21-2081
Jusino v. Fed’n of Cath. Tchrs., Inc.
United States Court of Appeals
For the Second Circuit
August Term 2021
Submitted: June 8, 2022
Decided: November 23, 2022
No. 21-2081
RAMON K. JUSINO,
Plaintiff-Appellant,
v.
FEDERATION OF CATHOLIC TEACHERS, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of New York
No. 19-cv-6387, Ann M. Donnelly, Judge.
Before: CALABRESI, LYNCH, and SULLIVAN, Circuit Judges.
Ramon K. Jusino, formerly a tenured theology teacher at a Roman Catholic
high school in Staten Island, appeals from the dismissal of his complaint against
his labor union, the Federation of Catholic Teachers (the “FCT”), for allegedly
breaching its duty of fair representation under the National Labor Relations Act
(the “NLRA”) as amended by the Labor Management Relations Act (the “LMRA”),
and for assorted violations under the New York State and New York City human
rights laws. The district court (Donnelly, J.) dismissed Jusino’s duty-of-fair-
representation claim with prejudice for lack of subject‐matter jurisdiction,
pursuant to Federal Rule of Civil Procedure 12(b)(1), reasoning that the NLRA and
LMRA are inapplicable to disputes between parochial-school teachers and their
labor unions under NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). The
district court then declined to exercise supplemental jurisdiction over Jusino’s
state- and municipal-law claims, which it dismissed without prejudice. We
conclude, as a matter of first impression, that Catholic Bishop does preclude Jusino’s
duty-of-fair-representation claim, but that dismissal was warranted under
Rule 12(b)(6) for failure to state a claim on which relief could be granted, rather
than for lack of federal subject-matter jurisdiction under Rule 12(b)(1). We also
conclude that Jusino has abandoned any challenge to the dismissal of his state-
and municipal-law claims. As a result, we AFFIRM the judgment of the district
court.
Judge Calabresi concurs in a separate opinion.
AFFIRMED.
Ramon K. Jusino, pro se, Staten Island, NY, for
Plaintiff-Appellant.
Jane Lauer Barker, Andrew D. Midgen, Pitta LLP,
New York, NY, for Defendant-Appellee.
RICHARD J. SULLIVAN, Circuit Judge:
Ramon K. Jusino was suspended from his position as a tenured theology
teacher at Notre Dame Academy, a Roman Catholic high school in Staten Island,
after giving a controversial lecture on racism and human sin. Jusino’s labor union,
the Federation of Catholic Teachers (the “FCT”), initiated a formal grievance on
his behalf and commenced arbitration proceedings against Notre Dame, asserting
that his suspension constituted a breach of the applicable collective bargaining
agreement. But when Jusino asked the FCT to raise additional allegations of
2
discrimination and retaliation at the arbitration, it refused. Jusino then sued
the FCT for this alleged breach of its duty of fair representation under the National
Labor Relations Act of 1935 (the “NLRA”), 29 U.S.C. § 151 et seq., as amended in
relevant part by section 301 of the Taft-Hartley Act of 1947 (commonly known as
the Labor Management Relations Act, or the “LMRA”), id. § 185. He also sued the
union under the New York State Human Rights Law (the “NYSHRL”), N.Y. Exec.
Law § 290 et seq., and the New York City Human Rights Law (the “NYCHRL”),
N.Y.C. Admin. Code § 8-101 et seq. Relying on the Supreme Court’s holding in
NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), the district court
(Donnelly, J.) dismissed the duty-of-fair-representation claim with prejudice for
lack of subject‐matter jurisdiction, pursuant to Federal Rule of Civil
Procedure 12(b)(1), reasoning that the NLRA and LMRA are inapplicable to
disputes between parochial-school teachers and their labor unions. The district
court then declined to exercise supplemental jurisdiction over the state- and
municipal-law claims, which it dismissed without prejudice.
On appeal, we are tasked with deciding four questions: first, whether the
district court properly concluded that Catholic Bishop precludes a parochial-school
teacher’s duty-of-fair-representation claim against his labor union under the
3
NLRA as amended by the LMRA; second, if so, whether the inapplicability of the
NLRA and LMRA is jurisdictional in character – such that Jusino’s duty-of-fair-
representation claim was properly dismissed under Rule 12(b)(1) as opposed to
Rule 12(b)(6); third, if the latter, whether the appropriate appellate remedy is to
vacate the dismissal order with instructions to re-dismiss or simply to affirm such
order on different grounds; and fourth, whether the district court properly declined
to exercise supplemental jurisdiction over Jusino’s state- and municipal-law
claims. We conclude, as a matter of first impression, that Catholic Bishop does
preclude Jusino’s duty-of-fair-representation claim here, but that its application
requires dismissal under Rule 12(b)(6) for failure to state a claim on which relief
could be granted, rather than for lack of federal subject-matter jurisdiction under
Rule 12(b)(1). We also conclude, as compelled by our precedents, that affirmance
is the proper appellate remedy in this scenario. Finally, we find that Jusino has
abandoned any challenge to the dismissal of his state- and municipal-law claims.
As a result, we AFFIRM the judgment of the district court.
4
I. BACKGROUND
A. Facts
The FCT is the labor union that serves as the exclusive bargaining agent and
labor representative for lay teachers in Catholic schools in New York City and
several surrounding counties. Until August of 2018, Jusino was a tenured theology
teacher at Notre Dame Academy of Staten Island (“Notre Dame”), a Catholic
all-girls high school located within the Roman Catholic Archdiocese of New York.
The terms of Jusino’s employment at Notre Dame were governed from
September 1, 2014 through August 31, 2018 by a collective bargaining agreement
(the “CBA”) between the FCT and Notre Dame (through its membership in the
Association of Catholic Schools). The CBA provided that tenured teachers, such
as Jusino, could only be terminated for just cause. It also provided that “the
Employer . . . shall [not] discriminate against teachers on the basis of . . . race,
color, national origin[,] or sex” and explicitly incorporated into “the terms of
employment of teachers in the member schools . . . all . . . statutes governing
non-discrimination in employment . . . and all other applicable legislation,
governmental regulations[,] or judicial determinations [thereupon].” J. App’x
at 9 ¶¶ 14–15.
5
In May of 2018, Jusino taught a theology class on the sinfulness of racism,
the centerpiece of which was a lecture titled “Racism as Sin.” While the record
below is somewhat muddy, 1 it appears that the “fallout” of the lecture entailed
heated arguments between Jusino and Notre Dame students, parents, and
administrators, Dist. Ct. Doc. No. 14 at 2–3, and ultimately resulted in Notre
Dame’s “suspend[ing]” Jusino “without pay” and “with intent to discharge” as of
August 2018, J. App’x at 9, 11 ¶¶ 16, 26 (emphasis omitted).
In September of 2018, FCT informed Notre Dame that it “was instituting
formal grievance arbitration procedures on [Jusino’s] behalf” to challenge his
termination as a tenured teacher. Id. at 8 ¶ 9. In connection with that grievance,
Jusino “alleged to [FCT] that [he] had been explicitly suspended” (and ultimately
“discharge[d]”) by Notre Dame “for complaining about sex, race, and age
discrimination against [him] by [Notre Dame], and [about] race discrimination by
[Notre Dame] against one of its students.” Id. at 9 ¶ 16. A month later, Jusino
asserted the same factual allegations in a federal lawsuit against Notre Dame,
1N.b., Jusino provides more detailed factual allegations regarding the circumstances leading up
to his termination in the pro se complaint filed in his separate suit against Notre Dame, see
generally Complaint, Jusino v. Notre Dame Acad. High Sch., No. 18-cv-6027 (MKB) (E.D.N.Y. Oct. 29,
2018), ECF No. 1, which he has incorporated by reference into the operative complaint in this case.
6
bringing claims for discrimination and retaliation under Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., the NYSHRL, and
the NYCHRL. See Complaint, Jusino v. Notre Dame Acad. High Sch., No. 18-cv-6027
(MKB) (E.D.N.Y. Oct. 29, 2018), ECF No. 1. Shortly thereafter, Jusino informed the
FCT of his lawsuit against Notre Dame and reiterated to the FCT his position that
Notre Dame had breached the CBA by violating various employment-
discrimination laws incorporated therein by reference.
The FCT, however, responded in a December 2018 email to Jusino that it
“was not in favor of making any Title VII discrimination/retaliation claims on [his]
behalf” at the upcoming union arbitration with Notre Dame. J. App’x at 10 ¶ 20.
Likewise, the FCT’s counsel declined to respond to Jusino’s suggestion that the
FCT might arbitrate the NYCHRL claim on his behalf. Between then and May 17,
2019, when it ultimately commenced formal union arbitration proceedings
between Jusino and Notre Dame, the FCT repeatedly reiterated to Jusino that “we
are not arbitrating your Title VII claims.” Id. at 11 ¶ 24. Indeed, the FCT declined
to present Jusino’s discrimination claims in either its presentation of his grievances
at the pre-hearing conference with the arbitrator in January 2019 or its opening
statements at the arbitration hearing itself in May 2019.
7
At the close of the May 2019 initial arbitration hearing, Notre Dame and the
FCT then agreed to adjourn the arbitration to November 2019. In the meantime,
Jusino and Notre Dame settled their lawsuit after participating in the Eastern
District of New York’s pro se mediation program; as part of that settlement, Jusino
voluntarily dismissed his discrimination and retaliation claims. See Settlement
Letter, Jusino, No. 18-cv-6027 (E.D.N.Y. Aug. 21, 2019), ECF No. 28; Stipulated
Order of Dismissal, Jusino, No. 18-cv-6027 (E.D.N.Y. Sept. 27, 2019), ECF No. 33.
B. Procedural History
On November 12, 2019, Jusino commenced this action against the FCT in the
Eastern District of New York. In his underlying pro se complaint, Jusino alleged
that the FCT had “willful[ly] refus[ed] to investigate [his] Title VII
discrimination/retaliation [claims] or any of [his] other [available discrimination
claims against Notre Dame] under the CBA,” and likewise “refus[ed] to . . .
meaningfully assert” such claims on his behalf at the union arbitration
proceedings with Notre Dame. J. App’x at 18–19 ¶¶ 62, 64, 66. Based on these
allegations, Jusino claimed principally that the FCT had breached its duty of fair
representation under the NLRA and LMRA. Based on the same allegations, Jusino
also claimed that the FCT had discriminated against him in its own right, thereby
8
violating the provisions of the NYSHRL and NYCHRL that apply to “labor
organizations.” See N.Y. Exec. Law § 296(1)(e); N.Y.C. Admin. Code § 8-107(1)(c).
For the duty-of-fair-representation claim, Jusino invoked the district court’s
federal-question and civil-rights jurisdiction under 28 U.S.C. §§ 1331 and 1343, and
for the NYSHRL and NYCHRL claims, he invoked the district court’s
supplemental jurisdiction under 28 U.S.C. § 1367.
The FCT moved to dismiss Jusino’s complaint in its entirety. As to Justino’s
federal duty-of-fair-representation claim, the FCT sought dismissal principally
under Rule 12(b)(1), arguing that labor disputes involving parochial-school
teachers are excluded from the NLRA’s and LMRA’s grants of federal subject-
matter jurisdiction under Catholic Bishop. In the alternative, the FCT sought
dismissal of the duty-of-fair-representation claim under Rule 12(b)(6), arguing that
it was time-barred and/or that Jusino had failed to adequately plead the elements
of such a claim. As to Jusino’s NYSHRL and NYCHRL claims, the FCT argued
that the district court should either find that it lacked supplemental jurisdiction
under 28 U.S.C. § 1367(a) (in the event that the duty-of-fair-representation claim
was dismissed for lack of subject-matter jurisdiction), or decline to exercise
9
supplemental jurisdiction under 28 U.S.C. § 1367(c)(3) (in the event the duty-of-
fair-representation claim was dismissed on Rule 12(b)(6) grounds).
The magistrate judge (Tiscione, Mag. J.) recommended dismissing Jusino’s
duty-of-fair-representation claim pursuant to Rule 12(b)(1), reasoning that Jusino
had “failed [to] meet his burden [to] show that subject[-]matter jurisdiction exists”
under Catholic Bishop. J. App’x at 33. In light of this recommendation, the
magistrate judge did not reach either of FCT’s alternative arguments for
Rule 12(b)(6) dismissal, but he did recommend “declining to exercise
supplemental jurisdiction [over,] and granting FCT’s [m]otion [to dismiss,]
Jusino’s state[-] [and municipal-]law claims.” Id. at 33–34. Jusino objected to the
magistrate judge’s report and recommendation with respect to the duty-of-fair-
representation claim, but did not address the state- or municipal-law claims. The
district court then adopted the report and recommendation “in its entirety,”
dismissed Jusino’s federal duty-of-fair-representation claim with prejudice under
Rule 12(b)(1), and dismissed his NYSHRL and NYCHRL claims “without
prejudice to their repleading in a state court of appropriate jurisdiction.” Id. at 35,
42.
Jusino timely appealed.
10
II. STANDARD OF REVIEW
We review de novo a district court’s dismissal for lack of subject-matter
jurisdiction, construing the complaint liberally and accepting all factual
allegations in the complaint as true. Green v. Dep’t of Educ., 16 F.4th 1070, 1074
(2d Cir. 2021). We may “affirm on any ground with support in the record,” Cox v.
Onondaga Cnty. Sheriff’s Dep’t, 760 F.3d 139, 145 (2d Cir. 2014), “including grounds
upon which the district court did not rely,” Leon v. Murphy, 988 F.2d 303, 308
(2d Cir. 1993).
III. DISCUSSION
A. Duty-of-Fair-Representation Claim
1. The district court properly concluded that the NLRA and LMRA are
inapplicable to Jusino’s claim against his parochial-school teachers’
union.
In Catholic Bishop, the Supreme Court held that the NLRA does not “bring
teachers in church-operated schools within” its “cover[age].” 440 U.S. at 504, 507.
The Court so held in the context of an administrative enforcement action brought
by the National Labor Relations Board (the “NLRB”) against two Roman Catholic
dioceses, asserting unfair-labor-practices claims under the NLRA on behalf of
teachers employed in schools operated by the dioceses. See id. at 492–95. We must
now decide, as a matter of first impression, whether Catholic Bishop likewise
11
precludes a former parochial-school teacher’s duty-of-fair-representation claim
against his parochial-school teachers’ union. We hold that it does.
An employee’s duty-of-fair-representation claim against his labor union is
derivative of – that is, “inextricably interdependent” with – his claim against his
employer under section 301 of the LMRA. DelCostello v. Int’l Bhd. of Teamsters,
462 U.S. 151, 164 (1983); see also Sanozky v. Int’l Ass’n of Machinists & Aerospace
Workers, 415 F.3d 279, 282 (2d Cir. 2005) (“To prevail on a hybrid
[section] 301/duty[-]of[-]fair[-]representation claim, [a plaintiff] must demonstrate
both (1) that [the employer] breached its collective bargaining agreement and
(2) that [the union] breached its duty of fair representation.” (emphasis added)).
Thus, Jusino can only assert a viable duty-of-fair-representation claim against the
FCT if he also has a viable section 301 claim against Notre Dame. But the holding
of Catholic Bishop – again, that “teachers in church-operated schools” are not
“covered by the [NLRA as amended by the LMRA]” – squarely forecloses any
section 301 claim that Jusino might bring against Notre Dame. 440 U.S. at 504.
While the NLRA action at issue in Catholic Bishop was commenced by the
NLRB on behalf of parochial-school teachers, rather than by parochial-school
teachers on their own behalf, see id. at 494, that distinction is of no moment here.
12
In Catholic Bishop, the crux of the analysis was the canon of constitutional
avoidance, i.e., the longstanding principle that acts of Congress “ought not be
construed to violate the Constitution if any other possible construction remains
available.” Id. at 500 (citing Murray v. The Charming Betsy, 6 U.S (2 Cranch) 64, 118
(1804)). Recognizing “the critical and unique role of the teacher in fulfilling the
mission of a church-operated school,” the Supreme Court therefore reasoned that
“constru[ing] the [NLRA] in a manner” that “covered” labor relations between
parochial schools and their teachers would “call upon the Court to resolve difficult
and sensitive questions arising out of the guarantees of the First Amendment
Religion Clauses.” Id. at 501, 504, 507 (emphasis added).
Critically, the Court drew no distinction between the “First Amendment
problems” that would be created for “courts or agencies” called upon to apply the
NLRA in ways that might “impinge upon the freedom of church authorities to
shape and direct teaching in accord with the requirements of their religion.” Id.
at 496 (emphasis added; citation omitted). Indeed, even within the context of the
administrative enforcement proceedings under review in Catholic Bishop, the Court
focused on the constitutional “problems” posed for the NLRB administrative law
judges (“ALJs”) “called upon” to “resolve” claims involving parochial-school labor
13
relations – rather than for the NLRB officials bringing such claims. Id. at 496, 502
(emphasis added). That is, since NLRA claims brought on behalf of parochial-
school teachers would “in many instances” prompt their parochial-school
employers to “respond[] that their challenged actions were mandated by their
religious creeds,” the ALJs’ “resolution” of such claims would “necessarily involve
[their] inquiry into the good faith of the position asserted by the clergy-
administrators and its relationship to the school’s religious mission.” Id. at 502–03.
That reasoning applies with no less force where – as here – an Article III court
(rather than an ALJ) is “called upon” to “resolve” an NLRA claim brought directly
by a parochial-school teacher (rather than by the NLRB on behalf of such teachers).
Id. at 502, 507.
Unable to distinguish Catholic Bishop, Jusino instead asserts that it is no
longer good law. We disagree. Principally, Jusino argues that the “entire
rationale” of Catholic Bishop “has been overruled” by the Supreme Court’s decision
in Arbaugh v. Y&H Corp, 546 U.S. 500 (2006). Jusino Br. at 16. But Arbaugh did no
such thing. It said nothing about Catholic Bishop, the canon of constitutional
avoidance, the NLRA, or its applicability to labor disputes involving parochial-
school teachers. Rather, the Supreme Court in Arbaugh merely criticized a “genre”
14
of “[j]udicial opinions,” including a few of its own, that had “erroneously
conflated” subject-matter jurisdiction with the “merits issue” of “a plaintiff’s need
and ability to prove the defendant bound by the federal law asserted as the
predicate for relief.” Id. at 511, 513 n.7 (citation omitted). The Court thus decreed
that where judicial opinions “obscure the issue by stating that the court is
dismissing ‘for lack of jurisdiction’ when some threshold fact has not been
established, without explicitly considering whether the dismissal should be for
lack of subject matter jurisdiction or for failure to state a claim,” their “‘drive-by
jurisdictional rulings’ . . . should be accorded ‘no precedential effect.’” Id. (first
quoting Da Silva v. Kinsho Int'l Corp., 229 F.3d 358, 361 (2d Cir. 2000); then quoting
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 91 (1998)).
Clearly, Arbaugh bears upon Catholic Bishop only in a limited way. To the
extent that Catholic Bishop purported to answer “[w]hether teachers in schools
operated by a church . . . are within the jurisdiction granted by the [NLRA],”
440 U.S. at 491 (emphasis added), it might be argued to have announced a “drive-
by jurisdictional ruling[]” of the sort that Arbaugh cautions us to discount, 546 U.S.
at 511 (emphasis added; citation omitted). But that argument would merely go to
“whether the dismissal should [have] be[en] for lack of subject matter jurisdiction
15
or for failure to state a claim,” id. (citation omitted) – a question we will address in
just a moment, see infra Section III.A.2 – not whether Catholic Bishop requires
dismissal of Jusino’s duty-of-fair-representation claim at all. It certainly does not
provide grounds to suggest that the “entire rationale” of Catholic Bishop was
“overruled,” or even called into question, by Arbaugh. Jusino Br. at 16.
Catholic Bishop also remains good law notwithstanding its reliance, see
440 U.S. at 496, 501–03, on Lemon v. Kurtzman, 403 U.S. 602 (1971), which was
overruled by the Supreme Court – depending on whom you ask – either “long
ago,” Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2427 (2022), or about two
weeks after Jusino’s appeal was submitted for our decision, see id. at 2434
(Sotomayor, J., dissenting) (“Today’s [June 27, 2022] decision . . . . overrules Lemon
v. Kurtzman . . . .” (emphasis added)). But regardless of whether Kennedy actively
overruled Lemon or simply recognized that Lemon was already a dead letter, one
thing it indisputably did not do was overrule – or even mention – Catholic Bishop.
Thus, unless and until the Supreme Court sees fit to overrule Catholic Bishop
directly, it remains binding on this Court. See, e.g., Bosse v. Oklahoma, 137 S. Ct. 1,
2 (2016) (“It is [the Supreme] Court’s prerogative alone to overrule one of its
precedents . . . . [Its] decisions remain binding precedent until [it] see[s] fit to
16
reconsider them, regardless of whether [its] subsequent cases have raised doubts
about their continuing vitality.”) (citations and alteration omitted).
Accordingly, we agree with the district court that Catholic Bishop was
applicable here and required the dismissal of Jusino’s duty-of-fair-representation
claim against the FCT.
2. The inapplicability of the NLRA and LMRA to parochial-school
teachers’ duty-of-fair-representation claims created a defect in
Jusino’s pleading, not in the federal courts’ subject-matter
jurisdiction.
While the district court correctly stated that dismissal of this action “is
compelled by . . . Catholic Bishop,” it erred in stating that Catholic Bishop’s effect is
to “deprive[] the [federal] [c]ourt[s] of [subject-matter] jurisdiction” over this case.
J. App’x at 39 (citation omitted). Rather, the application of Catholic Bishop in this
case goes to Jusino’s failure to state a claim. It was therefore improper for the district
court “to dismiss pursuant to Rule 12(b)(1),” as opposed to Rule 12(b)(6). Id. at 42.
Such confusion is understandable, given Catholic Bishop’s repeated
references to “jurisdiction.” See 440 U.S. at 491, 493–502, 504–06, 507. But the word
“‘[j]urisdiction,’ it has been observed, ‘is a word of many, too many meanings,’
and it has been ‘commonplace for the term to be used’ imprecisely to refer to
statutory limitations that are not strictly jurisdictional.” Green, 16 F.4th at 1076
17
(quoting Steel Co., 523 U.S at 90). Thus, as alluded to above, the Supreme Court
has repeatedly instructed lower courts over the past two decades to “be especially
careful to distinguish ‘between two sometimes confused or conflated concepts:
federal-court “subject-matter” jurisdiction over a controversy; and the essential
ingredients of a federal claim for relief.’” Id. (quoting Arbaugh, 546 U.S. at 503); see
also Am. Psychiatric Ass'n v. Anthem Health Plans, Inc., 821 F.3d 352, 359 (2d Cir.
2016) (“The question whether a federal statute creates a claim for relief is not
jurisdictional.” (quoting Nw. Airlines, Inc. v. County of Kent, 510 U.S. 355, 365
(1994))). To that end, the Supreme Court has “adopted a ‘readily administrable
bright line’ for determining whether to classify a statutory limitation as
jurisdictional”: courts are to “inquire whether Congress has ‘clearly stated’ that
the rule is jurisdictional,” and “absent such a clear statement, . . . the restriction [is]
nonjurisdictional in character.” Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153
(2013) (quoting Arbaugh, 546 U.S. at 515–16) (alteration omitted).
Here, Congress has never clearly stated a rule that labor claims involving
parochial schools are excepted from any of the NLRA’s jurisdiction-conferring
provisions (such as the LMRA). The NLRA’s definitions do not explicitly exempt
parochial schools or labor unions representing parochial-school teachers from the
18
statute’s substantive provisions. See 29 U.S.C. § 152. Even if they did – as they
explicitly do, e.g., for “State[s] or political subdivision[s] thereof,” id. § 152(2) – that
would not exempt the parochial school or labor organization representing teachers
employed at a parochial school from subject-matter jurisdiction, see Green, 16 F.4th
at 1075–76 (explaining that although section 152’s definition of “employer”
exempts a “state or a political subdivision of a state” from coverage by substantive
provisions concerning “employers,” that does not limit subject-matter
jurisdiction). Thus, insofar as Catholic Bishop might be read to have found a lack
of subject-matter jurisdiction over NLRA claims involving parochial schools (or
their teachers, or those teachers’ labor unions), that was a “drive-by jurisdictional
ruling” that has “no precedential effect.” Id. at 1076 n.1 (quoting Steel Co., 523 U.S.
at 91). Rather, we interpret Catholic Bishop to have spoken only to the “question of
whether the particular plaintiff ‘has a cause of action under the statute,’” which
“does not implicate subject-matter jurisdiction, i.e., the court’s statutory or
constitutional power to adjudicate the case.” Am. Psychiatric Ass’n, 821 F.3d at 359
(quoting Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 & n.4
(2014)) (emphasis in original; alterations omitted).
19
Confusion on this point has, if anything, been compounded by the fact that
the particular constitutional principle at the heart of Catholic Bishop’s reading of
the NLRA – the “ministerial exception,” see generally Hosanna-Tabor Evangelical
Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012) 2 – has itself often been
characterized in terms that may sound jurisdictional. 3 Indeed, prior to Hosanna-
Tabor, several circuits (including our own) had expressly held that the ministerial
exception is jurisdictional. See, e.g., Rweyemanu v. Cote, 520 F.3d 198, 209 (2d Cir.
2008) (affirming dismissal, for lack of subject-matter jurisdiction, of a Roman
Catholic priest’s Title VII action against his diocese for allegedly failing to promote
him on the basis of race); see also Hosanna-Tabor, 565 U.S. at 195 n.4 (collecting cases
2 The ministerial exception “precludes application of [labor and employment-discrimination]
legislation to claims concerning the employment relationship between a religious institution and
its ministers.” Hosanna-Tabor, 565 U.S. at 188. The Supreme Court has found it “apparent that
[parochial-school teachers] qualify for the exemption . . . recognized in Hosanna-Tabor [where
their job responsibilities include] perform[ing] vital religious duties” such as teaching theology.
Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2066 (2020).
3 See, e.g., Watson v. Jones, 80 U.S. (13 Wall) 679, 709, 727 (1871) (questioning “the power of the civil
courts” to decide cases involving “questions of . . . ecclesiastical rule” (emphasis added)), cited in
Hosanna-Tabor, 565 U.S. at 185; Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in N.
Am., 344 U.S. 94, 114–16 (1952) (using similar language), cited in Hosanna-Tabor, 565 U.S. at 186;
see also McCarthy v. Fuller, 714 F.3d 971, 975 (7th Cir. 2013) (characterizing the ministerial
exception as providing “immunity from the travails of a trial and not just from an adverse
judgment”); Dayner v. Archdiocese of Hartford, 301 Conn. 759, 769 (2011) (“When the ministerial
exception applies, it provides the defendant with immunity from suit [as opposed to mere
immunity from liability] and deprives the court of subject matter jurisdiction.”).
20
on both sides of this former circuit split). But in Hosanna-Tabor, the Supreme Court
unequivocally rejected that view, holding “that the [ministerial] exception
operates as an affirmative defense to an otherwise cognizable claim, not a
jurisdictional bar[,] . . . . because [it concerns] ‘whether the allegations the plaintiff
makes entitle him to relief,’ not whether the court has ‘power to hear the case.’”
565 U.S. at 195 n.4 (quoting Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 254
(2010)) (alteration omitted).
Thus, while the holding of Catholic Bishop does extend to preclude Jusino’s
duty-of-fair-representation claim against the FCT, it speaks to “the absence of a
valid . . . cause of action” on Jusino’s part – not an absence of “subject-matter
jurisdiction” on the district court’s part. Lexmark, 572 U.S. at 128 n.4 (citation
omitted). Jusino’s complaint therefore “fails to state a claim for a violation of the
statute and should have been dismissed pursuant to Rule 12(b)(6).” Green, 16 F.4th
at 1075.
3. The concurrence misapprehends our precedent and offers no basis
for avoiding the straightforward application of Catholic Bishop to
Jusino's claims.
The concurrence suggests that instead of reaching the merits of Jusino’s
failure to state a claim, we should decide this appeal on the ground that “all of
21
[Jusino’s] claims against [the FCT] are time-barred.” Concurrence at 1. We
respectfully disagree. For starters, the issue of timeliness was never addressed
below, in either the magistrate judge’s report and recommendation or the district
court’s final order. And while we may be “free to affirm on any ground that finds
support in the record, even if it was not the ground upon which the district court
relied,” we have made clear that “we prefer not to speculate in the first instance as
to” issues not passed upon below. Brown Media Corp. v. K&L Gates, LLP, 854 F.3d
150, 160 n.6 (2d Cir. 2017) (emphasis added; citation and alterations omitted).
Indeed, it is a fundamental principle of “our adversarial system of adjudication”
that “courts normally decide only questions presented by the parties,” United
States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (citation and alteration
omitted), and here, neither party addressed the timeliness of Jusino’s claims in its
appellate briefs.
The concurrence also contends that our merits analysis “require[s] some
new law and some new applications of old law,” and that it is “[in]advisable” as a
“general matter” to address novel legal questions in “pro se case[s]” such as this.
Concurrence at 1 (citing Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362,
364 n.2 (2d Cir. 2000)). To be sure, there may often be sound reasons to avoid
22
resolving novel legal questions in cases where we have briefing only from a pro se
litigant. In Fitzgerald, however, the case upon which the concurrence relies for this
contention, we did not suggest such a “general” policy against resolving novel
legal questions simply because they happen to be raised in cases involving pro se
litigants. To the contrary, we have published many precedential opinions –
something courts typically do precisely for the purpose of “establish[ing] a new,
or chang[ing] an existing, rule of law,” Hughes v. Rowe, 449 U.S. 5, 7 n.3 (1980)
(citation omitted) – in cases involving pro se litigants, see, e.g., Schlosser v. Kwak, 16
F.4th 1078, 1079, 1081–82 (2d Cir. 2021) (resolving, in such a case, a question of first
impression for our Circuit); Meadows v. United Servs., Inc., 963 F.3d 240, 242, 244
(2d Cir. 2020) (same); United States v. Pilcher, 950 F.3d 39, 40–41 (2d Cir. 2020)
(same). All we said in Fitzgerald was that we did not “need [to] decide” whether
“dismissals under [a then-recently amended statute] are reviewed de novo or for
abuse of discretion” – a question that was “no longer clear” in light of said
amendments – “because the [d]istrict [c]ourt’s decision” in that case would “easily
pass[] muster under” either standard. 221 F.3d at 364 n.2. In other words, we
simply refrained from announcing unnecessary dicta on a substantively difficult
question of law.
23
Here, by contrast, we find nothing substantively difficult or “[un]clear,” id.,
in the merits question that the concurrence urges us to avoid. Our answer to that
question is dictated by a simple syllogism of labor law: because the validity of
Jusino’s duty-of-fair-representation claim against the FCT is “inextricably
[]dependent” on his having a valid underlying LMRA claim against Notre Dame,
DelCostello, 462 U.S. at 164, and Catholic Bishop unambiguously precludes him from
asserting such a claim against Notre Dame, see 440 U.S. at 504, 507, his duty-of-
fair-representation claim against the FCT must fail. That conclusion is hardly
dicta, cf. Fitzgerald, 221 F.3d at 364 n.2; it is dispositive of the federal claim at the
heart of Jusino’s case. Moreover, Jusino’s pro se briefs are intelligently composed
and present a colorable – though ultimately unavailing – argument on the merits.
Under these circumstances, we think it wiser and fairer to resolve the merits issue
as framed by the parties than to decide the appeal on technical grounds that were
neither passed on below nor briefed here.
4. Affirmance is proper, notwithstanding the district court’s
mischaracterization of a dismissal for failure to state a claim as a
dismissal for lack of subject-matter jurisdiction.
As explained above, see supra Section III.A.2, we conclude that while the
holding of Catholic Bishop does extend to preclude Jusino’s duty-of-fair-
24
representation claim against the FCT, it speaks to “the absence of a valid . . . cause
of action” on Jusino’s part – not an absence of “subject-matter jurisdiction” on the
district court’s part. Lexmark, 572 U.S. at 128 n.4 (citation omitted). In other words,
the district court erred in casting its judgment as a dismissal under Rule 12(b)(1);
because the fatal flaw of Jusino’s claim was its “fail[ure] to state a claim for a
violation of the” NLRA as amended by the LMRA, it “should have been dismissed
pursuant to Rule 12(b)(6).” Green, 16 F.4th at 1075.
This conclusion prompts an issue of appellate remedies that might
otherwise be quite difficult, if not for the fact that our Court squarely answered it
just last Fall in Green. There, as here, the district court had dismissed with
prejudice, for putative lack of jurisdiction, a duty-of-fair-representation claim
brought by a plaintiff who lacked a valid cause of action under the NLRA and
LMRA. See Green, 16 F.4th at 1074. We found error both insofar as “dismissals for
lack of subject[-]matter jurisdiction ‘must be without prejudice, rather than with
prejudice,’” and insofar as “the claim should have been dismissed for failure to
state a claim rather than for lack of subject matter jurisdiction.” Id. (quoting Carter
v. HealthPort Techs., LLC, 822 F.3d 47, 54 (2d Cir. 2016)). But rather than vacating
the district court’s improper Rule 12(b)(1) dismissal with prejudice and remanding
25
with instructions to re-dismiss with prejudice under Rule 12(b)(6), we found it
appropriate to simply “affirm the district court's dismissal with prejudice.” Id.
Thus, following Green, we affirm the district court’s dismissal of Jusino’s
federal claim with prejudice, in light of our holding that such dismissal should
have been pursuant to Rule 12(b)(6) rather than 12(b)(1). That the district court
did not itself dismiss Jusino’s duty-of-fair-representation claim for failure to state
a claim is no obstacle to this disposition, since we may “affirm on any ground with
support in the record,” Cox, 760 F.3d at 145, “including grounds upon which the
district court did not rely,” Leon, 988 F.2d at 308.
B. State- and Municipal-Law Claims
That leaves Jusino’s claims under the laws of New York State and New York
City, which the district court “dismissed without prejudice to their repleading in
a state court of appropriate jurisdiction.” J. App’x at 42. Jusino has forfeited any
challenge to such dismissal twice over. See United States v. Graham, 51 F.4th 67, 80
(2d Cir. 2022) (“Forfeiture, a . . . ‘failure to make the timely assertion of a right’
when procedurally appropriate, allows a court . . . to disregard an argument at its
discretion (in civil cases) . . . .” (quoting United States v. Olano, 507 U.S. 725, 733
(1993))). First, after the magistrate judge recommended “declining to exercise
26
supplemental jurisdiction [over] Jusino’s state[-] [and municipal-]law claims,” J.
App’x at 33–34, Jusino’s “failure to object . . . to [that portion of the] magistrate’s
report operate[d] as a [forfeiture] of any further judicial review of the magistrate’s
decision,” FDIC v. Hillcrest Assocs., 66 F.3d 566, 569 (2d Cir. 1995) (internal
quotation marks omitted). Second, Jusino does not challenge the dismissal of his
state- and municipal-law claims anywhere in his appellate briefs. See, e.g.,
Weinstein v. Albright, 261 F.3d 127, 133 n.3 (2d Cir. 2001) (applying our general rule
that where a district court’s ruling is not challenged in an appellant’s briefs on
appeal, we consider any appeal of that ruling to be forfeited). In any event, the
district court’s dismissal of such claims was affirmatively proper. See Marcus v.
AT&T Corp., 138 F.3d 46, 57 (2d Cir. 1998) (“[I]n general, where the federal claims
are dismissed before trial, the state claims should be dismissed as well.” (citing 28
U.S.C. § 1367(c)(3))); Baylis v. Marriott Corp., 843 F.2d 658, 665 (2d Cir. 1988) (“When
all bases for federal jurisdiction have been eliminated from a case so that only
pendent state claims remain, the federal court should ordinarily dismiss the state
claims . . . without prejudice . . . .”).
27
IV. CONCLUSION
For the foregoing reasons, we conclude that Jusino, as a parochial-school
teacher, lacks a cause of action under the NLRA and LMRA for FCT’s alleged
breach of its duty of fair representation; that his lack of a valid cause of action
under the NLRA and LMRA resulted in his failing to state a claim but did not
deprive the federal courts of subject-matter jurisdiction; that the district court’s
dismissal with prejudice under Rule 12(b)(1) may be affirmed on the alternative
ground that such a dismissal would have been proper under Rule 12(b)(6); and
that Jusino has forfeited any challenge to the district court’s decision to decline
jurisdiction over his state- and municipal-law claims in light of its dismissal of his
federal claim. Accordingly, we AFFIRM the district court’s dismissal of Jusino’s
federal claims with prejudice and its dismissal of his state- and municipal-law
claims without prejudice to their repleading in a state court of appropriate
jurisdiction.
28
21-2081
Jusino v. Fed’n of Cath. Tchrs.
1 IN THE
2 United States Court of Appeals
3 For the Second Circuit
4
5
6 CALABRESI, Circuit Judge, concurring:
7 The majority opinion treats a series of federal issues that require some new
8 law and some new applications of old law to the appeal in this case. But none of
9 these issues need to be reached because all of plaintiff’s claims against defendant
10 union are time-barred. Plaintiff is pro se, and, as a general matter, it is advisable,
11 when a pro se case can be decided in way that makes no new law, to decide it on
12 the basis. See, e.g., Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 364
13 n.2 (2d Cir. 2000) (per curiam) (declining to address a novel legal question raised
14 by a pro se litigant where not necessary to adjudicate the claim).
15 As the majority states, the timelines questions have not been addressed by
16 the parties and, other things being equal we prefer not to decide what has not
17 been argued. Maj. Op. at 22. But as the majority recognizes, we are free to do so.
18 Id. And we have done so when the record is sufficiently clear on the issue.
21-2081
Jusino v. Fed’n of Cath. Tchrs.
1 As the majority also states, we do make new law in pro se cases, and do so
2 regularly when there is no other way of deciding a case. Maj. Op. at 23. We are
3 free to do so even when there is another way of deciding the case, but it is
4 preferable to avoid it if the “new law” is in any way problematic. The case I cite
5 above is just one of many suggesting this.
6 The question then becomes is the “new law” in this case so non-
7 problematic that it is preferable to make it, even though plaintiff is pro se, or does
8 it raise questions so that it is better to decide the case on a ground – timelines-
9 that is on the record but was not argued. The majority clearly believes the
10 former. I believe that, at this time, any new law touching on the intersection
11 between religious rights and freedom from discrimination – both are
12 fundamental – is best made extremely cautiously. And for that reason, I
13 respectfully concur separately.
14 I join the majority’s treatment of plaintiff’s state law claims in full.
15
2