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, 

, 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, 

,

896 n.10 (2d Cir. 1980); see also Coll. Sports Council v. Dep’t of Educ., 

,

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


                                           4
[for standing].” Perry v. Sheahan, 

, 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., 

, 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., 

, 1255 (2d Cir. 1992) (internal quotation marks omitted); see also Munafo

v. Metro. Transp. Auth., 

, 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, 

, 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., 

, 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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