Salazar v. Buono - Reply (Merits)

Docket number: 
No. 08-472
Supreme Court Term: 
2009 Term
Court Level: 
Supreme Court

No. 08-472

In the Supreme Court of the United States






Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

In the Supreme Court of the United States

No. 08-472








For the first time, respondent advances (Br. 11-18) the proposition that this Court cannot consider his standing to sue, because the United States is collaterally attacking the initial proceeding in Buono v. Norton, 212 F. Supp. 2d 1202 (C.D. Cal. 2002), aff'd, 371 F.3d 543 (9th Cir. 2004) (Buo no I). That argument is incorrect, no matter how one char acterizes the successive proceeding in Buono v. Norton, 364 F. Supp. 2d 1175 (C.D. Cal. 2005), aff'd, 527 F.3d 758 (9th Cir. 2008) (Buono II). The correct characterization is that Buono I and II are successive stages of the same civil action, and thus this Court may consider questions deter mined in Buono I, including whether respondent had stand ing to challenge the display of the memorial and obtain an injunction. Nevertheless, even assuming that Buono II were a new civil action, respondent still would have to dem onstrate that he presently possesses standing to challenge the transfer of the memorial. And, finally, even if Buono II were an enforcement action, and the government's chal lenge to respondent's standing were a collateral attack on the earlier judgment, respondent has waived any objection based on issue preclusion-and preclusion would not even apply on the facts of this case.

A. The Proceedings In Buono I And II Are Part Of The Same Civil Action, And Thus This Court May Consider Respon dent's Standing To Challenge The Display

1. Both of the proceedings-in Buono I and II-are part of the same civil action. In Buono I, after oral argu ment before the court of appeals, Congress enacted the 2004 Act, transferring Sunrise Rock to Post 385E of the Veterans of Foreign Wars (VFW). The court of appeals then ordered supplemental briefing on the effect of the 2004 Act. The government argued that Congress's decision to transfer the land rendered moot the question of whether the government's display of the cross violated the Estab lishment Clause. See 03-55032 Docket entry No. 41 (9th Cir. Dec. 12, 2003). Respondent argued not only that the case continued to present a live controversy, but also that the land transfer should be enjoined because it violated the Establishment Clause. See id. No. 48 (Dec. 31, 2003). In its decision in Buono I, the court of appeals held that the case was not moot. Pet. App. 102a-103a. It expressly declined to address, however, "whether a transfer completed under [S]ection 8121 [of the 2004 Act] would pass constitutional muster, * * * leav[ing] this question for another day." Id. at 104a.

Respondent proceeded to litigate that question in the district court before the same judge and under the same docket number. Respondent filed a motion to enforce or modify his existing injunction, and requested the same relief that he had previously requested from the court of appeals: a permanent injunction to prevent the govern ment from implementing the 2004 Act. In those circum stances-where the court of appeals declines to address an argument that the party proceeds to raise in the district court, before the same judge and under the same docket number, as grounds for additional relief-the proceedings are most reasonably viewed as different stages of the same litigation.1

2. According to respondent (Br. 11-12), if the govern ment wanted this Court to review his standing to challenge the display, it had to petition for a writ of certiorari to Buono I. But that was entirely unnecessary at the time. The government had no reason to ask this Court to evaluate respondent's standing to bring this lawsuit once Congress acted to require transfer of the memorial to a private party. The question of respondent's standing would have made no difference to the government had the lower courts allowed the transfer to take place-which is why the government litigated below the constitutionality of the transfer before seeking this Court's review of the standing question.

Nor is respondent correct (Br. 12) that the government is time-barred under 28 U.S.C. 2101(c) by its failure to peti tion for review in Buono I. The government timely peti tioned for review in Buono II. The question, once again, is whether Buono I and II are successive stages of the same civil action. Because they are, this Court's grant of certio rari exposed the entire case to review. See, e.g., Christian son v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988). As the Court has explained, "[it has] authority to consider questions determined in earlier stages of the liti gation where certiorari is sought from the most recent of the judgments of the Court of Appeals." MLB Play ers Ass'n v. Garvey, 532 U.S. 504, 508 n.1 (2001) (per cur iam). The Court therefore has authority to consider ques tions determined in Buono I, including whether respondent had standing to challenge the display and obtain an injunc tion.

B. Even If Buono II Is A Separate Civil Action, This Court Must Consider Respondent's Standing To Challenge The Transfer

1. Alternatively, if Buono II is a separate civil action, this Court still is required to consider whether respondent presently possesses standing. That is because Buono II, if not just the second part of a single action, should be viewed as an entirely new civil action, not simply an enforcement proceeding. Contrary to respondent's assertion (Br. 29-33), the courts below did not merely enforce the earlier injunc tion. By its terms, that injunction said nothing about trans ferring the cross. It provided that the government was "permanently restrained and enjoined from permitting the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve." Pet. App. 146a. Indeed, the district court could not possibly have addressed in Buono I the propriety of transfer, because, at the time that the in junction was entered, Congress had yet to pass the 2004 Act.

To be sure, when respondent returned to the district court in Buono II, he styled his filing as a motion to enforce or modify his existing injunction. Pet. App. 86a. But re spondent could not have been seeking enforcement. It is undisputed that, from Buono I to the present day, the gov ernment has not "permitt[ed] the display of the Latin cross in the area of Sunrise Rock." Id. at 146a. The government has complied with the terms of the injunction since it was entered. That is why respondent did not request, and could not have requested, an order to show cause why the govern ment should not be held in contempt for violating the in junction. It is also why respondent requested in the alter native the relief that he actually desired: modification of his injunction.

That is the relief that the district court effectively or dered. It concluded "that the proposed transfer of the sub ject property can only be viewed as an attempt to keep the Latin cross atop Sunrise Rock without actually curing the continuing Establishment Clause violation." Pet. App. 97a. It therefore broadened the terms of the injunction to "per manently enjoin[]" the government "from implementing the provisions of Section 8121 of Public Law 108-87." Id. at 99a. Although the district court stated that it was enforcing the injunction, id. at 98a, in fact it modified the injunction to include an additional form of relief: a permanent prohibi tion on transfer of the memorial pursuant to the 2004 Act.

2. Respondent bears the burden of demonstrating that he has standing to seek that additional form of relief. See Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149 (2009) ("[A plaintiff] bears the burden of showing that he has standing for each type of relief sought."); see also Lewis v. Casey, 518 U.S. 343, 357 (1996) ("The remedy must of course be limited to the inadequacy that produced the in jury in fact that the plaintiff has established."). To obtain an injunction against the transfer, respondent must show that the transfer has caused him to suffer a legally cogniza ble injury.

Respondent therefore cannot evade his present obliga tion to demonstrate standing. "[I]t is well established that the [C]ourt has an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties." Summers, 129 S. Ct. at 1152; see Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93 (1998). Nor has respondent's standing to contest the transfer of the memorial gone unchallenged by the government. The gov ernment has claimed that respondent lacks such stand ing-even if not in the most precise way, given the govern ment's basic view that Buono I and II are parts of the same civil action.2 And whether respondent has such standing is fairly included in the question presented of "[w]hether re spondent has standing to maintain this action." Pet. I (em phasis added); see Sup. Ct. R. 14(a); Eugene Gressman et al., Supreme Court Practice § 6.25(g), at 457 (9th ed. 2007). Simply put, whether Buono I and II are the same action or separate ones, respondent cannot avoid his burden to dem onstrate that he has standing to enjoin either the display or the transfer of the memorial at Sunrise Rock.

C. Even If The Government Is Collaterally Attacking Buono I, This Court Can And Should Consider Respondent's Stand ing To Challenge The Display

1. Finally, even if respondent were correct that Buo no II is a mere enforcement action, that still would not help him. Respondent argues (Br. 13-18) that the government cannot relitigate the issue of whether he has standing to challenge the display in such an action. But respondent has waived this argument. Issue preclusion is not jurisdic tional, and may therefore be waived. See 18 Charles Alan Wright et al., Federal Practice and Procedure § 4405, at 83- 84 (2d ed. 2002) (Wright) ("[A] party entitled to demand preclusion is also entitled to waive it."); id. at 100 ("[T]here is no right to raise preclusion for the first time on ap peal.").3 Although the government presented in its petition (at I, 12-16) the question of respondent's standing to chal lenge the display, respondent concedes (Br. 16 n.14) that he did not raise issue preclusion in his brief in opposition. Be cause respondent did not timely raise issue preclusion, he has waived it. See Sup. Ct. R. 15.2; Knowles v. Iowa, 525 U.S. 113, 116 n.2 (1998) (finding that respondent had waived an issue preclusion argument not raised in its brief in opposition).4

2. Even putting waiver aside, respondent's preclusion argument should be rejected. The general rule in favor of affording preclusive effect to a prior judgment is out weighed by competing considerations in the context of this case. See 13D Wright § 3536, at 11 (3d ed. 2008). As rele vant here, issue preclusion does not apply when "[t]here is a clear and convincing need for a new determination of the issue (a) because of the potential adverse impact of the de termination on the public interest * * * , (b) because it was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subse quent action, or (c) because the party sought to be pre cluded, as a result of * * * special circumstances, did not have adequate opportunity or incentive to obtain a full and fair adjudication in the initial action." Restatement (Sec ond) of Judgments § 28(5) (1982) (Restatement).

Although any of those conditions would suffice to over come preclusion, all are present here. As an initial matter, Congress's passage of the 2004 Act altered the "potential adverse impact" of the standing decision in Buono I "on the public interest." See 18 Wright § 4424, at 641 (2d ed. 2002). Not a mere use of public land, but the validity of a federal statute, now depends in part on that decision. Moreover, as described above, Congress's passage of the 2004 Act elimi nated any need or reason for the government to seek this Court's review of Buono I; and the government could not reasonably foresee that the lower courts would interpret the injunction issued in Buono I to require invalidation of the 2004 Act. See pp. 4-5, supra. In those circumstances, affording preclusive effect to the standing decision in Buo no I would work an injustice and disserve the public inter est. See 18 Wright § 4426, at 683 (2d. ed. 2002).5 Accord ingly, this Court can and should reach the question of whe ther respondent has standing.


A. Respondent Lacks Constitutional Standing Because He Lacks The Requisite Personal Injury

1. Respondent acknowledges (Br. 21-22) before this Court, as he did before the lower courts, that he has no ob jection to religious symbols or imagery on private property. Rather, respondent objects to the display of a religious symbol on public property. J.A. 50. That should be the beginning and end of the standing analysis, because the government has eliminated the basis for respondent's ob jection by transferring the land on which the cross sits to a private party. It is no answer for respondent to say (Br. 31 n.21) that his "statement was made years before Congress' enactment of Section 8121." In electing to continue an ex isting civil action rather than to commence a new one, see pp. 2-3, supra, respondent elected to stand on an injury that is no longer attributable to the government.

Respondent contends, however, that Congress has not eliminated the basis for his objection because "the federal government will continue to retain significant interests in the land and the symbol, thereby failing to fully 'privatize' the cross." Br. 31. According to respondent, "[t]his objec tion to the transfer articulates an injury in fact for standing purposes." Ibid. If that is respondent's theory, his alleged injury in fact has not changed at all from Buono I to Buono II: it remains the absence of an open forum on land that, according to respondent, is under government control. And in that case, he lacks standing to challenge the transfer for the same reasons-both constitutional and pruden tial-that the government previously argued he lacked standing to challenge the display.

2. Respondent claims, as to the constitutional part of that analysis, that "the touchstone of Article III standing is direct and unwelcome contact with government action that is alleged to be impermissibly religious in nature." Br. 19. Respondent misses the key question, however, which is why such contact is unwelcome. In the cases on which respon dent relies (Br. 19, 24-25), the contact with government action gave rise to standing either because it coerced the plaintiffs to observe a religious orthodoxy, violated their religious or spiritual beliefs, or caused them to feel like out siders to the community.

In School District v. Schempp, 374 U.S. 203 (1963), for instance, schoolchildren were subjected to Biblical readings "which were contrary to the religious beliefs which they held and to their familial teaching." Id. at 208 (quoting Schempp v. School Dist., 177 F. Supp. 398, 400 (E.D. Pa. 1959)). And in Lee v. Weisman, 505 U.S. 577 (1992), a mid dle school student was "being forced by the State to pray in a manner her conscience [would] not allow." Id. at 593. No party questioned, and the Court did not address, standing in those cases, because the schoolchildren at issue had been coerced to observe a religious orthodoxy that ran counter to their own beliefs.6

Respondent does not present that sort of injury. In deed, he has expressly disclaimed any personal injury- including direct or indirect coercion, impingement on reli gious beliefs, or feelings of exclusion-from observation of the cross itself. What injures respondent is not the pres ence of the cross but the absence of other symbols atop Sunrise Rock. Or, more precisely, what injures respondent (because no one knows if anyone currently wishes to place other symbols in this desolate spot) is the abstract knowl edge that other symbols may not be displayed atop Sunrise Rock. But this alleged injury is nothing more than contact with a governmental action that violates respondent's con stitutional (as opposed to religious) views. He cannot point to any decision of this Court holding that such contact gives rise to standing under the Establishment Clause.7

3. Indeed, respondent's approach is irreconcilable with Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 485 (1982) (Valley Forge). In that case, plaintiffs sought to challenge a transfer of public land in Pennsylvania to a religiously- affiliated private institution. Id. at 468. The Court held that the plaintiffs lacked standing, because they had not identified a personal injury "other than the psychological consequence presumably produced by observation of con duct with which one disagrees." Id. at 485. The Court took pains to explain that "abstract injury in nonobservance of the Constitution" or mere disagreement "phrased in consti tutional terms" does not constitute a cognizable injury un der the Establishment Clause. Id. at 482, 485-486 (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 223 n.13 (1974)).

Respondent contends that the plaintiffs in Valley Forge lacked standing because, as residents of Maryland and Vir ginia, they lacked "any direct contact with the action." Br. 22. The Court, however, expressly rejected that view. It noted that one of the plaintiff-organizations "claims that it has certain unidentified members who reside in Pennsyl vania." Valley Forge, 454 U.S. at 487 n.23. The Court deemed that fact irrelevant: "[Plaintiff] does not explain * * * how this fact establishes a cognizable injury where none existed before. [Plaintiff] is still obligated to allege facts sufficient to establish that one or more of its members has suffered, or is threatened with, an injury other than their belief that the transfer violated the Constitution." Ibid. (emphasis added). Valley Forge thus makes plain that "unwelcome direct contact with a religious symbol that sits on government property" does not suffice to confer stand ing, Resp. Br. 20, if the contact is unwelcome only because it conflicts with the plaintiff's views of the Establishment Clause.8

A contrary rule would permit a plaintiff who suffers only this kind of harm-a belief that governmental action violates the Constitution-to bootstrap himself into stand ing simply by making sure to subject himself to the display or practice. And that rule would ignore the essence of re spondent's complaint, which alleges injury from contact with the display only because he believes that it violates the Constitution. In the end, respondent's injury is no different from that of others who are aware of this litigation and share his view of the Establishment Clause: the harm that flows from the government's taking action to which one objects on constitutional grounds.9

4. Respondent argues that courts should "not inquire into whether a person's conduct or beliefs are religious in nature." Br. 26-27. But there is no dispute on that score: the government agrees. The government is not asking this Court to inquire into the nature of respondent's beliefs. The government is simply asking this Court to take respon dent at his word. Respondent has testified in this litigation that the display of the cross, whether on public or private property, does not violate his religious beliefs. J.A. 64, 85. He has never claimed that the display or transfer of the cross directly or indirectly coerces him. See Weisman, 505 U.S. at 592. Neither has he asserted that the cross makes him feel like an outsider rather than a full member of the political community. See Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 773 (1995) (O'Connor, J., concurring in part and concurring in the judgment). Based on his own pleadings, respondent's action is founded on an abstract and generalized view of the Establishment Clause, rather than on a concrete and personal injury from the alleged establishment. In those circumstances, respon dent is no different from any other citizen who believes that the Constitution compels a different course of conduct. Because respondent has not pointed to "an injury other than [his] belief that the [display or] transfer violate[s] the Constitution," Valley Forge, 454 U.S. at 487 n.23, he lacks standing to challenge either action.

B. Respondent Lacks Prudential Standing Because He Asserts The Rights Of Third Parties

Respondent barely contests (Br. 28-29) the govern ment's assertion that he lacks prudential standing. Respon dent argues that "[he] was personally confronted with, and offended by, government promotion of a sectarian religious symbol." Br. 28. But that argument misses the point: re spondent testified that he is offended only because other persons have not been permitted in the past to display their own symbols atop Sunrise Rock. J.A. 50, 64. Respondent himself has never expressed any desire to erect an addi tional display atop Sunrise Rock, asserting instead only the rights of others to do so. In those circumstances, for the reasons stated in the government's opening brief (at 17-20), the Court should refrain from adjudicating the matter. The doctrine of prudential standing exists to allow judges to avoid deciding cases like this one, where the validity of an Act of Congress rests on a purely hypothetical dispute con cerning the putative rights of unknown third parties.


A. Congress's Transfer Of The Land To Eliminate The Estab lishment Clause Violation Should Be Presumed Valid

Respondent asserts that the district court had "discre tion" to enjoin the transfer as an insufficient remedy for the violation that the court had found. Br. 54. But the court's injunction against display of the cross did not give the court discretion to set aside a subsequent Act of Congress trans ferring the land, pursuant to Congress's plenary power "to dispose of * * * Property belonging to the United States." U.S. Const., Art. IV, § 3, Cl. 2; Utah Div. of State Lands v. United States, 482 U.S. 193, 201 (1987). The only question before this Court is whether the transfer itself or the gov ernment's alleged exercise of authority over Sunrise Rock following the transfer violates the Establishment Clause. That question, as the parties agreed below, is subject to de novo review. Pet. Br. 31 n.4.

In answering that question, this Court should presume that the 2004 Act removes the predicate for the previous constitutional violation-public ownership of Sunrise Rock. As a general matter, this Court imputes to Congress an intent to pass legislation that is consistent with the Consti tution. See, e.g., United States v. X-Citement Video, Inc., 513 U.S. 64, 73 (1994); Yates v. United States, 354 U.S. 298, 319 (1957). Here, that stance requires respecting Con gress's intent, when faced with an injunction that prevented display of the cross, to enact legislation effecting a bona fide divestment of the property. There is, indeed, no evidence to the contrary. Pet. Br. 24-26; Freedom from Religion Found., Inc. v. City of Marshfield, 203 F.3d 487, 491 (7th Cir. 2000). Respondent offers several theories of how the government retains surreptitious control of the memo rial. But none withstands the slightest scrutiny, let alone overcomes the presumption of validity that should attach to congressional action designed to eliminate a constitutional violation.

B. Congress's Efforts To Preserve Sunrise Rock As A War Memorial Do Not Undermine The Transfer's Validity

1. Respondent asserts that the transfer will not suffi ciently disassociate the government from the cross, because "[a]s one of the few displays that Congress has designated a national memorial, the cross necessarily will reflect con tinued government association." Br. 38. Respondent cites nothing in support of that assertion, nor could he. There are a host of congressionally designated national memorials on nonfederal land.10 Congress typically designates a pri- vately owned site as a national memorial in order to recog nize its cultural or historical significance. Such a designa tion neither subjects the memorial to governmental control nor converts the owner's conduct into state action for pur poses of the Establishment Clause.

The best evidence of Congress's purpose in designating a national memorial, whether on public or private property, is the particular statute establishing the memorial. Here, Congress designated a national memorial "commemorating United States participation in World War I and honoring the American veterans of that war." J.A. 44. That purpose, needless to say, is legitimate. Nor does a purpose of this kind become suspect because the memorial in question has religious meaning to some citizens. For instance, Congress designated the Father Marquette National Memorial on nonfederal land in St. Ignace, Michigan, "to commemorate the advent and history of Father Marquette * * * , includ ing his establishment of a mission at Saint Ignace in 1671, and his historic exploration * * * of the Mississippi River in 1673." Act of Dec. 20, 1975, Pub. L. No. 94-160, 89 Stat. 848. That some may regard this memorial as honoring the Society of Jesus does not render the government's action a violation of the First Amendment.

2. Respondent also asserts (Br. 51-53) that the govern ment's earlier actions involving the memorial effectively taint the transfer. But the 2001 and 2002 Acts themselves had legitimate secular purposes-designation of the site as a national memorial and prevention of that memorial's de struction during the pendency of this litigation. Pet. Br. 36-39.11 Neither provides any evidence of a course of im permissible conduct, and respondent does not seriously attempt to demonstrate otherwise. In any event, those Acts are irrelevant because an intervening event-the district court's entry of an injunction-reshaped Congress's pur pose. Faced with that injunction, Congress legislated a bona fide divestment of the property to eliminate the viola tion. Respondent cannot cast suspicion on that action by pointing to earlier legislative enactments that responded to entirely different factual circumstances.

3. Respondent asserts repeatedly (Br. 38, 40, 49) in attacking Congress's designation of the site as a nation al memorial that the Sunrise Rock cross communicates only a single, sectarian message. He does not discuss this Court's recent decision in Pleasant Grove City v. Sum mum, 129 S. Ct. 1125 (2009), recognizing that "it frequently is not possible to identify a single 'message' that is con veyed by an object or structure." Id. at 1136. Here, at the very least, the World War I veterans who erected the cross in 1934 believed that they were commemorating "the Dead of All Wars," even if through the use of a religious symbol. Pet. App. 56a.12 In any event, respondent's contrary asser tion does not undermine the transfer at issue here. If the 2004 Act validly transfers the memorial into private hands (and it does), then the message no longer comes from the government, but from the VFW. From now on, the VFW can convey that message-or, by replacing the current me morial with another, can change that message-as it wish es.

C. Congress Did Not Reserve Continuing Control Over Sun rise Rock

1. Respondent contends that the reversionary clause leaves the government with an "ownership interest" in the transferred land. Br. 42. Certainly it does: that is the very purpose of such a clause. Congress intended the trans ferred land always to bear a memorial demonstrating re spect for fallen service members, and to ensure the accom plishment of that secular purpose it provided the govern ment with a reversionary interest. The court of appeals held that the reversionary clause "results in ongoing gov ernment control over the subject property," Pet. App. 80a, but respondent does not even attempt to defend that propo sition. He formerly speculated that the VFW might be re quired to maintain the cross at Sunrise Rock, Br. in Opp. 23, but now concedes that the VFW is only required "to maintain the land as a memorial to American veterans of World War I." Resp. Br. 42 (emphasis added). How the VFW elects to maintain the land as a memorial is up to the VFW, not the government.13

2. Respondent asserts that because "the land on which the cross is located is within the boundaries of the Mojave Preserve, the cross remains 'under the jurisdiction of the federal government.'" Br. 44 n.31. Respondent fails to appreciate the limited nature of the Park Service's author ity over private inholdings at the Preserve. The National Park Service Organic Act, 16 U.S.C. 1 et seq., permits the Park Service to regulate nonfederal property within the Preserve only to the extent that activities on those inhold ings affect park property. Pet. Br. 41.14 Respondent cor rectly does not argue that the Park Service's limited and incidental authority over inholdings would allow it to re quire the VFW to display the cross (or any other symbol) on the VFW's land.15

Respondent also asserts (Br. 46-47) that, as a national memorial, Sunrise Rock will remain part of the National Park System and therefore be subject to the Park Service's plenary authority even after the transfer. For that proposi tion, respondent relies on a provision, Act of Aug. 8, 1953, ch. 382, § 2(a), 67 Stat. 496, that was repealed in 1970. See Act of Aug. 18, 1970, Pub. L. No. 91-383, § 2(b), 84 Stat. 82 (16 U.S.C. 1c(a)). National memorials are not automati cally included within the National Park System; rather, they may exist on either public or private land, and are in cluded within the National Park System only if adminis tered by the Park Service pursuant to some other source of law. Ibid. Because the Sunrise Rock memorial will be pri vately owned following the transfer, the Park Service will neither administer it nor have any other authority to re quire display of the cross. In the end, respondent does not point to any federal statute or regulation that will afford the government any relevant control over Sunrise Rock following the transfer.

D. Congress's Method Of Transferring Sunrise Rock Does Not Undermine The Transfer's Validity

1. Respondent argues that the land transfer is in valid because Congress "bypassed the normal statutory channels." Br. 49. It is hard to know what respondent means: Congress often enacts statutes involving specific federal property, and nothing prevents it from doing so in an appropriations bill. Pet. Br. 48-49. Respondent cites (Br. 50) a single case, Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994) (Kiryas Joel), in which this Court held unconstitutional under the Establishment Clause a state statute creating a separate school district for a religious sect. Id. at 705. But Kiryas Joel surely did not prohibit a legislature from acting directly to address an Establishment Clause violation. Judicial findings of constitutional violations appropriately may command the legislature's attention. See id. at 726 (Kennedy, J., concurring in the judgment) ("It is normal for legislatures to respond to problems as they arise-no less so when the issue is religious accommodation.").

2. Respondent also claims (Br. 50-51) that although it is "logical for the government to return the cross to the VFW" or even "[to] sell the land" to the VFW as part of an open bidding process, "it is not logical for the government to sell [the land] to the VFW just because the cross is on it." Br. 51. According to respondent, that is explicable only by reference to "favoritism." Ibid. But the government's ac tion is "illogical" only if it may not take a legitimate interest in preserving a war memorial at Sunrise Rock. If that is a legitimate government interest, then it is perfectly sensible to transfer the land to an entity that cares about such mat ters. Pet. Br. 48. In urging this Court to destroy long standing memorials across this Nation or else place them on the auction block, respondent seeks not neutrality, but hostility, toward religion.16


Respondent abandons his argument that this case is moot, but some of his amici do not. Public Employees for Environmental Responsibility and the Western Lands Project Amici Br. 4-6 (Amici). Those amici claim (id. at 3, 17-18) that the court of appeals lacked jurisdiction because VFW Post 385's charter was temporarily revoked for ad ministrative reasons, and thus that this Court must vacate and remand for further proceedings. Amici thus want to replay the current round of litigation-which has tak en four years-when no one disputes that VFW Post 385 stands ready to receive the land if the present injunction is lifted. This Court is not required to endorse that senseless result, because amici have not carried their "heavy burden" of establishing that this case was once moot on appeal. Michigan v. Long, 463 U.S. 1032, 1042 n.8 (1983).

Notably, amici do not contest that when Post 385's char ter was revoked, the Department of California VFW as sumed ownership of and responsibility for Post 385's prop erty as its successor in interest pursuant to the VFW's by- laws. Amici also do not contest that dissolution of an orga nization does not render a case moot when, as in this case, the lawsuit could affect the rights of the dissolved organiza tion's successor in interest. Walling v. James V. Reuter, Inc., 321 U.S. 671, 674 (1944). That should be the beginning and end of the mootness analysis: because the California VFW would have taken possession of the land, this case continued to present a live controversy.

Amici contend (at 6-7), however, that the 2004 Act's re quirements for joint appraisals and a cash equalization pay ment are conditions precedent to the land transfer; and, further, that because the injunction against the transfer prevented the government from performing those condi tions before Post 385's charter was revoked, Post 385 did not have any property interest to pass on to the California VFW. For the proposition that the appraisals and cash equalization payment are conditions precedent, amici cite three decisions of this Court involving the Act of Sept. 27, 1950 (Donation Act), ch. 76, 9 Stat. 496, which granted lands to Oregon settlers who resided on and cultivated those lands for four years. See Hall v. Russell, 101 U.S. 503, 510 (1880); Vance v. Burbank, 101 U.S. 514, 521 (1880); May nard v. Hill, 125 U.S. 190, 214-215 (1888). Those decisions depended, however, on the particular language of the Dona tion Act. See Hall, 101 U.S. at 510. The more general rule is that "[e]very interest in lands," including an interest granted by federal statute, "is the subject of sale and trans fer, unless prohibited by statute, and no words allowing it are necessary." Smelting Co. v. Kemp, 104 U.S. 636, 651 (1880); see, e.g., McCune v. Essig, 199 U.S. 382, 389 (1905). The question remains the intent of Congress, in light of the text, structure and purpose of the entire conveyance, see Missouri, Kan., & Tex. Ry. v. Kansas Pac. Ry., 97 U.S. 491, 497 (1876), and here Congress clearly intended to di rect a land exchange in order to restore the memorial to the VFW.17

Finally, even assuming both that the case was formerly moot and that such a defect was not cured by the reinstate ment of Post 385, "[t]he established practice * * * is to reverse or vacate the judgment below and remand with a direction to dismiss." United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). Contrary to amici's assertion (at 17-18), they cannot preserve the district court's favor able judgment which the government-through no fault of its own-would have been prevented from challenging. See Arizonans for Official English v. Arizona, 520 U.S. 43, 71 (1997) ("Vacatur clears the path for future relitigation by eliminating a judgment the loser was stopped from oppos ing on direct review.") (internal quotation marks and cita tion omitted). Nothing in law or logic, however, requires the replay of the current litigation that would result from vacatur of the district court's judgment.

* * * * *

For the foregoing reasons and those stated in our open ing brief, the judgment of the court of appeals should be reversed and this case remanded with instructions to dis miss.

Respectfully submitted.

Solicitor General


1 Contrary to respondent's assertion (Br. 12, 14-16), the present case is different from both Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399 (1923), and Travelers Indemnity Co. v. Bailey, 129 S. Ct. 2195 (2009). In each of those cases, the parties litigated to a judgment whose finality was undisputed, and then one of the parties brought collateral proceedings designed to undermine the earlier judgment. Here, the very question at issue is whether Buono I was a final judgment for pre clusion purposes-a question that neither Toledo Scale nor Travelers had occasion to address.

2 See Pet. 13 ("[R]espondent has disclaimed any spiritual injury stemming from the display or transfer of the cross."); see also Pet. Br. 9 ("Respondent lacks standing under the Establishment Clause to chal lenge Congress's land transfer."); id. at 14 (arguing that "respondent's statements * * * disclaim standing to challenge the transfer").

3 Respondent claims that his "res judicata argument * * * is juris dictional," because "it refutes [p]etitioners' assertion that [r]espondent lacked standing, which is an attack on jurisdiction in Buono I." Br. 17 n.14. Respondent cites nothing in support of the proposition that issue preclusion becomes jurisdictional whenever the underlying issue sought to be precluded-here, standing-is itself jurisdictional. Nor could he. Just as a party may assert preclusion of a previously litigated jurisdic tional issue, Durfee v. Duke, 375 U.S. 106, 112 (1963), so too a party may waive such preclusion by failing to timely raise it.

4 Respondent also claims (Br. 17 n.14) that his issue preclusion argu ment does not fall within Supreme Court Rule 15 because it is not "based on what occurred in the proceedings below." Sup. Ct. R. 15.2. If that were correct, no respondent would ever need to raise any form of preclusion in a brief in opposition, because by definition claim and issue preclusion concern the preclusive effect of previous litigation. In any event, Rule 15's use of the phrase "the proceedings below" reason ably means the entirety of the proceedings between the parties in the same or a related civil action. Interpreting the phrase more narrowly would defeat the Rule's purpose: to ensure that a brief in opposition "address[es] any perceived misstatement of fact or law in the petition that bears on what issues properly would be before the Court if cer tiorari were granted." Ibid. (emphasis added).

5 For the same reasons, preclusion should be denied because "[t]he issue is one of law and * * * a new determination is warranted in or der to take account of an intervening change in the applicable legal con text or otherwise to avoid inequitable administration of the laws." Re statement § 28(2)(b).

6 Respondent also relies (Br. 20, 25) on this Court's decisions in County of Allegheny v. ACLU, 492 U.S. 573 (1989), Van Orden v. Perry, 545 U.S. 677 (2005), and McCreary County v. ACLU, 545 U.S. 844 (2005). None of those cases addresses standing. See, e.g., Steel Co., 523 U.S. at 91 ("[D]rive-by jurisdictional rulings of this sort * * * have no precedential effect."). But as far as the records reveal, plaintiffs in those cases objected to governmental displays that violated their own religious beliefs. See ACLU v. McCreary County, 96 F. Supp. 2d 679, 682 (E.D. Ky. 2000) (holding that an organization's members had stand ing because the displays were "a serious insu[l]t to [their] religious sensibilities"); ACLU Br. 7, Allegheny (No. 87-2050) (stating that plaintiffs included "a Unitarian minister" and "a Moslem whose religion views tangible depictions of the deity as a profanity").

7 Respondent falls back on lower court decisions that he says support his test for standing. But in some of those decisions, it is not clear whe ther the government actions at issue violated the plaintiffs' religious be liefs. See Foremaster v. City of St. George, 882 F.2d 1485 (10th Cir. 1989), cert. denied, 495 U.S. 910 (1990); Hawley v. City of Cleveland, 773 F.2d 736 (6th Cir. 1985), cert. denied, 475 U.S. 1047 (1986). Even assuming, however, that they did not, the government recognized in its petition (at 16-18) that the courts of appeals have not taken a uniform approach to the concept of injury for standing purposes in Establish ment Clause cases. To the extent lower courts require nothing more than contact with a governmental action allegedly violating the Estab lishment Clause, those courts have misconstrued Valley Forge.

8 Contrary to respondent's assertion (Br. 23-24), the government does not draw any distinction for standing purposes between exposure to religious exercises and exposure to religious symbols. With respect to either religious exercises or symbols, the question for standing pur poses is whether the plaintiff's exposure gives rise to any personal injury apart from the "psychological consequence" of observing "con duct with which one disagrees." Valley Forge, 454 U.S. at 485.

9 Some of respondent's amici propose a slightly different formulation of the standing inquiry: a plaintiff has standing to challenge any gov ernmental action that interferes with his use or enjoyment of public property. American Jewish Congress Amicus Br. 4-5; Americans Uni ted for Separation of Church and State Amicus Br. 24-25. But once again, the only reason that the display of the cross interferes with re spondent's use or enjoyment of Sunrise Rock is that he finds the pres ence of the cross at odds with his view of the Establishment Clause. Nor is amici's test capable of more general application to other Estab lishment Clause cases that do not involve the use of government lands or facilities.

10 Such memorials include the Benjamin Franklin Memorial Hall, which is a portion of the Franklin Institute Science Museum in Philadel phia, Pennsylvania, Act of Oct. 25, 1972, Pub. L. No. 92-551, 86 Stat. 1164; the David Berger Memorial, which is a sculpture located on the grounds of a Jewish community center in Cleveland Heights, Ohio that commemorates Israeli athletes killed at the Munich Olympic Games, National Parks and Recreation Act of 1978, Pub. L. No. 96-199, § 116, 94 Stat. 71; the Red Hill Patrick Henry National Memorial, which is the Revolutionary leader's privately operated home in Charlotte County, Virginia, Act of May 12, 1986, Pub. L. No. 99-296, 100 Stat. 429; the AIDS Memorial Grove, which is a portion of a state park in San Francisco, California, Omnibus Parks and Public Lands Management Act of 1996, Pub. L. No. 104-333, § 516, 110 Stat. 4170; and America's National World War I Museum, which is a privately financed and oper ated museum in Kansas City, Missouri, Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, Subtit. D, § 1031, 118 Stat. 2044.

11 Congress twice prohibited the spending of any federal funds to remove the memorial. Pet. Br. 36-38. Respondent contends that be cause the latter enactment followed the district court's injunction, see Department of Defense Appropriations Act, 2003 (2003 Act), Pub. L. No. 107-248, § 8065(b), 116 Stat. 1551, its "sole purpose and effect" was to prevent the Park Service from complying with that in junction. Resp. Br. 53. But the Park Service could comply with both the 2003 Act and the injunction as it always has: by covering the cross. The evident purpose of the 2003 Act was to forestall the memorial's destruction while Congress considered alternative measures, like the transfer of the memorial to a private party.

12 Respondent does not say what should happen to the "many monu ments on public land that use the cross to commemorate the sacrifice of fallen soldiers, particularly those in World War I." Pet. App. 47a n.6. On respondent's view, presumably each of those monuments violates the Establishment Clause-and the government cannot even eliminate the putative violation by transferring the monument to private owner ship, at least in any way that preserves the monument as a war memor ial. See p. 22, infra.

13 Elsewhere in his brief, respondent backtracks, stating that the re versionary clause "relates to the maintenance of the symbol," Br. 43, or that the "war memorial is the cross," Br. 52. But as the government has explained, see Pet. Br. 33, Congress carefully required only that the VFW maintain the "parcel of real property" as a war memorial. § 8121(a), 117 Stat. 1100; see § 8121(e), 117 Stat. 1100. Respondent does not address Congress's considered phrasing.

14 Respondent cites (Br. 44 n.31) statutes that establish the Preserve, see 16 U.S.C 410aaa-42 and 410aaa-43, and that authorize the Secre tary to acquire private inholdings within the Preserve, see 16 U.S.C. 410aaa-56. But unless and until private inholdings within the Preserve are so acquired, they may be regulated only to the extent that activities on those inholdings affect park property. Pet. Br. 41.

15 Respondent points (Br. 44-45) to 18 U.S.C. 1369(a), which criminal izes the willful injury or destruction of any veterans' display "on public property." But following the transfer, Sunrise Rock will not be on public property. In any event, given that the 2004 Act requires only that the VFW maintain the parcel of property as a war memorial, re placing the cross with another type of structure would not "injure" or "destroy" the memorial within the meaning of Section 1369(a).

16 Even assuming that the land transfer does not extinguish the Es tablishment Clause violation, respondent agrees that "[a] valid remedy responds to the specific nature of the violation." Br. 49. A far more tail ored remedy in these circumstances would be to require fencing or additional signage rather than to invalidate wholesale an Act of Con gress. Pet. Br. 51-52. Respondent makes no effort to explain why such measures would not sufficiently disassociate the government from the memorial following the transfer.

17 Amici point (at 12-14) to the interpretive principle that public grants are to be construed in favor of the government, but that prin ciple applies when it is unclear what property the government intended to convey. See, e.g., Caldwell v. United States, 250 U.S. 14, 398 (1919). There is no such lack of clarity here. Likewise, amici point (at 10-12) to Section 206 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1716, and various regulations, which do not apply to lands administered by the National Park Service. See 43 U.S.C. 1702(e); see also 43 C.F.R. 2200.0-5(i).

Merits Stage Reply Brief
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Updated February 4, 2016