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 ("R & A Program"), which permitted him to represent individuals in immigration proceedings as a non-attorney. The Department of Justice revoked Davila's accreditation pursuant to new program requirements governing the eligibility of non-attorney representatives after they learned that he had been convicted of first-degree manslaughter in 1988.
Defendant Steven Lang is the Program Director of the Office of Legal Access Programs ("OLAP"), the federal entity tasked with administering the R & A Program. Davila seeks to hold Lang, in his official capacity, liable for injuries that Davila allegedly suffered as a result of his accreditation being terminated. Specifically, Davila contends that his termination from the program violated his constitutional right to due process and was arbitrary and capricious under the Administrative Procedure Act,
Defendant Lang moved to dismiss all claims pursuant to *264Rule 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, Lang's motion to dismiss is GRANTED.
I. BACKGROUND
A. Factual Background
The facts here are substantially the same as those set forth in related case Davila v. Gutierrez et al.,
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."
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
Davila was convicted of manslaughter in the first degree in 1988. See Pl.'s Am. Opp'n to Def.'s Mot. to Dismiss (ECF. No. 14) ("Pl.'s Am. Opp'n") at 6. 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
B. Procedural History
On July 5, 2017, Davila initiated Davila v. Gutierrez et al. against several reporters, news entities, and federal defendants. No. 1:17-cv-5032 (ECF No. 1). The federal defendants in Gutierrez included the named Defendant here, Program Director of the Office of Legal Access Programs Steven Lang, as well as the United States, Attorney General Jeff Sessions, Acting Director of the New York City District of United States Citizen and Immigration Services John Thompson, and United States Representative Nydia Velázquez.
*265Gutierrez ,
On June 8, 2018, Davila commenced this action pro se in the Supreme Court of the State of New York, County of Bronx against Lang, again raising claims that his termination from the R & A program was arbitrary and capricious and in violation of his right to due process. Notice of Removal (ECF No. 1); Ex. A to Removal, Compl. at ¶¶ 64-76. In addition, Davila newly contends that OLAP's new policy of denying accreditation to persons with serious criminal convictions violates New York Correction Law Article 23 and 23-a. Compl. ¶¶ 77-82.
On July 6, 2018, Lang removed the case to federal court. See Notice of Removal. On August 3, 2018, Lang moved to dismiss the complaint. Def.'s Mot. to Dismiss (ECF No. 10-11) ("Def.'s Mem. of Law"). On August 17, 2018, Davila filed an opposition to the motion to dismiss, with supporting exhibits. Pl.'s Opp'n to Def.'s Mot. to Dismiss (ECF No. 13) ("Pl.'s Opp'n"). On August 20, 2018, Davila filed an amended version of his opposition brief, alleging new facts and raising new legal arguments. Pl.'s Am. Opp'n to Def.'s Mot. to Dismiss (ECF. No. 14) ("Pl.'s Am. Opp'n"). On August 27, 2018, Lang filed a reply. Def's Rep. to Pl.'s Opp'n to Def.'s Mot. to Dismiss (ECF No. 15) ("Def.'s Rep.").
On August 29, 2018, the Court granted the United States' motion to dismiss in Gutierrez .
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 ,
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. ,
"[T]he United States, as sovereign, is immune from suit save as it consents to be sued." Lehman v. Nakshian ,
*266Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands ,
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 ,
Determining whether a complaint states a plausible claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal ,
Because Davila is proceeding pro se , the Court must liberally construe the allegations in his complaint and "interpret[ ] [them] to raise the strongest arguments that they suggest. " Triestman v. Fed. Bureau of Prisons ,
In deciding this motion to dismiss, the Court considered documents that *267were either incorporated by reference into the complaint or integral to the claims asserted therein. See Chambers v. Time Warner, Inc. ,
Here, the Court considered the exhibit Davila submitted in connection with his Request for Administrative Review, which is integral to Davila's FTCA claims, and the termination letter Davila received from OLAP, which is integral to all of Davila's claims as they arise out of his termination from the R & A program. The Court has no trouble concluding that Davila had "actual notice" of these documents and relied on it in framing his complaint because he submitted these documents, along with others, as part of an appendix to his state court complaint, and again in connection with his opposition papers. See generally Compl.; Pl.'s Am. Opp'n; Exs. to Pl.'s Opp'n, Ex. A ("Termination Letter"). The Court also considered the relevant sections of the Federal Register in connection with Davila's APA, state law, and equitable estoppel and laches claims. See
III. DISCUSSION
As an initial matter, Davila made new factual allegations and raised new claims for the first time in his opposition to Lang's motion to dismiss. Because Davila is proceeding pro se , the Court may consider new facts raised in opposition papers to the extent that they are consistent with the complaint, treating the new factual allegations as amending the original complaint. See Walker v. Schult ,
A pro se plaintiff may not raise "entirely new" causes of action for the first time in his opposition papers, but the Court may consider new claims appearing for the first time in briefing if "the claims could have been asserted based on the facts alleged in the complaint." Vlad-Berindan v. MTA New York City Transit , No. 14-cv-675,
A. Davila Cannot State a Claim Under the Religious Freedom Restoration Act
In Davila's opposition, he raises for the first time the argument that the United States has consented to suit under the Religious Freedom Restoration Act ("RFRA"). Liberally construed, the Court interprets this claim as alleging that OLAP's revocation of Davila's accreditation violated RFRA. In his complaint, Davila refers to A New Beginning's status as a religious entity, stating that it participated in the R & A Program as a "qualified," religious non-profit organization. Compl. at 1-2. Davila asserts that he is a clergy member who formed A New Beginning, a "God guidance [sic] ministry," after "the Lord Jesus[ ] gave [him] a vision" showing him that he was chosen to help undocumented immigrants. Am. Opp'n at 21-22. These newly alleged facts go beyond the facts in the Complaint and raise an entirely new legal theory. However, even if the Court could consider Davila's RFRA claim, the claim would fail.
"Under RFRA, the Federal Government may not, as a statutory matter, substantially burden a person's exercise of religion...." Gonzales v. O Centro Espirita ,
However, even construing Davila's submissions liberally, his claim that he is entitled to relief under RFRA still fails. Davila does not plead any facts that demonstrate how OLAP's promulgation of the new eligibility requirements, or the revocation of his accreditation, have substantially burdened his ability to freely exercise his religion. His allegations about his religion, and his conclusory statement that Lang "interrupt[ed] and interfere[d] [with] Plaintiff's ministry," are insufficient to state a claim.
B. The Clearfield Trust Doctrine is Inapplicable
In his opposition, Davila newly contends that Lang is not entitled to sovereign immunity under the Clearfield Trust doctrine because he is "not a Federal Employee, but a mere private citizen working as a Program director of a Corporation." Am. Opp'n at 20-21. "The primary doctrine derived from Clearfield is that federal common law will displace state law, and can be created by federal courts, only when 'uniquely federal interests' are involved and the application of state law would 'significantly conflict' with federal policy or objectives." In re Sterling ,
*269Davila's argument under the Clearfield Trust doctrine argument suffers from a number of flaws, both substantive and procedural.
[T]he Clearfield Trust Doctrine does not constitute a waiver of sovereign immunity. In Clearfield Trust v. United States ,, 366-67, 318 U.S. 363 , 63 S.Ct. 573 (1943), the Supreme Court held that federal law governs questions concerning the rights of the federal government under federal programs, such that, in the absence of an act of Congress applicable to the functioning of such programs, the federal courts may fashion an appropriate and governing rule of law according to their own standards.... Like nearly every other authority cited by Plaintiff, Clearfield Trust has no application to any issue in this case. 87 L.Ed. 838
In re Sterling ,
C. The FTCA Bars Davila's Claims Against Lang in His Individual Capacity
In his opposition papers, Davila alleges new facts that, liberally construed, raise a defamation claim against Lang and OLAP. Davila asserts that employers "were reluctant to hire him because of the publicity and implications of the media report that were televise[d] [worldwide] and published [o]n the internet regarding OLAP termination of Plaintiff in it[s] program." Pl.'s Am. Opp'n at 13. As a result of employers' hesitancy to hire him, Davila claims that he is "broke, without employment, emotionally sick and in a state of anxiety."
This claim is substantially similar to Plaintiff's defamation claims in Gutierrez . For the same reasons stated in Gutierrez , and restated below, Davila's claim that Lang defamed him is barred by sovereign immunity.
*270The Federal Tort Claims Act ("FTCA") " 'constitutes a limited waiver by the United States of its sovereign immunity and allows for a tort suit against the United States under specified circumstances.' " Liranzo v. United States ,
claims against the United States, for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
Furthermore, the FTCA immunizes federal employees from all liability for any negligent or wrongful acts or other common law tort claims committed while acting within the scope of their employment. See
Pursuant to the FTCA, when an employee of the United States or a federal agency is named as a defendant in a tort action, "[u]pon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States ... and the United States shall be substituted as the party defendant."
"Even an Attorney General's certification that a federal employee was acting within the scope of his employment ... does not conclusively establish as correct the substitution of the United States as defendant in place of the employee, however." Tomscha v. Poole , No. 16-cv-1263,
Here, the United States has submitted its certification on behalf of Lang through its motion, rather than by formal petition. See Def.'s Mem. of Law at 10. The Court does not find that Plaintiff has pleaded with particularity facts relevant to the scope-of-employment issue such that the Court is obligated undertake a de novo review of the United States' certification. See
D. Davila's Claims Against the United States Are Barred by Sovereign Immunity
Davila's defamation and constitutional claims against the United States must be dismissed because they are barred by sovereign immunity, and the federal government has not waived immunity for either of those types of claims. "The United States, as sovereign, is immune from suit save as it consents to be sued ..., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." Liranzo ,
Because the United States has not waived its sovereign immunity for defamation claims, Davila's claim is barred.
E. Davila Failed to Comply with the FTCA's Procedural Requirements
"The FTCA requires that a claimant exhaust all administrative remedies before filing a complaint in federal district court. This requirement is jurisdictional and cannot be waived." Celestine v. Mount Vernon Neighborhood Health Ctr. ,
Davila has not pleaded compliance with the exhaustion requirement in accordance with
F. Davila's Bivens Claims Fail Because They Differ Meaningfully from Prior Bivens Claims and Special Factors Counsel Hesitation
Davila's Bivens claim are substantially the same as those set forth in Gutierrez . For the same reasons set forth in Gutierrez and restated below, these claims must fail.
Constitutional tort claims must be brought against individual federal agents or employees in their individual capacities through a Bivens action. See e.g., Robinson ,
In a recent decision, the Supreme Court underscored that "expanding the Bivens remedy is now a 'disfavored' judicial activity." Ziglar v. Abbasi , --- U.S. ----,
As the Supreme Court has instructed, this careful scrutiny requires courts to engage in a process to determine whether it is appropriate for the Judiciary to extend a Bivens remedy to the claims of a particular case. A court must first determine whether the claim "presents a new Bivens context." Id. at 1859. A new Bivens context will exist "[i]f the case is different in a meaningful way from previous Bivens cases decided by this Court." Id. The Court presented a non-exhaustive list of considerations to examine if a case is meaningfully different, including:
[T]he rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk or disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.
Id. at 1860.
If the court determines that the claim at issue differs meaningfully from previous Bivens cases, the court must then determine if it is appropriate to imply a new private right of action to that claim. In Ziglar, the Supreme Court affirmed the long-held precedent that a Bivens remedy "will not be available if there are 'special factors counselling hesitation in the absence of affirmative action by Congress.' " Ziglar,
Davila's claims here are meaningfully different from prior Bivens cases, and special factors counsel hesitation. Unlike Bivens and Carlson , Davila's claims did not include any form of search and seizure under the Fourth Amendment, nor did his claims include anything that could be construed to constitute cruel and unusual punishment towards Davila. While the Bivens *274action brought in Davis included a due process claim under the Fifth Amendment, that claim was substantially different than the due process claim brought by Davila under the Fourteenth Amendment. The claim in Davis related to gender discrimination in the workplace, whereas the claim in the instant case relates to the revocation of a government accreditation. Thus, Davila's due process claims under the Fourteenth Amendment implicate a new context for the application of a Bivens remedy.
Because Davila's claim presents a new Bivens context, the Court must analyze whether special factors counsel hesitation in expanding Bivens "in the absence of affirmative action by Congress."
In this case, Davila asserts a claim under the due process clause of the Fourteenth Amendment. However, there is an alternative remedial structure in place. The letters that OLAP sent to Davila to inform him of A New Beginning's termination from the R & A program explicitly provided that Davila had "the opportunity to respond to this notice prior to the termination of full accreditation." Termination Letter. This alone counsels hesitation in extending a Bivens remedy here.
Because Davila's claims present a new Bivens context, and special factors counsel hesitation, the Court declines to recognize a Bivens remedy for Davila's Fourteenth Amendment claims.
G. The Revocation of Davila's Accreditation Did Not Violate the Due Process Clause of the Fourteenth Amendment
Davila's due process claim is substantially similar to his claim brought in Gutierrez . For the same reasons stated in Gutierrez and restated below, this claim is dismissed.
Even if Davila's due process claim could be pursued as a Bivens claim, there is no underlying due process violation for which a Bivens action against Lang or any other action against the United States could provide a remedy. To succeed on a procedural due process claim, a plaintiff must establish that some government action deprived him of a protected property interest. Morales v. New York ,
When a government program grants substantial discretion to decide whether an individual is entitled to a benefit, the existence of such discretion precludes any legitimate claim of entitlement. See Spinelli v. City of New York ,
The broad discretion afforded to those who implement the R & A program precludes any "legitimate claim of entitlement" that Davila would need for a successful due process claim. The governing regulations of the R & A program state that "[t]he [Office of Legal Access Programs] Director, in the exercise of discretion, may approve accreditation of an eligible individual as a representative of a recognized organization...." See
[A]n examination of factors such as: Criminal background; prior acts involving dishonest, fraud, deceit or misrepresentation; past history of neglecting professional, financial, or legal obligations; and current immigration status that presents an actual or perceived conflict of interest.
See
Not only is "discretion" explicitly written into the program's guidelines, the ability to consider such a broad array of factors demonstrates the extent of discretion that the R & A program administrators have in granting accreditation. Because the R & A program guidelines confer such broad discretion, Davila lacks a legitimate claim of entitlement to accreditation under the R & A program. Without a legitimate claim of entitlement, Davila does not possess a property interest in his accreditation under the R & A program. Therefore, Davila fails to state a claim for a procedural due process deprivation.
H. Davila's Termination from the R & A Program Was Not Arbitrary and Capricious
Davila's contention that the withdrawal of his accreditation from the R & A program was arbitrary and capricious fails for the same reasons stated in Gutierrez and restated below.
Under the APA, a reviewing court must hold unlawful any decision or action taken by a federal agency that is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
Davila asserts that his termination from the program was arbitrary and capricious because
Davila may have initially been required to disclose only convictions occurring after August 28, 2000 pursuant to
Giving Davila's pro se amended complaint a liberal construction, the Court understands Davila also to be challenging the retroactive application of the applicable regulation.
I. Claims Arising Under the New York Correction Law
Davila's claims arising under the New York Correction Law fail because the laws that he cites do not govern federal administrative bodies like OLAP, and even if they did, they would be preempted by the applicable federal regulations. Davila alleges that in failing to consider his certificate of good conduct from the New York Board of Parole, and by promulgating and enforcing the 2016 change to its accreditation policy, OLAP violated Articles 23 and 23-a of the New York Correction Law. Compl. ¶¶ 77-82. Those articles of the New York Correction Law provide that criminal convictions may not be considered in connection with licensing applications without the consideration of additional employment-related factors, and that a certificate of good conduct relieves an individual of disabilities imposed by prior convictions. See N.Y. Correct. Law Ch. 43, art. 23, 23-a. But the language of Articles 23 and 23-a clearly establishes that the state statute does not purport to constrain the actions of federal administrative bodies like OLAP.
Article 23-a, by its plain language, restricts its applicability to certificates, licenses, permits, or grants of permission required by the state of New York. Article 23-a provides in part that:
No application for any license or employment, and no employment or license held by an individual, to which the provisions of this article are applicable, shall be denied or acted upon adversely by reason of the individual's having been previously convicted of one or more criminal offenses, or by reason of a finding *278of lack of "good moral character" when such finding is based upon the fact that the individual has previously been convicted of one or more criminal offenses, unless:
(1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual; or
(2) the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.
In addition, by its terms, Article 23-a constrains the behavior of state and local governmental entities, but not federal agencies. Article 23-a governs how a "public agency or private employer" may consider prior criminal convictions, and how Article 23-a may be enforced against a "public agency" or "private employer." See
Similarly, New York Correction Law Article 23 does not apply here because it governs the effect of a certificate of good conduct issued in connection with state licensing, and because it directs licensing authorities to consider prior convictions in accordance with Article 23-a. Article 23 provides that convictions specified in a certificate of good conduct "shall not be deemed to be a conviction within the meaning of any provision of law that imposes a disability to apply for or to receive any license , permit, or other authority or privilege covered by the certificate," and specifies that "[a] certificate of good conduct shall not, however, in any way prevent any judicial administrative, licensing or other body, board or authority from considering the conviction specified therein in accordance with the provisions of article twenty-three-a of this chapter."
As discussed above, the term "license" only includes "any certificate, license, permit or grant of permission" required by the laws of the State of New York.
a. Federal Preemption of State Law
To the extent that Articles 23 and 23-a purport to govern OLAP's accreditation process, the applicable federal regulations preempt Articles 23 and 23-a. The Supremacy Clause of *279Article VI of the Constitution provides that the "Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land...." U.S. Const. art. VI, cl. 2. Federal regulations are given the same preemptive effect as federal statutes. Fidelity Federal Sav. and Loan Ass'n v. de la Cuesta ,
Federal law may displace state law through express or implied preemption. Rice v. Santa Fe Elevator Corp. ,
The federal government has occupied the field of immigration proceedings, which includes determining the eligibility of persons who wish to serve as legal representatives in immigration courts. Congress's intent to supersede state law in the field of immigration proceedings can be inferred by the federal interest in regulating immigration and by the comprehensive statutory language surrounding immigration administration. The Supreme Court has observed that "the power of [C]ongress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications." Kleindienst v. Mandel ,
OLAP, under the authority of the Department of Justice and the Executive Office for Immigration Review ("EOIR") is given the authority to develop and administer the accreditation program for representatives before the BIA, the Immigration Courts, or DHS.
Further, even if Articles 23 and 23-a did purport to restrain federal agencies, the statutes would be in direct conflict with OLAP's regulations and would therefore be preempted. Pursuant to the Supremacy Clause, a federal regulation controls when there is "significant conflict between ... federal policy or interest and the [operation] of state law," even when Congress has not completely displaced state regulation in a specific area. Boyle v. United Techs. Corp. ,
Davila contends that OLAP is required to consider his certificate of good conduct in its accreditation decision, arguing that the possession of such a certificate "trumps any [employment] barrier" established by OLAP. Compl. at 17. This interpretation of Articles 23 and 23-a conflicts directly with the applicable regulations, which explicitly state that prior convictions of a serious crime render an applicant ineligible for accreditation.
Accordingly, Davila's claim under Articles 23 and 23-a of the New York Correction Law is dismissed.
J. Title VII Claim
Davila's Title VII claim fails because he is not an employee of OLAP. Davila argues that by revoking his accreditation solely on the basis of his prior conviction, OLAP violated of Title VII of the Civil Rights Act of 1964. While this is a new legal claim appearing for the first time in Plaintiff's opposition papers, Plaintiff relies on factual assertions alleged in his complaint to support his claim. Therefore, the Court will consider his Title VII claim.
Title VII of the Civil Rights Act of 1964 makes it unlawful "for an employer ... to discharge any individual, or otherwise ... discriminate," on the basis of the individual's race, color, religion, sex or national origin.
*28142 U.S.C. § 2000e-2(a)(1). To survive a motion to dismiss on a Title VII claim, the Plaintiff must establish that an employment relationship exists between the Plaintiff and Defendant. See Kern v. City of Rochester ,
Even assuming arguendo that Davila was an employee of OLAP, he would still fail to state a claim under Title VII. To survive a motion to dismiss under Title VII, "what must be plausibly supported by facts alleged in the complaint is that the plaintiff is a member of a protected class, was qualified, suffered an adverse employment action, and has at least minimal support for the proposition that the employer was motivated by discriminatory intent." Littlejohn v. City of New York ,
Among other shortcomings, Davila did not plead any facts suggesting that OLAP was motivated by discriminatory intent with respect to Davila's membership in a protected class when it terminated Davila's accreditation. Accordingly, Davila's Title VII claim is dismissed.
Construing the complaint liberally, Davila's allegations could be interpreted to also raise New York State Human Rights Law ("NYSHRL") and New York City Human Rights Law ("NYCHRL") claims. However, Davila's claims under both statutes fail *282because they suffer from the same deficiencies as his Title VII claim.
Discrimination claims pursuant to the NYSHRL are subject to the same standard as Title VII claims. Patane v. Clark ,
Although NYCHRL claims had for many years "been treated as coextensive with state and federal counterparts," the New York City Council, in passing the Local Civil Rights Restoration Act of 2005 (the "Restoration Act"), "rejected such equivalence" in favor of a broader remedial scope. Loeffler v. Staten Island Univ. Hosp. ,
Section 8-107(1)(a) of the NYCHRL makes it "an unlawful discriminatory practice ... [f]or an employer or an employee or agent thereof, because of the ... race ... color[, or] national origin ... of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment." N.Y.C. Admin. Code § 8-107(1)(a). In contrast to Title VII, NYCHRL "does not require 'a connection between the discriminatory conduct and a materially adverse employment action.' " Garrigan v. Ruby Tuesday, Inc. , No. 14-cv-155 (LGS),
Even under the NYCHRL's broad and liberal standard, Plaintiff's discrimination claims fail because, for the reasons described earlier in this opinion, he is not an employee of OLAP, and he did not allege that any adverse employment action he suffered was "caused by a discriminatory motive," even in part. See Mihalik ,
K. Equitable Estoppel and Laches
Davila raises new legal arguments based on the doctrines of equitable estoppel and laches for the first time in his opposition. Davila also raises new factual allegations in support of these arguments that contradict *283his complaint, his opposition, and the documents he submitted in connection with those documents. As a result, the Court need not consider this claim.
Even if the Court were to consider this claim, it would fail. In essence Davila's argument is that when he first participated the R & A program the applicable eligibility requirements only barred applicants with felony convictions on or after July 27, 2000; Davila was convicted of a felony in 1988. Pl.'s Am. Opp'n at 7-9. Because he was admitted into the program despite his felony conviction, and OLAP later changed the rules, Davila contends that OLAP is estopped from terminating him. Davila also contends that because OLAP waited "seven years" after his initial application to terminate him, they are barred from terminating his accreditation under the doctrine of laches. Id. at 15.
The defenses of equitable estoppel and laches are not available as defenses against to the federal government. "The United States has traditionally not been subject to the defense of laches." Cayuga Indian Nation of N.Y. v. Pataki ,
Davila does not allege that the United States engaged in affirmative misconduct here; rather, the facts that Davila allege show that the Government applied a new regulation to Davila, and acted in accordance with that regulation. As a result, Davila's claim that the doctrines of equitable estoppel and laches prevent OLAP from enforcing its revocation of his accreditation is without merit.
IV. CONCLUSION
For the reasons stated above, Defendants' motion to dismiss is GRANTED. However, because this is the first adjudication of Plaintiff's claims on the merits in this case, the dismissal as to Plaintiff's RFRA, Bivens , and APA claims are without prejudice. See Terry v. Inc. Vill. Of Patchogue ,
"Where it appears that granting leave to amend is unlikely to be productive ... it is not an abuse of discretion to deny leave to amend." Apotex Inc. v. Acorda Therapeutics, Inc. ,
SO ORDERED.
Notes
The three paragraphs in Davila's opposition that he represents to be quotations from Clearfield Trust Co. v. United States do not appear in that case, or in any of the internal citations within the ostensibly quoted language. Compare Am. Opp'n at 20 with Clearfield Tr. Co. v. United States ,
It is not clear that Davila's complaint can be construed as making the argument that DOJ promulgated the new eligibility requirements in an arbitrary and capricious manner. To the extent that it is, the Court notes that DOJ published in the Federal Register the proposed rule on October 1, 2015.