Burt v. Rumsfeld

• Decision Date: 31 January 2005
• Docket Number: No. CIV.A.3-03-CV-1777(JCH).,CIV.A.3-03-CV-1777(JCH).
• Parties: Robert A. BURT, et al, Plaintiffs, v. Donald H. RUMSFELD, in His Official Capacity as U.S. Secretary of Defense, Defendant.
• Court: U.S. District Court — District of Connecticut

354 F.Supp.2d 156

Robert A. BURT, et al, Plaintiffs, v. Donald H. RUMSFELD, in His Official Capacity as U.S. Secretary of Defense, Defendant.

No. CIV.A.3-03-CV-1777(JCH).

United States District Court, D. Connecticut.

January 31, 2005.

COPYRIGHT MATERIAL OMITTED

David N. Rosen, Rosen & Dolan, P.C., New Haven, CT, Alma Hadar, Andrew B. Kratenstein, Daniel Slifkin, Paul M. Dodyk, Rebecca Nordhaus, Cravath, Swaine & Moore, New York, NY, for Plaintiffs.

William M. Brown, Jr., U.S. Attorney's Office, New Haven, CT, Alan S. Modlinger, U.S. Department of Justice, Washington, DC, for Defendant.

RULING ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT [DKT. NO. 34] AND DEFENDANT'S MOTION TO DISMISS [DKT. NO. 12]

HALL, District Judge.

I. INTRODUCTION

Members of the Yale Law School faculty¹ (hereinafter the "Faculty")² together with pro se plaintiff YLS Professor Jed Rubenfeld ("Rubenfeld"),³ have brought this action against Donald H. Rumsfeld, in his official capacity as the United States Secretary of Defense ("DoD" or the "Government"). This action arises out of DoD's application of the Solomon Amendment against Yale University as a result of a YLS non-discrimination policy.⁴

The Faculty, including Professor Rubenfeld, claim that the Law School is not in violation of the Solomon Amendment, codified at 10 U.S.C. § 983 (2004), which requires educational institutions to allow military recruiters access to their campuses and their students as a condition of receipt of most federal funds. They argue that YLS' recruiting programs occur off-campus and are thus beyond the scope of the Solomon Amendment. They also claim that military recruiters have the same opportunity to become eligible for the official recruiting programs, and therefore YLS is neither "effectively preventing" military recruiters from accessing YLS students through the programs, nor treating military recruiters different from non-military recruiters.

Alternatively, even if YLS is in violation of the Solomon Amendment, the Faculty argue that the court should declare the Solomon Amendment as applied unconstitutional because it places unconstitutional conditions on hundreds of millions of dollars of government funding granted to Yale University. By compelling them to officially aid the military's recruiting efforts, the Faculty claim that the Solomon Amendment violates their freedoms of speech and association and violates their substantive due process right of educational autonomy. Specifically, the Faculty argue that forced inclusion of military recruiters in YLS' official recruiting process compels them to communicate a significantly different message concerning employment discrimination than they choose to send, and that it forces them to associate with individuals whose publicly acknowledged beliefs are in conflict with those of YLS. Additionally, the Faculty argues that forced inclusion of military recruiters interferes with their substantive due process right to educational autonomy in creating an educational atmosphere at YLS that is free from discrimination and protects all YLS students.

Professor Rubenfeld advances a slightly different constitutional claim. He eschews the Faculty's freedom of association and educational autonomy claims. He presses only a First Amendment compelled speech claim. Unlike the Faculty's claim that inclusion of military recruiters compels them to change their message, Rubenfeld argues that the Government compels him to aid in the dissemination of the Government's speech. Rubenfeld argues that compelling him to help disseminate another's speech is a violation of his First Amendment rights.

DoD opposes the summary judgment motion. It argues first that Yale University, not the Faculty, is the proper party to bring these claims. DoD also claims that, absent final agency action by the proper decision-maker at DoD, the Faculty's claims are not ripe for judicial review. If the suit is not to be dismissed on standing or ripeness grounds, DoD then argues that YLS is in violation of the Solomon Amendment because YLS has a practice which effectively prevents the military from participating in the YLS' official recruiting programs. Finally, DoD claims that the Solomon Amendment is a constitutional assertion of Congress's spending power and violates no constitutional rights.

In January 2004, DoD moved to dismiss YLS' claims for lack of standing and ripeness under Fed. R. Civ. P. 12(b)(1) and its constitutional claims for failure to state a claim upon which relief could be granted under Fed. R. Civ. P. 12(b)(6). On June 9, 2004, the court denied DoD's Rule 12(b)(1) motion. Burt v. Rumsfeld, 322 F.Supp.2d 189 (D.Conn.2004). The court held that the Faculty had suffered a constitutionally cognizable injury-in-fact when they, as the governing body of YLS, were forced to suspend its non-discrimination policy under the threat of government withdrawal of hundreds of millions of dollars of funding for sister schools within Yale University, and that the injury implicated legally protected First and Fifth Amendment rights. Additionally, the court held that the plaintiffs' claims were primarily legal in nature, that the threatened loss of funding constituted concrete and potentially catastrophic harm, and that the years of communications between the parties fleshed out the issue sufficiently for effective judicial review. Refusing to interpret "ripeness" as requiring that YLS live under a perpetual sword of Damocles, the court found the plaintiffs' claims ripe for review.⁵ However, the court reserved decision on DoD's Rule 12(b)(6) motion and will address that aspect of DoD's Motion to Dismiss in this Ruling.

The Faculty has now moved for summary judgment on all of their claims, arguing that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Professor Rubenfeld joins in that Motion on the claims pressed by him.

DoD counters that, to the extent the court does not dismiss the plaintiffs' constitutional claims under DoD's previous Rule 12(b)(6) motion for failure to state a claim, the court cannot grant summary judgment in favor of the plaintiffs because there are material facts in dispute. Specifically, it asserts a claim pursuant to Federal Rule 56(f) that it will become able to create material issues of fact upon the completion of its requested discovery.

II. STANDARD OF REVIEW

A. Rule 56(a) Summary Judgment Standard

The burden is on a party moving for summary judgment to establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); White v. ABCO Eng'g Corp., 221 F.3d 293, 300 (2d Cir.2000). When a motion for summary judgment is supported by documentary evidence and sworn affidavits, the nonmoving party must present significant probative evidence to create a genuine issue of material fact. See Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505. A court must grant summary judgment "`if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact ....'" Miner v. City of Glens Falls, 999 F.2d 655, 661 (2d Cir.1993) (citation omitted). A dispute regarding a material fact is genuine "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.1992) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505).

The court resolves "all ambiguities and draw[s] all inferences in favor of the nonmoving party in order to determine how a reasonable jury would decide." Aldrich, 963 F.2d at 523. Thus, "[o]nly when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991); see also Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir.1992). A party may not create a genuine issue of material fact by presenting contradictory or unsupported statements, see Securities & Exchange Comm'n v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978), nor may he rest on the "mere allegations or denials" contained in his pleadings, Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995); see also Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.1993) (holding that a party may not rely on conclusory statements or an argument that the affidavits in support of the motion for summary judgment are not credible). Further, a party may not rely "on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986).

The Local Rules of this court also address the obligation of the parties with regard to a motion for summary judgment: "All material facts set forth in said Local Rule 56(a) statement will be deemed admitted unless controverted by the statement required to be filed and served by the opposing party in accordance with Local Rule 56(a)2." Local Rule 56(a)(1)(D.Conn.)

B. DoD's Discovery Requests Pursuant to Rule 56(f)

DoD has asserted repeatedly in its opposition pleadings and at oral argument that DoD requires extensive discovery in order to oppose plaintiffs' summary judgment motion. DoD requested discovery in the footnotes of its summary judgment opposition brief and in the "Disputed Issues of Material Fact" section of its Local Rule 56(a)(2) filing, in place of the required list of material facts in dispute. See Def's Local Rule 56(a)(2) Statement at 7-9 [Dkt. No. 42] ("Def's Local Rule 56"). DoD also requested discovery in an additional, twenty-three page filing requested by the court in an attempt to bring specificity to DoD's previous requests. See Supplemental Declaration of...