Bilbro v. Haley

Decision Date19 January 2017
Docket NumberC/A No. 3:16–767–JFA
Citation229 F.Supp.3d 397
CourtU.S. District Court — District of South Carolina
Parties Walter B. BILBRO, Plaintiff, v. Nikki Randhawa HALEY, Governor South Carolina Office of Governor; Susan Alford, Director South Carolina Department of Social Services ; Mark Hammond, Secretary South Carolina Secretary of State; Dorothy Addison, Director Refugee Resettlement Plan; Curtis M. Loftis, Jr., State Treasurer South Carolina State Treasurer; Mark Keel, Chief South Carolina Law Enforcement Division (SLED); Colonel Michael Oliver, Commander South Carolina Highway Patrol (SCHP); Leroy Smith, Director South Carolina Department of Public Safety ; Catherine Heigel, Director South Carolina Department of Health [and] Environmental Control (SCDHEC); Richard Eckstrom, Comptroller South Carolina Office of Comptroller General; Molly Spearman, State Superintendent South Carolina Department of Education South Carolina Superintendent of Education; Ted Goins, President Lutheran Services Carolinas; Jason Lee, Director World Relief Spartanburg; Tim Breene, CEO World Relief Corporation of National Association of Evangelicals; Ambassador Daniel V. Speckhard, President and CEO Lutheran World Relief; All Name Variations as filed United States of America; Barack Hussein Obama, President Chief Executive Officer Executive Office of the United States of America; Jeh Johnson, Secretary U.S. Department of Homeland Security and its subordinate agencies; Gil Kerlikowske, Commissioner U.S. Department of Customs and Border Protection and its subordinate agencies; Leon Rodriguez, Director U.S. Citizenship and Immigration Services and its subordinate agencies; Ronald D. Vitiello, Deputy Chief, Border Patrol U.S. Department of Customs and Border Protection and its subordinate agencies; Thomas S. Winkowski, Acting Director U.S. Department of Immigration and Customs Enforcement and its subordinate agencies; Loretta Lynch, Attorney General U.S. Department of Justice and its subordinate agencies; Anne C. Richard Assistant Secretary of State for Population, Refugees, and Migration and its subordinate agencies; and Jacob J. Lew U.S. Department of Treasury and its subordinate agencies, Defendants.

Lauren L. Martel, Lauren Martel Law Office, Hilton Head, SC, for Plaintiff.

Kenneth Paul Woodington, William Henry Davidson, II, Davidson Morrison and Lindemann, Kristen Elizabeth Horne, Nelson Mullins Riley and Scarborough, Eugene H. Matthews, Richardson Plowden and Robinson, Edward Scott Winburn, SC Department of Education, Steve Suggs, SC Appleseed Legal Justice Center, Barbara Murcier Bowens, US Attorneys Office, Columbia, SC, Samuel W. Outten, Nelson Mullins Riley and Scarborough, Greenville, SC, Kristi Lee Graunke, Southern Poverty Law Center, Atlanta, GA, Erez Reuveni, US Department of Justice, Washington, DC, Joseph Anton Darrow, US Department of Justice, pro hac, vice, for Defendants.


JOSEPH F. ANDERSON, JR., United States District Judge


This case was originally filed in state court on February 12, 2016, against South Carolina Department of Social Services ("SCDSS"), SCDSS's Director Susan Alford, Refugee Resettlement Program Director Dorothy Addison, Governor Nikki R. Haley, Lutheran Services Carolinas, and World Relief Spartanburg along with its director, Jason Lee, essentially to cease the "state refugee program" (hereinafter "State Plan"). ECF No. 1–1. On March 10, 2016, the case was removed to this Court under federal question jurisdiction due to the claims relating to the federal Immigration and Nationality Act of 19521 ("INA"), the Refugee Act of 19802 ("Refugee Act"), (collectively, the "Acts") and the implementation in South Carolina of the federal refugee resettlement program. ECF No. 1.

Upon removal, various motions, to include motions to dismiss (ECF Nos. 10–11 and 33–35), a motion to remand (ECF No. 13), and motion for summary judgment (ECF No. 30), were filed in this case, along with an amended complaint (ECF No. 24). On May 23, 2016, a status conference was held to address the various motions and amended complaint. ECF No. 43. At the hearing, the Plaintiff withdrew his motion to remand and made an oral motion to amend his complaint. Id. The Court granted the oral motion to amend the complaint and found all remaining motions to be moot. Id.

At the time the Court granted Plaintiff's motion to amend, the amended complaint was thirteen (13) pages long with additional attachments and named seven (7) defendants, including the directors of the named entities. ECF No. 24. On June 20, 2016, Plaintiff filed his second amended complaint, which is forty-six (46) pages long with attachments totaling over 200 pages against twenty-five (25) defendants, with their associated entities, essentially alleging that refugees are being improperly vetted and resettled in South Carolina placing Plaintiff in imminent harm and requesting the State Plan to be enjoined and an accounting to be done. ECF Nos. 46–47, 49–58.

The defendants will be addressed as five distinct groups based upon their jointly made motions: (1) Mark Hammond, South Carolina Secretary of State ("Hammond"); (2) Molly Spearman, South Carolina Department of Education Superintendent ("Spearman"); (3) State Defendants3 ; (4) Ted Goins, President for Lutheran Services Carolinas; Jason Lee, Director for World Relief Spartanburg; and Tim Breene, CEO for World Relief Corporation of National Association of Evangelicals (collectively "Relief Services"); and (5) Federal Defendants.4

In his second amended complaint, Plaintiff alleged fourteen (14) causes of action, stated verbatim as:

COUNT ONE[:] Violation of The Take Care Clause, Art. II, § 3, Cl. 5
COUNT TWO: Violation of the APA, 5 U.S.C. § 553
COUNT THREE: Violation of the APA, 5 U.S.C. § 706
COUNT FOUR: Abandonment and failing to enforce Immigration Law by the U.S. Executive Office and the President and the Governor's Office of South Carolina and Governor Nikki R. Haley.
COUNT FIVE: ESTABLISHMENT CLAUSE (separation of church and state prohibiting government from forcing religion)
COUNT SEVEN: "Take Care" Clause of SC Constitution
COUNT EIGHT: No Legislating by Executives
COUNT NINE: Violation of Privacy State and Federal
COUNT TEN: Federal Taking Clause
COUNT ELEVEN: State and Governor
COUNT TWELVE: The Declaration of Rights SC Constitution
COUNT THIRTEEN: Duty of Governor to give information to General Assembly
COUNT FOURTEEN: Equitable, Injunctive Writ of Mandamus and other relief to declare the State Plan and Other Directives Null and Void

ECF No. 46. In addition, Plaintiff filed a motion for a temporary restraining order, an injunction, and a writ of mandamus with various attachments in support. ECF No. 48.

On July 8, 2016, Defendant Hammond filed a motion to dismiss for failure to state a claim upon which relief could be granted. ECF No. 70. On July 15, 2016, State Defendants answered. ECF No. 74. On July 18, 2016, Relief Services filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. ECF No. 75. On July 19, 2016, Defendant Spearman filed a motion to dismiss for failure to state a claim upon which relief could be granted. ECF No. 76. On August 4, 2016, State Defendants filed a motion for summary judgment for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted.5 ECF No. 79. On September 12, 2016, Federal Defendants filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim.6 ECF No. 105. Plaintiff responded in opposition to each of these motions with additional documents attached. ECF Nos. 78, 80–82, 84–87, 101, 103, 104, 107–111. Defendant Spearman, State Defendants, and Federal Defendants filed replies. ECF Nos. 90, 102, 113. On October 17, 2016, a hearing on all motions was held before this Court. ECF No. 119. At the conclusion of the hearing, this Court stated its intended ruling to grant Defendants' motions to dismiss with and without prejudice.7 In addition, Plaintiff was provided forty-five days to submit a proposed third amended complaint for the Court's review to determine if it would be futile against certain defendants. The Court takes this opportunity to clarify its ruling and issue a written order.

A. Motion to Dismiss for Failure to State a Claim

A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "To survive a motion to dismiss, 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 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 pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. The court must determine whether the factual allegations in a complaint state a plausible claim for relief based on "judicial experience and common sense." Id. at 679, 129 S.Ct. 1937. In addition, the court "should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari , 7 F.3d 1130, 1134 (4th Cir. 1993). "[T]he court ‘need not accept the [plaintiff's] legal conclusions drawn from the facts,’ nor need it ‘accept as true unwarranted inferences, unreasonable conclusions, or arguments.’ " Wahi v. Charleston Area Med. Ctr., Inc. , 562 F.3d 599, 615 n. 26 (4th Cir. 2009) (quoting Kloth v. Microsoft Corp. , 444 F.3d 312, 319 (4th Cir. 2006) ).

B. Motion to Dismiss for Lack of Subject Matter Jurisdiction

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