Glass v. U.S. Department of Housing and Urban Development

Filing 56

ORDER by Judge James Donato denying 51 Motion to Dismiss for Lack of Jurisdiction. Case Management Conference set for 5/10/2017 10:00 AM in San Francisco, Courtroom 11, 19th Floor. (lrcS, COURT STAFF) (Filed on 3/22/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LEIGH GLASS,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-02142-JD
ORDER RE MOTION TO DISMISS

v.

Re: Dkt. No. 51
U.S. DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT, et al.,
Defendants.

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Before the Court is a motion to dismiss plaintiff’s first amended complaint, brought by

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defendant the United States Department of Housing and Urban Development (“HUD”). Dkt.

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No. 51. HUD’s motion seeks dismissal under Rule 12(b)(1) of the Federal Rules of Civil

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Procedure for lack of subject matter jurisdiction. Dkt. No. 51 at 1. The primary, indeed sole,

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basis for HUD’s argument that the Court lacks subject matter jurisdiction is that the United States

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has not waived its sovereign immunity for the claims brought by plaintiff in this case. Id. at 2.

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The problem with HUD’s motion is that it addresses only the Administrative Procedures

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Act (“APA”). See Dkt. No. 51 at 6 (arguing that the Court lacks jurisdiction because “[5 U.S.C.]

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Section 702 does not waive the government’s sovereign immunity with respect to the claims she

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brings”). While it is true that that is the only sovereign immunity waiver expressly alleged by

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plaintiff, see Dkt. No. 50 ¶ 2(b) (“The defendants’ sovereign immunity is waived pursuant to 5

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U.S.C. § 702”), it is simply not correct that all of plaintiff’s claims here are “dependent on the

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APA for a cause of action.” Dkt. No. 54 at 2. Plaintiff, who is proceeding pro se in this matter,

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has also invoked the mandamus statute, 28 U.S.C. § 1361, as a basis for jurisdiction and relief.

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Dkt. No. 50 ¶ 2(c) & Prayer for Relief. That statute grants district courts with “original

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jurisdiction of any action in the nature of mandamus to compel an officer or employee of the

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United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361.

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While it is well-established in our circuit that the mandamus statute does not function as a

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general waiver of sovereign immunity, see, e.g., Hou Hawaiians v. Cayetano, 183 F.3d 945, 947

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(9th Cir. 1999), it does not appear impossible that the Court could have jurisdiction pursuant to

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that statute in a case like this one. In Mashiri v. Department of Education, 724 F.3d 1028, 1032

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(9th Cir. 2013), the court made clear that in a mandamus case, jurisdiction could exist under the

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“Supreme Court’s Larson-Dugan exception to sovereign immunity,” which applies when an

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officer “is not doing the business which the sovereign has empowered him to do or he is doing it
in a way which the sovereign has forbidden.” The Mashiri court also approvingly quoted

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United States District Court
Northern District of California

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Washington Legal Foundation v. U.S. Sentencing Commission, 89 F.3d 897, 901 (D.C. Cir. 1996),

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for the proposition that if “a plaintiff seeks a writ of mandamus to force a public official to

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perform a duty imposed upon him in his official capacity . . . no . . . wavier of sovereign immunity

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is needed.” 724 F.3d at 1032.

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This is a case in which plaintiff has alleged that HUD refused to “file and proceed with

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action on” her multiple housing discrimination complaints, refusing at all to respond, investigate

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or make a determination. Dkt. No. 50 ¶ 1. Taking those allegations as true, as the Court must do

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at this stage, it appears plaintiff’s complaint at a minimum raises the possibility of jurisdiction

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under the principles set out in Mashiri. But HUD’s motion does not even mention the mandamus

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statute, much less explain why there is no jurisdiction under that statute here. The Court denies

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HUD’s motion for that reason, as it consequently fails to establish that the Court lacks subject

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matter jurisdiction over any and all of plaintiff’s claims.

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The Court does of course have an independent obligation to be sure of its own jurisdiction

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at all times. The Court cannot say for certain at this juncture that it does or does not have

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jurisdiction under the mandamus statute (or otherwise), but it declines to wade into those complex

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issues sua sponte without any input or argument from the parties. See Independence Mining Co.,

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Inc. v. Babbitt, 105 F.3d 502, 507 (9th Cir. 1997) (noting that “the exact interplay between” the

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Mandamus and Venue Act of 1962 (“MVA”), 28 U.S.C. § 1361, and the Administrative Procedure

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Act, 5 U.S.C. § 706, “has not been thoroughly examined by the courts”).

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It may well be that, as in Mashiri, the question of jurisdiction here -- at least under the

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MVA -- will “merge with the question on the merits.” 724 F.3d at 1032 (quoting Wash. Legal, 89

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F.3d at 901-02). While the Court has some serious doubts about the ultimate merits of this case,

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there is not a sufficient basis for dismissing the case for lack of jurisdiction at this time and so the

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Court denies defendant HUD’s motion to dismiss, which sought dismissal on that ground only.

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Dkt. No. 51.
The Court further sets a case management conference for May 10, 2017, at 10:00 a.m. At

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the CMC, the parties should be prepared to discuss the issues of jurisdiction, case status, and ADR

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United States District Court
Northern District of California

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(alternative dispute resolution) efforts thus far and preferred next steps. The parties are advised

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that the Court will not permit any telephonic appearances for the CMC. The pro se plaintiff and

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defense counsel must appear in person. A joint statement need not be filed in advance of the

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conference.

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IT IS SO ORDERED.
Dated: March 22, 2018

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JAMES DONATO
United States District Judge

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