United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE, UNITED STATES DISTRICT JUDGE.
matter is before the court on Defendant's Motion to
Dismiss for Lack of Subject Matter Jurisdiction or, In the
Alternative, for Failure to State a Claim (ECF No. 8). This
matter is fully briefed and ready for disposition.
Complaint, Plaintiff Delorise Davis seeks redress of agency
actions pursuant to the Administrative Procedure Act, 5
U.S.C. §§701 and 702. Davis was hired by McCormack
Barron on April 23, 2001 as Director of Community Service and
Safety. (Complaint, ECF No. 1, ¶17). She later served as
Property Manager. As Property Manager, Davis was responsible
for managing a Department of Housing and Urban Development
("HUD") Property, O'Fallon Place, which is
located near downtown St. Louis city. (Id.,
¶18). Davis claims that she was "accused and found
guilty of renting a "HUD apartment" at O'Fallon
Place to a resident who was income ineligible to live in a
government-subsidized apartment. (Id., ¶13).
Davis asserts that, on February 28, 2012, she entered a
guilty plea "under duress" to "knowingly and
willfully making a material false statement."
(Id., ¶14); see United States v. Delorise
Davis, Case No. 4:11 CR377AGF (E.D. Mo.). Davis entered
a plea of guilty, along with a Guilty Plea Agreement, to one
count of knowingly violating Title 18, United States Code
Section 1001. Davis was represented by counsel during her
Change of Plea Hearing. Davis testified, under oath, that it
was her desire to enter her plea of guilty. Davis also
testified that the facts in the plea agreement were true and
that she understood she was waiving her right to appeal all
non-jurisdictional, non-sentencing issues. Davis further
testified that she understood she was waiving her right to
appeal her sentence in a post-conviction proceeding, except
for claims of prosecutorial misconduct and ineffective
assistance of counsel. Davis was sentenced to five years of
probation, 100 hours of community service, and $15, 124.00 in
restitution to HUD. (Id., ¶16).
Standard of Review
Rule of Civil Procedure 12(b)(1) provides that the court may
dismiss an action for lack of subject matter
jurisdiction." Mittleider v. Canadian Pac. Ry.
Co., No. CIV. 11-4054-KES, 2012 WL 1231939, at *3
(D.S.D. Apr. 12, 2012). Rule 12(b)(1) "'is rooted in
the unique nature of the jurisdictional question.'"
Osborn v. United States, 918 F.2d 724, 729 (8th
Cir.1990) (quoting Williamson v. Tucker, 645 F.2d
404, 413 (5th Cir.1981)). In determining a Rule 12(b)(1)
motion, the court may look to evidence outside the pleadings.
Id. Reviewing outside evidence under Rule 12(b)(1)
does not convert the motion into a Rule 56(c) summary
judgment motion like reviewing outside evidence does in the
context of a Rule 12(b)(6) motion to dismiss or a Rule 12(c)
motion for judgment on the pleadings. Denser v.
Vecera, 139 F.3d 1190, 1192 n. 3 (8thCir. 1998).
survive a motion to dismiss, a complaint "must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic
Corp., v. Twombly, 550 U.S 544, 570 (2007). A
"formulaic recitation of the elements of a cause of
action" will not suffice. Twombly, 550 U.S. at
555. "The plausibility standard is not akin to a
'probability requirement, ' but it asks for more than
a sheer possibility that a defendant has acted
unlawfully." Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 556).
Lack of Subject Matter Jurisdiction
the United States, a plaintiff must show both a waiver of
sovereign immunity and a grant of subject matter
jurisdiction. V.S. Ltd. P'ship v. HUD, 235 F.3d
1109, 1112 (8th Cir.2000) (citing Presidential Gardens
Assocs. v. United States, 175 F.3d 132, 139 (2d
Cir.1999)). "It is axiomatic that the United States may
not be sued without its consent and that the existence of
consent is a prerequisite to jurisdiction." United
States v. Navajo Nation, 537 U.S. 488, 502, 123 S.Ct.
1079, 1089, 155 L.Ed.2d 60 (2003) (citation omitted). Even
when the federal government does waive its immunity from
suit, "limitations and conditions upon which the
Government consents to be sued must be strictly observed, and
exceptions thereto are not to be implied." Lehman v.
Nakshian, 453 U.S. 156, 161, 101 S.Ct. 2698, 69 L.Ed.2d
548 (1981) (citation omitted).
Court notes that Davis purports to bring her claims under the
Administrative Procedures Act ("APA"), 5 U.S.C.
§701 and §702. The APA provides a limited waiver of
sovereign immunity for final agency actions for claims
seeking relief other than money damages. 5 U.S.C. §702
("A person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency action
within the meaning of a relevant statute, is entitled to
judicial review thereof"). However, the Court holds that
the APA does not provide a basis for jurisdiction over
Davis' action. Davis does not identify any final agency
action by HUD. Neither administrative record nor any final