19-2842-cv
Futia v. State of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 24th day of November, two thousand twenty.
PRESENT: BARRINGTON D. PARKER,
DENNY CHIN,
Circuit Judges,
JANE A. RESTANI,
Judge. *
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ANTHONY FUTIA, JR., and ROBERT L. SCHULZ,
Plaintiffs-Appellants,
-v- 19-2842-cv
STATE OF NEW YORK, ANDREW CUOMO,
individually and in his official capacity as Governor
of the State of New York, JOHN J. FLANAGAN,
individually and in his former capacity as Majority
Leader of the New York State Senate, ANDREA
STEWART-COUSINS, individually and in her former
* Judge Jane A. Restani, of the United States Court of International Trade, sitting
by designation.
capacity as Minority Leader of the New York State
Senate, CARL E. HEASTIE, individually and in his
official capacity as Speaker of the New York State
Assembly, THOMAS P. DINAPOLI, in his official
capacity as Comptroller of New York State, and
BRIAN M. KOLB, individually and in his official
capacity as Minority Leader of the New York State
Assembly,
Defendants-Appellees.
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FOR PLAINTIFFS-APPELLANTS: ROBERT L. SCHULZ, pro se, Queensbury, New
York, and Anthony Futia, Jr., pro se, North
White Plains, New York.
FOR DEFENDANTS-APPELLEES: BRIAN D. GINSBERG, Assistant Solicitor
General (Barbara D. Underwood, Solicitor
General, and Victor Paladino, Senior Assistant
Solicitor General, on the brief), for Letitia James,
Attorney General, Albany, New York.
Appeal from the United States District Court for the Northern District of
New York (Suddaby, C.J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiffs-appellants Anthony Futia, Jr. and Robert L. Schulz ("Plaintiffs")
appeal the district court's judgment, entered August 22, 2019, dismissing their claims
against defendants-appellees State of New York and several current and former New
York state officials ("Defendants") for lack of subject matter jurisdiction under Federal
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Rule of Civil Procedure 12(b)(1), and for failure to state a claim under Rule 12(b)(6). We
assume the parties' familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.
Plaintiffs' federal claims are based on their allegations that Defendants
violated the New York Constitution in decision-making related to setting the state civics
curriculum, allocating grants and tax credits to a private business, setting government
employees' salaries, and appointing judges. The sum of these violations, Plaintiffs
allege, denied them a republican form of government in violation of the Guarantee
Clause of the United States Constitution. Plaintiffs further allege that Defendants'
failure to respond to their "First Amendment Petition for Redress of Grievances"
violated their rights under the Petition Clause of the First Amendment. They also allege
claims under state law.
"When reviewing the dismissal of a complaint for lack of subject matter
jurisdiction" under Rule 12(b)(1), "we review factual findings for clear error and legal
conclusions de novo." Liranzo v. United States, 690 F.3d 78, 84 (2d Cir. 2012). We also
review de novo the dismissal of a complaint for failure to state a claim under Rule 12(b)(6).
Forest Park Pictures v. Universal Television Network, 683 F.3d 424, 429 (2d Cir. 2012). Finally,
we review a district court’s decision declining to exercise supplemental jurisdiction over
state law claims for abuse of discretion. Klein & Co. Futures, Inc. v. Bd. of Trade of City of
New York, 464 F.3d 255, 262 (2d Cir. 2006).
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The district court did not err in dismissing Plaintiffs' Guarantee Clause
claim for lack of subject matter jurisdiction because the claim presents nonjusticiable
political questions, such as how the State of New York allocates tax credits, sets salaries
of state employees, or selects judges. See, e.g., Rucho v. Common Cause, 139 S.Ct. 2484,
2506 (2019) ("This Court has several times concluded . . . that the Guarantee Clause does
not provide the basis for a justiciable claim."). The district court also did not err in
dismissing Plaintiffs' Petition Clause claim for failure to state a claim, because the right
to petition the state does not mean there is a right to a response. See Minn. State Bd. for
Cmty. Colls. v. Knight, 465 U.S. 271, 285 (1986) ("Nothing in the First Amendment or in
this Court's case law interpreting it suggests that the right[] to . . . petition require[s]
government policymakers to listen or respond to individuals' communications on
public issues."). Finally, the district court did not abuse its discretion in declining to
exercise supplemental jurisdiction over the state law claims.
We have considered Plaintiffs' remaining arguments and conclude they
are without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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