The opinion of the court was delivered by: John Gleeson, District Judge
Wendell El-Shabazz, frustrated by how long the Committee on Character and Fitness for the Second Judicial Department was taking to decide his application for a New York law license, brought this action against the committee, one of its members, and one of its employees. He alleges that the committee unfairly applied its rules to excessively delay consideration of his application because of his race, disability, and criminal history. He asserts claims under various federal, state, and municipal statutes and seeks damages and an order requiring him to be admitted to the New York bar. The defendants move to dismiss. For the reasons set forth below, the motion is granted.
On November 1, 2007, El-Shabazz was notified that he had passed the July 2007 New York State Bar Examination and was certified for admission to the New York bar by the board of bar examiners. On December 22, 2007, he submitted an application for a license to practice law to the Appellate Division of the New York Supreme Court. Under New York law, the Appellate Division may not issue a law license to an applicant unless it is satisfied that he "possess[es] the character and general fitness requisite for an attorney and counselor-at-law."
N.Y. Judiciary Law § 90-1. As authorized by statute, the Appellate Division has created standing "Committees on Character and Fitness" to investigate applicants' backgrounds for this purpose. See id.
As part of the application process, El-Shabazz appeared for a personal interview on April 1, 2008 with defendant Leslie Nizin, a member of the Committee on Character and Fitness for the Second Judicial Department. Nizin probed El-Shabazz about his financial and criminal history, which included a bankruptcy filing and a felony conviction. After the interview, defendant Patricia Collins, the deputy executive secretary of the committee, informed El-Shabazz that his application was being referred to a subcommittee for further consideration because Nizin had concerns about his application. The subcommittee held a hearing on ElShabazz's application on June 11, 2008, at which he appeared and answered questions about his criminal record and past drug use. After the hearing, El-Shabazz was told that the subcommittee's report and recommendation would be submitted to the full committee at its November 6, 2008 meeting and that a unanimous vote of the committee was required to approve his application for admission. On November 7, 2008, Collins informed El-Shabazz that the committee was not yet prepared to make a decision on his application and that he would have to appear at a second hearing and present character witnesses.
El-Shabazz chose not to appear at a second hearing. Instead, on December 10, 2008, he filed a petition with the Appellate Division pursuant to N.Y. Comp. Codes R. & Regs. tit. 22, § 690.18. That provision permits the Appellate Division to grant a petitioner admission to the bar if a character and fitness committee has "unreasonably delayed action on an application." In his petition, El-Shabazz alleged that the committee discriminatorily deferred action on his application because of his race, disability, and criminal history, in violation of Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.; N.Y. Exec. Law § 296-1(a), N.Y. Correct. Art. § 752, and N.Y. City Admin. Code § 8-102.16. The Appellate Division denied his petition on April 29, 2009, stating that it found no merit in his contention that the character and fitness committee had "unreasonably delayed action" on his application. On June 26, 2009, El-Shabazz filed a motion for reconsideration or leave to appeal to the New York Court of Appeals. That motion is pending.
On May 14, 2009, El-Shabazz filed this lawsuit, repeating the allegations of discrimination he made in his petition to the Appellate Division. He asserts the same state and municipal claims he brought in the Appellate Division and several new ones -- federal claims pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; Title II of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12132 et seq.; 42 U.S.C. § 1981; and 42 U.S.C. § 1983. All of the claims are based on the theory that the committee unlawfully discriminated against him by needlessly prolonging a decision on his application. He seeks damages and an order requiring him to be admitted to the New York bar.
The defendants move for dismissal pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction, among other grounds. See Fed. R. Civ. P. 12(b)(1). Because I agree that this Court lacks jurisdiction, I do not address defendants' other proposed bases for dismissal.
A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks statutory or constitutional power to adjudicate it. Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996).The plaintiff bears the burden of proving subject-matter jurisdiction by a preponderance of the evidence. Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d635, 638 (2d Cir. 2005). When deciding a motion to dismiss under Rule 12(b)(1), a court may refer to evidence outside the pleadings, and it must construe all ambiguities and draw all inferences in favor of the plaintiff. Makarova v. United States,201 F.3d 110, 113 (2d Cir. 2000).
Federal district courts are empowered to exercise original, not appellate, jurisdiction. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283 (2005).The Supreme Court is the only federal court with appellate jurisdiction to reverse or modify a state-court judgment. See 28 U.S.C. § 1257; Exxon Mobil, 544 U.S. at 283.That, however, is what El-Shabazz is asking this Court to do. El-Shabazz has already filed one lawsuit in New York state court accusing the character and fitness committee of discriminating ...