The Clerk of the Court is respectfully directed to amend the official * caption in this action to conform to the caption in this order. 10-1191-cv Schain v. Schmidt UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER

RULI NGS BY SU MMA RY ORD ER DO NOT HAVE PRE CED ENT IAL EF FEC T . C ITA TIO N T O ASU MMARY ORD ER FIL ED ON OR AFT ER JANUARY 1, 2007, IS P ERM ITT ED AND IS GO VERNED BY F EDE RAL RULE OF A PPE LLA TE P ROC EDU RE 32.1 AN D T HIS CO URT ’ S L OCA L RULE 32.1.1. W HEN CI TIN G ASU MMA RY ORD ER IN A D OCU MEN T F ILE D W ITH TH IS COU RT , A PAR TY MUS T C ITE EI THE R T HE F EDE RAL A PPE NDI X O R AN ELE CTR ONI C D ATABAS E ( WIT H T HE NOT ATI ON “ SUMMAR Y O RDE R ”). APA RTY CI TIN G ASU MMARY ORD ER MUS T S ERV E ACO PY OF IT ON ANY PA RTY NO T R EPR ESE NTE D B Y C OUN SEL . 

### 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 28 292 

### 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, the3 

### 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 facially4 

### 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