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

Filing 11

MEMORANDUM AND ORDER :IT IS HEREBY ORDERED that Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction or, In the Alternative, for Failure to State a Claim (ECF No. 8 ) is GRANTED. Signed by District Judge Ronnie L. White on 09/27/2017. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
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DELO RISE DAVIS,
Plaintiff,

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No. 4:17-CV-987 RLW

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v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Defendant.

MEMORANDUM AND ORDER
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,
ill 7). 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., i!l 8). Davis claims that she was "accused
and found guilty of renting a "HUD apartment" at O'Fallon Place to a resident who was income
1

In deciding a motion to dismiss under Rule 12(b)( 6), a court assumes all facts in the complaint
to be true and construes all reasonable inferences most favorably to the complainant. US. ex rel.
Raynor v. Nat'! Rural Utilities Co-op. Fin., Corp., 690 F.3d 951, 955 (8th Cir. 2012); Eckert v.
Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008).

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, nonsentencing 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)(l)
"Federal Rule of Civil Procedure 12(b)(l) provides that the court may dismiss an action
for lack of subject matter jurisdiction." Mittleider v. Canadian Pac. Ry. Co., No. CIV. 11-4054KES, 2012 WL 1231939, at *3 (D.S.D. Apr. 12, 2012). Rule 12(b)(l) '"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)(l) 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

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or a Rule 12(c) motion for judgment on the pleadings. Deuser v. Vecera, 139 F.3d 1190, 1192 n.
3 (8th Cir. 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. VS. 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).

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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 AP A 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 agency decision from HUD exists for this Court to
review. The decision to prosecute based upon HUD's criminal investigation was made by the
Department of Justice.
The Court holds that Davis has not met her burden of establishing jurisdiction by a
preponderance of the evidence as required under Fed. R. Civ. P. 12(b)(l). Because Davis has not
alleged that there was any final agency decision, this Court lacks jurisdiction over her claim and
her claim is barred by sovereign immunity. See Cathedral Square Partners Ltd. P'ship, 679 F.
Supp. 2d at 1040, on reconsideration, 875 F. Supp. 2d 952 (D.S.D. 2012) (citing Bowen v.
Massachusetts, 487 U.S. 879, 891-92, 108 S.Ct. 2722, 2730-31 101 L.Ed.2d 749 (1988)) ("The
Supreme Court has explained that a litigant may invoke the AP A's waiver of sovereign immunity
to challenge the legitimacy of agency actions 2 in district court if the litigant can satisfy the
several limitations Congress has placed on the waiver of sovereign immunity pursuant to both 5
U.S.C § 702 and 5 U.S.C. § 704."). Therefore, the Court grants Defendant's Motion to Dismiss
based upon lack of subject matter jurisdiction.

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B. Failure to State a Claim

As previously discuss, the AP A provides for judicial review of agency decisions. See 5
U.S.C. §704 ("Agency action made reviewable by statute and final agency action for which there
is no other adequate remedy in a court are subject to judicial review."). AP A review, however, is
not available to Davis under the facts presented in her case.
First, Davis has an adequate remedy for her allegation that she pleaded guilty under
duress.

Davis can bring an action pursuant to the habeas corpus statute, 28 U.S.C. §2255.

Habeas corpus provides collateral attacks of federal convictions. See Ivory v. Outlaw, No. 2:08CV-00156 BSM, 2010 WL 5347411, at *3 (E.D. Ark. Oct. 4, 2010) ("A collateral challenge to
the validity of a federal conviction or sentence must be raised in a motion to vacate that is filed
in the sentencing court under 28 U.S.C. § 2255 ... "). Davis also could have filed a Writ of Error
Coram Nobis. In order to obtain coram nobis relief, a person must articulate the fundamental
errors and compelling circumstances. United States v. Morgan, 346 U.S. 502, 512, 74 S. Ct. 247,
247 (1954)(quoting Kandiel v. United States, 964 F.2d 794, 797 (8th Cir.1992)); Hunter v.
United States, 317 F. Supp. 2d 1147, 1148 (D.N.D. 2004). A person seeking coram nobis relief
must demonstrate that she presently suffers adverse legal consequences which stem from the
conviction she is challenging. See Stewart v. United States, 446 F .2d 42, 43-44 (8th Cir.1971 );
see also, United States v. Mandanici, 205 F.3d 519, 524 (2nd Cir.2000); Hager v. United States,
993 F.2d 4, (1st Cir.1993); Howardv. United States, 962 F.2d 651 (7th Cir.1992); United States
v. Drobny, 955 F.2d 990 (5th Cir.1992); United States v. Stoneman, 870 F.2d 102 (3d Cir.1989);
Rodgers v. Wyrick, 621F.2d921 (8th Cir.1980); Hunter, 317 F. Supp. 2d at, 1148. However,
"[a] writ of error coram nobis is an 'extraordinary remedy"' which should only be granted
"'under circumstances compelling such action to achieve justice' and to correct errors 'of the
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most fundamental character."' United States v. Camacho-Bordes, 94 F .3d 1168, 1173 (8th Cir.
1996) (quoting United States v. Morgan, 346 U.S. 502, 511-12, 74 S.Ct. 247, 98 L.Ed. 248
(1954)); Hunter v. United States, 317 F. Supp. 2d 1147, 1148 (D.N.D. 2004); Grady v. United
States, No. 4:08 CV 1243 RWS, 2008 WL 4151412, at *1 (E.D. Mo. Sept. 3, 2008) ("Coram
nobis is an 'extraordinary remedy; and is not intended to be a substitute for § 2255
proceedings."); Katz v. United States, No. 4:11 CV 513 CDP, 2011 WL 1533071, at *2 (E.D.
Mo. Apr. 21, 201 l)("coram nobis cases are substantially similar to§ 2255 cases"). Here, a writ
of coram nobis claim cannot lie because Davis had other statutory remedies available. See
Grady, 2008 WL 4151412, at * 1 ("The claims in the instant petition were either previously
raised or could have been raised on direct appeal or in a proper § 2255 motion. Coram nobis is
not, therefore, available to provide petitioner's requested relief."); Carlisle v. United States, 517
U.S. 416, 429, 116 S. Ct. 1460, 1467, 134 L. Ed. 2d 613 (1996) ("a writ of coram nobis ... was
traditionally available only to bring before the court factual errors 'material to the validity and
regularity of the legal proceeding itself,' such as the defendant's being under age or having died
before the verdict").
Second, as previously discussed, the Court dismisses this action because the limited
waiver of sovereign immunity under the AP A is not applicable here. Davis has not brought a
proper review of an agency decision under the AP A. Rather, this case involves a challenge to
Davis' conviction after a guilty plea. Davis presents no agency record for the Court to review.
Likewise, HUD provided no final agency determination. The Court has no administrative record
or final agency determination to review for arbitrary and capriciousness. See F. CC v. Fox
Television Stations, Inc., 556 U.S. 502, 513, 129 S. Ct. 1800, 1810, 173 L. Ed. 2d 738 (2009)
("The Administrative Procedure Act, 5 U.S. C. § 551 et seq., which sets forth the full extent of

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judicial authority to review executive agency action for procedural correctness, ... permits ... the
setting aside of agency action that is 'arbitrary' or 'capricious,' 5 U.S.C. § 706(2)(A).").
Therefore, the Court holds that Davis' complaint shall be dismissed for failure to state a claim.

Accordingly,

IT IS HEREBY ORDERED that Defendant's Motion to Dismiss for Lack of Subject
Matter Jurisdiction or, In the Alternative, for Failure to State a Claim (ECF No. 8) is

GRANTED.
An appropriate Judgment is filed herewith.

Dated thi~Zth day of September, 2017.

~~#zh

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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