Opposition Brief — Fitzgerald v. Thompson

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No. 09-930 :

IN THE

Supreme Court of the Gnited States

KENYON B. FITZGERALD, ET AL.,

Petitioners,

¥.

WADE F.B. THOMPSON, ET'AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF IN OPPOSITION

AIDAN SYNNOTT

Counsel of Record

LEWIS R. CLAYTON

BARBARA R. LLANES

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019-6064

(212) 373-3000

asynnott@paulweiss.com

Counsel for the

Private-Party Respondents

QUESTIONS PRESENTED

When an armory building in New York City fell

into disrepair, the New York Legislature enacted a

statute authorizing the building to be leased to a

non-profit organization. Petitioners are veterans

who claim that the statute effected a taking and

unlawfully denied them building access. The dis-

trict court dismissed petitioners’ claims for lack of

standing, and the Second Circuit affirmed. The

questions presented are:

1. Whether petitioners have standing to assert a

taking when petitioners have no ownership interest

in the armory.

2. Whether petitioners’ claimed denial-of-access

injury satisfies the requirement that, to be a proper

predicate for standing, injury must be “actual or

imminent, not conjectural or hypothetical” when the

challenged statute requires the organization manag-

ing the building to grant reasonable access to veter-

ans on request, and when petitioners concededly

failed to request access.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6 of the Rules of this Court,

the undersigned private-party respondents (the Sev-

enth Regiment Armory Conservancy, Inc., and cer-

tain of its officers, directors, and employees: Elihu

Rose, Stephen Lash, Arie L. Kopelman, Edward

Klein, Rebecca Robertson, Kirsten Reoch, and Wade

F.B. Thompson!) state as follows:

Respondent the Seventh Regiment Armory Con

servancy, Inc., a not-for-profit organization, has no

parent corporation and no publiicly-held corporation

owns 10 percent or more of its stock.

! Although Mr. Thompson was a party to the proceedings

below, he has since passed away. We believe that, because Mr.

Thompson was sued solely in his capacity as a board member

of the Conservancy, he is no longer a party.

(11)

TABLE OF CONTENTS

Page:

QUESTIONS PRESENTED...........

CORPORATE DISCLOSURE STATE-

ey en ate et ng ging oy 6 & wank il

TABLE OF CONTENTS ............. 11]

TABLE OF AUTHORITIES........... iV

STATEMENT OF THE CASE ......... l

REASONS TO DENY THE WRIT ...... 6

I. THE PETITION PRESENTS NO

TAKINGS ISSUE THAT WAR-

Fol pee 446 Se 6

Il. THE PETITION PRESENTS NO

DENIAL-OF-ACCESS ISSUE THAT

WARRANTS REVIEW............ 9

6.8). eR o)o 6. rar er 13

(lil)

TABLE OF AUTHORITIES

Page(s):

CASES

Aur Pegasus of D.C., Inc. v. United States,

424 F.3d 1206 (Fed. Cir. 2005) ...... 6

Albuquerque Indian Rights v. Lujan, 9380

F.2d 49 (D.C. Cir. 1991)........... S)

Andrus v. Allard, 444 U.S. 51 (1979) .. 6

Bennett v. Spear, 520 U.S. 154 (1997).... )

CenocoPhillips Co. v. Henry, 520

F. Supp. 2d 1282 (N.D. Okla. 2007),

reu d on other grounds, Ramsey

Winch Inc. v. Henry, 555 F.3d 1199

Pee, ES cs ck ees ee

Friends of the Earth, Inc. v. Laidlaw

Enotl. Servs., Inc., 528 U.S. 167

RSP gag are ara toe GR i or 11,12

Heirs of Burat v. Board of Levee Commr’s

of the Orleans Levee Dist., 496 F.2d

i836 (6th Cir. 1974)... .. 2. ce cc ee 7

ICC v. Appleyard, 513 F.2d 575 (4th Cir.

of) | ee 2 6.0t: Ee re 9

Lujan v. Defenders of Wildlife, 504 U.S.

NE ED re a 8 ck he ee 12

Madsen v. Boise State Univ., 976 F.2d

1219 (9th Cir. 1992) (per curiam)... . 9

Moose Lodge No. 107 v. Irvis, 407 US.

Schutz v. Thorne, 415 F.3d 1128 (10th

Cir. 3008) «255 es 9

Stop the Beach Renourishment, Inc. v.

Florida Department of Environ

mental Protection, No. 08-1151 (filed

Mar. 13, Serre ce ct ee M

Summers v. Earth Island Inst., 129 8S

Ct. 1142 (2009) .. 1?

United States Olympic Committee v. In-

telicense Corp., 737 F.2d 263 (2d Cir.

1964). . «ss aun. ca o, 6

STATUTE

2004 N.Y. Law Gap ee es ee ce

STATEMENT OF THE CASE

Petitioners challenge a state statute that author

ized an armory to be leased to a non-profit organiza-

tion. The Second Circuit, affirming the district

court, correctly concluded that petitioners lack

standing to press their challenge because they nei-

ther own the armory nor requested access to it.

Those holdings do not conflict with precedent of any

other court. Because this case involves only fact-

bound application of unchallenged and correctly

stated legal principles, it presents no issue warrant-

ing review by this Court.

1. On Manhattan’s Upper East Side, at Park

Avenue and 67th Street, stands the Seventh Regi-

ment Armory. Pet. App. 3a. Built between 1877

and 1881, the Armory includes a vast drill hall that

was an engineering marvel when it was built, as

well as a number of meeting rooms that were or-

nately decorated by some of the finest artists and

craftsmen of the day. The building is included in

federal, state, and local landmark registers. Pet. 9;

Pet. App. 9a, 26a.

Since its construction, the Armory has always

been publicly owned and controlled. Pet. App. 3la-

32a. The land under the Armory was and is owned

by the City of New York. Pet. App. 9a, 17a, 28a.

The land was leased to the Seventh Regiment, a Na-

tional Guard unit that has always been an arm of

the State of New York. Pet. App. 9a, 17a.

The Armory continues to be used as an adminis-

trative center and staging ground for the National

Guard. Pet. 10. Over the years, the State also per-

mitted other public uses. For some time, part of the

building has been used as a homeless shelter. Pet.

)

App. 27a. In addition, the drill hall has long been

used for exhibits and artistic performances. Pet. 10,

11; Pet. App. 26a-27a.

In recent decades, however, the building fell into

a regrettable state of disrepair. Pet. App. 10a, 27a.

The State estimated that necessary rehabilitation

would cost millions of dollars. Pet. App. 27a. Given

budgetary constraints, the State was unable to pro-

vide public funding and ultimately concluded that

funding should be sought instead from private

sources. Pet. App. 27a-29a. Accordingly, the State

invited private proposals to rehabilitate the building

while maintaining its traditional uses. Pet. App.

10a, 27a. In response, the Seventh Regiment Ar

mory Conservancy, Inc. (“Conservancy”), a non-

profit organization, submitted a proposal to reha-

bilitate the building and expand its function as a

center for the performing and visual arts. The State

decided to accept the Conservancy’s proposal. Pet.

App. lla.

The State implemented the proposal by enacting

a statute authorizing lease of the building to the

Conservancy. 2004 N.Y. Laws Ch. 482 (reprinted at

Pet. App. 26a-36a). The statute allowed the Con-

servancy to use the building for cultural purposes,

on the condition that any proceeds must be devoted

to the building’s rehabilitation. Pet. App-34a-35a.

The statute further provided that the Conservancy

must allow the building to be used for its traditional

purposes. Pet. App. 33a-35a. And the statute pro

vides: “On application of [veterans’ associations], the

lessee ... shall provide a proper and convenient

room or rooms or other appropriate space in the ar-

mory where such [association] may hold regular and

special meetings and organizational social events of

a private nature, without the payment of any charge

or expenses therefor, provided that such use does

not interfere with the use by the lessee... .” Pet.

App. 33a

2. Almost three years after the statute’s enact-

ment, petitioners (three individual veterans and one

veterans’ organization) challenged the statute in

federal district court. Pet. App. lla. The complaint

named as defendants various state officials as well

as the undersigned private-party respondents (the

Conservancy and certain of its officials). The com-

plaint requested a declaration that the statute vio-

lated petitioners’ constitutional rights and an in-

junction against the statute’s implementation.

The complaint alleged that the statute violated

the Takings Clause and interfered with petitioners’

access to the Armory in violation of petitioners’ First

Amendment, due process, and equal protection

rights. The complaint also asserted that the Armory

should be used to establish a museum dedicated to

the Seventh Regiment, and that the failure to estab-

lish such a museum (at public expense) likewise vio-

lated petitioners’ rights under the First Amend-

ment.

Respondents moved to dismiss the complaint on

numerous grounds. See Pet. App. 13a. With respect

to the claim that the statute took property from the

Seventh Regiment, respondents argued (among

other things) that the Seventh Regiment is an arm

of the State of New York, and as such is not a pri

vate entity that is capable of suffering a taking

much less at its own hand. Even if the Seventh

Reyiment could assert any kind of takings claim, re

spondents argued, that claim could not be asserted

by petitioners, who are not officers of the Seventh

Regiment or otherwise authorized to act on the

Regiment’s behalf.

As for the claim about petitioners’ own access to

the Armory, respondents argued (among other

things) that nothing in the challenged statute de-

nies veterans access to the Armory — to the con-

trary, the statute specifically provides that, “[o]n

application of [veterans’ associations],” the Conser-

vancy “shall” make available “a proper and conven-

ient room or rooms or other appropriate space in the

armory.” Pet. App. 33a. And, respondents argued,

the complaint does not (because it cannot) allege

that petitioners sought access from the Conser-

vancy, much less that such access was denied.

Thus, respondents argued, any claim about possible

denial of access was speculative.

The district court granted the motion to dismiss.

With respect to the takings claim, the district court

noted that the Armory has historically been owned

and controlled by the Seventh Regiment. Pet. App.

16a-17a. Petitioners, it found, “are not representa-

tives of the Regiment and thus have no property in-

terest in the Armory.” Pet. App. 17a (emphasis in

original). “Because only those with cognizable prop-

erty interests have standing to bring takings

claims,” the district court concluded, petitioners

“lack standing.” Pet. App. 22a

With respect to the denial-of-access claim, the

district court noted that, “by the express terms of

ithe statute], veterans’ groups may have access to

the Armory on application to the Conservancy.” Pet.

App. 15a. As the district court explained, the stat-

ute amended prior law only in that it “shifted the

responsibility of granting access to the Armory from

the officer in charge of the Armory to the lessee of

the Armory, the Conservancy.” Pet. App. 15a-16a.

And, the court noted, “(t]he Complaint does not al-

lege that the Conservancy has taken any steps af-

firmatively to restrict applications by veterans

groups’; nor does it allege that petitioners “have

made any such application to access the Armory.”

Pet. App. 16a. Accordingly, the district court ruled,

petitioners “are unable to demonstrate more than an

injury that is merely speculative,” which is not suffi-

cient to support standing. Pet. App. 16a.

The Second Circuit affirmed by unpublished sum-

mary order. With respect to the takings claim, the

court stated that “lo]Jnly the owner of an interest in

property at the time of the alleged taking has stand-

ing to assert that a taking has occurred.” Pet. App.

4a (quoting United States Olympic Committee v. In-

telicense Corp., 737 F.2d 263, 268 (2d Cir. 1984)).

The court noted that petitioners “allege no official

connection between [petitioners] and the Seventh

Regiment of the National Guard.” Pet. App. 5a.

“Therefore,” the court concluded, petitioners “have

no standing to bring a takings claim.” Id.

As for the claim about petitioners’ own access to

the Armory, the court of appeals noted that peti-

tioners did not argue that the statute violates their

rights “on its face,” and likewise did not allege that

the statute “has been applied to violate” their rights.

Pet. App. 5a. As the court noted, the statute

“changes the access procedure to the Armory only in

that appellants must now submit their application

for access to a different person,” and “Appellants did

not allege that they have applied for and been de-

nied access.” Pet. App. 5a. “At present,” the court

accordingly concluded, “any injury is hypothetical.”

Pet. App. 6a.2

The undersigned private-party respondents ini-

tially waived a response to the petition. On March

30, 2010, this Court requested a response. The

Court later extended the time for filing a response to

and including May 28, 2010.

REASONS TO DENY THE WRIT

[. THE PETITION PRESENTS NO TAKINGS

ISSUE THAT WARRANTS REVIEW.

In affirming the dismissal of petitioners’ takings

claim, the Second Circuit was entirely correct. As

the court of appeals noted, “lolnly the owner of an

interest in property .. . has standing to assert that a

taking has occurred.” Pet. App. 4a (internal quota-

tion marks omitted). That view is consistent with

the precedent of this Court and other courts that

have considered the issue. See, eg., Andrus uv.

Allard, 444 U.S. 51, 64 n.21 (1979) (“[T]here is no

standing to assert a takings claim by those who are

merely employed in selling artifacts owned by oth-

ers.”); Air Pegasus of D.C., Inc. v. United States, 424

F.3d 1206, 1219 (Fed. Cir. 2005) (“Air Pegasus ap-

pears to assert a claim based on a perceived taking

of property owned by other parties. The Fifth

Amendment does not provide a remedy for such a

derivative claim.”); United States Olympic Commit-

tee v. Intelicense Corp., 737 F.2d 263, 268 (2d Cir.

1984) (“Only the owner of an interest in property at

¢ The court of appeals also rejected petitioners’ museum-

related claim on the merits, determining that petitioners “have

not shown any right to install a museum in the Armory.” Pet.

App. 6a.

the time of the alleged taking has standing to assert

that a taking has occurred.”); Heirs of Burat uv.

Board of Levee Commr’s of the Orleans Levee Dist.,

496 F.2d 1336, 1341 (5th Cir. 1974) (“The Burats do

not have standing to contest the expropriation of

United States owned land, nor do they have stand-

ing to contest the taking of privately owned land

from other owners.”); ConocoPhillips Co. v. Henry,

520 F. Supp. 2d 1282, 1298 (N.D. Okla. 2007) (“The

Court is not aware of any Takings Clause case in

which a court invalidated a law based on its impact

on property owners that were not parties to the liti-

gation.”), rev'd on other grounds, Ramsey Winch Inc.

v. Henry, 555 F.3d 1199 (10th Cir. 2009).

The court of appeals was further correct in ruling

that, as a factual matter, the complaint did not al-

lege that petitioners either are the Seventh Regi-

ment or are authorized to act on the Seventh Regi

ment’s behalf. Nor do petitioners dispute this char-

acterization of the facts in their petition. Rather,

without citation to the record, petitioners make an

“offer of proof’ that two of the petitioners were offi-

cers and members of various organizations that

used the Armory other than the Seventh Regiment

itself, including the Seventh Regiment Rifle Club

and the Veterans of the Seventh Regiment. Pet. 17.

These are new allegations, which are not in the

complaint and thus not properly before this Court.

In addition, they simply confirm that petitioners

have no right to act on the Seventh Regiment’s be-

half.

Petitioners do not contend that the Second Cir-

cuit’s decision conflicts with the decision of any

other court of appeals. Petitioners also do not con-

tend that the petition should be held pending the

decision in any other case on this Court’s plenary

docket.* Rather, petitioners for the most part sim-

ply repeat their merits arguments that the Armory

constitutes private property, that the statute ef-

fected a taking, and that the taking was for a pri-

vate rather than a public use. Petitioners fail, how-

ever, to take meaningful issue with the ground on

which the court of appeals rested its ruling: that pe-

titioners are not the Armory’s owner and are not au-

thorized to act on the owner’s behalf. In light of

that holding, petitioners’ merits arguments are be-

side the point.

The closest petitioners come to challenging the

court of appeals’ threshold ruling is when they ar-

gue that the court of appeals took an overly narrow

view of ownership. Pet. 26-30. According to peti-

tioners, “retired members” of the Seventh Regiment

as well as “those who contribute ‘sweat equity’ into

the Armory” have a sufficient ownership stake to be

entitled to assert takings claims on the Seventh

Regiment’s behalf. Pet. 26. But petitioners cor-

rectly acknowledge that their claim is “novel,” Pet.

13: they cite no support for it, and we know of none.

Nor does petitioners’ view have common sense to

commend it: it would vastly expand the universe of

parties who must be compensated when government

exercises its power of eminent domain and it would

greatly complicate governmental efforts to renovate

or dispose of government property.

3 There is no cause to hold the petition pending a decision

in Stop the Beach Renourishment, Inc. v. Florida Department

of Environmental Protection, No. 08-1151 (filed Mar. 13, 2009).

The issue in that case is whether a taking can be effected by a

judicial decision. Here, there is no claim of any taking by judi-

cial decision.

Il. THE PETITION PRESENTS NO DENIAL-

OF-ACCESS ISSUE THAT WARRANTS RE-

VIEW.

Just as the court of appeals was correct in holding

that petitioners lack standing to assert a takings

claim, so the court of appeals was correct in holding

that petitioners lack standing to complain of a de-

nial of access. To have standing, a plaintiff must

point to an invasion of a legally protected interest

that is “actual or imminent, not conjectural or hypo-

thetical.” Bennett v. Spear, 520 U.S. 154, 167

(1997). As a result, a plaintiff lacks standing to

challenge denial of a benefit unless he shows either

that he apphed for the benefit or that application

would have been futile. See, e.g., Moose Lodge No.

107 v. Irvis, 407 U.S. 163, 167 (1972) (“appellee was

not injured by Moose Lodge’s membership policy

since he never sought to become a member”); Schutz

v. Thorne, 415 F.3d 1128, 1134-35 (10th Cir. 2005)

(“(Plaintiff] had not yet applied for [hunting] li-

censes and established that the [challenged statute]

in fact limited his hunting options. Standing is not

conferred by ‘conjecture’ or ‘speculation’ about fu-

ture hunts.”); Madsen v. Boise State Univ., 976 F.2d

1219, 1220 (9th Cir. 1992) (per curiam) (“There is a

long line of cases ... that hold that a plaintiff lacks

standing to challenge a rule or policy to which he

has not submitted himself by actually applying for

the desired benefit.”); Albuquerque Indian Rights v.

Lujan, 930 F.2d 49, 55 (D.C. Cir. 1991) (association

complaining of agency’s “failure to apply ... hiring

preference” lacked standing because it “failed to as-

sert that any of its members actually applied for or

otherwise sought to fill vacant .. . positions”); /CC v.

Appleyard, 513 F.2d 575, 577 (4th Cir. 1979) (“Until

[plaintiff] has shown that he cannot obtain a permit

under the existing regulations, he has suffered no

legally cognizable injury from this injunction.”).

As the court of appeals correctly ruled, petitioners

do not and cannot argue that the challenged statute

violates their rights “on its face,” Pet. App. 6a: the

statute by its terms requires the Conservancy to

provide veterans’ groups “proper and convenient”

access upon request, Pet. App. 33a. The court of ap-

peals also correctly determined that petitioners’

complaint did not “allege that [petitioners] have ap-

plied for and been denied access.” Pet. App. 6a. On

these facts, the court of appeals correctly held that

petitioners’ “injury is hypothetical,” and that their

access claim therefore is not justiciable. Pet. App.

6a.

Petitioners again do not (because they cannot)

argue that this ruling conflicts with the ruling of

any other court of appeals. Nor do petitioners argue

that the court of appeals’ ruling implicates a ques-

tion presented in any other case on this Court’s ple-

nary docket. Rather, petitioners again devote the

bulk of their petition to arguing that they have

statutory and constitutional rights to assemble in

the Armory, including a right to establish a museum

there at public expense.* Those assertions are base-

less: although petitioners unquestionably have a

First Amendment right to speak about their experi-

4 See, e.g., Pet. 33 (“The obvious source of funding for plan-

ning, installing and operating a first-class museum on Amer-

ica’s citizen-soldiers in the Seventh Regiment Armory is out of

the rental income the Armory receives from the annual an-

tique art and antiquarian book shows held in the Armory’s

Drill Hall.”).

ences and to establish a museum memorializing

them, they have no right to occupy property that has

been leased to others, much less at public expense.

More importantly, petitioners do not meaning-

fully challenge the court of appeals’ threshold de

termination that, absent any allegation that access

has been requested and denied, any denial-of-access

injury is hypothetical. The petition states that the

statute “closed the Armory to veterans,” Pet. 24,

that petitioners have been “de facto denied access,”

Pet. 37, and that they have been “effectively ex-

cluded,” Pet. 39. But petitioners nowhere take issue

with the court of appeals’ determination that peti-

tioners’ complaint. failed to “allege that [petitioners]

have applied for and been denied access.” Pet. App.

6a. Petitioners cannot pursue a claim for denial of

access they have not sought.

Petitioners appear to argue that they can have

standing even without requesting access. Citing

Friends of the Earth, Inc. v. Laidlaw Environmental

Services, Inc., 528 U.S. 167 (1999), petitioners argue

that they are being denied “enjoyment of the Ar-

mory’s aesthetic and recreational resources,” which

they say is “not unlike the aesthetic and recrea-

tional rights of bird-watchers and animal welfare

activists in environmental cases.” Pet. 30; see Pet.

13, 39 (same).

But even in environmental cases (which implicate

considerations quite different from those at issue

here), plaintiffs cannot establish standing merely by

claiming to care about the environment — they

must assert that they have a present intent to avail

themselves of environmental enjoyment in a par-

ticular location affected by a measure sought to be

blocked. See, e.g., Summers v. Earth Island Inst.,

129 S. Ct. 1142, 1150 (2009) (requiring a “firm in-

tention to visit ... locations” affected by challenged

measure); Friends of the Earth, 528 U.S. at 181-82

(plaintiffs had established standing by asserting

that they sought to visit a particular location but

had been rebuffed by the pollution that they sought

to remedy); Lujan v. Defenders of Wildlife, 504 U.S.

555, 564 (1992) (plaintiffs could not establish stand-

ing by asserting that they intended to return “some

day” to affected area without asserting “concrete

plans”).

To be sure, plaintiffs in environmental cases gen-

erally need not allege that they filed an application

for access to a particular park or forest. But that is

so only because most parks and forests are open to

the general public without the need for any prior

application. Friends of the Earth and other envi-

ronmental cases recognize, however, that a plaintiff

complaining of environmental harm to a particular

location must assert concrete intentions to visit that

location. That recognition only lends support to the

proposition that a plaintiff seeking access to a loca-

tion that provides desired access on application

must assert that access has been requested and de-

nied.

For their military service to the Nation, petition

ers deserve respect. But petitioners have no right to

override the decision of elected representatives of

the People of the State of New York to implement an

effective and efficient plan to save a priceless State

resource while preserving its military character.

That legislative judgment also deserves respect in

federal court. And, as the Second Circuit correctly

determined, petitioners’ legal challenges to that

judgment founder on settled principles of justiciabil- ,

ity. That determination does not give rise to issues

that deserve this Court’s further attention.

CONCLUSION

The petition should be denied

Respectfully submitted,