Soniat v. Department of Housing And Urban Development et al

MOTION to Dismiss for Lack of Jurisdiction

E.D. Tex.November 2, 2016

HUD’s Motion to Dismiss First Amended Complaint - Page 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS SHERMAN DIVISION SHELLEY SONIAT, § § Plaintiff, § § v. § CIVIL NO. 4:16-cv-00337-ALM-CAN § U.S. DEPARTMENT OF HOUSING § AND URBAN DEVELOPMENT, § PATRICK BANIS, Intake Branch Chief § HUD Region 6, Fort Worth Regional § Office, GARRY SWEENEY, Regional § Director, HUD Region 6, Fort Worth § Regional Office, GORDON F. § PATTERSON, Acting Director, Office § of Enforcement, FHEO and HUD, § THE HONORABLE DON D. BUSH, § and THE HONORABLE RICHARD § SCHELL, § § Defendants. § DEFENDANTS U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, PATRICK BANIS, GARRY SWEENEY, AND GORDON F. PATTERSON’S (HUD’S) MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT Issue Shelley Soniat had earlier filed suit (actually three suits, consolidated into one) in this district against a property-management company, her ex-boyfriend, and the U.S. Department of Housing and Urban Development because she believed that the property-management company from whom her then-boyfriend rented a house had discriminated against her even though she was not on the lease. Before HUD was Case 4:16-cv-00337-ALM-CAN Document 38 Filed 11/02/16 Page 1 of 8 PageID #: 310 HUD’s Motion to Dismiss First Amended Complaint - Page 2 served with process, the district court dismissed the suit because Soniat failed to state any sort of legal claim as a matter of law. Unhappy with that result, Soniat has now sued the judges responsible for the dismissal on the ground that the dismissal was “discriminatory,” and she has sued HUD (and various of its officials) on the ground that, by not appearing in the earlier suit even though it had not been served, HUD has some sort of illegal “policy” not to subject itself to suits in which it has not been served. The overriding issue is whether the Court lacks subject-matter jurisdiction over the claims against HUD and its employees because Soniat has not identified any waiver of sovereign immunity that applies. Background Soniat and her then-boyfriend, Edward Jackson III, intended to rent a home together. Am. Compl. (doc. 21), §§ XII, XIII. Jackson signed a lease with the landlord, but Soniat was not on it. Id. Soniat believed, for reasons that are not entirely clear, that in connection with the lease transaction the property-management company with whom she and Jackson dealt committed violations of the Fair Housing Act and the Texas Property Code. Id. She filed a fair housing complaint with HUD, and HUD denied the complaint, finding that Soniat lacked standing to bring it because she had not applied for the lease, had not signed the lease, and had not occupied the property and because the person who had signed, Jackson, did not want to pursue the Case 4:16-cv-00337-ALM-CAN Document 38 Filed 11/02/16 Page 2 of 8 PageID #: 311 HUD’s Motion to Dismiss First Amended Complaint - Page 3 complaint. See HUD Denial Letter, attached as “Exhibit 9” to Am. Compl. (doc. 21- 1). In 2014 Soniat filed three lawsuits in this district arising out of these events: the first against Jackson, No. 4:14-cv-00088-RAS-DDB, the second against the HUD Region 6 (the regional office that had denied the fair-housing complaint), No. 4:14- cv-00122-RAS-DDB, and the third against the property-management company, No. 4:14-cv-00131-RAS-DDB. Jackson was the only defendant for whom summons issued, and he was the only one who appeared. The magistrate judge consolidated the three cases and, on December 9, 2014, recommended that the consolidated case be dismissed with prejudice because Soniat failed to state any sort of legal claim. See Memorandum Opinion & Order (doc. 33), in 4:14-cv-00077-RAS-DDB. The district court adopted the recommendation and dismissed the complaint. Soniat appealed, and the Fifth Circuit affirmed. See Docs. 49 & 62 in that case. On May 20, 2016, Soniat filed this lawsuit, naming as defendants the federal judges who issued rulings in her first lawsuit, as well as HUD. She later filed an amended complaint (doc. 21) adding various HUD officials (Banis, Sweeney, and Patterson) as defendants, although there is no indication that those defendants are being sued in their individual capacities. Case 4:16-cv-00337-ALM-CAN Document 38 Filed 11/02/16 Page 3 of 8 PageID #: 312 HUD’s Motion to Dismiss First Amended Complaint - Page 4 Legal Standards Rule 12(b)(1) A motion to dismiss under Rule 12(b)(1) challenges the subject-matter jurisdiction of the court. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). A case is properly dismissed under Rule 12(b)(1) when the court lacks the statutory or constitutional power to adjudicate it. Krim v. PcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005). Because the United States is a sovereign, the terms of its consent to be sued “define the federal courts’ jurisdiction to entertain suits against it.” Metro. Life Ins. Co. v. Atkins, 225 F.3d 510, 512 (5th Cir. 2000). The party asserting jurisdiction bears the burden of proving its existence. Ramming, 281 F.3d at 161. Rule 12(b)(6) A complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a). A complaint that does not allege “enough facts to state a claim to relief that is plausible on its face” will not survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Argument To bring the United States or one of its agencies into court, a complaint must identify “a statute that confers subject matter jurisdiction on the district court and a federal law that waives the sovereign immunity of the United States to the cause of action.” Clark v. United States, 326 F.3d 911, 912 (7th Cir. 20003). Soniat’s amended Case 4:16-cv-00337-ALM-CAN Document 38 Filed 11/02/16 Page 4 of 8 PageID #: 313 HUD’s Motion to Dismiss First Amended Complaint - Page 5 complaint does not do that. As best as we can tell, Soniat’s claims against HUD1 are based on two sets of facts. First, Soniat alleges that the agency has a “policy of blindly deferring to judges[’] discretion” and of not responding to lawsuits “unless summons is issued” and that this so-called policy “has a discriminatory effect on minorities.” Am. Compl. (doc. 21) at p. 2. She is referring to the fact that HUD never appeared or responded to her complaint in her earlier consolidated lawsuit; of course the reason HUD never responded was because it was never served with process (the Clerk had never even issued a summons as to HUD in that suit) before the district court dismissed all claims and entered a final judgment. The problem for Soniat is that she points to no federal statute that provides for a private right of action against a litigant who follows the Federal Rules of Civil Procedure by declining to voluntarily inject itself into federal litigation in the absence of proper service, and even if such a cause of action existed she points to no waiver of sovereign immunity. So at once there is no subject-matter jurisdiction and no claim stated. The second set of facts underlying Soniat’s claims against HUD concern her complaint that HUD declined to take action on her fair-housing complaint. But again Soniat points to no federal law that waives HUD’s sovereign immunity for such a claim. The federal-question statute that she cites, 28 U.S.C. § 1331, Am. Compl. (doc. 1 References to HUD include the HUD officials that are individually named as defendants, for official-capacity suits are really against the entity of which the official is an agent. See Kentucky v. Graham, 473 U.S. 159, 165 (1985); Gregory v. S. Carolina Dep’t of Transp., 289 F.Supp.2d 721, 727 (D.S.C. 2003) (stating that under Kentucky v. Graham the plaintiff’s claims against individual HUD employees would be dismissed for the same reasons as the claims against HUD). Case 4:16-cv-00337-ALM-CAN Document 38 Filed 11/02/16 Page 5 of 8 PageID #: 314 HUD’s Motion to Dismiss First Amended Complaint - Page 6 21) p. 3, fails to do the trick. See Humphreys v. United States, 62 F.3d 667, 673 (5th Cir. 1995) (“It is well-settled that 28 U.S.C. § 1331 . . . is not a waiver of sovereign immunity”). Nor does the Federal Housing Act, 42 U.S.C. § 3601 et seq., various provisions of which she cites, or Title III of the Americans with Disabilities Act, 42 U.S.C. § 12188, which she also cites, Am. Compl. (doc. 21) p. 3. See Bennett v. New York City Housing Auth., 248 F.Supp.2d 166, 170 (E.D.N.Y. 2002) (“the FHA does not include a waiver of sovereign immunity”); 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”); Agee v. United States, 72 Fed. Cl. 284, 289 (2006) (“Congress has not waived the Federal Government’s sovereign immunity with regard to ADA claims”). And while both the Fair Housing Act and the Americans with Disabilities Act allow for the participation of the attorney general of the United States in enforcement actions, 42 U.S.C. § 3613(e) (FHA); 42 U.S.C. § 12188(b) (ADA), neither statute provides a private right of action against the federal government. Godwin v. Sec’y of Housing & Urban Dev., 356 F.3d 310, 312 (D.C. Cir. 2004) (finding that the FHA “confers no right to review when . . . the [HUD] Secretary declines to issue a charge”); Gabriel v. Gen. Servs. Admin., 547 F. App’x 829, 831 (9th Cir. 2013) (finding that the FHA does not “contain the required ‘unequivocal expression’ that is necessary for an intentional congressional waiver of sovereign immunity”); Gregory v. S. Carolina Dep’t of Transp., 289 F.Supp.2d 721, 726 (D.S.C. 2003) (finding that Case 4:16-cv-00337-ALM-CAN Document 38 Filed 11/02/16 Page 6 of 8 PageID #: 315 HUD’s Motion to Dismiss First Amended Complaint - Page 7 while the FHA allows for the award of fees and costs against the United States “when the United States intervenes as a plaintiff, as the FHA allows,” this does not mean “that the United States could be a defendant”); Henrickson v. Potter, 327 F.3d 444, 447 (5th Cir. 2003) (“the entire federal government is excluded from the coverage of the ADA”); Hassel v. DHCS Medi-Cal Program Beneficiary Servs., 2015 WL 4940833, *5 (N.D. Cal. Aug. 19, 2015) (“branches of the federal government [] are plainly not ‘private entities,’ as required by Title III of [the ADA]”).2 To the extent not addressed above, all of the claims in Soniat’s amended complaint fail even the minimal requirements of Rule 8(a). The allegations in the complaint do not plausibly suggest an entitlement to relief against HUD. Soniat’s central complaint against the agency - that HUD did not voluntarily appear in her earlier suit even though it had not been served and that in so doing HUD somehow discriminated against minorities - is legally frivolous. And as explained above the complaint sets forth no facts entitling Soniat to relief against HUD under any federal statute. CONCLUSION For these reasons, HUD (including Defendants Banis, Sweeney, and Patterson) request that the Court grant this motion and dismiss Soniat’s claims with prejudice. 2 While Soniat does not cite the Administrative Procedure Act, 5 U.S.C. § 551 et seq., HUD notes that it too does not provide a basis for Soniat’s claims against HUD relating to Soniat’s disagreement with the agency’s handling of her fair-housing complaint. See Godwin, 356 F.3d at 312-13; Shell v. U.S. Dep’t of Housing & Urban Dev., 355 F. App’x 300, 306 (11th Cir. 2009). Case 4:16-cv-00337-ALM-CAN Document 38 Filed 11/02/16 Page 7 of 8 PageID #: 316 HUD’s Motion to Dismiss First Amended Complaint - Page 8 Respectfully submitted, JOHN M. BALES UNITED STATES ATTORNEY EASTERN DISTRICT OF TEXAS /s/ Bradley Visosky Bradley Visosky Assistant U.S. Attorney Texas Bar No. 24034727 101 E. Park Blvd., Suite 500 Plano, Texas 75074 (972) 509-1201 (972) 509-1209 (fax) bradley.visosky@usdoj.gov ATTORNEYS FOR HUD CERTIFICATE OF SERVICE I certify that on November 3, 2016, I will send a true copy of this motion and proposed order to plaintiff by certified mail/return-receipt requested at the following address: Ms. Shelley Soniat 25350 Private Road 4721 Justin, Texas 76247 /s/ Bradley Visosky Bradley Visosky Case 4:16-cv-00337-ALM-CAN Document 38 Filed 11/02/16 Page 8 of 8 PageID #: 317 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS SHERMAN DIVISION SHELLEY SONIAT, § § Plaintiff, § § v. § CIVIL NO. 4:16-cv-00337-ALM-CAN § U.S. DEPARTMENT OF HOUSING § AND URBAN DEVELOPMENT, § PATRICK BANIS, Intake Branch Chief § HUD Region 6, Fort Worth Regional § Office, GARRY SWEENEY, Regional § Director, HUD Region 6, Fort Worth § Regional Office, GORDON F. § PATTERSON, Acting Director, Office § of Enforcement, FHEO and HUD, § THE HONORABLE DON D. BUSH, § and THE HONORABLE RICHARD § SCHELL, § § Defendants. § ORDER The Court GRANTS Defendants U.S. Department of Housing and Urban Development, Patrick Banis, Garry Sweeney, and Gordon F. Patterson’s (HUD’s) Motion to Dismiss Plaintiff’s First Amended Complaint and accordingly DISMISSES all of Plaintiff Shelley Soniat’s claims against those defendants with prejudice. Case 4:16-cv-00337-ALM-CAN Document 38-1 Filed 11/02/16 Page 1 of 1 PageID #: 318