Emrit v. Marion County Housing Authority et al

Filing 18

OPINION AND ORDER: For these reasons, the Court GRANTS HUD's Motion (#10) to Dismiss and DISMISSES with prejudice Plaintiff's claims against HUD. Signed on 2/23/2017 by Judge Anna J. Brown. (joha)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

3:16-CV-01854-BR

RONALD SATISH EMRIT,

OPINION AND ORDER

Plaintiff,
v.
MARION COUNTY HOUSING
AUTHORITY (MCHA) and U.S.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT (HUD),
Defendants.

RONALD SATISH EMRIT
4529 Townhall St.
Las Vegas, NV 89115
[phone]
Plaintiff,

Pro Se

JEFFERY J. MATTHEWS
Harrang Long Gary Rudnick,
360 E. Tenth Avenue
Suite 300
Eugene, OR 97401-3273
[phone]

PC

Attorneys for Defendant Marion County Housing Authority

1 - OPINION AND ORDER

BILLY J. WILLIAMS
Acting United States Attorney
TIMOTHY W. SIMMONS
Assistant United States Attorney
405 E. Eighth Avenue
Suite 2400
Eugene, OR 97401
[phone]
Attorneys for Defendant U.S. Department of Housing and
Urban Development

BROWN, Judge.
This matter comes before the Court on the Motion (#10) to
Dismiss of Defendant U.S. Department of Housing and Urban
Development (HUD) .

For the reasons that follow,

the Court GRANTS

HUD's Motion and DISMISSES with prejudice Plaintiff's claims
against HUD.

BACKGROUND
On September 20, 2016, Plaintiff Ronald Satish Emrit filed a
Pro Se Complaint in this Court against HUD and Marion County
Housing Authority (MCHA)

1

in which Plaintiff alleges he suffers

from various mental disabilities.

Plaintiff alleges he applied

for Section 8 housing "within the last three years" through MCHA.
At some point Plaintiff received a letter from MCHA in which it
advised Plaintiff that it had placed him on the waiting list for

1

On February 23, 2017, Plaintiff voluntarily dismissed with
prejudice his claims against MCHA.
See Docket #17.
2 - OPINION AND ORDER

Section 8 housing.

Plaintiff alleges his placement on the

waiting list violates his rights under the Equal Protection, Due
Process, and Privileges and Immunities Clauses of the United
States Constitution; the National Housing Act (NHA), 12 U.S.C.
§

1701, et seq.; the United States Housing Act

§

1437f; the Americans with Disabilities Act

§

12101; and the Fair Housing Act (FHA),

seq.

(USHA),

42 U.S.C.

(ADA), 42 U.S.C.

42 U.S.C.

§

3601, et

Plaintiff also alleges common-law claims for negligence,

intentional infliction of emotional distress

(IIED), and breach

of contract related to his placement on the waiting list for
Section 8 housing.

Plaintiff seeks damages and the following

injunctive relief:

that Defendants "be required to make

accommodations for the plaintiff's disabilities" and "Section 8
should be absorbed and administered by the [MCHA] ."

Compl. at

17.
On December 22, 2016, HUD filed a Motion to Dismiss
Plaintiff's claims against it on the grounds that Plaintiff
failed to state a claim and that this Court lacks subject-matter
jurisdiction.

The Court took HUD's Motion under advisement on

February 3, 2017.

STANDARDS
I.

Dismissal for Lack of Jurisdiction Pursuant to Rule 12(b) (1)

Plaintiff has the burden to establish that the court has
3 - OPINION AND ORDER

subject-matter jurisdiction.
726, 728

(9'" cir. 2009).

Robinson v. Geithner,

359 F. App'x

See also Ass'n of Am. Med. Coll. v.

United States, 217 F.3d 770 (9'" Cir. 2000).

When deciding a motion to dismiss for lack of subject-matter
jurisdiction under Rule 12 (b) (1), the court may consider
affidavits and other evidence supporting or attacking the
plaintiff's jurisdictional allegations.
F.3d 1108, 1114 n.1

(9'" Cir. 2013).

Rivas v. Napolitano,

The court may permit

discovery to determine whether it has jurisdiction.
United States Dep't of Interior,

2003).

714

Laub v.

342 F.3d 1080, 1093 (9'" Cir.

When a defendant's motion to dismiss for lack of

jurisdiction "is based on written materials rather than an
evidentiary hearing, the plaintiff need only make a prima facie
showing of jurisdictional facts to withstand the motion to
dismiss."

Mavrix Photo, Inc. v. Brand Tech., Inc.,

647 F.3d

1218, 1223 (9'" Cir. 2011) (citation omitted).
II.

Dismissal for Failure to State a Claim Pursuant to Rule
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.ff
[Bell Atlantic v.
Twombly, 550 U.S. 554,] 570, 127 S. Ct. 1955
[(2007)]. A claim has facial plausibility when
the plaintiff pleads factual content that allows
the court to draw the reasonable inference that
the defendant is liable for the misconduct
alleged.
Id. at 556.
The plausibility
standard is not akin to a "probability
requirement,n but it asks for more than a sheer
4 - OPINION AND ORDER

possibility that a defendant has acted unlawfully.
Ibid.
Where a complaint pleads facts that are
"merely consistent with" a defendant's liability,
it "stops short of the line between possibility
and plausibility of 'entitlement to relief.'"
Id.
at 557, 127 S. Ct. 1955 (brackets omitted).
Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1949 (2009).

Atlantic, 550 U.S. at 555-56.

See also Bell

The court must accept as true the

allegations in the complaint and construe them in favor of the
plaintiff.

Din v. Kerry,

718 F. 3d 856, 859 (9th Cir. 2013).

"In ruling on a 12 (b) (6) motion, a court may generally
consider only allegations contained in the pleadings, exhibits
attached to the complaint, and matters properly subject to
judicial notice."

Akhtar v. Mesa,

2012) (citation omitted).

698 F.3d 1202, 1212 (9th Cir.

A court, however,

"may consider a

writing referenced in a complaint but not explicitly incorporated
therein if the complaint relies on the document and its
authenticity is unquestioned."

Swartz v. KPMG LLP, 476 F.3d 756,

763 (9th Cir. 2007) (citation omitted).
A prose plaintiff's complaint "must be held to less
stringent standards than formal pleadings drafted by lawyers."
Erickson v. Pardus, 551 U.S. 89, 94

(2007).

Thus, the Court has

an "obligation [when] the petitioner is pro se .

to construe

the pleadings liberally and to afford the petitioner the benefit
of any doubt."
omitted).

Akhtar v. Mesa,

698 F.3d at 1212

(quotation

"[B]efore dismissing a prose complaint the .

5 - OPINION AND ORDER

court must provide the litigant with notice of the deficiencies
in his complaint in order to ensure that the litigant uses the
opportunity to amend effectively."

Id.

(quotation omitted).

''A

district court should not dismiss a pro se complaint without
leave to amend unless it is absolutely clear that the
deficiencies of the complaint could not be cured by amendment."

Id.

(quotation omitted).

DISCUSSION
I.

Section 8 Housing Program

The Section 8 program is a tenant-based, housing-choice
voucher program (HCV program) authorized under the USHA.

With

respect to the HCV program, the USHA authorizes the Secretary of
HUD "to enter into annual contributions contracts with public
housing agencies," who, in turn, "may enter into contracts to
make assistance payments to owners of existing dwelling units in
accordance with" the HCV Program.

42

u.s.c.

HCV program is generally administered by .
housing authorities].
the PHA.
program."

1437f(b) (1).

"The

PHAs [public

HUD provides housing assistance funds to

HUD also provides funds for FHA administration of the
24 C.F.R.

§

982.l(a) (1).

Thus, the HCV program is

funded by HUD but administered by local PHAs.
§

§

1437f(b) (1).

42

u.s.c.

To participate in the program, families apply

directly to the PHA.
6 - OPINION AND ORDER

If the PHA approves the tenancy, PHA then

enters into a contract "with the owner [of the rental unit] to
make rent subsidy payments on behalf of the family."
§

982. 1 (a) ( 2) .

24 C.F.R.

The family pays a portion of its income as rent,

and HUD reimburses the PHA for the rental subsidies provided to
housing-unit owners through annual contributions contracts.
See 42 U.S.C.
§§

§§

1437f(b) (1), 1437f(o) (2) (A), and 24 C.F.R.

982.l(a) (3), 982.151.
PHAs develop a "written administrative plan that establishes

the local policies for administration of the [HCV] program."
C.F.R.

§

982.54(a).

24

HUD regulations require the PHAs to

"administer the program in conformity with the Fair Housing Act,
Title VI of the Civil Rights Act of 1964, section 504 of the
Rehabilitation Act of 1973 and Title II of the Americans with
Disabilities Act."

24 C.F.R.

§

982.53(b) (1).

HUD is not

required to approve the PHA's plan.
PHAs also develop their own policies for admission to the
HCV program and administer their own waiting lists.
§

982.202.

24 C.F.R.

HUD regulations specifically provide "[a]n applicant

does not have any right or entitlement to be listed on the FHA
waiting list, to any particular position on the waiting list, or
to admission to the programs."

24 C.F.R.

§

982.202(c).

In fact,

PHAs are permitted to establish preferences designed to meet the
needs of their local areas.

24 C.F.R.

§

982.207(a).

PHAs also

determine when to open or to close their waiting lists.

7 - OPINION AND ORDER

24

C.F.R.
II.

§

982.206.

Dismissal for Failure to State a Claim

HUD moves to dismiss all of Plaintiff's claims on the ground
that Plaintiff fails to state a claim against HUD.

Specifically,

in his Complaint Plaintiff does not allege any actions of HUD
that support Plaintiff's claims.
As noted,

Plaintiff alleges "he received a letter from

[MCHA] indicating that he has been placed on a waiting list with
regards to Section 8 housing."

Compl. at 4.

Plaintiff, however,

does not allege HUD took any actions related to Plaintiff's
placement on the waiting list.

In fact, the only reference to

HUD occurs in paragraph 20 of Plaintiff's Complaint in which
Plaintiff alleges he "has also applied to obtain Section 8
housing from the Lycoming Housing Authority in Pennsylvania in
addition to the Arasota Housing Authority and other housing
authorities throughout the United States that receive funding
from [HUD]."

Thus, the only act by HUD that Plaintiff

specifically references is the fact that HUD provides funding to
PHAs, including MCHA.
Courts that have addressed the issue have concluded the mere
fact that HUD funds a FHA does not result in HUD liability for
the PHA's housing decisions.

See, e.g., Capitol Blvd. Partners

v. United States, 31 Fed. Cl. 758, 761 (1994) ("HUD' s grant of
funds and even extensive supervision over [a FHA] is not

8 - OPINION AND ORDER

sufficient to create an agency relationship" between a contract
bidder and the government "even if the local [PHA] is nothing
more than a conduit for federal funds.") (citing Housing Corp. of
Am.,

468 F.2d 922, 924

(Ct. Cl. 1972)).

Corp. v. United States, 556 F.2d 515, 522

See also Correlated Dev.
(Ct. Cl. 1977) (same);

Marshall N. Dana Constr. v. United States, 229 Ct. Cl. 862, 86264

(Ct. Cl. 1982) (same).
As noted, HUD regulations specifically provide "[a]n

applicant does not have any right or entitlement to be listed on
the PHA waiting list, to any particular position on the waiting
list, or to admission to the programs."

24 C.F.R.

§

982.202(c).

It is at the sole discretion of the PHA to determine whether to
place an applicant on a waiting list and to determine the
applicant's position on that list.

Id.

Thus, courts have

concluded when a PHA either fails to place an individual on a
waiting list or does not accord an individual a preferential
place on the waiting list,
action.

it does not give rise to a cause of

For example, in Castro v. City Housing Authority the

plaintiff, who suffered from "multiple serious emotional and
physical disabilities," brought an action against a PHA when it
"failed to put [the plaintiff] at the head of the applicant list"
for a Section 8 housing voucher.

No. 10-403 (ORD), 2010 WL

1849997, at *l (D.N.J. May 7, 2010).

The plaintiff moved for an

injunction compelling the defendant "to provide him immediately,

9 - OPINION AND ORDER

an exemption .

. from the defendant's .

to give him a housing voucher.

Id.

. waiting listn and

The court denied the

plaintiff's motion noting HUD regulations do not provide
applicants with the right to a particular position on the waiting
list, and the plaintiff did not identify any provision in the
PHA's voucher plan that required the FHA to move individuals with
disabilities to the head of the waiting list.

Id., at *5.

See

also Kabando v. Prince William Cty Office of Housing and Human
Dev., 1:15cvl040(JCC/JFA), 2015 WL 7283116, at *4

(E.D. Va.

Nov. 17, 2015) (granting the defendant's motion to dismiss the
plaintiff's claim for "deprivation of an entitlement or property
under 42 U.S.C.

§

1983'' on the ground that the plaintiff failed

to establish that he had a constitutionally protected property
interest in a Section 8 housing voucher and noting "courts have
routinely held that because of these funding limitations and the
discretion required in administering housing voucher programs,
housing vouchers provided by the [HUD] Program[s] are not
entitlement benefits.n).

See also Montgomery v. Housing Auth. of

Baltimore City, 731 F. Supp. 2d. 439, 441
Phelps v. Housing Auth. of Woodruff,

(D. Md. 2010) (same);

742 F.2d 816 (4th Cir. 1984)

(preference provisions of the Housing Act do not give rise to
constitutionally protected rights enforceable under

§

1983).

Accordingly, the Court concludes Plaintiff cannot bring a
claim against HUD under the circumstances of this case because

10 - OPINION AND ORDER

HUD regulations specifically provide applicants do not have "any
right or entitlement .

. to any particular position on the

waiting list" and discretion is reserved to the PHAs to determine
whether and where to place an applicant on the waiting list.
Finally, Plaintiff has filed complaints in numerous other
districts in which he brings claims that are nearly identical to
those in the Complaint that Plaintiff filed in this Court; i.e.,
claims against HUD based on local PHAs' placement of Plaintiff on
their waiting lists.

Those courts have dismissed Plaintiff's

complaints for, among other things, failure to state a claim.
See, e.g., Def.'s Mot., Ex. 8 (Emrit v. Arcadia Housing Auth.,

No. 5:16-cv-599-0c-CEMPRL, at 5 (M.D. Fl. Oct. 17, 2016)); Emrit
v. S. Nev. Reg'l Housing Auth., No. 2:16-cv-2701-MMD- VCF, 2016

WL 7743037, at *2 (D. Nev. Dec. 5, 2016), Report and
Recommendation adopted by No. 2:16-cv-02701-MMD-VCF, 2017 WL

126113 (D. Nev. Jan. 12, 2017); Emrit v. Providence Housing
Auth., No. 16-543S, 2016 WL 7638117, at *3 (D. R.I. Oct. 25,

2016), Report and Recommendation adopted by No. 16-543S, 2017 WL
52572 (D.R.I. Jan. 4, 2017).

The District of Rhode Island court

also specifically noted in its opinion:
In addition to the substantive failure of the
Complaint, the Court must address the Plaintiff's
status as prolific pro se litigant, who is not new
to this Court.
In his previous cases filed in
this Court, Plaintiff was Ordered to "cease from
using the e-mail address of the Court, any member
of the Court or court employee" due to the
11 - OPINION AND ORDER

voluminous emails being sent to the Court.
Additionally, he was Ordered to refrain from
filing any motions in his other case, "in view of
[his] penchant for filing numerous frivolous
motions.ff These are unusual but relatively minor
sanctions.
The District of Nevada has taken the additional
step of declaring Plaintiff a "vexatious filer.ff
That Court noted that Plaintiff and his
ex-girlfriend had filed numerous lawsuits
throughout the country and in Nevada and that by
their own admission had declared that they were
"looking for a liberal court to lend a sympathetic
ear with regard to [their] plight and financial
woes caused by a long history of bad luck and a
series of unfortunate events.ff That sentiment is
particularly apt, because a search of the national
PACER system indicates that the issues presented
in the present case also appear to be raised in
four other Federal District Courts and that each
case was filed within a two-week time period.
Those other cases are C.A. No. 16-2022 in the
Middle District of Pennsylvania, C.A. No. 16-655
in the District of Arizona, C.A. No. 16-599 in the
Middle District of Florida, and C.A. No. 16-1854
in the District of Oregon.
Therefore, it is
reasonable to conclude that Plaintiff continues to
seek the ear of a sympathetic court and is once
again raising identical issues throughout the
country.
2016 WL 7638117, at *3 (citations omitted).
In this case the Court concludes Plaintiff's claims against
HUD are not supported by facts that are, even when accepted as
true, sufficient to state a claim for relief against HUD that is
plausible on its face.

The Court, therefore, grants HUD's Motion

to Dismiss Plaintiff's claims against HUD for failure to state a
claim.

12 - OPINION AND ORDER

III. Dismissal for Lack of Subject-Matter Jurisdiction

HUD asserts even if Plaintiff had not failed to state a
claim, Plaintiff's claims must be dismissed on the ground that
the Court lacks subject-matter jurisdiction because Plaintiff's
claims are barred by sovereign immunity and Plaintiff has not
alleged any basis for waiver of sovereign immunity.
"Absent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit."
U.S. 471, 475 (1994) (citations omitted).

F.D.I.C. v. Meyer,

510

See also Quantum Prod.

Serv., LLC v. Austin, 448 F. App'x 755, 756 (9th Cir. 2011)
(same).
"Sovereign immunity is jurisdictional in nature.

Indeed,

the 'terms of [the United States'] consent to be sued in any
court define that court's jurisdiction to entertain the suit.'"
Id.

(quoting United States v. Sherwood, 312 U.S. 584, 586

( 1941)) .

See also United States v. Mitchell,

463 U.S.

206,

212

(1983) ("It is axiomatic that the United States may not be sued

without its consent and that the existence of consent is a
prerequisite for jurisdiction.").
The test for waiver of sovereign immunity is a "stringent
one."

Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ.

Expense Bd., 527 U.S.

666,

675-78

(1999) (quotation omitted).

Sovereign immunity may not be impliedly or constructively waived,
and courts must "indulge every reasonable presumption against
13 - OPINION AND ORDER

waiver."

Id. at 678-82

"unmistakably clear").

(waivers of sovereign immunity must be
Any ambiguity in the waiver of sovereign

immunity must be construed in favor of immunity.

United States

v. Nordic Village, Inc., 503 U.S. 30, 34 (1992).
A.

Plaintiff's Claims for Negligence and IIED

The Federal Tort Claims Act (FTCA), 28 U.S.C.

§

2671,

et seq., provides a limited waiver of sovereign immunity.
Specifically, the FTCA is the exclusive remedy for monetary
damages from the federal government for "personal injury or death
arising or resulting from the negligent or wrongful act or
omission of any employee of the Government while acting within
the scope of his office or employment."

28 U.S.C.

§

2679(b) (1)

The FTCA provides in pertinent part:
An action shall not be instituted upon a claim
against the United States for money damages for
injury or loss of property or personal injury or
death caused by the negligent or wrongful act or
omission of any employee of the Government .
unless the claimant shall have first presented the
claim to the appropriate Federal agency and his
claim shall have been finally denied by the agency
in writing and sent by certified or registered
mail.
28 U.S.C.

§

2675(a).

In addition, 28 U.S.C.

§

2401(b) provides:

A tort claim against the United States shall be
forever barred unless it is presented in writing
to the appropriate Federal agency within two years
after such claim accrues or unless action is begun
within six months after the date of mailing, by
certified or registered mail, of notice of final
denial of the claim by the agency to which it was
presented.

14 - OPINION AND ORDER

The claim-presentation requirement is '"jurisdictional
in nature and may not be waived.'"
Serv.,

Vacek v. United States Postal

447 F.3d 1248, 1252 (9th Cir. 2006).
Plaintiff does not allege in his Complaint that he

filed an administrative tort claim with HUD or that HUD denied an
administrative tort claim in writing.

In addition, Miniard

Culpepper, Regional Counsel in the Office of the Regional Counsel
for the New England Region for HUD, testifies in his Declaration
that he searched HUD's records of tort-claim notices and did not
find any claim filed by Plaintiff.
On this record the Court concludes Plaintiff has not
established he exhausted his administrative remedies under the
FTCA.

The Court, therefore, lacks jurisdiction over Plaintiff's

claims against HUD for negligence and IIED.

Accordingly, the

Court grants HUD's Motion to Dismiss Plaintiff's claims against
HUD for negligence and IIED.
B.

Plaintiff's Claim for Violation of the USHA

The USHA provides HUD may "be sued only with respect to
its functions under the United States Housing Act of 1937.u
U.S.C.

§

1404a.

42

Thus, the USHA provides only a limited waiver of

sovereign immunity.

Plaintiff, however, does not allege a claim

against HUD related to its functions under the USHA.

Plaintiff's

allegations relate solely to MCHA's placement of Plaintiff on the
waiting list for Section 8 benefits, which, as noted, is a

15 - OPINION AND ORDER

discretionary decision solely within the purview of MCHA.
The Court, therefore, concludes Plaintiff's claim for
violation of the USHA does not fall within the limited waiver of
sovereign immunity provided under the USHA.

Accordingly, the

Court grants HUD's Motion to Dismiss Plaintiff's claim against
HUD for violation of the USHA.

C.

Plaintiff's Claim for Violation of the ADA
The Ninth Circuit has made clear that claims for money

damages against federal defendants under the ADA are barred by
the doctrine of sovereign immunity because the ADA does not
contain an unequivocal waiver of the federal government's
sovereign immunity.
Cir. 1997).

Dufresne v. Veneman, 114 F.3d 952,

954

(9th

Thus, to the extent that Plaintiff seeks money

damages from HUD on his ADA claim, that claim is barred by the
doctrine of sovereign immunity.

In addition, the injunctive

relief that Plaintiff seeks in his Complaint can only be granted
by MCHA because HUD does not have any authority to control or to
direct Plaintiff's placement on the Section 8 housing waiting
list.
Accordingly, the Court concludes Plaintiff's ADA claim
against HUD is barred by the doctrine of sovereign immunity, and,
therefore, the Court grants HUD's Motion to Dismiss that claim.
D.

Plaintiff's Claim for Violation of the FHA
Courts that have examined the issue have concluded the

16 - OPINION AND ORDER

FHA does not waive the federal government's sovereign immunity
for monetary damages.

See, e.g., Mccardell v. Dep't of Housing

and Urban Dev., 794 F. 3d 510, 522 (5th Cir. 2015) ("Congress did
not make clear an intent to abrogate .

sovereign immunity

from suits brought under the Fair Housing Act."); Kelly v.
Wilson,

426 F. App'x 629, 632

(10th Cir. 2011) ("The United States

has not waived its sovereign immunity from suits for money
damages under the Fair Housing Act."); Soniat v. Dep't of Housing
and Urban Dev., No. 4:16-CV-00337, 2016 WL 7664304, at *3 (E.D.
Tx. Dec. 16, 2016) ("both the Fair Housing Act and the ADA do not
include a waiver of the federal government's sovereign
immunity"); Phifer v. Dep't of Housing and Urban Dev., No. CIV
S-08-0299 LKK DAD PS, 2009 WL 8706810, at *4 (E.D. Cal. Feb. 2,
2009) (concluding the FHA did not waive HUD' s sovereign immunity);
Zhu v. Gonzales, 2006 WL 1274767, at *5 (D.D.C. May 8, 2006) ("the
Fair Housing Act does not waive sovereign immunity to permit
suits against the federal government."); Boyd v. Browner,

897 F.

Supp. 590, 595 (D.D.C. 1995) ("Because the Fair Housing Act does
not unambiguously waive the government's sovereign immunity
defense, plaintiffs may not have a monetary recovery.").
The Court adopts the reasoning of these cases and
concludes the FHA does not provide a waiver of HUD's sovereign
immunity to lawsuits for monetary damages.

Thus, to the extent

that Plaintiff seeks money damages from HUD for violation of the
17 - OPINION AND ORDER

FHA, that claim is barred by the doctrine of sovereign immunity.
In addition, as noted, the injunctive relief that Plaintiff seeks
in his Complaint can only be granted by MCHA because HUD does not
have any authority to control or to direct Plaintiff's placement
on the Section 8 housing waiting list.
Accordingly, the Court concludes Plaintiff's FHA claim
against HUD is barred by the doctrine of sovereign immunity, and,
therefore, the Court grants HUD's Motion to Dismiss that claim.
E.

Plaintiff's Claim for Violation of the NHA

The NHA provides in relevant part:

"The Secretary [of

Housing and Urban Development] shall, in carrying out the
provisions of this subchapter and subchapters II, III, V, VI,
VII, VIII, IX-B, and X, be authorized, in his official capacity,
to sue and be sued in any court of competent jurisdiction, State
or Federal."

12 U.S.C. § 1702.

Courts that have addressed the

issue have concluded§ 1702 constitutes a limited waiver of HUD's
sovereign immunity.

As one court explained:

The power given in [§ 1702] to sue the Secretary
applies only to activities of the Secretary "in
carrying out the provisions" of the designated
subchapters.
Thus the Secretary's authority to
sue and be sued relate only to his official
functions.
See F.H.A. v. Burr, 309 U.S. 242
(1940).
Therefore, Plaintiffs' claims can succeed
if, liberally viewed, they relate to one or more
of the subsections under which the Secretary may
sue or be sued.
Teitelbaum v. U.S. Dep't of Housing and Urban Dev., 953 F. Supp.
326, 330 (D. Nev. 1996)
18 - OPINION AND ORDER

See also N. Seas Assoc., Inc. v. Payton

Lane NH, Inc., No. ll-CV-0048 (JS) (GRB), 2011 WL 6131104, at *3
(E.D.N. Y. Dec. 6, 2011) ("The waiver [in§ 1702] only applies to
HUD's actions taken pursuant to the specific subchapters
enumerated therein.

Accordingly, the Government does not waive

sovereign immunity as to other actions not enumerated in
§ 1702.") (emphasis in original)); Smith v. Virgin Islands Housing
Auth., No. 09-cv-00011, 2011 WL 285858, at *4 (D.V.I. Jan. 28,
2011) ("As noted

., waivers of immunity are narrowly construed

in favor of the sovereign.

Applying this principle to a federal

agency such as HUD, courts have determined that [the]
sued' provision [of § 1702]

'sue and be

. is addressed to actions

undertaken pursuant to specifically identified statutes,

[and,

therefore,] is inapplicable to conduct that does not fall within
those parameters.").

The Court adopts the reasoning of these

cases and concludes the limited waiver of sovereign immunity
found in the NHA applies only to conduct that falls within
subchapters I,

II, III, V, VI, VII, VIII, IX-B, and X of that

Act.
In his Complaint Plaintiff alleges HUD violated § 1706e
of the NHA, but that section was repealed effective October 1,
1991.

In addition, none of the sections set out in § 1702

relates in any way to wait-list placement for Section 8 housing.
For example, provisions of subchapter I include HUD's authority
to insure banks in certain circumstances, taxation of property

19 - OPINION AND ORDER

held by HUD, and supplementation of mortgage insurance;
subchapter II relates to mortgage insurance; subchapter III
relates to national mortgage associations, etc.

"The purpose of

[the NHA] is to promote the construction and purchase of
residential housing by creating an extensive system of insuring
home mortgages.

Each of the ten subchapters under which the

Secretary may sue or be sued promotes this basic scheme."
Teitelbaum,

953 F. Supp. at 330.

Thus, the allegations in

Plaintiff's Complaint do not relate to any of the subchapters set
out in the NHA's limited waiver of sovereign immunity in§ 1702.
The Court, therefore, concludes § 1702 of the NHA does
not waive HUD's sovereign immunity under the circumstances of
this case.

Accordingly, the Court grants HUD's Motion to Dismiss

Plaintiff's claim against HUD for violation of the NHA.
F.

Plaintiff's Claims for Violation of the Equal
Protection, Due Process, and Privileges and Immunities
Clauses

As noted, Plaintiff alleges HUD violated the Equal
Protection, Due Process, and Privileges and Immunities Clauses of
the United States Constitution.

Individuals do not have a "cause

of action directly under the United States Constitution" for
violation of their constitutional rights.

Azul-Pacifico, Inc. v.

City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992).

In

Bivens v. Six Unknown Agents the Supreme Court implied a right of

action by an individual against a federal agent for violation of
20 - OPINION AND ORDER

the individual's constitutional rights.
(1971).

403 U.S.

388, 397

The Supreme Court, however, made clear in Meyer that the

right of action implied in Bivens does not permit a plaintiff to
bring a claim for violation of a constitutional right against a
federal agency.

Meyer, 510 U.S. at 484.

The Court specifically

declined to extend the holding of Bivens to permit an individual
to bring a claim against a federal agency or entity for damages
arising from violation of an individual's constitutional rights.
Id.

at 485.

The Court noted it had "implied a cause of action

against federal officials in Bivens in part because a direct
action against the Government was not available."
in original).

Id.

(emphasis

The Court declined to extend Bivens on the ground

that "[i]f we were to recognize a direct action for damages
against federal agencies, we would be creating a potentially
enormous financial burden for the Federal Government.

We

leave it to Congress to weigh the implications of such a
significant expansion of Government liability."

Id.

at 486.

Thus, to the extent that Plaintiff seeks to bring his
claim for damages against HUD based on violations of the Equal
Protection, Due Process, and Privileges and Immunities Clauses,
the Court concludes such a claim is not permitted pursuant to

Meyer.

In addition, although Plaintiff also seeks injunctive

relief, the relief he seeks can only be granted by MCHA because
HUD does not have the authority to control or to direct
21 - OPINION AND ORDER

Plaintiff's placement on the Section 8 housing waiting list.
Accordingly, the Court grants HUD's Motion to Dismiss
Plaintiff's claims against HUD for violation of the Equal
Protection, Due Process, and Privileges and Immunities Clauses of
the United States Constitution.
G.

Claims under the Administrative Procedures Act (APA),
5 u.s.c. § 704

HUD asserts to the extent that Plaintiff's claims could
be construed as proceeding under the APA, Plaintiff's claims also
fail because the limited waiver of sovereign immunity in the APA
does not apply under the circumstances of this action.
Specifically, the APA provides in relevant part that only
"[a]gency 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."

5 U.S.C. § 704.

Here, as noted,

HUD does not have any authority or role in the decision whether
and where to place applicants on the waiting list for Section 8
housing.

Plaintiff has not identified any agency action taken by

HUD, much less any final action, that is reviewable in this
Court.

The Court, therefore, concludes Plaintiff has not

established the limited waiver of sovereign immunity in the APA
applies to HUD in this matter.
Accordingly, to the extent that Plaintiff's claims are
brought pursuant to the APA, the Court grants Defendant's Motion
to Dismiss those claims.
22 - OPINION AND ORDER

III. Leave to Amend Complaint
The Ninth Circuit has held in the case of pro se plaintiffs
that "[l]eave to amend should be granted unless the pleading
could not possibly be cured by the allegation of other facts.''

Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (quotation
omitted).

As noted,

Plaintiff has been advised by numerous

courts that his claims against HUD are without merit.

In

addition, this Court has concluded Plaintiff fails to establish
HUD waived its sovereign immunity as to Plaintiff's claims.
The Court, therefore, declines to permit Plaintiff to file
an amended complaint because he cannot cure the deficiencies set
out in this Opinion and Order.
Accordingly, the Court dismisses with prejudice Plaintiff's
claims against HUD.

CONCLUSION
For these reasons, the Court GRANTS HUD's Motion (#10) to
Dismiss and DISMISSES with prejudice Plaintiff's claims against
HUD.
IT IS SO ORDERED.
DATED this 23"d day of February, 2017.

Isl

Anna J. Brown

ANNA J. BROWN
United States District Judge
23 - OPINION AND ORDER