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Davis v. Department of Housing and Urban Development

United States District Court, E.D. Missouri, Eastern Division

September 27, 2017

DELORISE DAVIS, Plaintiff,
v.
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant.

          MEMORANDUM AND ORDER

          RONNIE L. WHITE, UNITED STATES DISTRICT JUDGE.

         This 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.

         BACKGROUND[1]

         In her 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).

         DISCUSSION

         I. Standard of Review

         A. 12(b)(1)

         "Federal 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).

         B. 12(b)(6)

         To 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).

         II. Discussion

         A. Lack of Subject Matter Jurisdiction

         To sue 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).

         The 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 ...


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