Commissiong v. US Dept. Housing & Urban Development

Background

Carol Commissiong filed an administrative complaint with HUD’s Office of Fair Housing and Equal Opportunity. She accused housing-related respondents of refusing to renew her lease, overbilling her, adding excessive rent charges, turning off utilities, and refusing to make repairs because of her sex, race, and national origin. HUD investigated and, on May 17, 2019, issued a decision finding no reasonable cause to believe that a discriminatory housing practice had occurred.

Commissiong then filed a petition in New York state court under Article 78, challenging HUD’s decision. She alleged that the housing-complaint respondents had bribed HUD officials and that those officials had overlooked evidence, mishandled documents, and used language from the respondents’ submissions. She sought punitive damages, costs, and attorney’s fees from HUD. HUD removed the case to federal court, and the court denied Commissiong’s motion to remand. Commissiong proceeded without a lawyer.

Defendants’ Motion

HUD, Jay Golden, Jo-Ann Frey, and Tang-Chi Yeh moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which concerns subject-matter jurisdiction, and Rule 12(b)(6), which concerns whether a complaint states a legally valid claim. The defendants argued that the United States had not waived sovereign immunity and that the Fair Housing Act did not provide a basis for suing HUD. They also argued that review under the Administrative Procedure Act was unavailable.

Court’s Analysis

The court held that sovereign immunity barred Commissiong’s claims against HUD and the individual HUD employees in their official capacities because there had been no applicable congressional waiver. Sovereign immunity generally prevents the United States and its agencies from being sued unless the government consents. The court therefore concluded that it lacked jurisdiction over the claims.

The court separately held that the Fair Housing Act did not create a private right of action for the type of claim Commissiong asserted—namely, a claim seeking damages from HUD based on the agency’s handling of her housing-discrimination complaint and its no-cause determination. The court stated that the Fair Housing Act authorizes a direct federal-court action against the alleged discriminator even when HUD finds no reasonable cause.

The court also rejected construing the petition as a request for review under the Administrative Procedure Act. It noted that Commissiong sought monetary damages, which the court said the Administrative Procedure Act does not provide, and that her ability to sue the alleged perpetrators of the discrimination supplied an adequate alternative remedy. For those reasons, review of HUD’s decision was unavailable under that statute.

Disposition

The court granted the defendants’ motion to dismiss. Because the court dismissed for lack of subject-matter jurisdiction, it dismissed the complaint without prejudice. The Clerk was directed to enter judgment dismissing the complaint and mail a copy of the order to Commissiong.