Tex. Health & Human Servs. Comm'n v. United States

• Decision Date: 08 February 2016
• Docket Number: Civil Action No. 3:15–CV–3851–N
• Citation: 166 F.Supp.3d 706
• Parties: Texas Health and Human Services Commission, Plaintiff, v. United States of America, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

166 F.Supp.3d 706

Texas Health and Human Services Commission, Plaintiff,

v.United States of America, et al., Defendants.

Civil Action No. 3:15–CV–3851–N

United States District Court, N.D. Texas, Dallas Division, DALLAS DIVISION.

Signed February 8, 2016

Austin R. Nimocks, Angela V. Colmenero, Adam Nicholas Bitter, Office of the Texas Attorney General, Austin, TX, for Plaintiff.

Stuart Justin Robinson, Michelle Bennett, U.S. Department of Justice, Washington, DC, Rebecca L. Robertson, American Civil Liberties Union of Texas, Neal Stuart Manne, Susman Godfrey LLP, Robert Rivera, Jr., Robert S. Safi, Shawn L. Raymond, Terrell W. Oxford, Vineet Bhatia, Susman Godfrey LLP, Houston, TX, Cecillia D. Wang, Nida Vidutis, American Civil Liberties Union Foundation, San Francisco, CA, Judy Rabinovitz, Michael K.T. Tan, Omar C. Jadwat, ACLU Foundation Immigrants' Rights Project, Stephen Shackelford, Jr., Susman Godfrey LLP, New York, NY, Justin B. Cox, Law Offices of Justin B. Cox, Kristi Lee Graunke, Michelle Lapointe, Atlanta, GA, Karen C. Tumlin, Nicholas Espiritu, Los Angeles, CA, for Defendants.

ORDER

David C. Godbey, United States District Judge

This Order addresses Plaintiff Texas Health and Human Services Commission's (the “Commission”) amended application for preliminary injunction against Defendant International Rescue Committee, Inc. (“IRC”) and the Federal Defendants¹ [17]. Because the Commission has failed to establish a substantial threat of irreparable injury and because the applicable statutes do not contemplate a judicial remedy, the Court denies the application.

I. Introduction

Federal district courts are “courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.”² While perhaps not technically within the reach of the political question doctrine,³ this case presents a litany of political questions, including: (1) the legislative branch's commitment to the executive of determining the number of refugees to admit in any given year; (2) the executive branch's administration of foreign policy in determining, in conjunction with the international community, our country's share of shouldering the burden of refugees; (3) the executive branch's exercise of its national security duties in determining which refugees to admit; and (4) the federalism and separation of powers issues inherent in the federal legislative instruction to the federal executive to consult with the states on refugee resettlement. Somewhat ironically, Texas, perhaps the reddest of red states, asks a federal court to stick its judicial nose into this political morass, where it does not belong absent statutory authorization. Finding no such authorization, this Court will leave resolution of these difficult issues to the political process. See Haig v. Agee , 453 U.S. 280, 292, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (“Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention.”).

II. No Substantial Threat of Irreparable Injury

To secure a preliminary injunction, the Commission bears the burden of establishing:

(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.

Janvey v. Alguire , 647 F.3d 585, 595 (5th Cir.2011) (internal quotation marks and citation omitted). To establish irreparable injury, the Commission must demonstrate that the harm is “real, imminent, and significant—not merely speculative or potential—with admissible evidence and a clear likelihood of success.” Aquifer Guardians in Urban Areas v. Fed. Highway Admin. , 779 F.Supp.2d 542, 574 (W.D.Tex.2011) (internal quotation marks and citations omitted). The Commission originally contended that there is a substantial threat of irreparable harm here because (1) the resettlement of Syrian refugees in Texas will jeopardize the security of Texas citizens, and (2) the IRC has breached its contract with the Commission, which stipulates that any breach constitutes irreparable harm. The Court previously denied the Commission's second application for a temporary restraining order [18] because the Commission “failed to establish by a preponderance of the admissible evidence that there is a substantial threat of irreparable injury.” Order 2, December 9, 2015[19]. The Commission now offers additional evidence in its reply brief to attempt to address those deficiencies.⁴

The Commission's principal new evidence is the Supplemental Declaration of Robert J. Bodisch. It to some degree cures the problem of unauthenticated evidence, but it does not otherwise cure the Commission's evidentiary deficiencies. The Supplemental Declaration probably qualifies Deputy Director Bodisch as an expert on terrorism and supports his opinion that refugees from Syria pose a greater risk than other refugees. He offers no evidence, however, from which the Court could determine that the risk is substantial. He establishes the arrests and/or indictment of two refugees on terrorism charges. Of course, the arrest or indictment of a defendant is not evidence of guilt. See United States v. Williams , 22 F.3d 580, 582 (5th Cir.1994). There is no evidence from the investigating officers of the facts that might support a determination that the two defendants actually are terrorists. Finally, Deputy Director Bosisch proves the content of statements by other governmental officials. While that may cure the unauthenticated part of the “unauthenticated hearsay” problem, it does not cure the hearsay part of the problem.⁵ The Court finds that the Commission's new evidence does not materially change the Court's prior analysis.

Thus, the Court is left with evidence only that Syrian refugees pose some risk. The Commission still fails “to show by competent evidence that any terrorists actually have infiltrated the refugee program, much less that these particular refugees are terrorists intent on causing harm.” Order 2, December 9, 2015[19].⁶ That is still insufficient to establish substantial risk of irreparable injury.

In its Reply Brief, the Commission argued for the first time that irreparable injury would arise from the loss of its statutory right to foreknowledge and from damage to its sovereign interests. Pl.'s Reply Br. 10–11 [57]. It appears that the Commission argues that (1) the statute gives it a right to consult, which gives it a right to advance information concerning the specific refugees to be resettled prior to resettlement; (2) the Federal Defendants are not providing the desired information; and (3) deprivation of the right to advance notice cannot be cured after the fact—because it would not then be advance notice—and thus is irreparable. This argument appears to equate likelihood of success on the merits with irreparable harm. It fails to show how the absence of advance notice irreparably harms the Commission. The Court finds this argument unpersuasive.

Finally, the Commission invokes a contractual clause between itself and the IRC as demonstrating irreparable harm. The Commission argues that its contract with the IRC provides that, in the event of any breach, “ ‘the State will be irreparably harmed,’ ” and the IRC must “ ‘not oppose the entry of an appropriate order compelling performance.’ ” Pl.'s Am. Appl. 12 [17] (quoting Ex. I, “HHSC Uniform Contract Terms & Conditions” 22 [17–9] ). The Court rejects the contention that a contractual stipulation between the parties is binding on the Court or can alone justify the imposition of a preliminary injunction—a form of extraordinary relief. See Dickey's Barbecue Rests., Inc. v. GEM Inv. Grp., L.L.C. , 2012 WL 1344352, at *4 (N.D.Tex.2012).

A showing of irreparable harm is no less crucial in a request for a preliminary injunction than it is for a temporary restraining order. Because the Commission has not borne its burden of establishing a substantial threat of irreparable injury by competent evidence, the Court denies the amended application for a preliminary injunction.

III. Likelihood of Success on the Merits

The Commission is unlikely to succeed on the merits because it has no viable cause of action against the Federal Defendants. The Commission brings two claims against the Federal Defendants: Count I is a claim for declaratory judgment under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 –02, that the Federal Defendants have breached a statutory duty of advance consultation under the Refugee Act of 1980, 8 U.S.C. § 1522(a)(2)(A) (the “Refugee Act”). Count II is a claim for declaratory judgment under the Administrative Procedure Act (the “APA”), 5 U.S.C. § 706, that the Federal Defendants' failure to consult is unlawful. Because neither the Refugee Act nor the APA creates a cause of action for the Commission to compel advance consultation regarding the resettlement of individual Syrian refugees in Texas, the Commission is unlikely to succeed on the merits.

A. The Declaratory Judgment Act Provides a Remedy, Not a Cause of Action

The Declaratory Judgment Act provides that, “[i]n a case of actual controversy within its jurisdiction, ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). The Declaratory Judgment Act “enlarged the range of remedies available in the federal courts but did not extend their jurisdiction.” Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 94 L.Ed. 1194 (1950). Thus, “the Declaratory Judgment Act alone does not create a federal cause of action.” Harris Cty., Tex. v. MERSCORP Inc., 791 F.3d 545, 552 (5th Cir.2015). To obtain relief under the Declaratory...