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. * - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

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

2 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,

(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,

(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,

(2d Cir. 2006). 3 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,

(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,

(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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