Davila v. Gutierrez, 1:17-cv-5032-GHW

330 F.Supp.3d 925

Carlos DAVILA, President of A New Beginning for Immigrants Rights, Inc., Plaintiff,

v.Pablo GUTIERREZ, et al., Defendants.

1:17-cv-5032-GHW

United States District Court, S.D. New York.

Signed August 30, 2018

Carlos Davila, Bronx, NY, pro se.

Katherine Mary Bolger, Davis Wright Tremaine LLP (NYC), Lauren Almquist Lively, United States Attorney's Office SDNY, New York, NY, for Defendants.

Alexandro A. Peraza, New Paltz, NY, pro se.

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, United States District Judge

Plaintiff Carlos Davila is the founder of A New Beginning for Immigrant's Rights, Inc. ("A New Beginning"), an immigrants' rights organization. Through A New Beginning, Davila participated in the Department of Justice's Recognition and Accreditation Program, which permitted him to represent individuals in immigration proceedings as a non-attorney. In 2017, several news outlets reported negative stories about A New Beginning and Davila, and U.S. Representative Nydia Velázquez responded by committing that she would revoke Davila's accreditation through the Recognition and Accreditation Program. Later, Davila's accreditation was revoked because the Department of Justice learned that he had been convicted of first-degree manslaughter in 1988.

Davila seeks to hold the United States and Representative Velázquez (collectively, the "Federal Defendants") liable for injuries that he allegedly suffered resulting from the revocation of his accreditation and from public statements made by Representative Velázquez in connection therewith. Specifically, Davila brings claims for defamation, intentional infliction of emotional distress, and invasion of privacy. Davila also asserts that his First and Fourteenth Amendment rights were violated and that the revocation of his accreditation was arbitrary and capricious in violation of the Administrative Procedure Act ("APA"). The United States, on behalf of the Federal Defendants, moves to dismiss all of the claims against the Federal Defendants pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim on which relief may be granted. For the reasons that follow, the Federal Defendants' motion to dismiss is GRANTED.

I. BACKGROUND

In 2011, Davila founded A New Beginning, an organization that provided assistance to undocumented immigrants regarding "the Protection of their Rights under the Constitution of the United States, Human Rights, and their Rights under the Vienna Convention." Compl. (ECF No. 1) ¶ 5 (capitalization in original). Davila, through A New Beginning, participated in the Department of Justice's Recognition and Accreditation ("R & A") program from 2011 until 2017. Second Am. Compl. (ECF No. 27) ¶¶ 10-11. The R & A program allows non-attorneys within non-profit organizations to act as authorized representatives for individuals in immigration proceedings before the Executive Office for Immigration Review ("EOIR") and the Department of Homeland Security ("DHS"). See 8 C.F.R. §§ 1001, 1003, 1103, 1212, and 1292 (2016). The Office of Legal Access Programs ("OLAP"), a component of the EOIR within the Department of Justice ("DOJ"), administers the R & A program. Id. Davila served as an accredited representative in the R & A program. See Second Am. Compl. ¶ 10.

One of the services A New Beginning offered was the sale of an identification card called "ID4ICE," which provided information to immigrants on their rights under the U.S. Constitution and the Vienna Convention in case they became subject to any action by the U.S. Immigration and Customs Enforcement. See id. ¶ 50. Davila charged two hundred dollars for the card, which included a two-year membership with A New Beginning. Id. ¶ 51. Reporters from various news outlets began asking Davila a series of questions about the identification card, and then, in May 2017, ran stories identifying him as a convicted felon and accusing him of falsely promising that the identification card would protect immigrants from deportation. Id. ¶¶ 49-51, 58, 63. Davila also alleges that Representative Nydia Velázquez, the U.S. Representative for New York's 7th Congressional District, slandered him by stating to the media that she had initiated a campaign to revoke Plaintiff's accreditation for the R & A program and called for greater oversight of the R & A program. Id. ¶ 71. Davila also alleges that Representative Velázquez violated his First Amendment rights and that her actions constituted intentional infliction of emotional distress, invasion of privacy, and defamation. Id. ¶¶ 71-74, 82-95.

On December 19, 2016, DOJ published new regulations governing the R & A program. The new regulations transferred the administration of the program from the Board of Immigration Appeals to the Office of Legal Access Programs and promulgated modified eligibility criteria and procedures for the program. See 8 C.F.R. §§ 1001, 1003, 1103, 1212, 1292. Among the new rules promulgated was the eligibility requirement that an individual "[have] not been found guilty of, or pleaded guilty or nolo contendere to, a serious crime, as defined in 8 C.F.R. § 1003.102(h), in any court of the United States, or of any State...." 8 C.F.R. § 1292.12(a)(5). Section 1003.102(h) defines a "serious crime" as any felony and certain enumerated misdemeanors.

Davila was convicted of manslaughter in the first degree in 1988. See ECF No. 28-1 ("App. to Am. Compl."), at 12. Upon learning of Davila's 1988 conviction, the Office of Legal Access Program sent A New Beginning a letter, dated May 10, 2017, terminating Plaintiff's R & A program accreditation pursuant to 8 C.F.R. § 1292.12(a)(5). Second Am. Compl. ¶ 76; App. to Am. Compl., at 28. Plaintiff contends that his termination from the program violated his constitutional right to due process and was arbitrary and capricious under the APA, 5 U.S.C. § 702 et seq. See Second Am. Compl. ¶¶ 96-113.

On July 5, 2017, Davila filed a complaint against Representative Velázquez and several reporters and news entities, raising state law tort claims of defamation, intentional infliction of emotional distress, and invasion of privacy. See generally Compl. On July 21, 2017, Davila amended his complaint, raising new constitutional and APA claims, and naming Attorney General Jeff Sessions, Acting Director of New York City District of United States Citizen and Immigration Services John Thompson, and Program Director of the Office of Legal Access Programs Steven Lang, as defendants. See generally Am. Compl (ECF No. 12). On August 18, 2017, Davila again amended his complaint, adding the United States as a defendant. See generally Second Am. Compl.

On October 27, 2017, the United States moved to dismiss Davila's complaint as against the United States, Velázquez, Sessions, Lang, and Thompson pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim. ECF No. 54.

On June 25, 2018, Davila voluntarily dismissed his claims against Sessions, Thompson, and Lang pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). ECF No. 73.

II. LEGAL STANDARD

"A court presented with a motion to dismiss under both Fed. R. Civ. P. 12(b)(1) and 12(b)(6) must decide the jurisdictional question first because a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction." De Masi v. Schumer , 608 F.Supp.2d 516, 523-24 (S.D.N.Y. 2009) (internal quotation marks and alterations omitted) (citing Homefront Org., Inc. v. Motz , 570 F.Supp.2d 398, 404 (E.D.N.Y. 2008) ; Arar v. Ashcroft , 532 F.3d 157, 168 (2d Cir. 2008) ).

Pursuant to Rule 12(b)(1), the Court must dismiss a claim when it "lacks the statutory or constitutional power to adjudicate it." Morrison v. Nat'l Austl. Bank Ltd. , 547 F.3d 167, 170 (2d Cir. 2008) (internal quotation marks omitted); see also Arar , 532 F.3d at 168 ("A federal court has subject matter jurisdiction over a cause of action only when it ‘has authority to adjudicate the cause’ pressed in the complaint." (quoting Sinochem Int'l Co. v. Malay Int'l Shipping Corp. , 549 U.S. 422, 425, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) ) ). "The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc. , 426 F.3d 635, 638 (2d Cir. 2005). When considering a motion made pursuant to Rule 12(b)(1), "the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff." Raila v. United States , 355 F.3d 118, 119 (2d Cir. 2004).

"[T]he United States, as sovereign, is immune from suit save as it consents to be sued." Lehman v. Nakshian , 453 U.S. 156, 160, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981) (internal quotation marks and citation omitted). The United States, therefore, "cannot be sued at all without the consent of Congress," and "when Congress attaches conditions to legislation waiving the sovereign immunity of the United States, those conditions must be strictly observed." Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands , 461 U.S. 273, 287, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983). "The doctrine of sovereign immunity is jurisdictional in nature, and therefore to prevail, the plaintiff bears the burden of establishing that her claims fall within an applicable waiver." See Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000) (citations omitted).

a. Standard of Review Under Rule 12(b)(6)

To survive a motion to dismiss pursuant to Rule 12(b)(6), 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, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff...