"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." (emphasis added)
How later courts described this case
- "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." (emphasis added)
- reviewing dismissal of complaint for lack of standing under Rule 12(b)(1) de novo
- "It is well settled that where . . . the federal claims are eliminated in the early stages of litigation, courts should generally decline to exercise pendent jurisdiction over remaining state law claims."
- "State taxpayers, like federal taxpayers, do not have standing to challenge the actions of state government simply because they pay taxes to the state."
Written by the judges who cited it.
The opinion
20-2946-cv
Futia v. Westchester County Board of Legislators
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 21st day of April, two thousand twenty-one.
PRESENT: JOHN M. WALKER, JR.,
DENNY CHIN,
Circuit Judges,
PAUL A. ENGELMAYER,
District Judge. *
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
ANTHONY FUTIA, JR., ROBERT L. SCHULZ,
Plaintiffs-Appellants,
-v- 20-2946-cv
WESTCHESTER COUNTY BOARD OF
LEGISLATORS, BENJAMIN BOYKIN, II, Chairman,
HARRISON TOWN BOARD, RON BELMONT,
Supervisor,
Defendants-Appellees.
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*
Judge Paul A. Engelmayer, of the United States District Court for the Southern
District of New York, sitting by designation.
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 DAVID H. CHEN, Deputy County Attorney,
WESTCHESTER COUNTY BOARD Appeals, for John M. Nonna, Westchester
OF LEGISLATORS AND County Attorney, White Plains, New York.
BENJAMIN BOYKIN, II:
FOR DEFENDANTS-APPELLEES RICHARD S. FINKEL, Bond, Schoeneck &
HARRISON TOWN BOARD AND King PLLC, Garden City, New York.
RON BELMONT:
Appeal from the United States District Court for the Southern District of
New York (Briccetti, 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 (together,
"plaintiffs") appeal the district court's judgment, entered August 7, 2020, dismissing
their claims against defendants-appellees the Westchester County Board of Legislators
and its chairman Ben Boykin, II, and the Harrison Town Board and its supervisor Ron
Belmont (collectively, "defendants") 1 for lack of subject matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule
1 In their opposition to the defendants' motion to dismiss, plaintiffs clarified that they
were not suing Boykin or Belmont, and the district court accordingly dismissed the claims
against those defendants. Plaintiffs do not contest those dismissals on appeal.
2
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 Guarantee Clause of the United States Constitution by voting to increase
compensation for elected officials during the term for which they were elected, which
deprived plaintiffs of a republican form of government. Plaintiffs further allege that
defendants' failure to respond to the petitions they submitted to complain about this
pay increase violated their rights under the Petition Clause of the First Amendment.
They also allege claims under state and local law. 2
"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); see also
Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411, 417 (2d Cir. 2015)
(reviewing dismissal of complaint for lack of standing under Rule 12(b)(1) de novo). 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
2 In an earlier appeal brought by these plaintiffs, we affirmed by summary order the
district court's dismissal of similar claims. See Futia v. State of New York, No. 19-286-cv (2d Cir.
Nov. 24, 2020). The Supreme Court denied plaintiffs' petition for a writ of certiorari on March
29, 2021.
3
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).
The district court did not err in finding that neither plaintiff had standing
to sue the Harrison Town Board because neither is a resident of the Town of Harrison,
and status as a state taxpayer alone is insufficient to establish standing. See Bd. of Educ.
of Mt. Sinai Union Free Sch. Dist. v. New York State Tchrs. Ret. Sys., 60 F.3d 106, 110 (2d
Cir. 1995) ("State taxpayers, like federal taxpayers, do not have standing to challenge the
actions of state government simply because they pay taxes to the state."). Further, the
district court correctly held that Schulz, who does not live in Westchester County, does
not have standing to sue the Westchester County Board of Legislators because he does
not have a "direct and immediate" relationship with the County sufficient to confer
standing. See id. at 110-11.
The district court also did not err in dismissing plaintiffs' Guarantee
Clause claim for lack of subject matter jurisdiction because the claim presents
nonjusticiable political questions, such as local government budget allocation. 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).
4
The Supreme Court's broad discussion of the Petition Clause in Knight, contrary to
plaintiffs' claim, was not limited to public employees or policy complaints. See id.
("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." (emphasis added)). Finally, the district
court did not abuse its discretion in declining to exercise supplemental jurisdiction over
the state law claims. See Klein & Co. Futures, Inc., 464 F.3d at 262 ("It is well settled that
where . . . the federal claims are eliminated in the early stages of litigation, courts
should generally decline to exercise pendent jurisdiction over remaining 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
5