21-556-cv

Commissiong v. US Dept. Housing & Urban Development

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 27th day of May, two thousand twenty-two.

PRESENT:

AMALYA L. KEARSE,

DENNIS JACOBS,

WILLIAM J. NARDINI,

Circuit Judges.

_____________________________________________

Carol Commissiong,

Petitioner-Appellant,

v. 21-556

United States Department of Housing and Urban 

Development, Jay Golden, Jo-Ann Frey, Tang-Chi 

Yeh,

Respondents-Appellees.

___________________________________________

For Petitioner-Appellant: CAROL COMMISSIONG, pro se, New 

York, NY.

For Respondents-Appellees: Brandon H. Cowart, Benjamin H. 

Torrance, Assistant United States 

Attorneys, for Damian Williams, 

United States Attorney for the 
2

Southern District of New York, New 

York, NY.

Appeal from a judgment of the United States District Court for the Southern District of 

New York (Vernon S. Broderick, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED.

Appellant Carol Commissiong, proceeding pro se, appeals the February 17, 2021, 

judgment of the United States District Court for the Southern District of New York (Vernon S. 

Broderick, Judge) dismissing her complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) 

and 12(b)(6). Commissiong filed an administrative complaint with the United States Department 

of Housing and Urban Development (“HUD”) against several individuals and entities involved in 

the ownership or management of her apartment, alleging that she had suffered discrimination in 

violation of the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq. HUD issued a finding of no 

reasonable cause, and Commissiong filed an Article 78 petition against HUD and individual HUD 

employees in New York state court, alleging that the agency’s finding was influenced by bribes. 

HUD removed the case to federal court and moved to dismiss. The district court granted the 

motion, holding that the respondents were entitled to sovereign immunity, and the court thus 

lacked subject matter jurisdiction over Commissiong’s claims. It alternatively held that the FHA 

does not create a private right of action against HUD and HUD officials. We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review de novo the district court’s dismissal of a complaint for lack of subject matter 

jurisdiction, construing the complaint liberally and accepting all factual allegations as true. Green 

v. Dep’t of Educ. of New York, 16 F.4th 1070, 1074 (2d Cir. 2021). Dismissal of a case for lack 

of subject matter jurisdiction under Rule 12(b)(1) is proper “when the district court lacks the 

statutory or constitutional power to adjudicate it.” Id. at 1075. Pro se submissions are reviewed 

with “special solicitude” and “must be construed liberally and interpreted to raise the strongest 

arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 

2006) (internal quotation marks and emphasis omitted). 

“Absent a waiver, sovereign immunity shields the Federal Government and its agencies 

from suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). Sovereign immunity also protects federal 

officers in their official capacities from suit unless immunity has been waived. Robinson v. 

Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994). A waiver of sovereign immunity 

“cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4 

(1969). Because “the doctrine of sovereign immunity is jurisdictional in nature, . . . the plaintiff 

bears the burden of establishing that her claims fall within an applicable waiver.” Makarova v. 

United States, 201 F.3d 110, 114 (2d Cir. 2010); see also Lunney v. United States, 319 F.3d 550, 

554 (2d Cir. 2003) (“A plaintiff has the burden of showing by a preponderance of the evidence 

that subject matter jurisdiction exists.”).
3

The district court properly dismissed Commissiong’s complaint for lack of subject matter 

jurisdiction. Commissiong has pointed to no evidence of a waiver of sovereign immunity from 

suits under the FHA, as it was her burden to do. See Makarova, 201 F.3d at 114. Commissiong 

framed this action as arising under Article 78, which is a procedural mechanism to challenge state 

and local agency actions under New York state law. See N.Y. C.P.L.R. § 7801; Campo v. N.Y.C. 

Emps.’ Ret. Sys., 843 F.2d 96, 101 (2d Cir. 1988). But she does not attempt to argue that there has 

been a waiver of the United States’s sovereign immunity with respect to such proceedings. Nor 

can her complaint be construed to state a claim under the Administrative Procedure Act (“APA”), 

5 U.S.C. § 701 et seq. The APA permits judicial review of federal agency action only where 

“there is no other adequate remedy in a court.” 5 U.S.C. § 704. That requirement is not satisfied 

here because the FHA provides another remedy where HUD issues a no probable cause finding: 

the complainant may file a lawsuit against the parties who allegedly discriminated against her in 

violation of the FHA. See 42 U.S.C. § 3613(a)(2) (aggrieved party has a cause of action under 

the FHA, “whether or not a complaint has been filed” with HUD); Marinoff v. U.S. Dep’t of Hous.

& Urb. Dev., 78 F.3d 64, 65 (2d Cir. 1996) (adopting district court’s reasoning to conclude that 

HUD’s dismissal of an administrative complaint is a “nonreviewable administrative action under 

the [APA]”), aff’g 892 F. Supp. 493 (S.D.N.Y. 1995). We decline to consider Commissiong’s 

argument that her claims can proceed under the waiver of sovereign immunity in the Federal Tort 

Claims Act, 28 U.S.C. §§ 1346(b), 2671–2680, because she raised it on appeal for the first time in 

a reply brief and we see no indication that she presented a Federal Tort Claims Act argument in 

the district court. See Harrison v. Republic of Sudan, 838 F.3d 86, 96 (2d Cir. 2016). 

Finally, contrary to Commisiong’s appellate argument, dismissal—and not remand—was the 

proper remedy because the defendants are also immune from suit in state court. See Cunningham v. 

Macon & Brunswick R.R. Co., 109 U.S. 446, 451 (1883) (“[N]either a state nor the United States can 

be sued as defendant in any court in this country without their consent . . . .”).

We have considered all of Commissiong’s remaining arguments and find them to be 

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court