Smith v. V.I. Hous. Auth.
| Decision Date | 28 January 2011 |
| Docket Number | CIV. NO.: 09-cv-00011 |
| Parties | DENNIS W. SMITH, Plaintiff, v. VIRGIN ISLANDS HOUSING AUTHORITY; VI HOUSING AUTHORITY BOARD; MICHAEL R. HOLLIS, as Executive Administrator of VIHA and Individually; WAYNE HOOD, as Director of Housing Operation at VIHA and Individually; CARMEN VALENTI, as Chairman of the VIHA Board and Individually; and U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant. |
| Court | U.S. District Court — Virgin Islands |
THIS MATTER is before the Court on the motion to dismiss by defendants Carmen Valenti, ("Valenti") and the U.S. Department of Housing and Urban Development ("HUD"). Plaintiff Dennis Smith ("Smith") brings this action for violations allegedly stemming from the termination of his employment with the Virgin Islands Housing Authority ("VIHA"). HUD and Valenti seek to dismiss the matter primarily on the ground of immunity from suit and also contend that Smith has failed to state a cause of action against Valenti. Smith opposes the motion to dismiss on the basis that HUD and Valenti are not entitled to invoke immunity. For the reasons stated below, HUD and Valenti's motion to dismiss will be GRANTED.
Smith's employment with the VIHA began on June 4, 1990, when he was hired as maintenance manager, and continued until his termination in 2007. (Compl. ¶¶ 9, 18)
In 2003, HUD, which provides funding to local public housing agencies pursuant to the terms of an annual contributions contract, determined that the VIHA had failed to comply with HUD regulations governing the financial management of VIHA and thereafter assumed control of the assets, projects and programs of VIHA. (Def. Mot. Ex. 1.) Defendant Valenti was subsequently appointed by the Secretary of HUD to serve as receiver of the VIHA from May 2006 to January 2008. (Def. Mot. Ex. 2.) 1
On January 19, 2007, defendant Wayne Hood, Assistant Executive Director of VIHA, issued an inter-office memorandum suspending Smith from his employment from January 22, 2007 until February 2, 2007. (Compl. at ¶ 11.) While suspended, Smith filed a grievance for his suspension. (Id. at ¶ 12.) A hearing was held on or about February 22, 2007, but Smith did not receive a written response to his appeal within the five days allotted for such responses. (Id. at 14-15.) Shortly thereafter, Smith was placed on medical leave by his physician until March 2, 2007. (Id. at ¶ 17.) Upon reporting to work on March 2, Smith was served with a Notice of Personnel Action by defendant Michael Hollis, Executive Administrator of VIHA, notifying Smith that he had been terminated from his position. (Id.at ¶ 18.)
On February 27, 2009, Smith brought a seven count complaint in this matter alleging the following violations: (1) wrongful termination (count I); (2) violation of his civil rights under 42 U.S.C. § 1983 (count II); (3) breach of contract (count III); (4) bad faith and fair dealing (count IV); (5) violation of his rights under the First Amendment; (count V); (6) intentional andnegligent infliction of emotional distress (count VI); and (7) punitive damages (count VII). Counts II-VII pertain to Valenti, while counts III-VII pertain to HUD.
HUD and Valenti filed the instant motion to dismiss on May 17, 2010. HUD and Valenti first argue that the Court lacks subject matter jurisdiction to hear Smith's claims because those claims are barred by sovereign immunity. They also contend that Smith has failed to state a cause of action against Valenti under § 1983 because (1) he was acting pursuant to federal, not state law, when the alleged violations first occurred; (2) Smith fails to allege that Valenti personally participated in the alleged violations; and (3) Valenti is entitled to qualified immunity. Alternatively, HUD and Valenti assert that the contractual claims must be dismissed because pursuant to the Tucker Act, the Federal Court of Claims has exclusive jurisdiction over contractual claims against the United States in excess of $10,000. With regard to Smith's tort claims for infliction of emotional distress, HUD and Valenti contend that these claims are barred for failure to comply with the filing requirements of the Federal Tort Claim Act ("FTCA"). Finally, HUD and Valenti contend that punitive damages, included in Count VII, are not properly brought in the complaint.
Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may move for dismissal on the basis that the Court lacks subject matter jurisdiction to hear a claim. "Challenges to subject matter jurisdiction under Rule 12(b)(1) may be "facial" or "factual." Turicentro, S.A. v. American Airlines Inc., 303 F.3d 293, 300 n.4 (3d Cir. 2002). When considering a facial attack, that is, one that contests the sufficiency of the pleadings, the court accepts the complaint's allegations as true. Id. (citing NE Hub Partners, L.P. v. CNG Transmission Corp, 239 F.3d 333, 341 n. 7 (3d Cir.2001)). In contrast, when considering afactual attack, the court "accords plaintiff's allegations no presumption of truth" but instead "weigh[s] the evidence relating to jurisdiction, with discretion to allow affidavits, documents, and even limited evidentiary hearings." Id.
An assertion of sovereign immunity constitutes a challenge to the Court's subject matter jurisdiction. Cudjoe ex rel. Cudjoe v. Department of Veterans Affairs, 426 F.3d 241, 246 (3d Cir. 2005); see also White-Squire v. U.S. Postal Service, 592 F.3d 453, 456 (3d Cir. 2010) ().
To determine which 12(b)(1) standard applies, the Court must look at the specific challenge raised by the Government. See Cestonaro v. United States, 211 F.3d 749, 752 (3d Cir. 2000). In this case, HUD and Valenti rest their claim of immunity on the language of the United States Housing Act, 42 U.S.C. § 1437, to argue that the government did not consent to be sued. It is an attack on the sufficiency of the pleadings, and thus, in ruling on the motion, the Court accepts Smith's allegations as true.
Rule 12(b)(6) permits a defendant to move for dismissal on the ground that plaintiff has failed to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In considering such motions, the Court accepts well-pleaded factual allegations in the complaint as true and draws all reasonable inferences in favor of the non-moving party. United States DOT ex rel. Arnold v. CMC Eng'g, 564 F.3d 673, 676 (3d Cir. 2009). However, the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 n.3 (2007)). Moreover, "a court is not required to accept legal conclusions alleged in the complaint." Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010). Rather, "[t]he pleading must contain sufficient factual allegations so as to state a facially plausible claim for relief." Id. In deciding a motion to dismiss, "the court may consider documents that are attached to or submitted with the complaint... and any matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case." Buck v. Hampton Tp. School Dist, 452 F.3d 256, 260 (3d Cir. 2006).
It is a well-established that the United States, as sovereign, is entitled to immunity from suit unless it consents to be sued. White-Squire, 592 F.3d at 456 (citing United States v. Mitchell, 445 U.S. 535, 538 (1980)). The protection of sovereign immunity extends to agencies of the United States such as HUD. United American, Inc. v. N.B.C.-U.S.A. Housing, Inc. Twenty Seven, 400 F. Supp. 2d 59, 61 (D.D.C. 2005) (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994)). Additionally, a suit against a federal officer for acts performed within his official capacity amounts to an action against the sovereign. Portsmouth Redevelopment and Housing Authority v. Pierce, 706 F.2d 471, 473-74 (4th Cir. 1983) (citing Dugan v. Rank, 372 U.S. 609, 620 (1963)); see also Christy v. Pennsylvania Turnpike Com'n, 54 F.3d 1140, 1143 (3d Cir. 1995) ().2
"A waiver of sovereign immunity must be express and unambiguous in order to confer federal courts with subject matter jurisdiction." Cudjoe ex rel. Cudjoe v. Department of Veterans Affairs, 426 F.3d 241, 246 (3d Cir. 2005). Thus, in the absence of clear congressional consent, there is no jurisdiction to entertain suits against the United States. Mitchell, 445 U.S. at 538 (citing United States v. Sherwood, 312 U.S 584, 587-588 (1941)). Moreover, "the Government's consent to be sued must be construed strictly in favor of the sovereign... and not enlarged beyond what the language requires." United States v. Nordic Village Inc., 503 U.S. 30, 34 (1992) (internal quotations and citations omitted). See also Cudjoe, 426 F.3d at 246 (citing Orff v. United States, 545 U.S. 596 (2005) ().
Smith first argues that because he has alleged a § 1983 claim, the Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1343(3). 3 However, neither 28 U.S.C. § 1331, or the jurisdictional adjunct to the civil rights statutes, 28 U.S.C. § 1343, embodies a waiver of sovereign immunity as against the United States; nor does nor any provision of the Constitution. Navy, Marshall & Gordon, P.C. v. U.S. Intern. Development-Cooperation Agency, 557 F. Supp. 484, 488 (D.C. 1983) (citing Garcia v. United States, 666 F.2d 960, 966 (5th...
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