April 16, 2010.
Appeal from the United States District Court for the Southern District of New York (Kaplan, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and DECREED that the order of the district court be and hereby is AFFIRMED.
Roy Den Hollander, New York, NY, for Plaintiffs-Appellants.
Robert D. Kaplan, Friedman Kaplan Seiler Adelman LLP, New York, NY, for Columbia University Defendants-Appellees.
Jean-David Barnea, Assistant United States Attorney (Ross E. Morrison, Assistant United States Attorney, of counsel), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Federal Defendants-Appellees.
Patrick J. Walsh, Assistant Solicitor General, (Barbara D. Underwood, Solicitor General, Peter Karanjia, Special Counsel to the Solicitor General, of counsel), for Andrew M. Cuomo, Attorney General of the State of New York, New York, NY, for State Defendants-Appellees.
The Honorable Robert A. Katzmann, originally assigned to this panel, recused himself before oral argument. The remaining two members of the panel, who are in agreement, have determined this matter. See Second Circuit Internal Operating Procedure E(b); 28 U.S.C. § 46(d); United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
Plaintiff-Appellant Roy Den Hollander appeals from the judgment of the district court dated April 30, 2009 (Kaplan, J.), adopting the Report and Recommendation dated April 15, 2009 by United States Magistrate Judge Kevin Nathaniel Fox, and granting defendants' motions to dismiss for lack of standing. We assume the parties' familiarity with the facts and specification of issues on appeal.
William A. Nosal was a Class Representative when the case was before the district court and as of the filing of the appeal at bar, but has since withdrawn.
"The party seeking judicial review bears the burden of alleging facts that demonstrate its standing." Green Island Power Auth, v. Fed. Energy Regulatory Comm'n, 577 F.3d 148, 159 (2d Cir. 2009) (internal quotation marks and brackets omitted). Plaintiff alleges that the existence of Columbia University's Women's Studies Program and the corresponding lack of an equivalent "Men's Studies Program" inflicts harm on certain men as a class by, inter alia, promoting "misandry-feminism," promoting feminism as a religion, and robbing men of an equivalent educational experience. As to the plaintiffs discrimination-based claims, the district court properly dismissed the action for lack of standing as to all defendants because the plaintiffs claims of harm amount to the kind of speculative harm for which courts cannot confer standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (stating that "the plaintiff must have suffered an `injury in fact' — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical") (internal quotation marks, citations, and footnote omitted); Gully v. Nat'l Credit Union Admin. Bd., 341 F.3d 155, 160 (2d Cir. 2003) (same). Nor has plaintiff made out the requirements for taxpayer standing for his Establishment Clause claim. See DeStefano v. Emergency Housing Group, Inc., 247 F.3d 397, 405 (2d Cir. 2001). Thus, with no occasion to reach any of plaintiffs' further arguments on appeal — about which we share, in any event, the district court's grave doubts — we AFFIRM the dismissal of the action for substantially the reasons stated in Judge Fox's thorough Report and Recommendation as adopted by the district court.