Laskowski v. Spellings

• Citation: 443 F.3d 930
• Decision Date: 13 April 2006
• Docket Number: No. 05-2749.,05-2749.
• Parties: Joan LASKOWSKI and Daniel M. Cook, Plaintiffs-Appellants, v. Margaret SPELLINGS, Secretary of Education, Defendant-Appellee, and University of Notre Dame, Intervenor-Defendant/Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

443 F.3d 930

Joan LASKOWSKI and Daniel M. Cook, Plaintiffs-Appellants, v. Margaret SPELLINGS, Secretary of Education, Defendant-Appellee, and University of Notre Dame, Intervenor-Defendant/Appellee.

No. 05-2749.

United States Court of Appeals, Seventh Circuit.

Argued January 9, 2006.

Decided April 13, 2006.

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Jacquelyn E. Bowie Suess (argued), Indiana Civil Liberties Union, Indianapolis, IN, for Plaintiffs-Appellants.

Lowell Sturgill (argued), Department of Justice Civil Rights Division, Appellate Section, Washington, DC, for Margaret Spellings, Defendant-Appellee.

Michael A. Carvin (argued), Jones Day, Washington, DC, for University of Notre Dame, Defendant-Appellee.

Before POSNER, EVANS, and SYKES, Circuit Judges.

POSNER, Circuit Judge.

This is a taxpayer suit, originally to enjoin a grant by the Secretary of Education of money to the University of Notre Dame to be used for a program called Alliance for Catholic Education (ACE). A congressional appropriation for fiscal year 2000 had earmarked $500,000 to be given Notre Dame for redistribution to several other religious colleges in order to enable them to replicate the ACE program on their own campuses. Consolidated Appropriations Act, 2000, 113 Stat. 1501, 1501A-262 (Nov. 29, 1999). The complaint alleges that the grant violated the First Amendment's prohibition against Congress's creating religious establishments, a prohibition that the Supreme Court has interpreted to encompass any direct financial support by the government of religious activities. Notre Dame was permitted to intervene in the case in the district court as a defendant.

ACE is a program for training teachers in Catholic schools. It has three parts— professional development, community life, and spiritual growth. The first part consists of both teacher-training courses and field experience teaching at Catholic elementary and secondary schools. The second consists of the teachers' residing in faith-based communities while doing apprentice teaching in those schools. The third is encouragement of the teachers to live and work in accordance with the tenets of the Catholic faith. Thus, the program has both secular and religious components.

The district court dismissed the suit as moot because Notre Dame had received and spent the grant, a one-time grant in an appropriations bill. It was too late to enjoin the expenditure and the likelihood of a future such earmark was too remote to warrant injunctive relief. Diffenderfer v. Central Baptist Church of Miami, Fla., Inc., 404 U.S. 412, 414-15, 92 S.Ct. 574, 30 L.Ed.2d 567 (1972) (per curiam); see also Lewis v. Continental Bank Corp., 494 U.S. 472, 478, 481-82, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990); Federation of Advertising Industry Representatives, Inc. v. City of Chicago, 326 F.3d 924, 929-30 (7th Cir.2003).

We agree that the claim for injunctive relief is moot, but not that the entire case is. If $500,000 in federal money was expended by the Secretary of Education (actually slightly less, for reasons unnecessary to explain) in violation of the establishment clause, that expenditure was, in the contemplation of the law, an injury to objecting federal taxpayers. Freedom from Religion Foundation, Inc. v. Chao, 433 F.3d 989, 991-92 (7th Cir. 2006), and cases cited there. As explained in our opinion in that case, ordinarily federal taxpayers do not have standing to complain about federal expenditures, but the Supreme Court has carved an exception for cases in which a taxpayer complains that Congress is spending money in violation of the First Amendment's establishment clause. That expenditure is deemed sufficient injury to the taxpayer to allow him to maintain suit in federal court. And so the plaintiffs' case would be moot only if the district court could make no order that would compensate them in whole or in part for the injury consisting of the improper expenditure. We say in whole or "in part" because at argument Notre Dame's lawyer pointed out that insofar as the money has been spent for forbidden purposes, say to indoctrinate teachers or students in Catholic dogma, that injury cannot be rectified. What can be rectified, however, is the depletion of the federal treasury by the amount of the grant. It can be rectified simply by the restoration of the money to the U.S. Treasury. That is "meaningful relief," as assumed in Roemer v. Board of Public Works of Maryland, 426 U.S. 736, 767 n. 23, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976) (plurality opinion), which is all the relief that need be possible to avert a finding of mootness. Church of Scientology v. United States, 506 U.S. 9, 12-13, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992); Calderon v. Moore, 518 U.S. 149, 150, 116 S.Ct. 2066, 135 L.Ed.2d 453 (1996) (per curiam); In re Resource Technology Corp., 430 F.3d 884, 886-87 (7th Cir.2005); In re Envirodyne Industries, Inc., 29 F.3d 301, 303-04 (7th Cir.1994).

If Congress created a continuing program of expenditures challenged as violating the establishment clause—a program, say that consisted of annual $1 million grants to the Scottish Episcopal Church to pay the salaries of its ministers—it could be enjoined and in that way injury averted. But suppose Congress by an amendment to an appropriation bill earmarked $100 million for the Scottish Episcopal Church and the money was disbursed by the Department of the Treasury the following day. An injunction against the disbursement would come too late to provide any relief to the complaining taxpayers. The only feasible relief would be monetary. We cannot think of any reason why such relief should not be possible. Restitution is a standard remedy and one ordered in public-law as well as private-law cases. See, e.g., Wyandotte Transportation Co. v. United States, 389 U.S. 191, 203-05, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967); United States v. P/B STCO 213, 756 F.2d 364, 374 (5th Cir.1985).

This point has been obscured by a debate among the parties over whether the Secretary of Education can be made to order Notre Dame to restore the money to the Treasury. The Secretary is authorized to seek repayment of a grant diverted to sectarian purposes in violation of the Constitution and a Department of Education regulation. 34 C.F.R. § 75.532; see 31 U.S.C. §§ 3701(b)(1)(C), 3711(a)(1); 34 C.F.R. § 74.73(a). But courts are not authorized to review a decision not to take an enforcement action; such decisions are within the absolute discretion of the enforcement agency. Heckler v. Chaney, 470 U.S. 821, 831-33, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985); see also City of Chicago v. Morales, 527 U.S. 41, 62 n. 32, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). Otherwise courts would take over the prosecutorial function, making decisions, well outside judicial competence, about the best allocation of limited enforcement resources.

The suggested procedure of ordering the Secretary to order Notre Dame to repay the grant money is not only unauthorized but also needlessly complex. If the plaintiffs prevail on the merits, the district court can simply order Notre Dame to return the money to the treasury. Notre Dame objects that as a private entity it is incapable of violating the establishment clause, which like most provisions of the Constitution is a limitation on the power of government, not of private entities. But if as the plaintiffs claim the Department of Education wrongfully took their tax money and gave it to Notre Dame, the court can order Notre Dame to return the money to the U.S. Treasury. It would be like a case of money received by mistake and ordered to be returned to the rightful owner. Such orders are routine instances of restitution. Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 213-14, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002); ConFold Pacific, Inc. v. Polaris Industries, Inc., 433 F.3d 952, 957-58 (7th Cir. 2006); Moriarty v. Larry G. Lewis Funeral Directors Ltd., 150 F.3d 773, 777 (7th Cir.1998); Landmark Land Co., Inc. v. FDIC, 256 F.3d 1365, 1378 n. 5 (Fed.Cir. 2001); Douglas Laycock, "The Scope and Significance of Restitution," 67 Tex. L.Rev. 1277, 1284 (1989) (a "defendant may be unjustly enriched without having committed any other civil wrong"). And restitution is among the remedies that a federal court can order for a violation of federal law. See, besides the cases cited earlier, Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 290-91, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960); Porter v. Warner Holding Co., 328 U.S. 395, 398-99, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946); United States v. Lane Labs-USA Inc., 427 F.3d 219, 225 (3d Cir.2005); see generally Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 68, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992).

Against all this it can be argued that the plaintiffs have forfeited any claim to restitution by asking only for injunctive relief. But the argument is incorrect on three grounds. First, the plaintiffs made clear in the district court that they want the money that was given to Notre Dame and by it funneled to the other Catholic schools returned to the U.S. Treasury. They want the funnel to be an order to the Secretary of Education, but that is merely a detail. Second, Rule 54(c) of the civil rules provides that "every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleadings." See, e.g., Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 65-66, 99 S.Ct. 383, 58 L.Ed.2d 292 (1978); Old Republic Ins. Co. v. Employers Reinsurance Corp., 144 F.3d 1077, 1081-82 (7th Cir.1998); Felce v. Fiedler, 974 F.2d 1484, 1501-02 (7th Cir.1992); Powell v. National Board of Medical Examiners, 364 F.3d 79, 85-86 (2d Cir.2004); Z Channel Ltd. Partnership v. Home Box Office, Inc., 931 F.2d 1338, 1340-41 (9th Cir.1991) ("if Z Channel is entitled to collect damages in the event that it succeeds on the merits, the...