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7th Circuit: taxpayer suit for restitution is moot

October 14, 2008

The 7th Circuit Court of Appeals affirmed the District Court's dismissal of a taxpayer suit against the secretary of the U.S. Department of Education as moot, finding the taxpayers didn't have standing to sue for violations of the Establishment Clause based on a ruling from the U.S. Supreme Court.

The 7th Circuit Court of Appeals reheard the case of Joan Laskowski and Daniel M. Cook v. Margaret Spellings, in her official capacity as Secretary of the United States Department of Education and University of Notre Dame, No. 05-2749.

The Supreme Court had remanded the case to the 7th Circuit for further consideration in light of Hein v. Freedom from Religion Foundation Inc., 551 U.S. 127 S. Ct. 2553 (2007).

Joan Laskowski and Daniel Cook, as taxpayers, sued the secretary of education to enjoin the payment of a congressional one-time grant to the University of Notre Dame designated for a teacher-training program aimed at putting teachers in underserved Catholic schools in poor neighborhoods. Laskowski and Cook failed to seek a preliminary injunction; while the suit was pending, the grant expired and the District Court dismissed the suit as moot.

The 7th Circuit originally reversed the dismissal, finding the suit wasn't moot because restitution relief could be obtained against the University of Notre Dame in the form of an order to repay the grant to the U.S. Treasury.

The Supreme Court ruled in Hein that taxpayers continue to have standing to sue for alleged Establishment Clause violations brought by specific congressional appropriations, but the standing only extends to suits to enjoin the violation. The exception noted in Flast v. Cohen, 392 U.S. 83 (1968), doesn't extend to suits for retrospective monetary relief against private parties as was the remedy first envisioned by the 7th Circuit against University of Notre Dame, wrote Judge Diane Sykes.

"Accordingly, we read Hein to mean that taxpayers continue to have standing to sue for injunctive relief against specific congressional appropriations alleged to violate the Establishment Clause, but that is all," the judge wrote. "The only form of relief the taxpayers here had standing to seek - an injunction against the Secretary's disbursement of the allegedly unconstitutional grant - is no longer available because the grant was not a continuing one and it expired while the suit was pending in the district court."

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