Alabama, State of et al v. United States of America et al

Filing 43

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 7/29/2016. (KAM, )

FILED
2016 Jul-29 PM 03:26
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
STATE OF ALABAMA, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.

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Case No.: 2:16-cv-00029-JEO

MEMORANDUM OPINION
The State of Alabama and various Alabama state officials 1 (collectively
referred to as “Plaintiffs”) bring claims against the United States of America and
various federal departments, agencies, and officials 2 (collectively referred to as
“Defendants”) for declaratory and injunctive relief based on Defendants’ alleged
failure to consult regularly with Plaintiffs regarding the placement of refugees in
the State of Alabama. (Doc. 1 (“Complaint” or “Compl.”)). This matter is now
before the court on Defendants’ motion to dismiss for failure to state a claim upon

1

The Plaintiffs are: State of Alabama, Stephanie McGee Azar, in her official capacity as
Commissioner of the Alabama Medicaid Agency, Thomas M. Miller, M.D., in his official
capacity as Acting State Health Officer, and Spencer Collier, in his Official Capacity as
Secretary of the Alabama Law Enforcement Agency.
2

The Defendants are: United States of America, United States Department of State, John Kerry,
in his official capacity as Secretary of State, Bureau of Population, Refugees, and Migration,
Anne C. Richard, in her official capacity as Assistant Secretary of State, United States
Department of Health and Human Services, Sylvia Burwell, in her official capacity as Secretary
of Health and Human Services, Office of Refugee Resettlement, and Robert Carey, in his official
capacity as Director of the Office of Refugee Resettlement.

which relief can be granted. (Doc. 7). The parties have fully briefed that motion
(See Docs. 7, 19, 23, 27, 40). Upon consideration, the court finds the motion to
dismiss is due to be granted.3
I.
Rule 12(b)(6), FED. R. CIV. P., authorizes a motion to dismiss an action on
the ground that the allegations in the complaint fail to state a claim upon which
relief can be granted. On such a motion, the “‘issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer evidence to support
the claims.’” Little v. City of North Miami, 805 F.2d 962, 965 (11th Cir. 1986)
(quoting Scheur v. Rhodes, 416 U.S. 232, 236 (1974)). In considering a motion to
dismiss, the court assumes the factual allegations in the complaint are true and
gives the plaintiff the benefit of all reasonable factual inferences. Hazewood v.
Foundation Financial Group, LLC, 551 F.3d 1223, 1224 (11th Cir. 2008) (per
curiam).
Rule 12(b)(6) is read in light of Rule 8(a)(2), FED. R. CIV. P., which requires
only “a short and plain statement of the claim showing that the pleader is entitled
to relief,” in order to “‘give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests.’” See Bell Atl. Corp. v. Twombly, 550 U.S. 544,

3

This action was assigned to the undersigned United States Magistrate Judge pursuant to the
court’s general order of reference of actions to magistrate judges dated January 1, 2015. The
parties have since consented to the exercise of plenary jurisdiction under 28 U.S.C. § 636(c)
(Doc. 10).

2

555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

“While a

complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement
to relief requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Id. (citations, brackets, and internal
quotation marks omitted). “Factual allegations must be enough to raise a right to
relief above the speculative level . . . .” Id. Thus, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face,’” i.e., its “factual content . . . allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557).
II.
This action arises from Plaintiffs’ alleged concerns regarding the potential
placement of Syrian refugees within the State of Alabama. (See Compl. ¶¶ 26-30).
After President Obama announced that 10,000 of the up to 85,000 refugees
admitted to the United States during fiscal year 2016 would be from Syria, 4 and in

4

The Refugee Act of 1980 provides “the number of refugees who may be admitted under this
section in any fiscal year [] shall be such number as the President determines, before the
beginning of the fiscal year and after appropriate consultation [with members of the Committees

3

response to terrorist attacks in Paris, France, Governor Robert Bentley issued
Executive Order No. 14 on November 16, 2015, directing “all departments, budget
units, agencies, offices, entities, and officers of the executive branch of the State of
Alabama . . . to utilize all lawful means to prevent the resettlement of Syrian
refugees in the State of Alabama until this order is rescinded . . . .” (Compl. ¶¶ 2829; Doc. 1-1 p. 5). See also Presidential Determination on Refugee Admissions for
Fiscal Year 2016, 80 Fed. Reg. 62433 (Sept. 29, 2015). Governor Bentley sent the
executive order to President Obama along with a letter outlining his concerns
regarding the resettlement of Syrian refugees in the United States. (Compl. ¶ 30;
Doc. 1-1 pp. 2-3).
Following communications with the Obama Administration, Governor
Bentley sent a letter to the White House Chief of Staff and the Principal Deputy
Assistant Secretary for the Department of State on November 25, 2015, informing
them “the State of Alabama has not received either voluntary consultations or
quarterly reports” from the Catholic Social Services of the Greater Mobile Area
(“CSS”), the nonprofit voluntary agency serving as the refugee resettlement agency
in Alabama. 5 (Compl. ¶ 31; Doc. 1-1 p. 7). Governor Bentley expressed concern

on the Judiciary of the Senate and of the House of Representatives], is justified by humanitarian
concerns or is otherwise in the national interest.” 8 U.S.C. § 1157(a)(2) & (e).
5

Alabama withdrew from the state-administered Refugee Resettlement Program effective
September 30, 2001. (See Doc. 7-2 p. 2). According to Plaintiffs, “the State Department has an
agreement with the U.S. Conference of Catholic Bishops as a resettlement agency [in Alabama],

4

regarding the refugee vetting process and the lack of reporting by CSS, and he
requested that the Administration direct CSS and the United States Conference of
Catholic Bishops to provide the required reports and consultations “beginning
immediately.” (Doc. 1-1 pp. 7-8).
Governor Bentley wrote again to the White House Chief of Staff on
December 2, 2015, to express his “growing frustration with the lack of answers
[his] office is receiving regarding [the refugee resettlement program].” (Id. p. 10).
In the letter, he also stated “Alabama has not received any mandated reports
regarding refugees of any national origin” and reiterated his “great concerns with
the refugee vetting process, particularly the lack of state involvement, oversight or
knowledge.” (Id. pp. 10-11).
Finally, on December 30, 2015, Governor Bentley wrote to the Director of
Refugee Admissions for the Bureau of Population, Refugees, and Migration
requesting that the U.S. Department of State “provide a tailored report for Alabama
regarding refugee resettlement.” (Id. p. 13). Specifically, he requested that the
State Department provide “the total number of refugees resettled in the state
broken down by nationality, age range and gender” and update the information
provided on a monthly basis via a secure website. (Id.).

which, in turn, has a sub-agreement with Catholic Social Services of the Greater Mobile Area.”
(Compl. p. 5, n.1).

5

Apparently unsatisfied with the federal government’s response, Plaintiffs
filed this action on January 7, 2016, asking this court for declaratory and injunctive
relief relating to Defendants’ alleged failure to fulfill their consultation obligations
under the Refugee Act. (See Compl.). Specifically, Plaintiffs seek a declaratory
judgment “setting forth the parties’ rights and obligations accordingly and an
injunction directing Defendants to fulfill their statutory obligations” under the
Refugee Act. (Id. ¶ 38). Plaintiffs also ask the court for an order compelling
Defendants to comply with their statutory consultation obligations under the
Refugee Act. (Id. ¶¶ 42 & 48).
III.
Plaintiffs assert three claims for declaratory and injunctive relief against
Defendants under the Declaratory Judgment Act, the Refugee Act, the
Administrative Procedures Act, and the Mandamus and Venue Act. As discussed
below, each of Plaintiffs’ three claims fails to state a claim for which relief may be
granted because (1) there is no private right of action to enforce the Refugee Act,
(2) the consultation required is not an agency action under the Administrative
Procedures Act, and (3) Plaintiffs do not have a clear right to relief and Defendants
do not owe them a clear ministerial duty. Accordingly, Defendants’ motion to
dismiss is due to be granted. Because some understanding of the Refugee Act is
helpful to understanding the issues raised by Defendants’ motion, the court will

6

first briefly discuss the statutory background of the Act before addressing
Plaintiffs’ claims and Defendants’ motion to dismiss.
A. Statutory Background
“The authority to control immigration . . . is vested solely in the Federal
government.” Takahashi v. Fish and Game Comm’n, 334 U.S. 410, 416 (1948)
(citation omitted). Pursuant to that power, Congress enacted the Refugee Act of
1980, which amended the Immigration and Nationality Act, to “provide a
permanent and systematic procedure for the admission [] of refugees of special
humanitarian concern to the United States, and to provide comprehensive and
uniform provisions for the effective resettlement and absorption of those refugees
who are admitted.” Refugee Act of 1980, Pub. L. No. 96-212 § 101(b). The
Refugee Act establishes the Office of Refugee Resettlement (“ORR”) within the
Department of Health and Human Services and authorizes the Director of ORR “to
make grants to, and contracts with, public or private nonprofit agencies for initial
resettlement of refugees in the United States.” 8 U.S.C. §§ 1521 & 1522(b)(1)(A).
Additionally, the Director of ORR is authorized to provide assistance and
reimbursement to States for the cost of cash and medical assistance provided to
refugees during the refugees’ first three years in the United States.
§ 1522(e)(1).

7

Id. at

The Refugee Act outlines a framework for cooperation between the federal
government, states, and nonprofit agencies for resettling refugees in the United
States. The Act states “[i]t is the intent of Congress that in providing refugee
assistance under this section . . . local voluntary agency activities should be
conducted in close cooperation and advance consultation with State and local
governments.” Id. at § 1522(a)(1)(B)(iii). The Act also provides that the “Director
[of ORR] and the Federal agency administering [grants to and contracts with
nonprofit agencies for the initial resettlement of refugees] shall consult regularly []
with State and local governments and private nonprofit voluntary agencies
concerning the sponsorship process 6 and the intended distribution of refugees
among the States and localities before their placement in those States and
localities.” Id. at § 1522(a)(2)(A). Additionally, the Act requires the Director of
ORR to “develop and implement, in consultation with representatives of voluntary
agencies and State and local governments, policies and strategies for the placement
and resettlement of refugees” and provides that “[w]ith respect to the location of
placement of refugees within a State, the Federal [government] shall, consistent
with such policies and strategies and to the maximum extent possible, take into
account recommendations of the State.” Id. at § 1522(a)(2)(B) & (D).
6

The sponsorship process is the process through which resettlement agencies commit to
providing assistance to newly arrived refugees in the United States. (Doc. 7-1 p. 12) (citing U.S.
Dept. of State, Bureau of Population, Refugees, and Migration Fact Sheet, Refugee Resettlement
in the United States (Sept. 16, 2010)).

8

B. There is no private right of action under the Refugee Act.
In Count I of their Complaint, Plaintiffs seek declaratory and injunctive
relief under the Declaratory Judgment Act based on Defendants’ alleged violation
of the Refugee Act. (Compl. ¶¶ 35-38). Plaintiffs assert Defendants violated the
Refugee Act by failing to consult with Alabama as required by the Act. (Id. at ¶
37). The violation of a federal statute, however, “does not automatically give rise
to a private cause of action in favor of [the person harmed by the violation].”
Alabama v. PCI Gaming Authority, 801 F.3d 1278, 1293-94 (11th Cir. 2015)
(quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 688 (1979)). Instead, “private
rights of action to enforce federal law must be created by Congress.” Alexander v.
Sandoval, 532 U.S. 275, 286 (2001) (citing Touche Ross & Co. v. Redington, 442
U.S. 560, 578 (1979)). “A statute may . . . create a cause of action either expressly
or by implication.” PCI Gaming Authority, 801 F.3d at 1294 (citation omitted).
The Refugee Act does not contain an express provision granting a federal
cause of action to enforce the provisions of the Act. See 8 U.S.C. §§ 1521-1524.
Thus, the Refugee Act does not expressly create a private right of action.7 See PCI
Gaming Authority at 1294 (quoting Smith v. Russellville Prod. Credit Ass’n, 777

7

Plaintiffs do not dispute the Refugee Act does not contain an express private right of action.
(See doc. 19 at 7-12)

9

F.2d 1544, 1547 (11th Cir. 1985). The question before this court, therefore, is
whether the Refugee Act creates an implied right of action. 8
“In determining whether a statute gives rise to an implied right of action,
‘[t]he judicial task is to interpret the statute Congress has passed to determine
whether it displays an intent to create not just a private right but also a private
remedy.’” Id. (quoting Love v. Delta Air Lines, 310 F.3d 1347, 1352 (11th Cir.
2002) (quoting in turn Sandoval, 532 U.S. at 286). “Congressional intent to create
a private right of action will not be presumed. There must be clear evidence of
Congress’s intent to create a cause of action.”

McDonald v. Southern Farm

Bureau Life Ins. Co., 291 F.3d 718, 723 (11th Cir. 2002) (quotation omitted). “In
the absence of congressional intent to create an implied right of action, ‘a cause of
action does not exist, and courts may not create one, no matter how desirable that
might be as a policy matter, or how compatible with the statute.’” PCI Gaming
Authority, 801 F.3d at 1294 (quoting Love, 310 F.3d at 1352) (quoting in turn
Sandoval, 532 U.S. at 286-87) (internal alteration omitted).
The Eleventh Circuit articulated a three-part inquiry for determining if
Congress intended to create an implied private right of action. See PCI Gaming
Authority, 801 F.3d at 1295; Love, 310 F.3d at 1352-53. “[F]irst and foremost,

8

The parties dispute whether an implied right of action may be asserted against the federal
government. (See docs. 23, 27, 32, 34, 38, 40). Because the court concludes the Refugee Act
does not create an implied right of action, the court need not and does not address the issue.

10

[courts] look to the statutory text for ‘rights-creating’ language.” PCI Gaming
Authority, 801 F.3d at 1295 (quoting Love, 310 F.3d at 1352) (quoting in turn
Sandoval, 532 U.S. at 288). “Second, [courts] examine the statutory structure
within which the provision in question is embedded.” PCI Gaming Authority, 801
F.3d at 1295 (quoting Love, 310 F.3d at 1353).

Finally, “if—and only if—

statutory text and structure have not conclusively resolved whether a right of action
should be implied,” courts look to the legislative history of the statute in question.
Id. (quoting Love, 310 F.3d at 1353) (internal quotation and alteration omitted).
See also Sandoval, 532 U.S. at 288 (“[L]egal context matters only to the extent it
clarifies text.”).
1. Rights-creating language
“[T]he right- or duty-creating language of the statute has generally been the
most accurate indicator of the propriety of implication of a cause of action.”
Cannon v. Univ. of Chicago, 441 U.S. 677, 690, n.13 (1979). “Where a statute
does not include this sort of explicit ‘right- or duty-creating language’, [the
Supreme Court] rarely impute[s] to Congress an intention to create a private right
of action.” Gonzaga University v. Doe, 536 U.S. 273, 284 n.3 (2002) (citations
omitted).
“‘Rights-creating language’ is language ‘explicitly conferring a right directly
on a class of persons that includes the plaintiff in a case,’ [] or language identifying
11

‘the class for whose especial benefit the statute was enacted.’” Love, 310 F.3d at
1352 (internal citation and alteration omitted). For example, the Supreme Court
found a statute “decree[ing] that ‘no person shall be subjected to discrimination’”
contains rights-creating language, and, therefore, creates an implied right of action.
Sandoval, 532 U.S. at 289-90 (citing Cannon v. Univ. of Chicago, 441 U.S. 677,
690, n.13 (1979) & 42 U.S.C. § 2000d-1) (internal alterations omitted). Similarly,
the Eleventh Circuit found a provision in the Americans with Disabilities Act
stating “[n]o person shall discriminate against any individual because such
individual has opposed any act or practice made unlawful by this chapter” contains
rights-creating language. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1167
(11th Cir. 2003) (quoting 42 U.S.C. § 12203(a)) (emphasis omitted). On the other
hand, “a statute that merely describes how the federal government will effectuate
or enforce rights does not contain rights-creating language.” PCI Gaming, 801
F.3d at 1297 (citing Sandoval, 532 U.S. at 288-89). Additionally, the Supreme
Court found a statute “phrased as a directive to federal agencies engaged in the
disbursement of public funds” does not contain rights-creating language.
Universities Research Ass’n, Inc. v. Coutu, 450 U.S. 754, 772 (1981) (finding the
language in § 1 of the Davis-Bacon Act, which requires certain federal contracts to
contain a provision stating the minimum wages to be paid to mechanics and
laborers, “does not confer rights directly on those individuals . . . [and] provides no
12

support for the implication of a private remedy”) (quoting Cannon, 441 U.S. at
693, n. 14).
The provision of the Refugee Act at issue here is phrased as a command to
the Director of ORR and the federal agency administering initial resettlement
assistance under the Act:
The Director and the Federal agency administering [initial
resettlement assistance under the Refugee Act] shall consult regularly
(not less often than quarterly) with State and local governments and
private nonprofit voluntary agencies concerning the sponsorship
process and the intended distribution of refugees among the States and
localities before their placement in those States and localities.
8 U.S.C. § 1522(a)(2)(A).

Although § 1522(a)(2)(A) refers to the State and

requires the Director and federal agency to consult with the State, it does not speak
directly to the State. Rather, the provision’s reference to the State is made in the
context of describing how the federal government must carry out its obligations
under the Act. Accordingly, the language of the statute does not indicate “an
unmistakable focus on the benefitted class.” Coutu, 450 U.S. at 772. Moreover,
even if the federal government’s consultation obligation under § 1522(a)(2)(A) is
meant to benefit the State, that alone is not enough to show the statute contains
rights-creating language or implies a private right of action. See id. at 771 (“[T]he
fact that an enactment is designed to benefit a particular class does not end the
inquiry; instead it must also be asked whether the language of the statute indicates
that Congress intended that it be enforced through private litigation.”) (citation
13

omitted). Indeed, the language in § 1522(a)(2)(A) is similar to language in a
statute the Eleventh Circuit found not to contain rights-creating language.
In Arrington v. Helms, 438 F.3d 1336 (11th Cir. 2006), the Eleventh Circuit
addressed, among other things, whether 42 U.S.C. § 657, a section of the Social
Security Act, contains rights creating language. Id. at 1345-46. Section 657
describes how a State must distribute child support payments collected by the State
on behalf of families, and the section repeatedly states “the State shall . . . pay to
the family.” See 42 U.S.C. § 657. The Eleventh Circuit noted “§ 657’s language
speaks only to the states,” and “does not speak directly to individual [families].”
Arrington, 438 F.3d at 1346. Additionally, the Court found the statute did not
focus on the needs of any individual family, but instead only refers to the
individual families “to explain how the state generally must distribute child support
funds.” Id. Accordingly, the Eleventh Circuit held § 657 does not contain rightscreating language. Id.
Based on the Eleventh Circuit’s reasoning in Arrington, the Refugee Act
does not contain the rights-creating language that is generally required to show
Congress’s intent to create an implied private right of action. See Delancey v. City
of Austin, 570 F.3d 590, 594 (5th Cir. 2009) (finding a statute requiring a federal
agency to provide certain advisory services to displaced persons did not contain
rights-creating language and did not create an implied right of action in favor of
14

the displaced persons); Texas Health and Human Services Comm’n v. United
States of America, No. 15-cv-3851, Order at 7-9 (N.D. Tex. June 16, 2016)
(finding the Refugee Act does not contain rights-creating language). Nothing in
Plaintiffs’ opposition brief compels a different result.
Plaintiffs argue “§ 1522(a)(2)(A)’s focus is on ‘the [S]tates themselves,’”
and, therefore, the statute contains rights-creating language. (Doc. 19 at 8). That
argument, however, is at odds with the language of § 1522(a)(2)(A), which refers
to the States only to explain how the federal government must carry out its
obligations under the Act. Plaintiffs’ argument is also not supported by Eleventh
Circuit case law. As discussed above, the Eleventh Circuit has found that a statute
may refer to a class of persons or entities and require the government to take action
relative to those persons or entities, but still not contain rights-creating language.
See Arrington, 438 F.3d at 1345 (“[E]ven though [the statute] contain[s] language
requiring the state to take certain actions relative to individual foster children (e.g.,
the State shall file a petition [to terminate the parental rights of the child’s parents],
we determined [the statute] do[es] not have the kind of focused-on-the-individual,
rights-creating language required by Gonzaga.”) (quoting 31 Foster Children v.
Bush, 329 F.3d 1255, 1272 (11th Cir. 2003)). See also Coutu, 450 U.S. at 771-73
(recognizing § 1 of the Davis-Bacon Act is “a minimum wage law designed for the

15

benefit of construction workers,” but finding the Act does not contain rightscreating language).
Next, the present case is distinguishable from Gregoire v. Rumsfeld, 463
F.Supp. 2d 1209 (W.D. Wash. 2006), the case Plaintiffs rely upon to argue
Alabama has a right to enforce its consultation rights against the federal
government.

In Gregoire, the Governor of Washington sought to enjoin the

Secretary of Defense from implementing the Defense Base Closure and
Realignment Commission’s recommendations regarding Washington’s Air
National Guard, arguing implementation of the recommendations would violate 32
U.S.C. § 104. Id. at 1213. Among the issues the district court addressed was
whether a private right of action exists under § 104. The district court concluded
there is a private right of action under the statute in part because the Governor was
“one of the class for whose especial benefit the statute was enacted.” Id. at 122324 (quotation omitted). § 104 gives governors “power to consent or withhold
[their] consent to changes in the ‘branch, organization or allotment of a [National
Guard] unit’” by stating, “no change in the branch, organization, or allotment of a
unit located entirely within a State may be made without the approval of its
governor.” Id. at 1214-15, 1223 (quoting 32 U.S.C. § 104). No similar language is
found in the Refugee Act; indeed, the legislative history of the Act shows the Act’s
consultation provision is “not intended to give States [] any veto power over
16

refugee placement decisions.” 8 U.S.C. § 1522; H.R. Rep. No. 132, 99th Cong.,
1st Sess., 19 (1985). Accordingly, the statute addressed by the district court in
Gregoire is markedly different from the Refugee Act, and Gregoire does not
persuade this court that the Refugee Act contains rights-creating language or
creates an implied right of action.
2. The statutory structure
The statutory structure also contains no indication Congress intended to
create a private right of action for the States under the Refugee Act. As an initial
matter, within the Immigration and Nationality Act, which the Refugee Act
amended, Congress has expressly authorized judicial review of certain federal
actions. See 8 U.S.C. § 1252(b) (authorizing judicial review of final orders of
removal).

When “Congress creates a comprehensive statutory scheme with

express provision for private enforcement in certain circumstances, ‘it is highly
improbable that Congress absentmindedly forgot to mention an intended private
action.’” Texas Health and Human Services Comm’n v. United States of America,
No. 15-cv-3851, Order at 9 (N.D. Tex. June 16, 2016) (quoting Transamerica
Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 20 (1979)). Thus, the presence of an
express cause of action in the Immigration and Nationality Act weighs against
finding an implied right of action in the Refugee Act.

17

Next, although the Refugee Act contains several sections outlining a
framework for cooperation between the federal government and the States, see
supra p. 8 & Doc. 19 pp. 11-12, the Act focuses on the system-wide provision of
resettlement assistance to refugees. See 8 U.S.C. § 1522. The Act does not focus
on the needs of the States. Accordingly, the structure of the Refugee Act does not
support the implication of a private right of action for the States to enforce the Act.
This is especially true within the broader context of the nation’s immigration laws,
which grant the federal government with exclusive authority to control
immigration. See, e.g., Takahashi, 334 U.S. at 416 & 19 (citation omitted). Given
the balance of power between the federal government and the States relating to
immigration, the court finds it highly unlikely that Congress would have intended
to create a private right of action for the States to enforce the Refugee Act without
expressly providing for one.
3. The legislative history
Plaintiffs assert the legislative history of the Refugee Act supports the
implication of a private right of action. (Doc. 19 pp. 13-18). Although courts
should generally refrain from considering legislative history when, as here, the
statutory text and structure are conclusive, see PCI Gaming Authority, 801 F.3d at
1295, the court notes that the legislative history of the Refugee Act contains no
reference to a private right of action to enforce the Act and finds that the Act’s
18

legislative history does not support the implication of a right of action in favor of
the States. See S. Rep. No. 96-256; S. Rep. 97-638; H.R. Rep. No. 99-132.
Although Congress amended the Refugee Act and specifically addressed the
federal government’s consultation obligations under the Act in both 1982 and
1986, Congress did not mention the possibility of a right of action for States to
enforce those obligations, much less amend the Refugee Act to include an express
right of action. See id. Indeed, in amending the Act to strengthen the federal
government’s consultation requirements, “[t]he Committee emphasize[d] that these
requirements are not intended to give States and localities any veto power over
refugee placement decisions, but rather to ensure their input into the process and to
improve their resettlement planning capacity.” H.R. Rep. 99-132 at 19. Thus, the
legislative history does not support Plaintiffs’ argument that Congress intended an
implied right of action to enforce the Refugee Act.
The court finds nothing in the statutory text, structure, or legislative history
to show Congress intended to create a right of action in favor of the States to
enforce the Refugee Act. Thus, the court concludes there is no implied right of
action under the Act. Because Plaintiffs have no right of action under the Refugee
Act, the Declaratory Judgment Act provides them no basis for the relief they seek
in Count I. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950)
(“The operation of the Declaratory Judgment Act is procedural only. [] Congress
19

enlarged the range of remedies available in the federal courts but did not extend
their jurisdiction.”) (internal citation, alteration and quotation marks omitted). (See
also Compl. ¶¶ 35-38). As a result, Count I is due to be dismissed with prejudice.
C. APA
In Count II of their Complaint, Plaintiffs assert a claim for declaratory and
injunctive relief under the Administrative Procedures Act (“APA”).

(Compl.

¶¶ 39-43). The APA “authorizes suit by ‘[a] person suffering legal wrong because
of agency action, or adversely affected or aggrieved by agency action within the
meaning of a relevant statute.’” Norton v. S. Utah Wilderness Alliance, 542 U.S.
55, 61 (2004) (quoting 5 U.S.C. § 702) (alteration in original). The APA defines
“agency action” as “the whole or a part of an agency rule, order, license, sanction,
relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13).
Based on this definition, courts have held “agency action” under the APA does not
encompass everything an agency does, but is limited to circumscribed, discrete
actions. See Norton, 542 U.S. at 62; Fund for Animals, Inc. v. BLM, 460 F.3d 13,
19-20 (D.C. Cir. 2006). Additionally, the Supreme Court found “[t]he final term in
the definition, ‘failure to act,’ is [] properly understood as a failure to take an
agency action—that is, a failure to take one of the agency actions [] earlier defined
in § 551(13).” Norton, 542 U.S. at 62 (emphasis in original).

20

When a plaintiff challenges a federal agency’s failure to act, “[t]he
reviewing court shall [] compel agency action unlawfully withheld or unreasonably
delayed.” 9 5 U.S.C. § 706(1). However, a claim challenging an agency’s failure to
act “can proceed only where a plaintiff asserts that an agency failed to take a
discrete agency action that it is required to take.”

Norton, 542 U.S. at 64

(emphasis in original omitted). Thus, the Supreme Court recognized “[f]ailures to
act are sometimes remediable under the APA, but not always.” Id. at 61.
The Refugee Act requires Defendants to “consult regularly (not less often
than quarterly) with State and local governments . . . before [the refugees’]
placement in those States and localities.” 8 U.S.C. § 1522(a)(2)(A). Plaintiffs
assert “Defendants’ obligations . . . to consult on a regular basis and in advance
with the State of Alabama . . . constitute agency action unlawfully withheld and
unreasonably delayed under 5 U.S.C. § 706(1),” and ask the court to compel
Defendants to comply with their obligation to consult with Alabama. (Compl.
¶ 42).10

9

The APA “empowers a court only to compel an agency ‘to perform a ministerial or nondiscretionary act,’ or ‘to take action upon a matter, without directing how it shall act.’” Norton,
542 U.S. at 64 (quoting Attorney General’s Manual on the Administrative Procedure Act 108
(1947)) (emphasis in original).
10

Plaintiff also assert Defendants’ “failure to consult on a regular basis and in advance with the
State of Alabama . . . constitutes agency action that is arbitrary, capricious, or otherwise unlawful
under 5 U.S.C. § 706(2).” (Compl. ¶ 43). Because Plaintiffs’ allegation under § 706(2) is based
upon Defendants’ alleged failure to act, it is simply a restatement of Plaintiffs’ claim under
§ 706(1).

21

The regular, advance consultation required by the Refugee Act is not “a rule,
order, license, sanction, relief, or the equivalent or denial thereof,” nor is it a
circumscribed, discrete action. Instead, as the Northern District of Texas found, “it
is best understood as an ongoing, dynamic process.” Texas Health and Human
Services Comm’n v. United States of America, No. 15-cv-3851, Order at 10 (N.D.
Tex. Feb. 8, 2016).

Indeed, the ongoing communication required by

§ 1522(a)(2)(A) is simply part of “the common business of managing government
programs.”

See Fund for Animals, Inc., 460 F.3d at 20. As such, it is akin to

“prepar[ing] proposals, conduct[ing] studies, and meet[ing] with members of
Congress and interested groups,” all of which are activities that do not generally
constitute agency action, see id. at 19-20, and this court concludes Defendants’
consultation obligation is not an agency action within the meaning of the APA.
The cases Plaintiffs rely on to argue Defendants’ failure to consult with the
State is a failure to act under the APA do not lead to a different conclusion. First,
in Salmon Spawning & Recovery Alliance v. U.S. Customs & Border Protection,
550 F.3d 1121 (Fed. Cir. 2008), the Federal Circuit addressed the issue of standing;
it did not analyze if regular, ongoing consultation constitutes agency action within
the meaning of the APA. 550 F.3d at 1130-32. Likewise, California Wilderness
Coalition v. U.S. Dept. of Energy, 631 F.3d 1072 (9th Cir. 2011), did not address if
regular, ongoing consultation is an agency action. Rather, in California
22

Wilderness, the plaintiffs challenged a Department of Energy order designating
national interest electric transmissions corridors, and the agency action at issue was
the entry of the designation order and not the Department’s failure to consult with
affected states. Id. at 1079-80 & 1085-96.
Because the regular consultation required by the Refugee Act is not an
agency action under the APA, Plaintiffs have failed to state a claim under the APA
for which relief may be granted. Thus, Count II of Plaintiffs’ Complaint is due to
be dismissed with prejudice.
D. Mandamus
Finally, in Count III of their Complaint, Plaintiffs ask this court to issue a
writ of mandamus “compelling Defendants to comply with their statutory duties”
to consult with the State. (Compl. ¶¶ 44-48). This court has “jurisdiction of any
action in the nature of mandamus to compel an officer or employee of the United
States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C.
§ 1361. “[M]andamus is a ‘drastic’ remedy, ‘to be invoked only in extraordinary
situations.’” U.S. v. Salmona, 810 F.3d 806, 811 (11th Cir. 2016) (quoting Kerr v.
U.S. Dist. Ct. for the N. Dist. of Cal., 426 U.S. 394, 402 (1976)); see also Cash v.
Barnhart, 327 F.3d 1252, 1257 (11th Cir. 2003) (“Mandamus is an extraordinary
remedy which should be utilized only in the clearest and most compelling of
cases.”) (quotation and internal alteration omitted).
23

As an initial matter, “[m]andamus relief is appropriate only when [] there is
no other adequate remedy.” Salmona, 810 F.3d at 811 (quoting Cash, 327 F.3d at
1258); see also Hollywood Mobile Estates Ltd. v. Seminole Tribe of Florida, 641
F.3d 1259, 1268 (11th Cir. 2011). Defendants first argue Plaintiffs fail to state a
claim for mandamus relief because an alternative remedy is available to them,
namely mandatory injunctive relief under the APA. (Doc. 7-1, p. 26). However,
injunctive relief is not available to Plaintiffs under the APA when, as here, there is
no agency action. See supra pp. 20-23. Accordingly, Defendants’ first argument
to dismiss Plaintiffs’ mandamus claim misses the mark, and this court declines to
hold that Plaintiffs are categorically barred from seeking mandamus relief on the
ground that an alternative remedy is available under the APA.
Even when a plaintiff has no alternative remedies, mandamus relief is only
available if “the ‘plaintiff has a clear right to the relief requested’ (in other words,
the defendant must have ‘a clear duty to act’).” Salmona, 810 F.3d at 811 (quoting
Cash, 327 F.3d at 1258). To have a clear right to the relief requested, a plaintiff’s
right to relief must be “indisputable.” Id., 810 F.3d at 811 (citing Kerr, 426 U.S. at
403). Additionally, mandamus relief is only available when “a government officer
owes [a plaintiff] a legal duty that is a specific, ministerial act, devoid of the
exercise of judgment or discretion.” Dunn-McCampbell Royalty Interest, Inc. v.
Nat’l Park Serv., 112 F.3d 1283, 1288 (5th Cir. 1997) (citation omitted); see also
24

Norton, 542 U.S. at 63 (“The mandamus remedy was normally limited to
enforcement of a specific unequivocal command, [] the ordering of a precise,
definite act about which an official had no discretion whatever.”) (citations and
internal quotation marks and alterations omitted); Kirkland Masonry, Inc. v. C.I.R.,
614 F.2d 532, 534 (5th Cir. 1980) (“Section 1361 [] confers jurisdiction on a
district court only when the defendant official or agency owes a specific duty to the
plaintiff. . . . The duty must be ‘clear, ministerial and non-discretionary.’”)
(citations omitted); 11 Gilbert Equip. Co., Inc. v. Higgins, 709 F.Supp. 1071, 1089
(S.D. Ala. 1989) (“[Mandamus] will issue only if the act to be compelled is
ministerial and so plainly prescribed as to be free from doubt.”) (citation and
internal quotation marks omitted).
Plaintiffs’ allegations do not show they are entitled to mandamus relief.
Plaintiffs first allege the “consultation [required by the Refugee Act] has not
occurred” and Defendants have failed to fulfill their “consultation obligations to
Alabama” under the Act. (Compl. ¶¶ 2, 9-16). Those allegations, however, are
simply “‘naked assertions’ devoid of ‘further factual enhancement,’” and as such,
they are not sufficient to survive a motion to dismiss or show Plaintiffs have an
indisputable right to relief. See Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.

11

In Bonner v. City of Prichard, Ala., 661 F.2d 1206 (11th Cir. 1981), the Eleventh Circuit
adopted as binding precedent all decisions of the former Fifth Circuit announced prior to October
1, 1981).

25

at 557). Likewise, Plaintiffs’ allegations Defendants failed to “consult adequately”
and provide them with “adequate” or “sufficient information about the refugees”
and “denied the State a meaningful role and input into the process of resettlement
of those refugees” are vague and conclusory statements that do not give Plaintiffs
an indisputable right to relief. Id. (See also Compl. ¶¶ 23, 37, 42 & 43).
Plaintiffs’ remaining allegations regarding Defendants’ alleged failure to
consult do not fare any better. Specifically, Plaintiffs allege:
Defendants have breached their consultation duties and obligations
. . . by (2) failing to provide Alabama with information necessary to
assess security and other potential risks posed by refugees . . . ; and
(3) failing to provide Alabama with information necessary to
adequately plan and prepare for the arrival of refugees in the State in
regard to security and requests for social services and public
assistance.
(Compl. ¶ 37). Additionally, Plaintiffs request:
A declaration that [Defendants’] consultation duties and obligations
include: (1) disclosure of sufficient information about the refugees
who have been settled or will be settled within the State of Alabama
so the State may consult with the federal government, assess security
and other potential risks posed by refugees, and adequately plan for
the arrival of refugees within its borders, including in regard to
security and requests for social services and public assistance; (2) []
production of the federal government’s entire file on each refugee
complete with medical history and the basis to support Medicaid
eligibility so the Alabama Medicaid Agency may appropriately
oversee medical assistance as part of the federal government’s refugee
resettlement program; (3) a certification by the Secretary of State . . .
that those refugees pose no security risk; and (4) allowing the State a
meaningful role and input into the process of resettlement of those
refugees.
26

(Compl. p. 14, ¶ B). Nothing in Plaintiffs’ allegations or request for relief show
they have a clear right to relief. Nothing in the Refugee Act requires Defendants to
provide Plaintiffs with “information necessary to assess security and other
potential risks posed by refugees” or “information necessary to adequately plan
and prepare for the arrival of refugees in the State in regard to security and requests
for social services and public assistance.” See 8 U.S.C. § 1522; Compl. ¶ 37.
Moreover, nothing in the Act requires Defendants to provide Plaintiffs with
information about individual refugees to be resettled in the State, the federal
government’s “entire file” on each refugee, or a certification that a refugee
“pose[s] no security risk.” See 8 U.S.C. § 1522; Compl. p. 14 ¶ B. Instead, the
Refugee Act only requires the federal government to consult with the States
regarding the “sponsorship process and the intended distribution of refugees
among the States and localities.” 8 U.S.C. § 1522(a)(2)(A). Thus, Plaintiffs’
allegations do not show they have an indisputable right to relief.
Plaintiffs’ mandamus claim also fails because mandamus is only available
when a defendant owes a plaintiff a clear, ministerial duty. Kirkland Masonry, 614
F.2d at 534 (citation omitted). A ministerial duty is “a duty that is so plain in point
of law and so clear in matter of fact that no element of discretion is left to the
precise mode of its performance.” See Ministerial, BLACK’S LAW DICTIONARY
1146 (10th Ed. 2014). Here, the consultation required by the Refugee Act is not a
27

ministerial duty because there is an element of discretion regarding how
Defendants could perform the required consultations with the States. By the same
token, what constitutes adequate, sufficient, or meaningful consultation with the
States necessarily involves the exercise of judgment and discretion; therefore,
Plaintiffs’ vague allegations that Defendants failed to adequately consult with
them, provide them with sufficient information, or allow them a meaningful role in
the resettlement of refugees within the State do not show Defendants owe them a
clear, ministerial duty.
Plaintiffs’ allegations do not show that they have a clear, indisputable right
to the relief they seek or that Defendants owe them a clear, ministerial duty. As a
result, Plaintiffs have not stated a plausible claim for mandamus relief, and Count
III of the Complaint is due to be dismissed with prejudice.
IV.
Based on the foregoing, Defendants’ motion to dismiss for failure to state a
claim (Doc. 7) is due to be GRANTED and Plaintiffs’ claims are due to be
DISMISSED WITH PREJUDICE.
DATED this 29th day of July, 2016.

_________________________________
JOHN E. OTT
Chief United States Magistrate Judge

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