Hollander v. Members of the Board of Regents of the University of the State of New York et al

Filing 29

ORDER re: 7 Motion to Dismiss filed by Elsa Magee, David M. Steiner, Members of the Board of Regents of the University of the State of New York, Merryl H. Tisch and 24 Report and Recommendation. The Court has reviewed the remaining aspects of th e Report and finds Judge Pitman's analysis free of clear error. The Court adopts the Report in its entirety, and, for the reasons stated therein and for the foregoing reasons, summary Judgment is granted in favor of Defendants. The Clerk of the Court is respectfully requested to enter judgment accordingly and to close this case. This Order resolves docket entry no. 7. (Signed by Judge Laura Taylor Swain on 10/31/2011) (ab)

UNITED STATES DISTRICT COURT
SOUTHER~ DISTRICT OF NEW YORK

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ROY DEN HOLLANDER,
Plaintiff,
-v-

No. 10 eiv. 9277 (LTS)(HBP)

MEMBERS OF THE BOARD OF REGENTS
OF THE UNIVERSITY OF THE STATE OF
NEW YORK, in their official and individual
capacities,
Defendants.

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ORDER

Plaintiff Roy Den Hollander (,'Plaintiff"), a Columbia University (the
"University") alumnus, seeks declaratory and injunctive relief against the Members oft11e Board
of Regents of the State of New York, Chancellor of the Board of Regents Merry] H. Tisch, New
York State Commissioner of the Department of Education David M. Steiner, Acting President of
the New York State Higher Education Services Corporation Elsa Magee, and United States
Secretary of Education Ame Duncan, in their official and individual capacities, and the United
States Department of Education (collectively, "Defendants"). Plaintiffassel1s that it is
unconstitutional for Defendants to provide the University with public funding because the
University's Women's Studies program promotes a religion offcminism in violation of the
Establishment Clause of the First Amendment.

Plaintiff commenced a similar action against Defendants (or their predecessors)

DFl';IIOLiJ\i\DERR&RADOf'T.WPD

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and the University in 2008 alleging, among other things, that Defendants violated the
Establishment Clause "by aiding the establishment of tile religion Feminism" by funding the
University's Women's Studies Program. Den Hollander v. Inst. for Research on Women &
Gender at Columbia Univ. ("Den Hollander l"), No. 08 Civ. 7286 (S.D.N.Y. filed Dec. 1,2008).
The District Court dismissed Den Hollander r tor Jack of standing, and the Second Circuit
affinned the dismissal. Order. pen Hollander I,

~o.

08 Civ. 7286 (S.D.N.Y. Apr. 24. 2()09),

ECF No. 36, aff'd, 372 Fed. Appx. 140 (2d Cir. 2(10).) In Den l-lollander L the issue of
Plaintiff's standing thus was litigated at the District Court level and on appeal. See, e.g., Rcport
and Recommendation, Den Hollander T, 2009 WL 1025960 (S.D.N.Y. Apr. 15,2009), adopted

Qy, Order, No. 08 Civ. 7286 (S.D.N.Y. Apr. 24, 20(9), ECF No. 36, aff'd, 372 Fed. Appx. 140
(2d Cir. 2010).
Defendants moved to dismiss Plaintiff's Complaint in this case. Magistrate Judge
Harry B. Pitman, to whom the matter was referred for a Report and Recommendation, converted
Defendants' motions to dismiss into a motion tor summary judgment in accordancc with Federal
Rule of Civil Procedure 12( d). (Order. June 3, 2011, ECF No. 17;

=...0:::== Fed.

R. ('iv. P.

12(d).) On July 1,201 L Judge Pitman issued a Rcport and Recommendation ("Report")
recommending that summary judgment be granted in favor of Defendants on the ground that
collateral estoppel precludes this action because Plaintiff previously litigated the issue of his
standing to bring such a claim. (Report, July 1,2011, ECF No. 24.) Plaintiff filed timely
objections. Familiarity with the Report and Den Hollander I is assumed.
In reviewing the Repol1, the Court "may accept reject, or modify, in whole or in

Pa11, the findings or recommendations made by the magistrate." 28

I)FNHO!L,\NOFRR&R _ -\ 1)( !PT. \\'P[)

VFRSION 10'31' I I

.S.CA.

~

636(b)(1 )(C)

(West 2006 & Supp. 1 20 II). The Court is required to make a de novo detellllination as to the
aspects of the Report to which specific objections are made. United States v. Male J L1veni Ie, 121
F.3d 34, 38 (2d eiL 1997). When a party makes only conclusory or general objections, or simply
reiterates original arguments, the Court reviews the Report only for clear error. See Camardo v.
Gen. Motors Hourlv-Rate Emp. Pension Plan, 806

Supp. 380, 382 (W.O,N.Y. 1992) (court

need not consider objections which are frivolous, conc\usory, or general, and which constitute a
rehashing of the same arguments and positions taken in original pleadings); Schoolfield v. Dep't
ofCorr., No. 91 Civ, 1691, 1994 WL 119740. at *2 (S.D.N.Y. Apr. 6,1994) (objections stating
that magistrate judge's decisions are wrong and unjust and which restate facts upon which
complaint was grounded are cOl1clusory and do not form specific basis for not adopting report
and recommendation). Objections to a RepOli must be specific and clearly aimed at particular
findings in the magistrate judge's proposal, such that no party be allowed a "second bite at the
apple" by simply re-litigating a prior argument. Camardo, 806 F. Supp. at 381·82.
Plaintiff raises five objections to the Report. He asserts that the Report: (1) is
flawed by reliance on "factual inaccuracies"; (2) that Judge Pitman's failure to address res
judicata was improper; (3) that Judge Pitman erred in holding that collateral estoppel bars
Plaintiff from asserting taxpayer standing in relation to his Establishment Clause claim because
the Issue of standing was resolved against Plaintiff in Den Hollander I; (4) that PlaintiWs "'non­
economic" standing argument is not barred by collateral estoppel and that Judge Pitman's
contrary conclusion is malTed hy reliance on "false facts"; and (5) that Judge Pitman
"inappropriately relies on cases outside the Second Circuit to override the authority orthe Second
Circuit and U.S. Supreme Court preceden[ts] on the issue of collateral estoppel." (Obj., July 11,

Dp"IIOLLA'JIlERR& RAIlOPT.\VPD

VERSIO'i 10/31/ II

201 L ECF No. 25.)
The Court has reviewed de novo the aspects of the Report to which Plaintiff's
objections are non-conclusory and not simply reiterations of arguments previously directed to
Judge Pitman. The Court has reviewed the remainder ofthe Report for clear error.
Plaintiff's first objection, that Judge Pitman relied on factual inaccuracies in the
Report is unsupported by the record. Plaintiffs second objection, that Judge Pitman did not rule
whether res judicata applies, is unavailing. When one issue is dispositive of a matter, there is no
need for the COlni to address altemate grounds for disposition. See. e.g., Stachelberg v. Ponce,
128 U.S. 686, 691 (U.S. 1888) ("This conclusion is sufficient to dispose of the case, and renders
it unnecessary to consider other grounds upon which, it is insisted. the decree helm\' should he
sustained."). Here, the Report unambiguously recommends dismissal of the entire Complaint on

the ground of collateral estoppeL making a ruling on res judicata unnecessary. (See Report 37,
July 1,201 ], ECF Ko. 24.)
Plaintiff's third and fourth objections, that collateral estoppel does not apply
because taxpayer standing and non-economic standing were not previously litigated. arc sll11!1arh
without merit. Collateral estoppel bars relitigation of an issue when: (1) the identical issue was
raised in a previous proceeding; (2) the issue was actually litigated and decided in the previolls
proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) resolution of
the issue was necessary to support a valid and final judgment on the merits of the issue. Ball \'.

A.G. Smith Corp., 45] F.3d 66, 69-70 (2d Cir. 2006). This Court has previously applied
collateral estoppel to the issue of standing.
1994).

Fulani v. Bentsen, 862 F. Supp. 1140 (S.D.N,Y.

Plaintiff describes the instant case as "a continuation of [his previous] men's
rights case." (Obi.': 6, ./uly 11) 2011) ECF No. 25.) Plaintiffs standing to bring an
.
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Establishment Clause claim based on govemment funding of the University, including the
Women's Studies program, was litigated in Den Hollander 1. ~e~, Report and
Recommendation, Den Hollander I, 2009 WL 1025960 (S.D.N.Y. Apr. 15,2009), adopted by,
Order, No. 08 Civ 7286 (S.D.N.Y. Apr. 24,2009), ECF No. 36, affd, 372 Fed. App'x 140 (2d
Cir. 2010). Both the District Court and the Second Circuit necessarily decided the issue of
Plaintiffs standing in Den Hollander 1. See Order, Den Hollander 1, 08 Civ. 7286 (S.D.;\).Y.
Apr. 24, 2009), ECF No. 36, affd. 372 Fed. App'x 140 (2d Cir. 2010)). The issue ofPlaintitTs
standing to litigate his Establishment Clause and related claims regarding the University's
Women's Studies program was decided against him in Den Hollander 1. Plaintiffs attempt to
litigate alternate grounds for standing in this lawsuit is improper and unavailing. As the Second
Circuit has stated, "[tJhe principal virtue of collateral estoppel is self-evident: it promotes Judicial
economy by reducing the burdens associated with revisiting an issue already decided." Securities
Exch. Comm'n v. Monarch Funding Corp., 192 F.3d 295,303 (2d Cir. 1999) (citing Parklane
~=:..,.L...;~-'-'-=~'

439

.S. 322,326 (1979); Gelb v. Royal Globe Ins. Co., 798 F.2d 38,44

(2d Cir. 1986». Additionally, "when the claims in two separate actions between the same parties
are the same or are closely related [... J it is unfair to the winning party and an unnecessary
burden on the courts to allow repeated litigation of the same issue

III

what is essentially the same

controversy." Cnited States v. Stauffer Chel11. Co., 464 U.S. 165, 171 (1984) (qllOtll1g
Restatement (Second) of Judgments

~

28, comment b (l982)); f)tlani, 862 F. Supp. at 1151. Tn

sum, "a dismissal for lack of subject matter retains some preclusive effect [and] bars those

VE!ZSJOi\ 10/31111

matters that have been actually litigated ~ typically, the specific jurisdictional issue(s) that
mandated the initial dismissal." Lowe v. United States, 79 Fed. C1. 218,229 (original emphasis)

(citing Parklane Hosiery, 439 U.S. at 326 11.5 (lithe judgment i11 the prior suit precludes
relitigation of issues actually litigated and necessary to the outcome of the first action")). Thus,
collateral estoppel bars Plaintiffs attempt to re-litigate his standing to bring an Establishment
Clause claim based on government funding of the Cnivcrsity.
Finally, Plaintiff misreads the case law vvhen he oblects that the Report relIes

011

non-binding decisions "to override the Second Circuit and the U.S. Suprcme Court" by applying
collateral estoppel to his claim. The authorities upon which Plainti ff relies are inapposite to the
standing question at issue here. The Court has thoroughly reviewed and considered de novo the
relevant aspects of the Report and concurs in Judge Pitman's conclusions regarding the scope and
application of the collateral estoppel doctrine.
The Court has reviewed the remaining aspccts of the Rcport and finds Judge
Pitman's analysis free of clear error. The Court adopts the Report in its entirety, and, for the
reasons stated therein and for the foregoing reasons, summary Judgmcnt is granted in

t~lVor

of

Defendants. The Clerk of the Court is respectfully requested to cnterjudgmcnt accordingly and
to close this case.
This Order resolves docket entry no. 7.
SO ORDERED.
Dated: New York, New York
October 31, 2011

United States District Judge
VER,I()~

1111] L II