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 

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 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
2

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
3

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
4

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