Freedom From Religion Foundation, Inc. v. Elaine L. Chao, Secretary of Department of Labor
447 F.3d 988
7th Cir.
2006
Check Treatment
Docket

*1 Inc., Quad/ 366 F.3d Graphics, v. FLAUM, Hon. M. Before JOEL Chief (7th Cir.2004) (holding appellant pre- POSNER, Judge, Hon. A. RICHARD at summary sented insufficient evidence EASTERBROOK, Hon. FRANK H. Hon. jury for a judgment reasonable find for RIPPLE, F. KENNETH Hon. DANIEL claim). result, him As a on his FMLA MANION, A. Hon. MICHAEL S. Whirlpool’s suspicion honest forecloses KANNE, Hon. ILANA DIAMOND claim, FMLA summary judg- Crouch’s ROVNER, WOOD, Hon. DIANE P. Hon. Kariotis, was proper. ment 131 EVANS, T. TERENCE Hon. ANN at 681. WILLIAMS, CLAIRE Hon. DIANE S. III. Conclusion SYKES, Circuit Judges. reasons, foregoing judgment For the ORDER

of the district court is Affirmed. 13, 2006,

On March defendants-appellees petition filed a for rehearing sugges with rehearing tion of banc. en A vote of the request active members of the Court was ed, majority deny and a has voted to petition.* petition DE therefore FREEDOM FROM RELIGION NIED,

FOUNDATION, INC., al., et

Plaintiffs-Appellants, FLAUM, Judge, concurring Chief in the rehearing denial of banc. en Easterbrook, Along Judge my vote Secretary CHAO, Elaine L. deny petition en rehearing banc Department Labor, al., et premised is not upon conclusion that the Defendants-Appellees. taxpayer standing issue as addressed in No. 05-1130. panel opinion is free from doubt. In- deed, position forth set in the dissent United Court Appeals, States is one eventually which could command Seventh Circuit. high However, court endorsement. 3,May obvious tension which has evolved jurisprudence,

area of evidenced scholarly opinions Judge Posner and Judge Ripple, can be resolved my judgment, Court. Richard (argued), Boardman, L. Bolton important needed consideration is- Suhr, Field, Madison, Curry WI, & sue that tribunal would unnecessari- Plaintiff-Appellant. ly delayed our further deliberation. * Judge Manion, Kanne, Chief Judge Judge Judge Judge Flaum and Sykes Easterbrook opinions concurring have written in the deni- joined, dissenting have from the denial of the petition rehearing al of the en banc. petition. Judge Ripple opinion, has written an which

989 (1984); EASTERBROOK, 3315, 82 L.Ed.2d 556 Simon Judge, S.Ct. Circuit rehearing en concurring Kentucky Rights in the denial of v. Eastern Or- Welfare 26, 1917, ganization, banc. 426 96 U.S. S.Ct. 48 (1976); Rich- L.Ed.2d 450 United States v. deny petition for rehear My vote to ardson, 166, 2940, 41 418 U.S. 94 S.Ct. I deem the imply not that ing en banc does (1974); Schlesinger L.Ed.2d 678 v. Reserv- or the beyond dispute panel’s resolution War, Stop to ists Committee 418 U.S. contrary, unimportant. To the issue (1974). 208, 2925, 41 difficult, subject recurring and is both R.R. v. Buck- Judge Cf. Metro-North Commuter Rip force in there is considerable (7th 989, 424, 2113, ley, 521 117 138 dissent, 433 997-1001 U.S. S.Ct. ple’s Cir.2006), analysis (1997). standing in the L.Ed.2d Yet Flast so far 560 from Laskowski v. Sykes’s dissent Judge to cabin it or to resisted efforts either (7th 930, 941-46 Spellings, 443 F.3d Cir. incorporate gen- its into a approach more 2006), panel’s holding. this which extends justiciability. eral framework related matters Two divided decisions on panel’s majority that Our has concluded judicial political and the put that taxpayer standing the doctrine of will be government at of the federal branches if it logical covers administrative as more of further imply the wisdom review. odds grant I that legislative well earmarks. My deny rehearing to rests on vote comprehensiveness and proposition —but right forum conclusion that is not the hall- rationality are not this doctrine’s further deliberation. that Why may taxpayers complain marks. difficulty arguments principal The outlays of cash but not about about standing is pro and con about personal property? of real or distribution arbitrary. Taxpayers that the doctrine College v. Valley Forge Christian See almost all standing complain lack to about Separation Americans United for Cohen, 83, Flast expenditures. 392 U.S. State, Inc., 464, 102 Church & 454 U.S. (1968), 1942, held 20 L.Ed.2d 947 S.Ct. (1982). 752, 70 L.Ed.2d 700 Cash S.Ct. outlays religious that suits about exchanged for or the may property to overrule Froth special are but declined reverse; distinction cash and between Mellon, 447, 43 ingham v. 262 U.S. S.Ct. standing property purpose (1923),which that 67 L.Ed. 1078 holds in the cases. illogical but embedded complain to about taxpayers lack complain about Why may taxpayers that public expenditures. To the extent (the in Laskow- expenditures grant modest taxation Clause forbids Establishment $500,000, per less than cent was or ski subject religion, people to to support slightly taxpayer) but not about U.S. relief, levy plaintiffs illegal may obtain but According panel, to smaller ones? say they have litigation do not used complaint President penny grant. extra of the paid one to promote Address the Union State (if injury? The loss Where’s concrete justiciable. panel dis- not religion is any) who plaintiffs, is mental distress Secretary of against claim missed a bystanders challenged program, are expense that Education rested they by knowing about conduct suffer Secretary had incurred deliver wrongful. III not per deem Article does 995-96. The 433 F.3d at speech. See complaints. such mit courts to entertain proclamations and presidential cost of total Wildlife, 504 Lujan v. Defenders of that touch by Cabinet officers speeches 119 L.Ed.2d 351 U.S. S.Ct. several other (1992); religion (Thanksgiving and Wright, Allen v. $500,000 surely annually; holidays) exceeds or contraction-—or decide to tolerate the may much use Air Force it cost that existing state affairs. and send Secret Service detail to a

One engagement. money If single speaking RIPPLE, Circuit Judge, with whom *3 Treasury supply is to the from the identifi- MANION, SYKES, KANNE and Circuit standing, then the tena- trifle for able Judges, join, dissenting the denial of (no cost to taxpayers line is $0 ble between rehearing en banc. (some whole) cost, a and however as $1 The requested Government has that the dilute); yet panel the draws line between court hear this case en banc. Because the (even $50,000 $5,000 $500,000 if and or panel majority decision of the departs sig- speeches proclamations of or there are lots nificantly Supreme established Court $5,000 $50,000 apiece). at or is the Where precedent and creates an inter-circuit con- in such coherence a doctrine? That no flict, I believe that the Government’s con- (yet!) willing is entertain a suit court to request sidered its reflects serious concern $50,000 draft, speech costs about to impact panel the majority’s about of the deliver, through and distribute the Govern- holding on executive governance. There- Printing adjudicating ment Office—while fore, I believe the case should set $500,000 objections grants to that do not bancj rehearing en and that a decision plaintiff suggests prob- the even cost l<t— be rendered that reflects the view the in underpinning lems Flast’s and applica- Indeed, entire court. because this case tion. also reflects view about the nature of Perhaps Michael Newdow should have judicial Article III power, the case has return, tax invoked his rather than his judicial implications gover- serious father, challenge status as a inclu the nance, we, branch, and as officers of that God” in Pledge sion “under the of Alle special duty have a to ensure that a deci- giance. is price tag What the in both expanding authority sion claim we money opportunity and the cost of time to represents ourselves the considered print many copies million phrase judgment every judge on this court. daily and read it in thousands of class especially Such review is appropriate was, however, rooms? As it the Supreme when the Government specifically charges, non-justiciable. his suit Court deemed here, it has as that the court “greatly

Elk Grove School District v. New Unified exceeded authority by its ignoring the Su- dow, 124 S.Ct. U.S. preme Court’s own ... rules and substi- (2004). L.Ed.2d 98 tuting its own views of what law ra- But is this arbitrariness built into tionally ought to be.” Pet. Reh’g at 13. doctrine as it comes to us. Nothing we majority’s opinion does not can do would eliminate the tension be- with square Supreme Court’s Kendrick, tween Flast and Bowen v. standing beginning cases with Flast Co- hen, continuing Valley Forge Chris- (1988), hand, Frothingham the one and College, ending tian and recently most Forge Valley (plus the many cases In with Bowen v. Kendrick. each of these Wildlife) such as on the oth- Defenders cases, plaintiffs’ problem er. The our claims to not of creation and standing turned on locally. strength cannot be resolved There is no logical way to determine the extent of an nexus demonstrated between their status arbitrary Only taxpayers rule. the rule’s proprietors challenged congres- bring harmony Flast, can expenditure. extension sional taxpayers —-whether present it they reality present al- here as was in shown such nexus had Congress However, had violated Es- leged Valley Forge. grants authorizing

tablishment Clause Court, in an making exception to usual schools, though the mon- even parochial taxpayers has drawn rules agency. an passed through executive ey making very clean order to avoid .line taxpayer nexus found a sufficient Bowen for all federal courts forum sorts constitutionality of a con- challenge the of govern complaints about conduct that allowed spending program gressional other than citi affairs on basis mental federal to receive religious institutions Abolishing diluting or even standing. zen funds, though program was ad- even explicitly set the Su a standard so Secretary of Health and ministered *4 is an simply appropriate Court not preme contrast, Valley By Human Services. duty for to make. We have a decision üs halting a prohibited taxpayers Forge the apply faithfully precedent the of decision to transfer sur- purely executive precedent until that is Supreme Court' religious to a institution. public land plus by the Court. See overruled Valley plain- the distinguished Forge What Khan, 3, 20, 118 in Oil Co. v. 522 U.S. from those Flast and Bowen'was State tiffs . complaint (1997) 275, 139 “the of their [was] that source S.Ct. action, congressional but decision not ought also to hear this case en banc We agency] to transfer by executive [the majority has created panel the because Forge, property.” Valley of parcel federal Most to the clear conflict on issue. short, In 454 U.S. at 102 752. S.Ct. Catholic Con- re United States point constitutionally- Valley Forge held the (2d Cir.1989). ference, F.2d 1020 status required plaintiffs nexus between a “ congres- There, of taxpayer Appeals as and ‘exercises the the Sec- Court ” power’ allega- erodes without an sional standing to ond Circuit denied Estab- Congress tion that violated the sought chal- supporters who pro-choice Flast, (quoting Clause. Id. lishment grant tax- the IRS to lenge decision 1942). at exempt status to the Catholic Church. Here, Valley as in Forge, plaintiffs Valley in this Critically, Forge in and as any not action taken complain do case, not asserted that plaintiffs had plaintiffs alleged never Congress. The Congress Internal Revenue wrote Congress violated the Establishment in a manner that favored the Catho- Code Here, funds. as appropriating Clause they alleged had that the lic Nor Church. allegation Valley Forge, there no in it was authorized the IRS to do what Code challenged activi- Congress authorized the eyes viola- closing its doing (allegedly reflects, ties; and, as far the record Church). Instead, com- “[t]he tions challenged executive action involved alleged decision an plaint centered] expenditure than the more incidental that, branch solely by made executive Valley Forge. in public transfer land view, directly contravenefd] plaintiffs’ in Nevertheless, decision held plain- Id. at 1028. The Congress’ aim.” plaintiffs had .the established, hot as the had tiffs therefore was “neces- congressional appropriation nex- requires, “a sufficient Supreme Court occur,” sary for -the violation to Freedom as a taxpayer’s standing us between the Chao, Foundation, Inc. Religion congressional exercise (7th Cir.2006). Some (empha- Id. power.” taxing spending governmental funds is nec- expenditure of added). case is indistin- present That essary every action. sis executive guishable.1

Fortunately, case not meets en banc review set forth in criteria rules, R.App.

our see Fed. P. but also in certiorari review criteria States,

Supreme Court the United see This

Sup.Ct. court has “decided an R. way in

important question federal

conflicts with relevant decisions” of the 10(c). Sup.Ct.

Supreme Court. R. It

also a decision in has “entered conflict with

the decision of another United court States important appeals same matter.” 10(a).

Sup.Ct. R. The Government there-

fore has one last forum which to seek

return to principles traditional governing right a taxpayer *5 challenge

decision of the executive. PEELER, Plaintiff-Appellant,

Sallie N. INC.,

MCI, and MCI WorldCom Services, Inc.,

Network

Defendants-Appellees.

No. 01-3019.

United States Court of Appeals,

Seventh Circuit.

Argued Jan. 2002. 8,May

Decided 2006. 1. majority’s attempt terse purposes distin- mark. For standing, guish In re United States Catholic exemption tax positive different Conference case, being, basis there in that "no appropriation, and no less an exercise of Con- expenditure funds," appropriated Freedom gress’ power spend general to tax for the Foundation, Chao, Religion Inc. v. Const, I, welfare. See sec. art. (7th Cir.2006), misses