, 29 (2d Cir. 2006). No reasonable
34   observer who notices the strips on LIPA utility poles would
35   draw the conclusion that a state actor is thereby endorsing
36   religion, even assuming that a reasonable observer was aware
37   that a state actor (LIPA) was the entity that contracted
38   with a private party to lease the space.
39
40        Finally, it is undisputed that private parties will
41   finance, install, and maintain the strips; so there is no
42   risk of “excessive” government entanglement with religion.2


         2
              The license agreement between LIPA and EEEA
     permitting the EEEA to affix lechis to LIPA’s utility poles
     is referenced in the complaint and is integral to its
                                  5
 1        Compared with many government actions that have
 2   survived the Lemon test, LIPA’s accommodation of the eruv
 3   has more of a secular purpose, causes less of an advancement
 4   of religion, and fosters less church-and-state entanglement.
 5   See, e.g., Good News Club, 533 U.S. at 103-04 (allowing a
 6   “private Christian organization for children” to hold
 7   meetings at a public school “for the purpose of conducting
 8   religious instruction and Bible study”); Lynch v. Donnelly,
 9   465 U.S. 668, 671 (1984) (allowing a Christmas nativity
10   scene display, on public property, that included “the Infant
11   Jesus, Mary and Joseph, angels, shepherds, kings, and
12   animals,” up to five feet tall); Newdow v. Peterson, 753
13   F.3d 105, 107-08 (2d Cir. 2014) (upholding federal statutes
14   requiring the motto “in God We Trust” to appear on all U.S.
15   currency, reasoning that the motto’s “secular purpose” is a
16   “reference to our religious heritage”). A fortiori, LIPA’s
17   action permitting the EEEA to erect the eruv is not an
18   unconstitutional establishment of religion.
19
20        Every court to have considered whether similar
21   government actions violate the Establishment Clause has
22   agreed that they do not. See Long Branch, 670 F. Supp. at
23   1295 (“The city allowed the eruv to be created to enable
24   observant Jews to engage in secular activities on the
25   Sabbath. This action does not impose any religion on the
26   other residents of Long Branch.”); Smith v. Community Bd.
27   No. 14, 491 N.Y.S.2d 584, 586 (N.Y. Sup. Ct. 1985) (allowing
28   private parties to construct an eruv on public property “did
29   not establish religion but [was] a valid accommodation to
30   religious practice”); see also Tenafly Eruv Ass’n v. Borough
31   of Tenafly, 309 F.3d 144, 176 (3d Cir. 2002) (explaining
32   that a “reasonable, informed observer” of an eruv “would not
33   perceive an endorsement of Orthodox Judaism”).


     allegations. See Compl. ¶ 42; L-7 Designs, Inc. v. Old
     Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (a document is
     “integral” to a complaint where the complaint “relie[s]
     heavily upon its terms and effect”) (internal quotation
     marks omitted). This agreement establishes (and plaintiffs
     do not contest) that the EEEA will finance, install, and
     maintain the strips. See License Agreement between Long
     Island Lighting Company D/B/A LIPA Through Its Agent
     National Grid Electric Services LLC and East End Eruv
     Association, Inc., Article V, § 1, Verizon Compl. Ex. B,
     Verizon N.Y., Inc. v. Vill. of Westhampton Beach, No.
     11-252-cv (E.D.N.Y. Jan. 18, 2011), ECF No. 1.
                                  6
1        For the foregoing reasons, and finding no merit in
2   plaintiffs’ other arguments, we hereby AFFIRM the judgments
3   of the district court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7
8




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